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Koloa tukufakaholo incorporates traditional cultural expressions and traditional knowledge and

treats them as inseparable. While this work also endorses holistic interconnectedness between the tangible and intangible aspects of koloa tukufakaholo, it will only deal with traditional cultural

27 _{European explorers (from 1616-1810) in Tonga also make no mention of or reference to koloa tukufakaholo}

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expressions, mainly because of the scope and time limits this work is subject to. Moreover, the decision to focus on the traditional cultural expressions aspect of koloa tukufakaholo is also influenced by the scope of protection provided by intellectual property. Since this work looks at both cultural and intellectual property protection of Tongan traditional cultural expressions, it inevitably delves into both cultural and legal means of protection. Cultural means refer to inter alia cultural policies, protocols, guidelines and inventories, while legal means are intellectual property laws or cultural heritage laws.

Traditional cultural expressions or expressions of folklore form a vital part of an individual, group or nation’s cultural heritage. While the terms traditional cultural expressions and expressions of folklore are used interchangeably in other contexts, some indigenous peoples do not endorse the use of the term folklore. Therefore, the term traditional cultural expressions is used throughout this thesis.

This lack of endorsement for the use for the term folklore is due largely to the negative connotations associated with the term and the underlying assumptions that describe the elements of cultural heritage as being passed on. Therefore, traditional cultural expressions is considered more neutral and covers “potentially customs, traditions, forms of artistic expressions, knowledge, beliefs, processes of production and spaces that originate in many communities throughout the world” (Janke 2003a: 25). The term traditional cultural expressions incorporates both tangible and intangible aspects and can either be one or the other or a combination of the two.

Defining traditional cultural expressions and expressions of folklore is often a strenuous task, mainly because of the nature and scope that traditional cultural expressions cover. However, WIPO provides a working definition of traditional cultural expressions or expressions of folklore (WIPO n.d.: 7):

Productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community, in particular:

- Verbal expressions, such as folk tales, folk poetry and riddles, signs, words, symbols and indications;

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- Expressions by actions, such as folk dances, plays and artistic forms or rituals; whether or not reduced to a material form; and

- Tangible expressions, such as: productions of folk art, in particular drawings, paintings, carvings, sculptures, poetry, terracotta, mosaic, woodwork, metal ware, textiles, carpets, costumes, crafts, musical instruments and architectural forms.

WIPO uses the terms traditional cultural expressions and expressions of folklore interchangeably. However, it is also important to note that WIPO’s definition derives from years of working closely and in collaboration with indigenous peoples and communities worldwide. Its definition has incorporated some of the variances identified by indigenous peoples through several initiatives and works done over the years. For example, WIPO collaborated with the Secretariat of the South Pacific Community and UNESCO in 1999 to host the Symposium on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands, and in 1999 WIPO undertook the Fact Finding Mission in different regions. Nevertheless, in the context of this work and as I have explained earlier, the term traditional cultural expressions will be used, as it recognises the interconnected relationship between tangible and intangible heritage. This is particularly true for many traditional communities and for an archipelago such as Tonga that views traditional knowledge and the forms this is expressed in as inseparable: the knowledge is inseparable from the ways of life, cultural values, spiritual beliefs and customary laws of Tongan people. Traditional knowledge can be associated with cultural expressions such as songs, chants, narratives, legends, designs and motifs. More importantly, traditional cultural expressions are timeless and continue to be practiced and passed from generation to generation.

Traditional cultural expressions have been the subject of many international discussions and debates and some of these have been referred to in earlier chapters. These debates have drawn attention to specific claims of misappropriation and misuse of traditional cultural expressions and are further discussed in later chapters. This extensive international policy discussion over the protection of traditional cultural expressions has led to further regional and international development of policies and laws in this area.28 _{This development is necessary in light of new}

technologies that make heritage and culture more globalized, accessible and commercialised. Nonetheless, the protection of traditional cultural expressions is often associated with traditional knowledge in its narrowest sense. In this sense, traditional knowledge refers to the technical

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know-how linked to traditional ecological or medical knowledge.29 _{This include “the content of}

or substance of traditional know-how, innovations, information, practices, skills and learning of traditional knowledge systems such as traditional agricultural, environmental or medicinal knowledge” (WIPO n.d: 5). In this regard, the work of international organisations such as the World Intellectual Property Organisation and regional organisations such as the Secretariat of Pacific Community are vital.

However, before any talk of protection can be realised, the question of what constitutes Tongan traditional cultural expressions should be dealt with, as it is most important that the subjects or things to protect are identified. Key aspects of traditional Tongan arts will be discussed as a means to understand and ascertain what constitute traditional cultural expressions and why they are significant to Tongan people.

3.4 Traditional arts of Tonga