Módulo didáctico de PLC’s

When we talk of ownership in contemporary Tongan society, two issues arise. The first is who owns knowledge or specialised skills, and the second is who owns Tongan traditional cultural expressions. The first relates to the question of who owns the technical know-how or the specialised skills, while the second relates to who owns the physical manifestation of the knowledge or the Tongan traditional cultural expressions. Here we have a close link between the knowledge or the technical know-how of the work created or its physical manifestation. As mentioned earlier, many specialised skills in Tongan society were held by a few individuals, and

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their roles as knowledge/skills holders were to produce and distribute production primarily for the aristocracy and secondarily for the remainder of Tongan society.

However, contemporary Tongan senses of and understanding of ownership vary. From fieldwork conducted in Tonga and Auckland, several common themes arose in relation to ownership. These themes are discussed here and are supported by quotations provided by some of the participants. The names used are pseudonyms.

Ownership is described to have been with Tongan people for many years at both local and global levels. There are some traditional cultural expressions that Tongans consider as belonging to all Tongans, while some are considered as belonging to individuals. What was considered to belong to the group was deemed open for the group to use, while those that belonged to individuals would not be open to all. Here is how one participant described it:

Ownership has been with us globally and locally for many years. Here in Tonga, TCE is owned by all Tongans, no matter who first produced them or where it was produced. It is very hard if one family from, say, Vavau or Ha`apai will claim it. For instance, kupesi such as Tokelau Feletoa and Halapaini … we often ask where it comes from and we do know where some of those kupesi comes from, but to determine ownership in relation to older kupesi and cultural expressions will be quite hard … there should be a body to manage the right to these things on behalf of all Tongans (personal communication 2009, female, age 50).

Mohokoi is here referring to the right of all Tongans to use the traditional Tongan kupesi such as

Tokelau Feletoa, Manulua and Halapaini. The right to use referred to by Mohokoi is what Māhina

(2003) noted as the right of the group to consume and use what the individual tufunga has produced from the use of his knowledge and his skills. When we refer to right here, it is to be distinguished from right as we understand it in the Western legal sense. The right that Mohokoi and Māhina are talking about affiliates more with permission. This becomes clearer when we look to the Tongan language for equivalents to what constitutes right and what constitutes permission.

In the Tongan language, we find the word ngofua, which translates as permission. Ngofua comes from the root word fua and can mean fruit, measurement, or to hold and carry someone or something. Ngo is a prefix that when added to the root word fua means permission or allowed. This is used to mark positive behaviour giving permission, allowing use, or giving permission to access. Ngofua as a concept used in Tongan society is entrenched in values such as faka`apa`apa

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(respect), fetokoni`aki (reciprocity obligations) and tauhi vaha`a (maintaining links, relationships and connections). For example, if A wants to use a design that belongs to B, A must seek permission to use it. Seeking permission to access and use others’ cultural motifs or designs is customary and a normal practice in traditional Tongan society, and still is to a lesser degree in contemporary Tongan society.

The word totonu translates to right and comes from the root word tonu. Tonu is translated into English as right or correct. The word tonu is used in the Tongan language not to imply right as we understand it in the legal sense, but rather it is used in contexts where it implies correctness or right as opposed to wrong. The contexts are linked to societal morals, norms and behaviours. In contrast, when the prefix to is added to tonu we have the word totonu or right. The meaning of

totonu or right in this instance affiliates more to the right we understand in the legal language of

rights. I believe that the word totonu may have been a later addition to Tongan society and grew out of the need to create a word to encapsulate legal rights. The Tongan word totonu is often used in the context of human rights and individual rights, as in the expressions ‘ko e totonu `a e tangata’ that translates to the rights of human beings.

On the contrary, ownership is described as a foreign and introduced concept. For instance, Heilala (personal communication 2008, female, age 40) argues that:

Ownership is not a Tongan thing. The land for instance, for us Tongans … we don’t own it … we live on the land but it is not ours. … We are guardians of the land … ownership then is a Western concept. … For example … what was mine was also my sisters’ … ownership as we understand [it] as Tongans is different from ownership in a Western sense. … Tonga people practice values of love and reciprocal obligations, which is much more then ownership.

Ownership is not only seen as a foreign concept, but it is also seen as demanded by the society Tongans live in. Pako (personal communication 2007, male, age 51) said:

The society we live in today makes it important that we have ownership and to claim the rights to this and that. … I think before it was harder for people to just use something that they didn’t create, but now it is much easier. Today, if someone creates a design, others will copy it without permission of the person who creates it or owns it. Here in Tonga, people are now creating their own designs, crafts and much more then what was there in the past.

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Fa (personal communication 2008, male, age 35) said:

Ownership is a foreign concept … if there is anyone who can describe it and explain it to the Tongans so that they can understand it … if someone creates something and that person claims it and also prevents others from using it … We have a Copyright Law which is very new.

Ownership is linked to commercialisation and the introduction of monetary value. As Heilala (personal communication 2008, female, age 40) noted in her response:

Ownership was not important back in those days because there was no money. Say for example, a person who produces a song: he will produce a song for use in the village or men’s group. He produced the song for cultural purposes and not for the purpose of selling it to get some money. And people were known in those days for what they were doing or what they were producing. With art and music, tapa, kupesi and mat production, ownership was not really important but now that it is moving to commercialisation, it then has a monetary value attached to it and it becomes the most important value. It is when property starts having monetary value attached to it that people start setting up regulations and law to safeguard what they have produced, whether it be

ta`anga or kupesi that have monetary value attached to it, then Tongans should safeguard it to

avoid others from using it. For example, people such as Nau Saimone and them, they wrote and produce music for enjoyment, and when they hear of people who take them and record them, then they start feeling that there is monetary value attached to it, then there is monetary value in it so that is when ownership starts coming into play. It is the commercialisation of products that creates ownership.

Maile (personal communication 2006, female, age 38) supports Heilala’s views by arguing that traditional knowledge and traditional cultural expressions were only “protected because it was highly emphasised in the tourism market … and it is important if it is done well. When this happens, knowledge is no longer shared but monopolised”. Both Maile and Heilala are here talking about the shift in emphasis from traditional cultural expressions and social value to monetary value.

The existence of intellectual property laws in Tonga does not mean that the majority of Tongans know they are there. This is also the case for most local artists, producers and consumers of traditional cultural expressions. Most Tongans practice, produce and consume traditional cultural expressions without knowing that intellectual property laws exist. Some are not even aware that copying a design from another person’s work is prohibited by copyright law. However, those who are aware of intellectual property laws have some understanding of at least what it means to

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own a design and not have others copy it. For instance, Sinamoni (personal communication 2008, male, age 32) noted that “The question of ownership has been introduced only in the last 100 years … this is mine, this is what the law says … this is my property … this is my car, this is my knowledge”.

Pua (personal communication 2007, male, age 47) supports the statement made by Sinamoni:

Copyright is a foreign concept and it has [in] its own subtle way, suffocated the essence of Tongan expressions by superimposing this Western concept of ownership … the idea of community and sharing … being useful to be useful beyond yourself and your immediate family … are elements of our Tongan expressions that are embedded in a culture and it filters through the way that we carry out different activities … the expressions of giving a lot to the church … is that it is given to a community entity, kolisi tutuku is an expression of giving back to a collective … is not that I own it, but that I am part of it and being part of something is more important than saying that I have legal title to this particular intellectual property…

However, knowledge of intellectual property laws enables some Tongans to make links between ownership and several common elements of intellectual property laws. Moana argues that “whoever registers a kupesi should have the right to it, but if a kupesi was produced here in Tonga then no one should claim it or monopolise it as their own, avoiding [preventing] others from using”. The argument against monopoly and preventing others from use of traditional cultural products such as kupesi is evidenced in Kalia’s statement (personal communication 2008, male, age 49) that:

I don’t think anyone should claim private ownership to anything that is Tongan. … Tomui Kaloni for example registered his fonu76 _{work to avoid people from doing it. … I disagree with}

what he has done because I think he can register the design but he cannot register the form of art … it is the stencil that I can register but to register the type of art, I do not think so because anyone Tongan can just do it.

Tomui Kaloni’s work uses a turtle or fish mounted design, decorated with Tongan traditional

kupesi (designs or motifs). Kaloni received the Kingdom of Tonga’s first-ever patent for his

attractive three-dimensional designs in tapa made from mulberry tree bark. His turtle and fish images feature raised shell and he calls them “3-D embossed tapa”. In April 2004, Kaloni received a patent for his “3-D Emboss tapa technique”, the first patent Tonga ever registered.

76 _{Fonu means turtle and is reference here in relation to Tomui Kaloni’s 3D turtle mount that will be discussed in}

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The registered patent for the 3-D Emboss tapa technique means that Tomui Kaloni owns the rights for the new technique. The Smithsonian Institute in the USA has stated that the 3-D Emboss technique has revolutionised tapa and characterized this technique as the latest addition to the history of tapa as an art form (Pacific Business Trust 2004). In Kaloni’s interview with the Pacific Business Trust, he says tapa has always been flat, while this technique is different because it is raised and not flat.

However, some Tongans have argued that the 3-D Emboss techniques for tapa making had been there before Tomui Kaloni. Some also voiced disappointment that Kaloni decided to monopolise this technique that they thought all Tongans should have to right to also use. The legal ramifications of the grant of patent for Kaloni include preventing others, including fellow Tongans, from using this method. The grant of patent to Kaloni has not prevented Tongans from using this method in Tonga. A visit to the local market in Nuku`alofa would reveal a few 3- D embossed tapa pieces displayed for sale.

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