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Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, Secretariat of the Pacific Community: Model Law for the Protection of Traditional Knowledge and Expressions of Culture

Published online by Cambridge University Press:  17 March 2006

Rights & Permissions [Opens in a new window]

Extract

In this Act, unless the contrary intention appears:

Information

Type
DOCUMENTS
Information
International Journal of Cultural Property , Volume 12 , Issue 4 , November 2005 , pp. 459 - 465
Copyright
© 2005 International Cultural Property Society

4 Definitions

In this Act, unless the contrary intention appears:

authorised user agreement means a written agreement entered into under Division 3 or 4 of Part 4.

customary use means the use of traditional knowledge or expressions of culture in accordance with the customary laws and practices of the traditional owners.

derivative work means any intellectual creation or innovation based upon or derived from traditional knowledge or expressions of culture.

derogatory treatment, in relation to traditional knowledge or expressions of culture, includes any act or omission that results in a material distortion, mutilation or alteration of the traditional knowledge or expressions of culture that is prejudicial to the honour or reputation of the traditional owners, or the integrity of the traditional knowledge or expressions of culture.

expressions of culture mean any way in which traditional knowledge appears or is manifested, irrespective of content, quality or purpose, whether tangible or intangible, and, without limiting the preceding words, includes:

a. names, stories, chants, riddles, histories and songs in oral narratives; and

b. art and craft, musical instruments, sculpture, painting, carving, pottery, terra-cotta mosaic, woodwork, metalware, painting, jewellery, weaving, needlework, shell work, rugs, costumes and textiles; and

c. music, dances, theatre, literature, ceremonies, ritual performances and cultural practices; and

d. the delineated forms, parts and details of designs and visual compositions; and

e. architectural forms.

Minister means the Minister responsible for this Act.

moral rights are the rights mentioned in section 13.

prescribed means prescribed by the regulations made under this Act.

sacred-secret means any traditional knowledge or expressions of culture that have a secret or sacred significance according to the customary law and practices of the traditional owners concerned.

traditional cultural rights are the rights mentioned in sections 7(2) and (3).

traditional knowledge includes any knowledge that generally:

a. is or has been created, acquired or inspired for traditional economic, spiritual, ritual, narrative, decorative or recreational purposes; and

b. is or has been transmitted from generation to generation; and

c. is regarded as pertaining to a particular traditional group, clan or community of people in [Enacting country]; and

d. is collectively originated and held.

traditional owners of traditional knowledge or expressions of culture means:

a. the group, clan or community of people; or

b. the individual who is recognized by a group, clan or community of people as the individual; in whom the custody or protection of the traditional knowledge or expressions of culture are entrusted in accordance with the customary law and practices of that group, clan or community.

5 Customary Use

The customary use of traditional knowledge or expressions of culture does not give rise to any criminal or civil liability under this Act.

PART 2—TRADITIONAL CULTURAL RIGHTS

6 Holders of Traditional Cultural Rights

The traditional owners of traditional knowledge or expressions of culture are the holders of the traditional cultural rights in the traditional knowledge or expressions of culture.

7 Meaning of Traditional Cultural Rights

1. Traditional cultural rights are the rights set out in subsections (2) and (3).

2. The following uses of traditional knowledge or expressions of culture require the prior and informed consent of the traditional owners in accordance with section 23(1) or 25(5):

a. to reproduce the traditional knowledge or expressions of culture;

b. to publish the traditional knowledge or expressions of culture;

c. to perform or display the traditional knowledge or expressions of culture in public;

d. to broadcast the traditional knowledge or expressions of culture to the public by radio, television, satellite, cable or any other means of communication;

e. to translate, adapt, arrange, transform or modify the traditional knowledge or expressions of culture;

f. to fixate the traditional knowledge or expressions of culture through any process such as making a photograph, film or sound recording;

g. to make available online or electronically transmit to the public (whether over a path or a combination of paths, or both) traditional knowledge or expressions of culture;

h. to create derivative works;

i. to make, use, offer for sale, sell, import or export traditional knowledge or expressions of culture or products derived therefrom;

j. to use the traditional knowledge or expressions of culture in any other material form; if such use is a non-customary use (whether or not of a commercial nature).

3. To avoid doubt, the traditional owners are entitled to use traditional knowledge or expressions of culture in the ways mentioned in subsection (2) in the exercise of their traditional cultural rights.

4. Subsection (2) does not apply to the use of traditional knowledge or expressions of culture for any of the following:

a. face to face teaching;

b. criticism or review;

c. reporting news or current events;

d. judicial proceedings;

e. incidental use.

5. A user of traditional knowledge or expressions of culture mentioned in paragraphs (4)(a) to (d) must make sufficient acknowledgement of the traditional owners by mentioning them and/or the geographical place from which the traditional knowledge or expressions of culture originated.

8 Material Form Not Required

Traditional cultural rights exist in traditional knowledge and expressions of culture whether or not that traditional knowledge or those expressions of culture are in material form.

9 Duration

Traditional cultural rights continue in force in perpetuity.

10 Traditional Cultural Rights Inalienable

Traditional cultural rights are inalienable.

11 Additional Rights

The traditional cultural rights in traditional knowledge or expressions of culture are in addition to, and do not affect, any rights that may subsist under any law relating to copyright, trademarks, patents, designs or other intellectual property.

12 Derivative Works

1. Any copyright, trademark, patent, design or other intellectual property right that exists in relation to a derivative work vests in the creator of the work or as otherwise provided by the relevant intellectual property law.

2. If a derivative work, traditional knowledge or expressions of culture are to be used for a commercial purpose, the authorised user agreement must:

a. contain a benefit sharing arrangement providing for equitable monetary or non-monetary compensation to the traditional owners; and

b. provide for identification of the traditional knowledge or expressions of culture on which the derivative work is based in an appropriate manner in connection with the exploitation of the derivative work by mentioning the traditional owners and/or the geographical place from which it originated; and

c. provide that the traditional knowledge or expressions of culture in the derived work will not be subject to derogatory treatment.

3. If a derivative work, traditional knowledge or expressions of culture are to be used for a commercial purpose, the authorised user agreement must:

a. contain a benefit sharing arrangement providing for equitable monetary or non-monetary compensation to the traditional owners; and

b. provide for identification of the traditional knowledge or expressions of culture on which the derivative work is based in an appropriate manner in connection with the exploitation of the derivative work by mentioning the traditional owners and/or the geographical place from which it originated; and

c. provide that the traditional knowledge or expressions of culture in the derived work will not be subject to derogatory treatment.

PART 3—MORAL RIGHTS

13 Meaning of Moral Rights

1. The traditional owners of traditional knowledge or expressions of culture are the holders of the moral rights in the traditional knowledge or expressions of culture.

2. The moral rights of the traditional owners of traditional knowledge and expressions of culture are:

a. the right of attribution of ownership in relation to their traditional knowledge and expressions of culture; and

b. the right not to have ownership of traditional knowledge or expressions of culture falsely attributed to them; and

c. the right not to have their traditional knowledge and expressions of culture subject to derogatory treatment.

3. The moral rights of traditional owners in their traditional knowledge and expressions of culture exist independently of their traditional cultural rights.

4. Moral rights continue in force in perpetuity and are inalienable, and cannot be waived or transferred.

PART 4—OBTAINING PRIOR AND INFORMED CONSENT FROM TRADITIONAL OWNERS

DIVISION 1—GENERAL

14 Overview

This Part sets out the procedure for obtaining the prior and informed consent of the traditional owners to use their traditional knowledge or expressions of culture for a non-customary use (whether or not of a commercial nature).

DIVISION 2—APPLICATIONS FOR USE AND IDENTIFYING TRADITIONAL OWNERS

15 Application

1. A prospective user of traditional knowledge or expression of culture for a non-customary use (whether or not of a commercial nature) may apply to the Cultural Authority to obtain the prior and informed consent of the traditional owners to use the traditional knowledge or expressions of culture.

2. The application must:

a. be in the prescribed form; and

b. specify the way in which the applicant proposes to use the traditional knowledge or expressions of culture; and

c. state clearly the purpose for which that use is intended; and

d. be accompanied by the prescribed fee.

3. The Cultural Authority must finalise the application in accordance with this Part within [Enacting country to insert time period].

4. If the Cultural Authority does not finalise the application within the period mentioned in subsection (3), the traditional owners are deemed not to have consented to the proposed use. 7

16 Public Notification

1. The Cultural Authority must:

a. give a copy of the application to those persons (if any) who it is satisfied are the traditional owners of the traditional knowledge or expressions of culture to which the application relates; and

b. publish a copy of the application in a newspaper having national circulation stating how interested persons may obtain a copy of the application; and

c. if appropriate, broadcast details of the application on radio or television stating how interested persons may obtain a copy of the application.

2. Any person who claims to be a traditional owner of the traditional knowledge or expressions of culture to which the application relates must advise the Cultural Authority within 28 days after the application is published or broadcasted (whichever is the later). The advice may be given orally or in writing.

3. The Cultural Authority must record in writing the details of any oral or written advice given under subsection (2).

17 Identification of Traditional Owners

1. If the Cultural Authority is satisfied that it has identified all of the traditional owners it must make a written determination containing such details as to identify the traditional owners.

2. The Cultural Authority must:

a. publish a copy of the determination in a newspaper having national circulation; and

b. if appropriate, broadcast details of the determination on radio or television.

18 Uncertainty or Dispute About Ownership

1. If the Cultural Authority is not satisfied that it has identified all of the traditional owners or that there is a dispute about ownership, the Cultural Authority must refer the matter to the persons concerned to be resolved according to customary law and practice or such other means as are agreed to by the parties.

2. When all of the traditional owners have been identified in accordance with customary law and practice or such means as have been agreed to, the traditional owners must advise the Cultural Authority, and the Cultural Authority must make a written determination containing such details as to identify the traditional owners.

3. The Cultural Authority must:

a. publish a copy of the determination in a newspaper having national circulation; and

b. if appropriate, broadcast details of the determination on radio or television.

19 No Traditional Owners or No Agreement About Ownership

1. If the Cultural Authority is satisfied that:

a. no traditional owners can be identified; or

b. no agreement has been reached on ownership within the period mentioned in section 15(3) after the application was made; the Cultural Authority may, after consultation with the Minister, make a determination that the Cultural Authority is the traditional owner of the traditional knowledge or expressions of culture concerned for the purposes of this Act.

2. If the Cultural Authority enters into an authorised user agreement, any monetary or non-monetary benefits arising under the agreement must be used for traditional cultural development purposes.

DIVISION 3—AUTHORISED USER AGREEMENTS

20 Application to Be Rejected or Negotiations for Agreement

1. The traditional owners must decide whether:

a. to reject the application; or

b. to accept the application and to enter into negotiations for a written authorised user agreement in relation to the application.

2. The traditional owners must advise the Cultural Authority of their decision. The advice may be given orally or in writing.

3. The Cultural Authority must advise the applicant in writing of the traditional owners' decision.

21 Proposed Agreement to be Referred to Cultural Authority

1. Before entering into an authorised user agreement, the traditional owners must refer the proposed agreement to the Cultural Authority for its comments on the proposed terms and conditions of the agreement.

2. The Cultural Authority may request the applicant and the traditional owners to meet with it to discuss the proposed agreement if the Cultural Authority is, after reviewing the proposed agreement, satisfied that:

a. the traditional owners do not have sufficient information to make a full and informed decision about the proposed terms and conditions of the agreement; or

b. the proposed terms and conditions of the agreement do not adequately protect the traditional knowledge or expressions of culture of the traditional owners.

3. The traditional owners may accept, reject or modify any comments made by the Cultural Authority in relation to the proposed agreement.

22 Terms and Conditions

An authorised user agreement should include terms and conditions about the following:

a. sharing of financial and other benefits arising from the use of the traditional knowledge or expressions of culture;

b. compensation, fees, royalties or other payments for the use;

c. whether the use will be exclusive or non-exclusive;

d. duration of the use to be allowed and rights of renewal;

e. disclosure requirements in relation to the use;

f. the possible sharing by the traditional owners of any intellectual property rights arising from the use of the traditional knowledge or expressions of culture;

g. access arrangements for the traditional owners;

h. education and training requirements for the applicant;

i. controls on publication;

j. specify whether the rights arising under the agreement can be assigned;

k. choice of law in relation to disputes under the agreement;

l. respect for moral rights of the traditional owners.

23 Authorised User Agreement and Prior and Informed Consent

1. If a prospective user and the traditional owners enter into an authorised user agreement, the traditional owners are deemed to have given their prior and informed consent to the proposed use.

2. The traditional owners must advise the Cultural Authority and forward to it a copy of the final agreement.

3. The Cultural Authority is to keep a register of authorised user agreements. The register is to be in such form and contain such information as the Cultural Authority determines.

24 No Authorised User Agreement Reached

1. If the traditional owners and the applicant cannot agree on the terms and conditions of an agreement in relation to the application, the traditional owners must advise the Cultural Authority. The advice may be given orally or in writing.

2. The Cultural Authority must advise the applicant in writing that the traditional owners have rejected the proposed authorised user agreement.

3. The Cultural Authority must record in writing the details of any oral or written advice given under subsection (1).

DIVISION 4—APPLICATIONS NOT MADE UNDER THIS PART

25 Procedure for Applications

1. Nothing prevents a prospective user of traditional knowledge or expressions of culture from obtaining the prior and informed consent of the traditional owners without applying to the Cultural Authority under section 15.

2. The prospective user must advise the Cultural Authority that the prospective user has sought the prior and informed consent of the traditional owners.

3. The prospective user must provide the Cultural Authority with a copy of the proposed authorised user agreement between the prospective user and the traditional owners for comment, and advice about other prospective traditional owners.

4. The prospective user must provide a copy of the signed authorised user agreement to the Cultural Authority to be entered in the register (refer subsection 23(3)) within 28 days after the agreement comes into force.

5. If a prospective user and the traditional owners enter into an authorised user agreement, the traditional owners are deemed to have given their prior and informed consent to the proposed use.

6. The prospective user cannot contract out of the obligation under subsection (3). If a copy is not provided under subsection (3), the authorised user agreement is null and void.