REGIONAL
FRAMEWORK
for the
Protection of
Traditional Knowledge
and
Expressions of Culture
Secretariat of the Pacific Community Cataloguing-in-Publication data
Secretariat of the Pacific Community
Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture / by Secretariat of the Pacific Community, Pacific Islands orum Secretariat and UNESCO Pacific Regional Office
F
7
1. Title 2. Secretariat of the Pacific Community 3. Pacific Islands Forum Secretariat 4. UNESCO Pacific Regional Office
|
746.9048 |
|
AACR2 |
ISBN: 982-203-933-6
The SPC and the Council of Pacific Arts would like to gratefully acknowledge our partners, the Pacific Islands Forum Secretariat and the UNESCO Pacific Regional Office in the development of this Framework. Grateful acknowledgements also to Professor Kamal Puri for the early drafts of the Framework and without whose contribution the development of the Model Law would not have been possible. Mr Puri was assisted by Mr Clark Peteru. Special thanks also to the World Intellectual Property Organization for their expertise and assistance. And thanks to the region' s legal and cultural experts who finalised this historic document.
BACKGROUND ON THE REGIONAL FRAMEWORK
FOR THE
PROTECTION OF TRADITIONAL KNOWLEDGE
AND EXPRESSIONS OF CULTURE
The Pacific Regional Framework comprising this Background Note, Model Law and Explanatory Memorandum, has been developed to assist Pacific Island countries and territories wishing to legally protect its Traditional Knowledge and Expressions of Culture. The framework is developed in response to calls from the region, in the face of increasing exploitation and inappropriate commercialization of their traditional knowledge and expressions of culture.
The Pacific Regional Framework has been developed in close consultation with SPC, UNESCO and Forum Pacific Island member countries and territories and the Council of Pacific Arts, which comprises the twenty – seven countries and territories which participate in the Festival of Pacific Arts. It is reflective of developments taking place at in international level such as the World Intellectual Property Organisation (WIPO) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO).
The Model Law for the Protection of Traditional Knowledge and Expressions of Culture is a draft model law establishing a new range of statutory rights for traditional owners of traditional knowledge and expressions of culture. The model law provides a basis for Pacific Island countries wishing to enact legislation for the protection of traditional knowledge and expressions of culture.
If an individual country wishes to enact the model law, it is free to adopt and/or adapt the provisions as it sees fit in accordance with national needs, the wishes of its traditional communities, legal drafting traditions and so on. Matters of detail or implementation are left to be determined by national laws and systems.
It should be noted that the model law is to be regarded as a starting point and will continue to be modified consequent on members’ experiences in enacting and administering the law and in accordance with further international developments.
The SPC and Forum Secretariat will assist members, on request, wishing to proceed with the adaptation and enactment of national legislation for the protection of Traditional Knowledge and Expressions of Culture. The SPC and the Forum Secretariat will seek legal-technical assistance from WIPO and UNESCO as appropriate on the establishment, strengthening and effective implementation of the Model Law in accordance with the SPC and Forum Secretariat, Regional Implementation Action Plan.
Recognising that the Model Law is appropriate for national protection only and given that WIPO Members at the 3rd meeting of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, held in Geneva on 13 –21 June 2002, did not support the examination of possible measures for the regional and international protection of expression of folklore, SPC and the Forum Secretariat will undertake to examine existing and future possibilities on the extra-territorial application of the Model Law.
MODEL LAW FOR THE
PROTECTION OF TRADITIONAL KNOWLEDGE
AND EXPRESSIONS OF CULTURE
Table of Provisions
Division 1 – General
Division 1 – Offences
Part 8 – Miscellaneous
MODEL LAW FOR THE
PROTECTION OF TRADITIONAL KNOWLEDGE
AND EXPRESSIONS OF CULTURE
PART 1 – PRELIMINARY
This Act may be cited as the Protection of Traditional Knowledge and Expressions of Culture Act [Enacting country to insert year of enactment].
This Act commences on [Enacting country to complete].
(1) This Act applies to traditional knowledge and expressions of culture that:
(3) This Act does not affect or apply to contracts, licences or other agreements entered into by traditional owners before the commencement of this Act in relation to the use of traditional knowledge or expressions of culture.
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:
Minister means the Minister responsible for this Act.
prescribed means prescribed by the regulations made under this Act.
traditional cultural rights are the rights mentioned in sections 7(2) and (3).
traditional owners of traditional knowledge or expressions of culture means:
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
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).
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:
(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.
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.
(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.
PART 3 – 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:
PART 4 – OBTAINING PRIOR AND INFORMED CONSENT FROM TRADITIONAL OWNERS
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).
(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.
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:
(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:
(1) If the Cultural Authority is satisfied that:
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.
(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.
(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.
(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:
(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.
Division 4 – Applications not made under this Part
(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.
26 Offence in relation to traditional cultural rights
If:
the person is guilty of an offence punishable on conviction by a fine not exceeding an amount equivalent to [Enacting country to determine] or a term of imprisonment not exceeding [Enacting country to determine] years, or both.
27 Offence in relation to moral rights
If:
the person is guilty of an offence punishable on conviction by a fine not exceeding an amount equivalent to [Enacting country to determine] or a term of imprisonment not exceeding [Enacting country to determine] years, or both.
28 Offence in relation to sacred-secret material
If a person uses sacred–secret traditional knowledge or an expression of culture other than in accordance with a customary use, the person is guilty of an offence punishable on conviction by a fine not exceeding an amount equivalent to [Enacting country to determine] or a term of imprisonment not exceeding [Enacting country to determine] years, or both.
29 Offences in relation to importation and exportation
(1) If:
the person is guilty of an offence punishable on conviction by a fine not exceeding an amount equivalent to [Enacting country to determine] or a term of imprisonment not exceeding [Enacting country to determine] years, or both.
(2) If:
(a) a person exports traditional knowledge or an expression of culture and the export is a non-customary use (whether or not such use is of a commercial nature); and
(b) the traditional owners have not given their prior and informed consent to the export of the traditional knowledge or expressions of culture;
the person is guilty of an offence punishable on conviction by a fine not exceeding an amount equivalent to [Enacting country to determine] or a term of imprisonment not exceeding [Enacting country to determine] years, or both.
the traditional owners may institute proceedings against the person in the [ ] Court seeking all or any of the relief set out in section 31.
(2) If:
the traditional owner may institute proceedings against the person in the [ ] Court seeking all or any of the relief set out in section 31.
31 Remedies
(2) The [ ] Court in deciding what relief is to be granted may take into account all or any of the following:
Division 3 – Defences and other matters
It is a defence to an offence against section 26 or 27, or an action under subsection 30(1) or (2), if a determination has been published under section 17 and the traditional owners specified in that determination have given their prior and informed consent to the use in question.
34 Other rights of action and remedies
35 Procedure for transitional arrangements
(1) Subject to subsections 3(2) and (3), this section applies to a person if, immediately before the commencement of this Act, the person was making a non-customary use of traditional knowledge or an expression of culture.
(2) The provisions of this Act do not apply to the person during the period of 60 days (“the application period”) starting on the commencement of this Act.
(3) During the application period, the person must apply under Part 4 to the Cultural Authority to obtain prior and informed consent from the traditional owners to continue to use the traditional knowledge or expression of culture.
(4) If the person does not apply to the Cultural Authority in accordance with subsection (3), the Act applies to the person on and after the end of the application period.
(5) If a person has applied to the Cultural Authority in accordance with subsection (3), the Act continues not to apply to the person until the traditional owners reject the application or enter into an authorised user agreement with the person, whichever first occurs.
36 Designation of Cultural Authority
The Minister may designate an existing [or new] body to perform the functions of the Cultural Authority in section 37.
The functions of the Cultural Authority may include the following:
The Minister may make regulations prescribing all matters:
In accordance with reciprocal arrangements, this Act may provide the same protection to traditional knowledge and expressions of culture originating in other countries or territories as is provided to traditional knowledge and expressions of culture originating in the [Enacting country].
_____________________________
EXPLANATORY MEMORANDUM
FOR THE
MODEL LAW FOR THE
PROTECTION OF TRADITIONAL KNOWLEDGE
AND EXPRESSIONS OF CULTURE
Introduction
The Model Law for the Protection of Traditional Knowledge and Expressions of Culture is a draft model law establishing a new range of statutory rights for traditional owners of traditional knowledge and expressions of culture. The model law provides a basis for Pacific Island countries wishing to enact legislation for the protection of traditional knowledge and expressions of culture.
If an individual country wishes to enact the model law, it is free to adopt and/or adapt the provisions as it sees fit in accordance with national needs, the wishes of its traditional communities, legal drafting traditions and so on. Matters of detail or implementation are left to be determined by national laws and systems.
For example, the rights created in the model law are termed ‘traditional cultural rights’ but enacting countries may choose another term to describe the rights, as they consider appropriate. The notes on the clauses below also indicate other legal and policy issues an enacting country might want to consider if enacting the model law. These notes are not intended to be exhaustive of the issues that might require consideration by an enacting country.
It should be noted that the model law is to be regarded as a starting point and will continue to be modified consequent on members’ experiences in enacting and administering the law and in accordance with further international developments.
National laws that enact the model law could also be read with and complemented by cultural heritage legislation.
The policy objective of the model law is to protect the rights of traditional owners in their traditional knowledge and expressions of culture and permit tradition-based creativity and innovation, including commercialisation thereof, subject to prior and informed consent and benefit-sharing. The model law also reflects the policy that it should complement and not undermine intellectual property rights.
The development of the model law has been guided by responding to a range of questions posed in the document Elements of a sui generis system for the protection of traditional knowledge created by the World Intellectual Property Organisation for consideration by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. These questions include: what is the policy objective of the protection?; what is the subject matter?; who owns the rights?; what are the rights? how are the rights administered and enforced? how are the rights lost or how do they expire etc. These questions are relevant to the development of any effective legal system for the protection of property rights, and not just to the particular approach taken in this model law.
The approach taken in the model law is to create new rights in traditional knowledge and expressions of culture which previously might have been regarded, for the purposes of intellectual property law, as part of the public domain. The rights created by the model law essentially fall into two categories: traditional cultural rights and moral rights. The existence of these rights do not depend upon registration or other formalities.
Traditional cultural rights grant traditional owners exclusive rights in respect of a range of uses of traditional knowledge and expressions of culture that are of a non-customary nature, irrespective of whether they are for commercial or non-commercial purposes. This includes the use of traditional knowledge and cultural expressions for the making of new creations and innovations based thereon (‘derivative works’).
The moral rights created for traditional owners are the right of attribution, the right against false attribution and the right against derogatory treatment in respect of traditional knowledge and expressions of culture.
The model law establishes procedures whereby consent can be obtained for the non-customary use of traditional knowledge and cultural expressions, including the making of derivative works. If a derivative work is created, the intellectual property rights in the work vest in the creator, or as otherwise provided for by intellectual property rights. In other words, intellectual property rights are fully respected, and the model makes it clear that the rights it creates are in addition to and do not affect intellectual property rights. However, should a derivative work or traditional knowledge and cultural expressions be used for commercial purposes, the user must share benefits with the traditional owners, provide acknowledgement of the source of the traditional knowledge or expressions of culture and respect the traditional owners’ moral rights.
The model law provides two avenues by which a prospective user of traditional knowledge or expressions of culture for non-customary purposes can seek the prior and informed consent of the traditional owners for the use of the traditional knowledge or expressions of culture. These avenues are:
In both cases, the prior and informed consent of the traditional owners is to be evidence by an ‘authorised user agreement’. And in both cases, the Cultural Authority has a role in providing advice to traditional owners about the terms and conditions of authorised user agreements and maintaining a record of finalised authorised user agreements.
The model law also creates offences and civil actions for contraventions of traditional cultural rights and moral rights.
NOTES ON CLAUSES
This clause provides that the short title of this Act is the Protection of Traditional Knowledge and Expressions of Culture [enacting country to insert year of enactment]. The date is left blank for insertion by the enacting country.
This clause provides for the commencement of the Act. The commencement date will depend on the relevant law of the enacting country.
Clause 3(1) provides that the Act applies to traditional knowledge and expressions of culture that were in existence before the commencement of the Act, as well as traditional knowledge and expressions of culture that are created on or after the commencement of the Act.
Clause 3(2) provides that the Act does not affect or apply to rights that exist immediately before the commencement of the Act, including intellectual property rights. This clause, however, does not prevent a person who holds rights in respect of traditional knowledge or expressions of culture which came into effect prior to the commencement of the Act, from subsequently transferring those rights by contract or entering into benefit sharing contractual arrangements etc, even retrospectively, with the traditional owners.
Clause 3(2) implements a policy position that the Act does not have retrospective application. It is matter for an enacting country to determine whether it is appropriate to provide for the retrospective application of the Act.
Clause 3(3) provides that the Act does not affect or apply to contracts, licences or other agreements entered into by traditional owners before the commencement of the Act in relation to the use of traditional knowledge or expressions of culture.
This clause defines various terms used in the Act.
This clause provides that customary use of traditional knowledge or expressions of culture does not give rise to any criminal or civil liability under the Act. Customary use, as defined by clause 4, means the use of traditional knowledge or expressions of culture in accordance with the customary laws and practices of the traditional owners. In other words, the Act does not regulate the use of traditional knowledge or expressions of culture where they are used in accordance with customary laws and practices.
This clause confers traditional cultural rights on owners of traditional knowledge or expressions of culture. Enacting countries may use a different term to describe the rights established by the Act if so desired.
Traditional owners of traditional knowledge or expressions of culture, as defined in Clause 4, are:
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.
Traditional knowledge, as defined in clause 4, includes any knowledge that generally:
Expressions of culture, as defined in clause 4, is any way in which traditional knowledge appears or is manifested, irrespective of content, quality or purpose, whether tangible or intangible. A non-exhaustive list of examples of expression of culture includes:
This clause describes what traditional cultural rights are. Traditional cultural rights essentially comprise two rights:
Clause 7(2) lists the types of uses of traditional knowledge or expressions of culture for which the prior and informed consent of traditional owners is required, when the use is non-customary. The process for obtaining prior and informed consent of traditional owners is set out in Part 4 of the Act. Non-customary use of traditional knowledge or expressions of culture means use which is not in accordance with the customary laws or practices of the traditional owners. A non-customary use may be for a commercial or non-commercial purpose.
A person must obtain the prior and informed consent of traditional owners if he or she wishes to use, in a non-customary way, traditional knowledge or expressions of culture in one or more of the following ways:
As provided by clause 5, a person who uses traditional knowledge or expressions of culture in accordance with customary laws and practices does not need to obtain the prior and informed consent of the traditional owners in the manner set out by the Act. Of course, the person may still need to obtain permission under the customary laws or practices followed by that person. For example, a person who intends to perform a dance in accordance with his or her custom does not need to follow the process set out in Part 4 for obtaining the prior and informed consent of the traditional owners of the dance. However, if the person intends to perform the dance in a non-customary way, for example performing the dance in non-customary costumes and with non-customary music, the person must obtain the prior and informed consent of the traditional owners as set out in Part 4. The person would need to obtain this consent whether or not the non-customary performance of the dance was for a commercial purpose.
Clause 7(4) provides that traditional cultural rights do not apply to specific non-customary uses of traditional knowledge or expressions of culture. These specific non-customary uses are:
An example of incidental use of traditional knowledge or expressions of culture would be where a person takes a photograph of another person which incidentally includes in the background the image of a sculpture which is an expression of culture.
Clause 7(5) provides that a person who uses traditional knowledge or expressions of culture in the ways listed in clause 7(4) 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. For example, a teacher who is presenting traditional knowledge information to his or her class is not required to obtain the prior and informed consent of the traditional owners. However, the teacher must make sufficient acknowledgement of the traditional owners when presenting that information to the class.
The list of exceptions is only an example of areas of activity which may be exempted from the exercise of traditional cultural rights. Exceptions may be varied, added or deleted according to an enacting country’s view as to what areas of activity are appropriate for exemption. For example, the provision for face-to face teaching may require further qualification or definition in view of the particular teaching practices, such as teaching via video-conferencing, which occur in the enacting country.
This clause provides that traditional cultural rights exist in traditional knowledge and expressions of culture whether or not that traditional knowledge or those expressions of traditional culture are in material form. For example, traditional cultural rights may exist in relation to a song, whether or not that song has been written down or recorded.
This clause provides that traditional cultural rights continue in force in perpetuity, that is, they do not expire.
The model law does not currently contain any provisions about how traditional cultural rights or moral rights (see Part 3) are to be dealt with when a traditional owner dies. This is mainly due to an assumption that the death of a traditional owner does not affect the existence of traditional knowledge or expressions of culture or customary rights in relation to the traditional knowledge or expressions of culture. However, depending on particular customary practices etc, an enacting country may consider specifying what happens to traditional cultural rights and moral rights following the death of a traditional owner. For example, a clause may be inserted to provide that the traditional cultural rights and moral rights of a traditional owner who has died are to be dealt with in accordance with the customary laws and practices of the traditional owners.
This clause provides that traditional cultural rights are inalienable, that is, they cannot be sold or otherwise transferred.
This clause provides that traditional cultural rights 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. For example, a song may be an expression of culture and so traditional cultural rights will arise in relation to the song, that is, the traditional owners will have the right to consent (or not) to non-customary uses of the song. The existence of the traditional cultural rights will not prevent or affect the actual or potential subsistence of copyright in the song (if the song meets the subsistence requirements of the relevant jurisdiction’s copyright law). This clause implements the policy that the new rights established by the model law supplement and do not override intellectual property rights.
This clause deals with rights in relation to derivative works. The clause also deals with the use of traditional knowledge, expressions of culture and derivative works for a commercial purpose. As defined in clause 4, derivative works are any intellectual creation or innovation that is based upon or derived from traditional knowledge or expressions of culture.
Pursuant to clause 7(2)(h), a person who wishes to create a derivative work must seek the prior and informed consent of the traditional owners to use their traditional knowledge or expressions of culture in the derivative work.
Clause 12(1) provides that the intellectual property rights in a derivative work vest in the creator of the work, or as otherwise provided by the relevant intellectual property laws. (For example, intellectual property laws generally provide that an employer is the owner of intellectual property rights arising from material created by the employees of the employer in the course of their employment). By way of example, an artist who paints a picture which is based upon a community’s particular design will own the copyright in the painting he or she creates. However, the traditional owners will continue to hold traditional cultural rights in respect of the pre-existing expression of culture from which the picture was derived.
Clause 12(2) provides that where traditional owners have given their prior and informed consent to the making of a derivative work for a commercial purpose or to the use of traditional knowledge or expressions of culture for a commercial purpose, the user must:
This clause confers moral rights on traditional owners in relation to their traditional knowledge or expressions of culture.
Clause 13(2) sets out the moral rights of traditional owners. They are:
Clause 13(3) provides that the moral rights of traditional owners exist independently of their traditional cultural rights. As such, moral rights exist irrespective of whether or not a person uses the traditional knowledge or expressions of culture in one of the ways listed in clause 7(2). Furthermore, moral rights are not subject to the exceptions listed in clause 7(4).
Clause 13(4) provides that moral rights continue in force in perpetuity and are inalienable, and cannot be waived or transferred. In other words, moral rights do not expire, and cannot be sold or otherwise transferred.
Part 4 provides two avenues by which a prospective user of traditional knowledge or expressions of culture for non-customary purposes can seek the prior and informed consent of the traditional owners. The prospective user may:
In both cases, the prior and informed consent of the traditional owners is to be evidenced in the form of an ‘authorised user agreement’.
This clause explains that Part 4 sets out the procedure for obtaining the prior and informed consent of traditional owners to use their traditional knowledge or expressions of culture for a non-customary purpose, whether it is of a commercial or non-commercial nature.
This clause provides that a person who wishes to use traditional knowledge or expressions of culture for a non-customary use may apply to the ‘Cultural Authority’ to obtain the prior and informed consent of the traditional owners. The Cultural Authority is discussed further in the notes on Part 7.
Clause 15(2) provides mandatory requirements for the making of an application. An application must:
The enacting country will need to make regulations to prescribe the form of the application and the amount of the application fee.
Clause 15(3) provides that the Cultural Authority must finalise the application in accordance with Part 4 within a specified time. The time is left blank for insertion by the enacting country.
Clause 15(4) provides that if the Cultural Authority does not finalise the application within the specified time, the traditional owners are deemed not to have consented to the proposed use.
This clause describes what steps the Cultural Authority must take upon receipt of an application, to ensure that interested persons are informed of the application.
Clause 16(1) provides that the Cultural Authority must:
A person who claims to be a traditional owner must, pursuant to clause 16(2), advise the Cultural Authority within 28 days after the application is published or broadcast. This advice can be given either orally or in writing. The Cultural Authority must then record this advice in writing (clause 16(3)).
This clause provides that 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 would identify the traditional owners.
Clause 17(2) requires the Cultural Authority to publish a copy of this determination in a nationally circulated newspaper and, if appropriate, broadcast details of the determination on radio or television.
The determination may subsequently be used as a defence by a person in respect of certain offences or civil actions under the Act. This defence is discussed further in the notes on clause 32.
This clause deals with situations where there is uncertainty or a dispute about the ownership of traditional knowledge or expressions of culture.
Clause 18(1) provides that where the Cultural Authority is not satisfied that it has identified all of the traditional owners or where is a dispute about ownership, it must refer the matter to the parties concerned to resolve the matter according to customary law and practice or such other means as is agreed to by the parties.
Once the traditional owners have been identified in accordance with customary law or practice or such means as have been agreed to, clause 18(2) requires the traditional owners to advise the Cultural Authority. The Cultural Authority must then make a written determination containing such details as to identify the traditional owners.
Clause 18(3) requires the Cultural Authority to publish a copy of this determination in a nationally circulated newspaper and, if appropriate, broadcast details of the determination on radio or television.
This clause deals with situations where traditional owners cannot be identified or where agreement on traditional owners cannot be reached.
Clause 19(1) enables the Cultural Authority to make a determination that the Cultural Authority is, for the purposes of the Act, the owner of the traditional knowledge or expressions of culture concerned if it is satisfied that:
Such a determination can only be made following consultation with the Minister responsible for the administration of the Act.
If the Cultural Authority subsequently enters into an authorised user agreement with the applicant, clause 19(2) provides that any resulting benefits, either monetary or non-monetary, must be used for traditional cultural development purposes.
Clause 19 represents a particular policy position, ie that the State can assume ownership of traditional knowledge or expressions of culture in certain situations, which may not be appropriate in some countries. It is a matter for the enacting country to determine the most appropriate way of dealing with applications for use of traditional knowledge or expressions of culture where its owners cannot be identified or where its ownership cannot be clarified.
This division deals with the processing of an application once the issue of ownership of traditional knowledge or expressions of culture has been dealt with under Division 2.
This clause provides that traditional owners must either:
Clause 20(2) requires the traditional owners to notify the Cultural Authority of their decision, either orally or in writing. The Cultural Authority must then advise the applicant in writing of that decision (clause 20(3)).
Clause 21 - Proposed agreement to be referred to Cultural Authority
This clause describes what the traditional owners must do before entering into an authorised user agreement. The clause provides a mechanism for ensuring that traditional owners do not enter into a proposed authorised user agreement that may not be in their interests.
Clause 21(1) provides that traditional owners must refer a proposed authorised user agreement to the Cultural Authority for its comment on the proposed terms and conditions of the agreement.
Clause 21(2) enables the Cultural Authority to request a meeting between the applicant and the traditional owners to discuss the proposed agreement if the Cultural Authority is satisfied that:
The model law recognises that it is the prerogative of traditional owners to make a final determination on the proposed agreement and, accordingly, clause 23(3) provides that the traditional owners may accept, reject or modify any comments made by the Cultural Authority in relation to the proposed agreement.
This clause sets out a list of terms and conditions which should be included in an authorised user agreement.
Clause 23(1) provides that 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.
Clause 23(2) provides that the traditional owners must advise the Cultural Authority and provide it with a copy of the final agreement. Clause 23(3) requires the Cultural Authority to keep a register of final authorised user agreements. The form and content of the register is a matter for the Cultural Authority to determine. The register ensures that there is a record of authorised use. The register may also assist in future identification of the ownership of traditional knowledge and expressions of culture.
This clause deals with situations where the applicant and traditional owners cannot reach agreement on the terms of an authorised user agreement.
Clause 24(1) provides that the traditional owners must advise the Cultural Authority, either orally or in writing, if they cannot agree on the terms and conditions of a proposed authorised user agreement. Clause 24(3) requires the Cultural Authority to record this advice in writing. The Cultural Authority must also advise the applicant in writing that the traditional owners have rejected the proposed authorised user agreement (clause 24(2)).
Division 4 – Applications not made under this Part
Clause 25 - Procedure for applications
Clause 25(1) makes it clear that a prospective user can directly contact the relevant traditional owners to obtain their prior and informed consent without applying to the Cultural Authority. However, the clause also provides a role for the Cultural Authority in such situations, so as to ensure that the Cultural Authority is informed of all proposals for use of traditional knowledge or expressions of culture made under the Act and to provide certain safeguards for traditional owners.
Where a prospective user deals directly with traditional owners, he or she must:
Clause 25(5) provides that traditional owners are deemed to have given their prior and informed consent to the proposed use if they enter into an authorised user agreement with a prospective user.
This Division creates certain offences in relation to the use of traditional knowledge and expressions of culture. The clauses leave blank the maximum amount of the fines and the maximum terms of imprisonment for insertion by the enacting country.
Clause 26 - Offence in relation to traditional cultural rights
This clause creates an offence where a person uses traditional knowledge or expressions of culture in a non-customary way without the prior and informed consent of the traditional owners. The offence is punishable on conviction by a fine and/or imprisonment.
A defence to this offence is provided in clause 32.
Clause 27 - Offence in relation to moral rights
This clause creates an offence where a person either acts or makes an omission that is inconsistent with the moral rights of the traditional owners in relation to traditional knowledge or expressions of culture. The act or omission must have been done without the prior and informed consent of the traditional owners. The offence is punishable on conviction by a fine and/or imprisonment.
A defence to this offence is provided in clause 32.
This clause creates an offence where a person uses ‘sacred-secret’ traditional knowledge or expressions of culture in a non-customary way. ‘Sacred-secret’, as defined by clause 4, means any traditional knowledge or expressions of culture that have a secret or sacred significance according to the customary laws and practices of the traditional owners concerned. The offence is punishable on conviction by a fine and/or imprisonment.
Clause 29(1) creates an offence where:
(a) a person imports into the enacting country an article or other thing that relates to traditional knowledge or expression of culture of that country;
and
(b) the person knew, or ought reasonably to have known, that the item would have contravened the traditional cultural or moral rights of the traditional owners had it been created in the enacting country.
For example, it would be an offence for a person to import from country ‘B’ into country ‘A’ T-shirts bearing a motif, being an expression of culture from ‘A’, if the person knew or ought reasonably to have know that, had the T-shirts been made in ‘A’, the reproduction of the motif would have required the prior and informed consent of the traditional owners under the Act.
Clause 29(2) creates an offence where a person exports, without the prior and informed consent of the traditional owners, traditional knowledge or expressions of culture and the export is a non-customary use.
The offences created by clause 29(1) and 29(2) are punishable on conviction by a fine and/or imprisonment.
This Division sets out the civil claims which may be instituted by traditional owners in respect of breaches of their traditional cultural rights and moral rights and the available remedies. The clauses leave blank the name of the court in which the claim may be instituted for insertion by the enacting country.
Clause 30 - Civil claims
Clause 30(1) provides that traditional owners may institute court proceedings against a person who makes a non-customary use of their traditional knowledge or expressions of culture where the traditional owners have not given their prior and informed consent to that use.
Clause 30(2) provides that traditional owners may institute court proceedings against a person who does an act or makes an omission in relation to traditional knowledge or expressions of culture that is inconsistent with the owners’ moral rights and without the prior and informed consent of the owners.
In each case, traditional owners may seek all or any of the relief set out in clause 31. A defence to both types of claim is provided in clause 32.
This clause sets out the range of remedies that a court may grant in relation to civil proceedings for contravention of traditional cultural rights or moral rights. These remedies include injunctions, damages for loss resulting from unauthorised use and declarations that the traditional cultural rights of the traditional owners have been contravened.
Clause 31(2) sets out a list of factors which the court may take into account in deciding the appropriate relief. As such, this clause provides a court flexibility in deciding the most appropriate remedy or remedies taking into account the particular circumstances of a case, including the nature of any unauthorised use and its subsequent effect, the costs involved and any actions taken by the defendant to mitigate any negative effects of the contravening acts or omissions. For example, in relation to contraventions of moral rights, a public apology by the defendant to the traditional owners may, in some circumstances, be a more appropriate and meaningful remedy than an award of damages.
This clause provides a defence to criminal offences under clauses 26 or 27 and civil actions under clauses 30(1) or 30(2). It is a defence if a determination has been published under clause 17 and the traditional owners specified in that determination have given their prior and informed consent to the use in question. The determination is that made by the Cultural Authority which identifies and contains the details of all the traditional owners in respect of traditional knowledge or expressions of culture for which an application by a prospective user has been made.
For example, traditional owner ‘A’ may initiate proceedings against a person pursuant to clause 30(1), alleging that the person has used an expression of culture owned by ‘A’ without its prior and informed consent. If the person had applied to the Cultural Authority under Part 4 and received a determination stating that the expression of culture was owned by traditional owners ‘B’ and ‘C’ and if the person had subsequently obtained the prior and informed consent of ‘B’ and ‘C’, the person could accordingly plead that determination by way of defence against the claim by ‘A’.
Clause 33 - Other mechanisms to resolve disputes
Clause 33 provides that nothing in Part 5 prevents the traditional owner or the other party concerned from attempting to resolve a dispute using mechanisms other than court proceedings. The clause refers specifically to mediation, alternative dispute resolution procedures and customary law and practices. This clause recognises that there are appropriate and effective means for resolving a dispute outside of the court process.
Clause 34 - Other rights of action and remedies
This clause provides that Part 5 does not affect any rights of action or other remedies, whether civil or criminal, provided for under other Acts or laws. This clauses makes clear that the offences and rights of action created by the Act are in addition to other offences and rights of action that might arise in respect of dealings with traditional knowledge and expressions of culture. For example, traditional owners could also sue for breach of contract if a person breached the terms of an authorised user agreement which he or she had entered into with the traditional owners.
Clause 35 - Procedure for transitional arrangements
This clause deals with the situation of a person who is making a non-customary use of traditional knowledge or an expression of culture at the time the Act commences.
Clause 35(2) provides that the Act does not apply to the person during the period of 60 days following the commencement of the Act. The 60 day period is termed the ‘application period’. Clause 35(3) requires the person who wants to continue to use traditional knowledge or an expression of culture in a non-customary way to apply to the Cultural Authority within the application period to obtain the prior and informed consent of the traditional owners.
If the person does not apply to the Cultural Authority, clause 35(4) provides that the Act applies to the person on and after the end of the application period. If the person has applied to the Cultural Authority, clause 35(5) provides that the Act will not apply to the person until either the traditional owners reject the application or enter into an authorised user agreement with the person.
Part 7 deals with the Cultural Authority which is the body referred to in Part 4. The model law does not include provisions for creating a new statutory body as enacting countries may have existing legislation that they can use to form a new statutory body or to assign an existing body if needed.
This clause empowers the Minister responsible for the Act to designate an existing or new body to perform the functions of the Cultural Authority. It is a decision for the enacting country whether to establish a new statutory body or use an existing body as its Cultural Authority.
Clause 37 sets out possible functions of the Cultural Authority. Enacting countries are able to adopt, adapt or amend the list of functions to suit their particular circumstances.
Part 8 – Miscellaneous
Clause 38 - Regulations
This clause provides that the Minister responsible for the Act may make regulations as required or permitted by the Act for carrying out or giving effect to the Act. For example, regulations are necessary to prescribe the form of the application which prospective users submit to the Cultural Authority and the amount of the fee to accompany the application.
Clause 39 - Recognition of other laws
This clause provides that, in accordance with reciprocal arrangements, the Act may provide the same protection to traditional knowledge and expressions of culture which originate in other countries as is provided to traditional knowledge and expressions of culture originating in the enacting country.
In other words, country ‘A’ may enter into a reciprocal arrangement with country ‘B’ whereby ‘A’ agrees to extend the same protection to traditional knowledge and expressions of culture originating from ‘B’ (but present in ‘A’) as is provided by the Act to traditional knowledge and expressions of culture originating in ‘A’, and vice versa. For example, under such an arrangement, an expression of culture, such as a sculpture, which was brought from ‘B’ into ‘A’ for an exhibition, would be protected while in ‘A’ in the same way as a sculpture, being an expression of culture of ‘A’, is protected under the Act in ‘A’.
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