Anna Paini

Tides of Innovation in Oceania

von Lewinski 2009: 124; Nand 2012). The language employed by the policymakers becomes ‘neither “familiar” nor “unfamiliar”’, an artefact neither of local culture, nor of regional or international institutions (Jolly 1996: 185; see also Riles 1998: 397). In Anthony Seeger’s words, such a language looks at ‘art’ but not much at those who produce that art (personal communication, 12 March 2012). Several legal commentators have been trying to engineer alternative proprietary paths and recommendations to bypass the perceived weaknesses and potential sites of conflict inherent in the development of sui generis legislation. Ownership of traditional knowledge in the sense used by sui generis legislation is not a customary concept. Well cognisant of the fragility of many customary institutions around the region, Miranda Forsyth has been evaluating a series of constructive alternative approaches, from a practical toolbox of regulatory strategies in place of the current proprietary rights approach (Forsyth 2013a) to cultural sustainability strategies urging a consideration of existing customary mechanisms (Forsyth 2015). In particular, after David Throsby (2010), she stresses that regulatory structures need to balance the objectives of supporting the interests of artists and custodians of cultural heritage today, and ensuring the continuation and evolution of local knowledge systems and traditional expressions of culture as a body of inspiration for future generations (Forsyth and Farran 2015: 13–14). In the last decade, theoretical writing by several legal anthropologists has demonstrated the relevance of the social sciences and, in particular, anthropology to the articulation of the complexity of property relations (see Busse and Strang 2011: 2). Both legal anthropology and interdisciplinary scholarship on intellectual property have illustrated the law and society tenet that ‘identities are forged in accommodation and in resistance to law, and that communities and localities are forged in relation to legal representations and their interpretations’ (Coombe 2011a: 80–81). As I examine in the following sections, it is in this climate of constraint on one side and innovation on the other that Fiji is continuing its journey to protect Indigenous Fijian (iTaukei) IP rights in their tangible and intangible cultural heritage via an ad hoc statutory law (Draft Legislation), and a National Cultural Policy (Draft Cultural Policy) designed to inform the Draft Legislation itself. More recently, anthropological analysis of policy and lawmaking, like its older sister legal anthropology, is allowing us to observe under which conditions fragments of culture and society TIDES OF INNOVATION IN OCEANIA 302 are brought into new alignments with each other to create new social and semantic terrains and provide the rationale for ‘regime change’ (see Shore, Wright and Però 2016: 2). Have we been narrowing ‘property’ to mean ‘ownership’? Pacific Island countries’ demand for a policy informing domestic legislations to support the protection of their traditional knowledge and expressions of culture emerged in Fiji in April 1995 with the Suva Declaration, issued at the time the South Pacific Regional Consultation on Indigenous Peoples, Knowledge and Intellectual Property Rights was held in Suva. The Suva Declaration declared ‘the right of indigenous peoples of the Pacific to self governance and independence of our lands, territories and resources as the basis for the preservation of indigenous peoples’ knowledge’ (Preamble). In addition to a hoary, at this point, criticism of the current IP protection system, the Suva Declaration also contains a plan that, although essentially concerned with the protection of local biological resources and calling for a moratorium on bioprospecting in the Pacific, is also designed to ‘encourage chiefs, elders and community leaders to play a leadership role in the protection of indigenous peoples’ knowledge and resources’ (Suva Declaration 3.1), and ‘strengthen the capacities of indigenous peoples to maintain their oral traditions, and encourage initiatives by indigenous peoples to record their knowledge in a permanent form according to their customary access procedures’ (Suva Declaration 8.0). As a result, four years later, in February 1999, UNESCO and the Secretariat of the Pacific Community (SPC) convened a ‘Symposium on the Protection of Traditional Knowledge and Expressions of Traditional and Popular Indigenous Cultures in the Pacific Islands’ in Noumea. The symposium brought together the representatives of 21 states and territories of the South Pacific region. It took stock of the different aspects of the protection of traditional knowledge and expressions of popular indigenous cultures in the Pacific Islands, and adopted a Final Declaration. The next year, the Pacific Island Economic Ministers supported the Pacific Islands Forum Secretariat (PIFS) in its work with the SPC in developing an integrated regional policy framework and model legislation