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was led by SPREP; traditional knowledge resources and traditional knowledge.
and expressions of culture was led by “The treaty enables indigenous peoples to demand
SPC; and intellectual property rights international recognition of their indigenous/traditional
(patents, inventions, and copyrights/ knowledge systems by providing a benchmark which we can
creations) by PIFS. now use as the bare minimum standard of ethical practice and
This regional effort also resulted in engagement with indigenous peoples,” adds Vaka’uta.
the development of national legislation “This includes the baseline principles and processes of
by Vanuatu, Cook Islands, and Samoa. engagement. In the past, while several countries have had
Vaka’uta said Fiji is currently working on in place their own national legislature for the protection
Third World Network
legal advisor, Chetali Rao. its legislation while other countries such of traditional knowledge, jurisdiction has been one area of
Photo: Supplied
as Kiribati are beginning legislative work. concern. An international treaty addresses this issue. This
In addition, SPREP has produced the Pacific Access and Benefit is the first WIPO treaty to include provisions specifically for
Sharing (ABS) Implementation Guidelines for countries. indigenous peoples, as well as local communities.”
Vaka’uta said there is a long list of instances where the Vaka’uta said it needs to be remembered that IP systems
use of traditional knowledge in the Pacific has not been were not designed to cater for collective ownership
sanctioned by the local community of knowledge holders and arrangements such as those within which indigenous/
access points have been vague and/or contested. This ranges traditional knowledge systems operate and exist. This makes
from the use of traditional knowledge for pharmaceuticals, to for a tremendous mismatch between Western knowledge
cosmetics, music, fashion, and even language (names). systems and traditional knowledge systems, who those in the
Chetali Rao is a legal advisor and senior researcher with Pacific understand knowledge holders/owners to be, and how
Third World Network (TWN), an independent non-profit that knowledge and those owners are protected. This treaty
international research and advocacy organisation involved is the first of several that could address this mismatch and
in issues relating to development, developing countries and provide for the protection of traditional knowledge holders.
North-South affairs. She said while the treaty represents a critical international
Rao, who was at the Geneva WIPO conference, said the benchmark mechanism, countries still need to put in place
treaty provides a process and mechanism by which Pacific their own legislative processes, as well as mechanisms by
nations may make a case for those aspects of traditional which to register and protect their traditional knowledge.
knowledge that relate to the identification, access and use of According to WIPO assessments, she adds, the national
genetic resources. intellectual property system usually involves laws on different
However, she told Islands Business that the United States categories of intellectual property such as patents, copyright,
had insisted on wording in the final text of the treaty that designs, and trademarks. Those countries that already have
curtails the latitude of countries to invalidate patents. That, the legislative framework in place will now need to undertake
she said, made the treaty akin to a toothless tiger. a review to ensure that it is in line with the treaty, while
“What they’ve done is that they said that no country can those that do not have legislation in place yet will now need
actually revoke, invalidate, or nullify the patent that has to think about what that should look like.
been granted on the basis of misinformation,” said Rao. “So, Vaka’uta said while the treaty has taken 25 years of
the fact is that the patentee has no fear of it. The patent can negotiations, there are gaps that have yet to be addressed,
only get revoked in cases of fraudulent [action].” namely through a draft international legal instrument relating
Article 3.5 of the treaty states that “contracting parties to Intellectual Property and Traditional Knowledge/Traditional
shall not place an obligation on Office to verify the Cultural Expressions. This much anticipated legal instrument
authenticity of the disclosure”. is expected to provide more substantive coverage and scope
Article 3.3 says the declaration is to be “true and correct to of protection for indigenous/traditional knowledge systems.
the best knowledge of the applicant”.
“So, what [is] best knowledge?” asks Rao. “There’s a Does the Pacific have the resources?
thin line between best knowledge and fraudulent [action]. There already is an issue brewing on the horizon, with
So, how [do you] prove it is to the best of the patentee’s the rise of a kava extract market overseas, especially in the
knowledge? And again, the Office is. not obligated to verify United States, where kava bars are using kava extracts and
the authenticity of the disclosure.” not the kava that is known to the Pacific.
There are concerns this may affect kava exports from the
A first step region.
Pacific experts are of the view that where there previously The kava extract has been patented in the United States.
was no means of addressing the issue, the treaty provides a John Sanday, who is Executive Chairman and owner of kava
first step in that direction, despite the apparent gaps. exporting company, Kava Korp, said the treaty may be in
Dr Apo Aporosa, Senior Lecturer in Pacific Health at the place but it will be up to national governments to put in place
University of Waikato, says the treaty is a step forward for the or amend legislation to protect genetic resources.
Pacific as it provides an internationally recognised ‘contract’ “We have to ask whether the Pacific or the traditional
aimed at protecting indigenous intellectual property, genetic societies have the resources or can afford to engage lawyers

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