One only needs to take a look at the timeline of events on matters held dear by Fijians or First Nation People of Fiji and see where the damage of deconstruction that has taken place and decreed by coup master Bainimarama and his sidekick Khaiyum. To list a fe of those; Dismantling of Great Council of Chiefs, Dictating /decree on dress codes and behaviour at village level as if there was no Chiefs to cater for this need, back door land policies and invention of land bank to please others except those Fijians/First Nation People of the land, abolishing models set up by Ratu Sir Lala Sukuna on land issues and protocols to safeguard Fijian interests, Ratu Sukuna Day being stopped and now replaced by Ghandi Day......etc etc??
Are this regime really trying to please World Bank and IMF and United Nations by conforming to their structural adjustments policies or is it the dictator is working so hard with Khaiyum to just dismantle every thread of hope that Indigenous Fijians have about themselves and their values.
'Na Dina' Fiji Truth will Prevail in the end.
Fiji Truth Commission Movement.
Read more;
CULTURAL AND INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLES OF THE PACIFIC
Aroha Te Pareake Mead
Suva, Fiji 4 September 1996
Articles 12 and 14 of the Draft Declaration on the Rights of Indigenous Peoples pertain to
cultural property and folklore provisions.
Article 12
Indigenous peoples have the right to practise and revitalise their cultural traditions and customs. This
includes the right to maintain, protect and develop the past, present and future manifestations of their
cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and
visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual,
religious and spiritual property taken without their free and informed consent or in violation of their laws,
traditions and customs.
Article 14
Indigenous peoples have the right to revitalise, use, develop and transmit to future generations their
histories, languages, oral traditions, philosophies, writing systems and literature and to designate and
retain their own names for communities, places and persons.
States shall take effective measures, whenever any right of indigenous peoples may be threatened, to ensure
this right is protected and also to ensure that they can understand and be understood in political, legal and
administrative proceedings, where necessary through the provision of interpretation or by other means.
Article 12 mentions restitution. Implicit in this is repatriation and an acknowledgement that many properties have been taken in violation of traditional customary laws and/or traditional customs have been subjugated through colonisation. Therefore within the sphere of cultural property, the debate tends to focus on redress as being the return of misappropriated items to the original indigenous owners or their descendants, and the revitalisation of cultural traditions, including language, that were previously denied.
Issues such as; protection and use of sacred sites, repatriation and reburial of human remains, recovery of scared and ceremonial objects and resurgence of indigenous languages including placenames.
Indigenous peoples argue that all heritage, intangible and tangible, including lands, waters and resources constitutes cultural property but as can be seen, western norms simply cannot accommodate such a world view within the parameters of ‘culture’. So entrenchedregarded only as tradeable commodities and not as an expression of cultural identity.
Hence, much of what indigenous peoples would regard as cultural property has been transferred into the legal construct of intellectual property.
http://www.ubcic.bc.ca/files/PDF/fiji.pdf
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Indigenous Intellectual Property Rights
The General Theory, and Why It Does Not Apply in Hawaii
SUMMARY
Copyright, patent, and trademark are the three best-known ways of guaranteeing property rights for the intangible products of mental work, or for the value added by a producer's past performance and reputation.
In modern, Western societies such intellectual property rights are held by individuals or corporations. These rights are guaranteed by the legal system through formal registration of documents with government agencies. If one individual or corporation infringes on the property rights of another, the rights are enforced by courts.
But in primitive, indigenous societies knowledge and cultural products are created by informal interaction among all the members of the group in their daily relationships with each other and with their ancestral lands. Indigenous knowledge and property rights belong to the group rather than to any individual or corporation. Indigenous copyrights, patents, and trademarks are not written down, nor are they registered with any government agencies. It is not conceivable that individuals belonging to an indigenous group could infringe on the property rights of others -- they spontaneously give their work product to the group, and freely take what they need from the group. Indigenous knowledge is owned by the group because it is a group product arising from spontaneous consensus and osmosis.
The problem with indigenous intellectual property rights is that they are informal and unwritten, which makes it easy for outsiders to ignore, violate, and steal them. But indigenous intellectual property rights deserve respect. Simple respect for human rights imposes on civilized societies a moral obligation to treat indigenous intellectual property rights as though they were formally registered. Indigenous intellectual property rights should be thought of as comparable to aboriginal land title -- not written down or formally registered, but deserving of moral respect and entitled to legal protection. Such protection would be delivered through the legal system of the modern nation which has engulfed the primitive tribe, or through "international law."
Confusion arises when people living a modern lifestyle but claiming to be indigenous try to assert the special protections that might have been appropriate to the indigenous status of their ancestors. Knowledge created in ancient times, belonging to an indigenous group as a whole, is held today by individuals who are fully civilized and assimilated. Property rights belong to the people who own the property, not to the property itself. Therefore the decision whether to recognize indigenous property rights depends on whether today's property owners are indigenous today, not on whether the knowledge itself was created by long-ago indigenous ancestors.
INDIVIDUAL RIGHTS, GROUP RIGHTS, NAIVETÉ, WARDSHIP
One important difference between developed societies and indigenous societies is that developed societies focus on the rights of individuals. Indigenous societies are often so naive that the concept of "rights" is foreign to them; but if rights are recognized, then individual rights are far subordinate to the rights of the group as a whole. An indigenous society has individuals constantly interacting among themselves and their environment in close, intimate, informal situations where knowledge emerges spontaneously as a result of those group interactions. In a developed society intellectual property rights belong to individuals, and are seen as a way for an individual to protect his private property rights against other individuals and also against the society or the government. But an indigenous society has such strong group cohesion that the rights of the group are vastly more important than the rights of the individual, and intellectual property belongs to the group. The cohesiveness of an indigenous tribe allows a “talking chief” to speak on behalf of the entire tribe, just as the head of a family can speak for the entire family.
Another important difference between developed societies and indigenous societies is that in a developed society the individuals are presumed to be competent and rational, capable of protecting their own property either by themselves or by hiring an attorney. But an indigenous society must be treated as a group, whose status in the larger world is comparable to that of a child or an incompetent person. The intellectual property rights of an indigenous group are not written down in copyrights, patents, or trademarks; but should be treated as though they were.
In developed societies we protect the sexual innocence of a child by making laws setting the "age of consent." We believe that a child of less than a specified minimum age lacks the sophistication to be capable of giving informed consent. We conclude that any sexual relationship between a minor and an adult was not knowingly consented to by a fully informed or competent person, and therefore it was rape. The same theory applies to intellectual property, knowledge, or products of the land taken by a developed society from an indigenous group. An indigenous tribe should be regarded by a developed society as being like an individual child or incompetent adult. If an indigenous tribe is engulfed by a developed society exercising sovereignty over its territory, the relationship is therefore wardship or guardianship.
COPYRIGHT, PATENT, AND TRADEMARK -- CAPITALIST VS. SOCIALIST
Copyright, patent, and trademark are the three best known ways of guaranteeing property rights for the intangible products of mental work, or for the value added by a producer's past performance and reputation. The words someone writes are worth far more than the paper on which they are printed. An author is entitled to payment for his work in capturing ideas and communicating them, and for his skill in evoking insight and emotion in the minds of his readers. An inventor deserves payment for conceptualizing the design of a machine. A buyer will pay more for a product whose authenticity or subsurface quality is guaranteed by the good name of the manufacturer. A buyer is willing to pay more for a product than the value of its materials plus distribution costs. That excess value, or the excess money paid in expectation of it, rightfully belongs to the person or corporation whose creativity made it possible or whose past performance gives a buyer confidence.
In a socialist or communist system the slogan is "from each according to his ability, to each according to his need." Creative or skillful people are expected to produce high quality goods and services simply as a matter of routine. Perhaps a writer or artist produces work for the sheer enjoyment of it, because creativity spontaneously craves expression. Perhaps they do it because they want to serve their community, or because they get applause. Perhaps creative work is no different from manual labor. The work someone does in creating a concept or design is no more valuable than the physical labor of a farmer or fisherman who works for the same length of time. Thus, an author whose book sells a million copies deserves no more pay than an author whose book sells only a thousand copies, or an author of a government report of the same length destined for the eyes of only a few bureaucrats. The author received food and shelter from the community during the time he was writing; thus, the community now owns his work and has already paid him for it.
An important difference between a capitalist economic system and a socialist or communist system is that capitalism places great value on the rights of individuals to own and profit from their individual property, including the work of their minds. Capitalism views human nature as fundamentally selfish and acquisitive. Thus it comes as no surprise when people with special talents are willing to spend great time and effort to cultivate those talents and to create products with a potential for great profit. The value of a product to society is fairly measured by the profits it generates. Capitalist theory holds that an author is entitled to payment from each person who reads his work, so that a book which sells a million copies entitles its author to ten thousand times as much profit as a book which sells only a hundred copies. A capitalist has no trouble understanding why the socialist economic system produces stagnation and a low standard of living due to lack of the profit motive.
INDIGENOUS COPYRIGHT, PATENT, AND TRADEMARK ARE GROUP PROPERTY; SHOULD BE RESPECTED LIKE ABORIGINAL LAND TITLE, EVEN IF UNWRITTEN
Consider now an indigenous tribe, living separate and apart on its own ancestral lands. It maintains a subsistence lifestyle intimately dependent on the land for daily sustenance from hunting, fishing, gathering, and growing food. The tribe has a set of folkways passed down through the generations from time immemorial. Tribal knowledge belongs to the tribe as a group. If an individual member happens to discover a new or improved way of producing food, that knowledge is immediately shared with the group and becomes a part of tribal knowledge.
Indigenous people are not even aware they are indigenous. Their lives are spontaneously attuned to their environment. They chant, play bamboo flutes, and pray in ways unique to this particular tribe -- the copyrights for the music and lyrics are unwritten and belong to all members collectively. Their carved bone fishhooks have a unique twist created by a process passed from father to son in the families of master carvers. Their bark cloth has a special combination of delicacy and toughness created by the process taught by mothers to daughters. Their method of building a wall to enclose a portion of the ocean to create a fishpond, and especially the design of the gate they open and close to let small fish come in and stop big fish from getting out, is unique. Healers create medicines from plants that grow only in the tribe's ancestral lands. The patents for all these things are unwritten and owned by the tribe as a group. Each maker of fishhooks scratches a mark into the bone invoking the spiritual power of his family geneology. Each piece of bark cloth is stamped with a design common to all the families in the tribe, with special embellishments indicating the particular family that made it. These trademarks are created spontaneously by habit, as an expression of spirituality or geneology, not as conscious or artificial brandings to claim ownership. The trademarks are not registered with any government agency, but nevertheless are immediately recognized (or perhaps it would be more accurate to say that an absence of the trademarks would be immediately noticed).
Indigenous knowledge is produced spontaneously by the interaction of tribal members with each other and with their tribal landscape. Indigenous knowledge is produced by a group and belongs to the group. Indigenous knowledge is part of an economic system that is inherently socialist or communist, based on cooperation rather than competition. Copyrights, patents, and trademarks are unnecessary inside such a system, because individual rights are always subordinated to the rights of the group.
The problem arises when individuals or corporations from an advanced capitalist society have contact with a primitive indigenous tribe. The tribe's songs, dances, and artwork might be valuable commodities in the international capitalist economy. Tribal medicines might cure the diseases plaguing civilized societies. Plant and animal species endemic to the tribal lands, and cultural products, might be taken without permission by explorers or given freely to them by tribal members who have no way of knowing the enormous profits to be made. That's why common decency requires respect for the rights of innocent, naive indigenous people who are ignorant of capitalist economics and civilized legal systems.
The United States has long acknowledged "aboriginal land title." The idea is that tribes "own" their ancestral homelands even though they never had a written property deed. Following the Indian wars and the use of military force to push tribes out of their ancestral homelands and onto reservations (often far away from the homelands), Congress passed a law that remaining aboriginal land title would be acknowledged and could be changed only by an act of Congress. Thus, any sale of land by an Indian tribe to an individual, corporation, or local or state government was automatically presumed to be invalid unless Congress had explicitly approved it. The purpose was to protect Indian tribes against unscrupulous people, or state or local governments, who would otherwise take advantage of the Indians' ignorance of the concept of private land ownership and the system of recording written property deeds. Likewise, in recent years courts have begun recognizing that an artist who sells a painting sells only the actual physical object, but retains a right to control and profit from future reproductions of that painting unless such rights are explicitly conveyed along with the painting itself. Indeed, an artist who sells a work of art has a continuing right to prevent the buyer from making changes that would alter its content or concept in future public displays.
Indigenous intellectual property rights should be seen as similar to aboriginal land title, or the rights of artists to control reproductions or alterations after purchase. Unwritten, unrecorded indigenous copyrights, patents, trademarks, and real estate titles are just as real and worthy of respect as written ones registered officially with government agencies in civilized societies. From the standpoint of Western law, an indigenous tribe should be regarded as a single person or corporation having the right to control the use of, and receive money for, its intellectual property and the products of the lands it owns. So long as indigenous knowledge and the products of the ancestral lands are used only within the tribe and its lands, nothing needs to be encoded in writing. But when a relationship is established between outsiders and an indigenous tribe, the outside legal system should protect tribal rights in the same way it protects the rights of minors or incompetent adults. Indeed, that's the theory behind Indian law in America -- the federal government stands as trustee, having complete power to make decisions on behalf of the tribes. Like a parent, the "great white father in Washington" can make decisions which the tribes might not like but are considered to be in the tribes' best interest. Furthermore, because the federal government is the ultimate sovereign, it has the right to make decisions in the government's own best interest even when contrary to the best interest of the tribe (including confiscation of lands without payment, or even the disbandment of a tribe).
Another example of group property rights for an indigenous tribe is NAGPRA: the Native American Graves Protection and Repatriation Act passed by the U.S. Congress in 1990. Similar legislation has been passed or is under consideration in other nations. That law allows Indian tribes to force museums to return to a tribe the bones and tribal artifacts collected (often illegally or unethically) by the museum. But in order for the law to work, there must be someone authorized to make the tribe's demand and to receive the tribal property.
Indigenous intellectual property rights, and aboriginal land title, depend upon the cohesiveness of a tribal group and the ability of a “talking chief” or tribal council to speak on behalf of the entire group. Indigenous copyright, patent, and trademark; aboriginal land title; and aboriginal ownership of tribal bones and artifacts, are all unwritten, informal, and dependent on enforcement by the legal system of a modern society willing to create formal procedures to use its plenary powers over a domestic dependent nation to fulfill a moral obligation of wardship or guardianship.
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