INTRODUCTION
In the early 1990s, Pacific Island peoples began translating western legal ideas into local realities to pursue local struggles. At the same time, they started to assimilate new visual media forms to their own cultural and political concerns.Footnote 1 Ginsburg, Abu-Lughod, and Larkin have recently observed that debates about indigenous media reflect the “changing status of ‘culture,’ which is increasingly objectified and mediated as it becomes a source of claims for political and human rights both nationally and on the world stage.”Footnote 2
A former lawyer with an interest in sui generis regimes of protection of intangible cultural property, I arrived in Fiji in October 2004 puzzled by my recent reading of Brown's comments on the “Byzantine series of regulations” recommended by international bodies like UNESCO and World Intellectual Property Organization (WIPO)Footnote 3 to Pacific Island communities.Footnote 4 At the same time, other colleagues who had read Brown and were conducting research in Pacific Island societies were pointing out that removing indigenous peoples from the framework of international legislation may actually undermine their participation in the negotiation of an intellectual property (IP)–based sui generis system that creates new IP or IP-like rights.Footnote 5 My research conducted among the Sawau people on the island of Beqa in Fiji and at UNESCO in Paris demonstrated that three interconnected layers—local, national, and transnational—are dialogically engaged in establishing cultural property rights in Oceania.Footnote 6
While researching on Beqa, I became involved in A Ituvatuva Ni Vakadidike E Sawau (The Sawau Project), which began in November 2004 as a homework project assigned by five teachers at the Sawau District School of Dakuibeqa in Beqa. The initial goal of The Sawau Project was to identify what the pupils saw as important elements defining their own cultural heritage. Integrating cultural heritage projects into the school's curriculum was expected to stimulate the younger generation to become more interested in Fijian culture and language. Since then, The Sawau Project has grown to address both the inability of current intellectual property rights law to protect communally owned indigenous forms of cultural expression and the need for indigenous peoples and their allies to negotiate and promote alternative forms of protection. In Hennessy's elegant words, “the project illustrates the complexity inherent in the mass-mediation of cultural heritage, as well as the revitalization and assertion of indigenous rights to self-representation in a post-colonial and national context.”Footnote 7
During my visits at the Tabana Ni Vosa kei iTovo Vakaviti (Institute of Fijian Language and Culture) in Suva, I often heard that traditional custodians frequently requested the institute to edit footage taken in their villages and collate it. In the course of my fieldwork, I had already collected many photographs, audio recordings, and action footage. I had shared these research materials with Sawau yavusa (tribe) members to elicit their comments. Watching those images on my camcorder screen around the kava bowl in Dakuibeqa, some of them suggested that my research material could be communally shared and collaboratively transformed into a unique representational genre.
The DVD format permits the development of a multimedia, multivocal, multilinear tool with enormous storage capacity and a menu-driven narrative that allows the viewer to choose from among a succession of images, providing quick access to different sections of a story map connected by hyperlinks to written texts and a topographic map of the island of Beqa.Footnote 8 Producing The Sawau Project consisted of showing, discussing, and creating a montage of images according to community feedback on their appropriateness. Felix Colatanavanua, a cousin of the Sawau paramount chief, was involved in every aspect of the creation of this mon-tage: choosing and editing the footage, adding his own photos and animating them to convey linguistic and extralinguistic cues, editing the musical arrangements—generously facilitated by the Oceania Centre for Arts and Culture—and building the DVD's multilinear interface (Figure 1).Footnote 9
Figure 1. Main menu of The Sawau Project.
The project grew out of the Sawau tribe responsibility for its cultural heritage—specifically the vilavilairevo (firewalking) ceremony. This responsibility is embedded in a continuing relationship between the people, their vanua (land), and other traditional and cultural resources. In this relationship the land, like the vilavilairevo, is a gift that ultimately belongs to God but has been given to the people to be held in trust for future generations.Footnote 10 Custodianship is associated with an enduring sense of place and relationship to the village. The Sawau people share collective responsibility toward their traditional knowledge and expressions of culture (TKEC), just as their identity is philosophically vested in communalism and intertwined with their mythological and kin relationships.
On Beqa cultural, religious, social, and economic relations have become more global over time through integration of markets and the rapid spread of technologies, which are redefining concepts of identity, branding, public domain, and the legitimacy of international institutions, reflecting a hierarchy of power at the international level and the effect of legal regulation of traditional cultural expressions on the globalized legal system itself.Footnote 11 The application of legal practices and concepts to traditional cultural expressions has challenged modern law to recognize new forms of property.
Like the Sawau tribe of Beqa Island with their vilavilairevo performances, the Sa speakers from the south of Pentecost Island accommodate westernization and maintain their kastom identity through touristic performances of nagol (land dive), which is a demonstration of tradition as well as a potent ethnic marker.Footnote 12 In the nagol jump case, a group of applicants from Pentecost Island tried to prevent the respondents from performing the nagol jump on the island of Santo, claiming that the Santo performance was an appropriation of the Pentecost performance. In July 1992 the chief justice of Vanuatu, basing his decision on “substantial justice” and “in conformity with custom,” ordered that the nagol performance should be repatriated to Pentecost, from whence it came.Footnote 13
When juxtaposed to the Sawau's situation in Fiji, the nagol jump case in Vanuatu holds tremendous interest because questions the extent to which the rights relating to traditional cultural expressions—as granted by custom to certain members of the clan or tribe—are recognized by national legislation, and thus can be easily enforced.Footnote 14 In Fiji the issues of intangible cultural property, intangible cultural heritage, and commodification have recently reemerged at local, national, regional, and transnational levels with Fiji's ongoing Na ituvatuva ni kilaka itaukei kei na kena matanataki (literally, National Inventory on Traditional Fijian Knowledge and Expressions of Culture Project, currently referred to as the Cultural Mapping Programme), Fiji's pending Act to Protect the Indigenous Intellectual Property Rights in Traditional Knowledge and Expressions of Culture Bill, which adapts the Pacific Model Law (2002), and the Convention for the Safeguarding of the Intangible Cultural Heritage adopted by UNESCO in 2003. In other words, indigenous groups are drawing on the resources of a global civil society to reconstitute themselves as traditional communities and retain their creativity and dynamism.Footnote 15
An immediate concern upon my arrival in Fiji was that despite the emerging local, regional, and transnational interest in documenting cultural expressions and saving them in databases, indigenous communities are rarely the ones responsible for compiling such databases and holding the rights. The ongoing The Sawau Project, discussed in this article as a case study in the participatory, collaborative production of a DVD, shows how the Sawau community of Beqa, like the Sa people from Pentecost Island in Vanuatu, fundamentally aims for “control over representation.”Footnote 16
Figure 2. The cover jacket of the DVD.Footnote 44
The project allows the community to recontextualize their traditional knowledge and expressions of culture to address present concerns like those offered by the Cultural Mapping Programme, the pending legislation reflected in revisions of the Pacific Model Law, and the Convention for the Safeguarding of the Intangible Cultural Heritage.
LOCAL KNOWLEDGE, GLOBAL COMMONS
A central issue of intellectual property rights is delimiting the boundaries of property interest embodied in immaterial res. Because of the creation of innovative commons such as the Internet, there has been increased discourse on free culture that falls outside the realm of intellectual property. It is commonly argued that it is in the interest of the general public to lift embargoes on the free flow of information to stimulate research and creativity and increase economic growth.Footnote 17 These views exacerbate an imbalance of power over property rights for indigenous peoples, such as the Sawau who struggle to retain control and protect the use of their traditional cultural expressions. Sawau cultural expressions are inalienable possessions freely circulating among their custodians, but outside their society, they exemplify an enclosed domain.
Indeed, holders of traditional knowledge and cultural property are concerned by the new ways the amorphous public domain creates an incentive for free access to cultural material unprotected by intellectual property rights. Anyone may then misappropriate, copy, or perform intangible cultural expressions of which they are not the owners. The goal of self-determination includes the possibility that indigenous people are not particularly longing to be part of this global commons. The public domain may impoverish or annihilate their concept of cultural property, “because it defines traditional knowledge as a freely available resource.”Footnote 18 The public domain is a form of nonproperty that negatively affects the lives of indigenous people such as the Sawau today.
A limited term of protection, or no protection at all, means that most indigenous cultural expressions and works end up in the public domain even if their creators demonstrate that such expressions date far back in time. In most traditional communities, knowledge is acquired over time and passed on from one generation to the next. It keeps evolving and changing character. Therefore, it is difficult to establish when such knowledge was actually discovered or created and when it entered the public domain. Once it enters the public domain, however, anyone is free to reproduce it.
In Free Culture, Lessig argues that the Internet “has unleashed extraordinary possibilities for many to participate in the process of building and cultivating culture that reaches far beyond local boundaries.”Footnote 19 BoyleFootnote 20 argues that a few centuries ago indigenous songs, dances, performances, rituals, and ideas did not need any intellectual property protection because people maintained physical control over their heritage. However, after the Internet was invented, indigenous people needed to apply the Digital Millennium Copyright Act, the No Electronic Theft Act, The Sonny Bono Term Extension Act, and even the Collections of Information Antipiracy Act to protect their cultural property.Footnote 21
Figure 3. A story published by the Fiji Sun (July 23, 2005, p.2) while The Sawau Project was still in montage. A dauvila (firewalker) from the Sawau tribe during a performance for the tourists at the Naviti Resort. Bottom left, Felix Colatanavanua; center, the author; and on the right an image of the chiefly village of Dakuibeqa.
The Internet has made it easier to obtain unauthorized reproductions of traditional knowledge and cultural expressions, provide unofficial fixations of live performances, and adapt and commercialize TKEC without sharing economic benefits with their cultural custodians; also, it has made it easier to misappropriate traditional words, stories, symbols, and distinctive signs and use TKEC in culturally and spiritually offensive and degrading ways, often without acknowledging the traditional source of these creations or innovations. The Internet may be touted as the greatest example of democracy ever invented by humankind, but as LessigFootnote 22 notes, it has no capacity to punish those who steal cultural property from others.
Coombe suggests that a cultural public domain requires us to “consider a wider range of activities and practices than those that copyright law traditionally recognized as acts of authorship and those most characteristic of Western creators.”Footnote 23 More recently, she observes that the cultural survival of peoples demands that we formulate new principles governing the use of “cultural heritage” to ensure the conditions necessary to foster diverse forms of cultural creativity.Footnote 24 Although western laws represent a system of perpetual creativity in which people own for a period of time whatever they create, customary practices suggest a system of perpetual ownership where people create what they own.Footnote 25 Creativity functions to perpetuate the transfer of ownership of TKEC.Footnote 26
Economies such as that of the Sawau require a constant investment in physical and abstract labor (creativity) as people strive to add value to their cultural product.Footnote 27 Therefore, commodification is not perforce the enemy of authenticity and cultural heritage. Sawau performers dialogically negotiate and interpret novel situations in traditional terms, while perceiving a continuity of cultural meaning. Elsewhere,Footnote 28 I have pointed out that tourism's literature is replete with examples of local people interpreting novel situations in traditional terms and thus perceiving a continuity of cultural meaning that may escape the tourist-observer.
A SUI GENERIS PROPOSAL
The western copyright doctrine presents myriad obstacles to the full protection of indigenous expressions of culture. Geographic Indications, Trademarks, Certification and Authentication Marks such as the Māori Toi-Iho, and indigenous Labels of Authenticity are certainly signs of progress and generate pride in local communities, but remain mere add-ons.Footnote 29 They can be used to educate the public about indigenous art and culture, but they cannot stop imitations from being made. Conversely, like other Pacific Islanders, Fijians have had their own concepts of identity, branding, and intellectual property for centuries. Close to the pan-Fijian concept of respect for the land and customs, vakavanua (literally, the way of the land), are the Western geographical indications entailing a form of branding.Footnote 30 Several landmark cases in the Pacific region recognize a preexisting system of law among indigenous peoples inseparable from the concept of identity.Footnote 31
These cases also suggest that neglected non-Western epistemologies may provide new concepts and modes of organizing and protecting TKEC. Fiji's prospective Act to Protect the Indigenous Intellectual Property Rights in Traditional Knowledge and Expressions of Culture Bill, currently under its nineteenth revision, is an IP-based sui generis system that creates new IP-like rights for cultural heritage. The bill will protect TKEC against illicit use normally protected by copyright law. It will give exclusive rights to traditional owners and custodians who can then authorize or prevent others from undertaking certain acts in relation to their TKEC. It will also establish a Code of Ethics in relation to use of TKEC. That is, traditional owners and custodians, such as the Sawau, will hold moral rights to their TKEC.
The Traditional Knowledge and Expressions of Culture Bill is reflected in revisions of the Model Law on Traditional Knowledge and Expressions of Culture (hereafter Pacific Model Law), initiated by the Secretariat of the Pacific Community and developed under the aegis of UNESCO and WIPO. It is derived from the Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture conceived in February 1999 in Noumea at the Symposium on the Protection of Traditional Knowledge and Expressions of Traditional and Popular Indigenous Cultures in the Pacific Islands, which brought together representatives from 21 states and territories of the South Pacific region. On that occasion Māori scholar Aroha Te Pareake Mead emphasized the need to develop a specific, sui generis, regional legal framework for the Pacific. Unlike Western intellectual property rights legislation, it should be designed to incorporate ancestral customs and rules in protecting all aspects of traditional knowledge and culture.Footnote 32 This instrument would establish for the first time in the Pacific region new communal, perpetual, inalienable, and exclusive traditional and moral cultural rights, related to but distinct from intellectual property rights.Footnote 33
The Pacific Model Law approach legislates traditional and moral rights over traditional knowledge and expressions of culture that previously might have been regarded as part of the public domain. Once the state classifies TKEC as a segment of its own public domain, it controls its usage.Footnote 34 From the beginning Pacific Islanders interested in protecting TKEC debated whether to follow western legal models or establish a new system based on how traditional cultural custodians conceive ownership and protection. Stakeholders increasingly called for indigenous models of protection of their TKEC, as exemplified in the Mataatua Declaration in New Zealand, the Julayinbul Statement on Indigenous Intellectual Property Rights in Australia, and the Paoakalani Declaration in Hawai‘i. Such indigenous declarations of cultural rights, like intellectual property rights conventions, are often nonbinding, unenforceable “soft laws.”Footnote 35
Currently under revision in Fiji, Vanuatu, Palau, and Papua New Guinea, the Pacific Model Law represents a major advance in contributing to the international rights discussion without incurring a procedural uniformity that threatens cultural diversity.Footnote 36 The Pacific Model Law provides a hybrid national and regional approach. It establishes a regional legislative framework, but leaves matters of implementation to policy-makers in accordance with their national laws and systems. The Pacific Model Law encourages the inclusion of customary law and traditional governance systems in national legislation over cultural property rights. It recognizes that the traditional custodians of TKEC should remain the primary decision-makers regarding the use of TKEC, following their customary forms of protection. It thus ensures that the creativity and innovation found in traditional cultures will continue to benefit local communities. Although the content of Fiji's nineteenth revision of the Traditional Knowledge and Expressions of Culture Bill remains confidential, there is an indication that the legislature has been evaluating the establishment of a Traditional Knowledge and Cultural Expressions Authority. This would consist of a Traditional Knowledge and Cultural Expressions Council and a Resource and Clearance Centre for TKEC composed of a chairman and four or five recognized holders of TKEC that may meet at least four times a year. The members would be appointed by the minister, in consultation with the Bose Levu Vakaturaga (Great Council of Chiefs) for a term of 3 years, and would be eligible for reappointment for only one other term.
FIJI'S TANGIBLE TEMPLATE
The Cultural Mapping Programme was started in May 2005 by the Institute of Fijian Language and Culture “to effectively police the Traditional Knowledge and Expressions of Culture Bill, at whose root is the preservation and maintenance of traditional knowledge and expressions of culture, with its requirements of consent from the traditional owners of traditional knowledge and expressions of culture for non-customary purposes.”Footnote 37 The Cultural Mapping Programme takes the form of a database system, using a computer application in Fijian language that was specifically designed for the project by a local software company. The database contains text, images, and video and audio recordings, representing “the first indigenous knowledge database ever compiled in the country.”Footnote 38 Given the issue of confidentiality in both the cultural mapping process and the resulting database, the inventory has not been put online or made accessible to persons outside the indigenous Fijian community. Database viewing is restricted to the institute's senior officers. However, to make the information available for general public viewing and use, custodians must be informed and their consent sought. Information will only be available to custodians of traditional knowledge and expressions of culture, their tribe, clan, and family members, upon the initial approval of informants (traditional owners).Footnote 39
In Fiji's database, the people are still the traditional owners, and are still the creators and makers. The Institute [Institute of Fijian Language and Culture] is acting only as a facilitator. Fiji's Cultural Mapping Programme offers sui generis protection measures in lieu of western intellectual property law and treats TKEC as communal property.Footnote 40
Moreover, once the Traditional Knowledge and Expressions of Culture Bill becomes law, “collections and databases of traditional cultural expressions will receive sui generis protection not only over how traditional cultural expressions are expressed, but also over the content and ideas represented by those expressions.”Footnote 41
Although the institute's recommended guidelines for cultural research policy in Fiji were recently adopted as a “template” by all the Pacific Island nations involved in cultural mapping processes,Footnote 42 Director Misiwaini Qereqeretabua points out the enormous challenges of mapping the 1179 villages scattered in the 15 provinces that compose Fiji and the island of Rotuma, each one with its own distinct local knowledge and cultural system. On top of government funding constraints, the Cultural Mapping Programme is encountering a series of difficulties:
Disputes between members of the local communities regarding ownership … The mentality of most Fijian villagers is focused more on monetary gains rather than cultural safeguarding and revitalization. Hence it is often difficult to convince them to take up the initiative themselves, considering an apathetic youthful population in local communities … Often villages are less enthusiastic about the initiative … More than often there were signs of non-interest shown by communities of traditional holders for they see no economic benefit.Footnote 43
THE SAWAU PROJECT
Free from the obstacles of the Cultural Mapping Programme, such as “miscommunication within the Fijian administration, delays in approval of requests from Finance, and slow processes for release of quarterly grants,”Footnote 45 the initial goal of The Sawau Project has been to record and protect important elements of the Sawau's cultural heritage in ways that the community has decided upon.
Figure 4. Dakuibeqa, January 2005. Marika Tivitivi helps reconstructing the genealogical chart for the Naivilaqata clan, the traditional custodians of the vilavilairevo ceremony. The chart lists 275 individuals, going back eight generations.
The Sawau Project is a story map that grounds its navigational architecture in the geography of Beqa itself, allowing viewers to scroll and select their paths through the cultural data assembled. Indigenous knowledge and culture is scattered in the minds of many members of a community, but rarely collected in the form of a map, hence they are quite difficult to envision. The story map becomes a locus where Sawau villages, cultural sites, and memories are reclaimed and safeguarded.
With the consent of the Tui Sawau (Paramount Chief of the Sawau tribe) and the Sawau clan members, the goal of The Sawau Project became to prevent misuse, misinterpretation, and misconception of the Sawau's cultural heritage (mainly the vilavilairevo firewalking ceremony).Footnote 46 The audiovisual documents of The Sawau Project remain in Fijian language and are open only to Sawau community members and researchers who have obtained joint permission from the head of the Naivilaqata priestly clan and the Tabana Ni Vosa kei iTovo Vakaviti (Institute of Fijian Language and Culture). This creative work of digital media was intentionally designed for minimal circulation and shown in limited academic contexts.
A growing number of indigenous groups are using the Internet to archive their written and visual records, vanquishing the old stereotype of the “lost tribe” standing passively in the face of the overwhelming forces of modernity.Footnote 47The Sawau Project could have been made broadly available on the Internet from the very beginning. However, Sawau members felt they would be unable to control how other people might appropriate their images, resulting in negative consequences for the community. Although funding, connectivity, and digital access are definitely also issues to consider, it seems like any determination of the group's specific needs with regard to the Internet approach to the project should wait at least until Fiji's Traditional Knowledge and Expressions of Culture Bill becomes an enforceable law.
IMPLICATIONS OF THE SAWAU PROJECT
Over the last two decades, indigenous uses of new technologies have grown out of the emergence of a global politics of indigeneity, a boom in cultural tourism, and debates over what constitutes and who owns intellectual property and cultural knowledge.Footnote 48 Formerly, indigenous peoples relied on oral transmission to communicate and conserve their ideals, morals, and stories. Indigenous media producer, Jeremy Torrie, argues that “kept among blood relations, such a mechanism for maintaining traditional knowledge is ingenious, portable, and indestructible, unless the community that holds the knowledge is wiped out.”Footnote 49 Folklore and performance studies scholars argue that new measures intended to conserve, safeguard, and sustain non-Western cultural practices actually objectify and isolate them. They risk freezing practices that were formerly mutable.Footnote 50 However, The Sawau Project's use of new media—paralleled by recent digital archiving projects in Australia and North and South America—shows that people can reach selectively into their pasts to open paths to a dynamic future.Footnote 51
The Sawau Project is an ever unfolding, open-ended project. In Ginsburg's words, the beauty and value of these media are extratextual, “created by the cultural and social processes they mediate, embody, create, and extend.Footnote 52 It encourages further research and offers the opportunity for the entire Sawau community to participate by adding more photographs and information about their heritage. Thus, it does not freeze culture in a historic moment, as in a fixed medium such as a book or a film. Cultural mapping becomes a way for displaying spatial human cognition and a fundamental tool for communicating awareness on managing indigenous resources and the protection of both tangible and intangible indigenous cultural heritage. Such cultural heritage projects allow control over the creative process and distribution of TKEC.
Although I cannot disagree with Hennessy that the use of a tripod would have certainly “elevated the DVD viewing experience,”Footnote 53The Sawau Project shows that new methodologies can be created to meet the demand for social intervention in situ to preserve traditional forms and symbols. The Sawau Project is not a disappearing world documentary where the anthropologist is a consultant to a television crew and the social intervention lies in educating foreigners about an exotic culture or evoking empathy through glamorous ethnographic filmmaking.Footnote 54 The project aims to telescope Sawau's heritage, encouraging a sui generis protection. Not a documentary, but merely a montage of documents, the project creates an inventory of sites, stories, and shared memories of the Sawau people. The Sawau Project listens to the native agenda, allows local control, and allows for the dynamic and metacultural nature of the intangible cultural heritage it records. The Sawau Project represents a crossover between applied visual and legal anthropology, a form of social intervention in situ; a sui generis approach to intangible cultural property strategies for positive protection; and a reflexive tool to encourage research capability, pedagogical visual methodologies, and linkages and institutional collaborations among Fijian communities.Footnote 55
My experience assisting and observing the team of native researchers involved in the Cultural Mapping Programme suggests that they face quite a challenging task in creating enough intellectual and emotional distance between themselves and their own culture.Footnote 56 The “insider” researcher has to be just as ethical and respectful, reflexive, and critical as the “outsider” researcher. The insider may receive even less pardon for any faux pas than the outsider.Footnote 57 “Collaboration in its various forms is now a necessity.”Footnote 58 Despite the fact that I and two Westernized members of the chiefly family had been behind the project, and that it was endorsed by the Sawau paramount chief and sponsored by the Institute of Fijian Language and Culture, watching the Sawau members' enthusiastic responses led me to believe that the project was not informed by the hegemonic ruling elite. The Sawau Project is not an apotheosis of chiefdom, but a celebration of traditional customs using digital technology.
To the Sawau people, the images contained in The Sawau Project represent something more than just a legal tool. They brought to life the awareness of the passage of time, the weight of their grandfathers, and a new self-consciousness. Participants became spectators of their own social narratives and aesthetic dramas. Most of them had never been behind the camera “Navajo style” and had not taken part in the cultural mapping process. However, while viewing the DVD, these social actors became agents as they raised concerns about fundamental ideas and codes of their culture.Footnote 59 The project is not part of a social revolution, either, because Fijian villagers are not plagued by any form of social oppression. Instead, the project is a response to external pressures: dominant hegemonic forces and agents of change and distortion, such as the Methodist and Pentecostal churches and the tourism industry. Only time will provide a conclusive answer regarding the effect of The Sawau Project, because it was designed to be continued.
What I believe is the real challenge, however, is to follow the agency, architecture, and effects of the three-layered flow of legal ideas associated with traditional knowledge and cultural expressions in light of Fiji's troubled present and past. The recent developments of December 5, 2006, show that the rule of law along with customary laws and the centrality of chiefly authority in Fiji are at stake, or collapsed. The burden on chiefs and on the stakeholders in the digital era and modern day Fiji is greater than ever before. The December coup d'état, the fourth in Fiji, is not just a single event about political or economic power. Rather, like other conflicts elsewhere in the Pacific and in the world, it is a transformative process rooted in contested views of the past, critically forcing the local actors toward compromises and renegotiations in their conceptions of their tradition, identity, and heritage in the light of new democratic and constitutional needs.
Riles observes that one immediate concern of Fiji's first governor, Sir Arthur Gordon, was “the degree and measure in which native laws and customs should be preserved in force, and how far English law should be at once generally introduced.”Footnote 60 In Gordon's words, the danger is that the common law “would degrade the chiefs and render them idle.”Footnote 61 Fiji's proposed dual IP system, composed of a sui generis legislation side by side with a Copyright Act may vaguely remind us of the Native Code based on Fijian customary law, in addition to the common law envisioned by Gordon more than 130 years ago; however, there is hope that safeguarding heritage policies in Fiji and in Oceania not only reinforces the idea that cultural property is a human right, but reveals that self-development and self-determination, in a different way than in the past, are central to issues of cultural representation.
