Socio Cultural

Levuka, Ovalau – The Pearl of Fiji and a UNESCO World Heritage Site

On 22 June, 2013, Fiji joined five other countries in getting their World Heritage Sites added to the United Nations Education Scientific and Cultural Organisation (UNESCO) List of World Heritage sites. Fiji joins Japan, Portugal, Niger, Qatar, Canada, China and Lesotho in having their world heritage sites added. UNESCO is having its 37th Session in Phnom Penh, Cambodia. Fiji’s World Heritage site that got added to UNESCO’s list is Levuka is the old capital of Fiji which is situated on Ovalau Island within the Lomaiviti Group.

Fiji’s history and present has a lot to do with events that occurred in Levuka where we could have easily been American Territory but instead was ceded to Great Britain on October 10, 1874 as the “Brits” bailed Fiji out of paying the debt owed to Benson Robert Henry, an American for destruction to property belonging to Americans which led to an international arbitration war between the US and Great Britain. (http://untreaty.un.org/cod/riaa/cases/vol_VI/100-104_Benson.pdf)

Ovalau and Levuka’s history predates the events that led to the Deed of Cession; here is a brief excerpt of Kameli Koroivukivuki’s chronicles, current Roko Takala of Naisausau, Namara, Tailevu. Details have been omitted for brevity.

There were once two brothers from Lovoni (a village in the mountainous region of Ovalau) who had on one of their many journeys out to sea taken their outrigger canoe to Solomon Islands and on one of their many trips ran away with a beautiful Solomon Island girl. The escape was not easy as they were being chased by Solomon men. The girl eventually married one of the brothers.

During their escape, they also took bamboo plants from Solomon Islands which they transplanted in Ovalau. Today, Ovalau has bamboo trees in abundance and serves as a reminder of their dance with danger in Solomon Islands. It was said that the womb of the Solomon lady was so fertile that she gave birth to many children. Over time as their numbers increased, the families of the two brothers were perceived as a threat and sent to live in front of Lovoni’s rubbish dump which was “smelly” hence the name – Ului- Namara as Namara means “stench” and “Ulu-I” means “in front of”.

One day, during a search and raid, the peelings of a ripe plantain was discovered near one of the occupant’s kitchen. During that time, plantains were food for the Chief of Lovoni. The penalty for consuming this plantain was severe and resulted in their exile. As the people of Ului Namara left Lovoni, they went to a nearby island called Moturiki where they “waited” and that place is now called “Wawa” (means “wait” in Fijian”). They journeyed to another place on the same island and left in different directions in search for “land” and “refuge”, the place was called “Na-sei-sara” (means to “part ways”) in memory of their parting ways. Today, in Fiji you will see many communities around Fiji that still carry the name “Namara” signifying their migratory routes and they are in Kadavu, Ra, Tailevu etc. Some have not called their communities “Namara” but they all share a common crossroad in their history.

Two years ago, I went on my first trip to Levuka, which was after being stranded on an island in the middle of Fiji’s waters (Moturiki) delivering library books as part of a family project organised by Aunty Yo. What was supposed to be a three day trip ended up in being stranded for more than a week and when the cyclone abated, it resulted in a quick visit to Levuka for some much needed supplies and clothes.

Imagine my surprise when I saw Levuka for the first time and whilst I had read about it in books, seen footage on the local television, the mere setting foot and interacting with the locals completely “blew” me away. I was amazed at how I felt that I had “stepped back in time”. The people, hospitality, culture and warmth from the salespeople and local folk were just beyond amazing. For visitors to Fiji – if you want to taste the best pizza in the whole of Fiji, you can get it in Levuka. I returned to Moturiki on the same day only to return to Levuka the same night.

I found myself drawn to a neat looking Chinese restaurant and remember checking into my hotel and being told that all the restaurants were closed. The owner called and asked them to open their doors to a starving visitor. Where else but only in Levuka can you persuade a kind restaurant owner to open his doors. I also discovered that he was my friend, Cheryl’s uncle. After enjoying my freshly cooked meal, he also was kind enough to walk me back to my hotel.

I must admit the hotel that I crashed in felt “haunted” and I kept looking at my “shadow”. The exhaustion of the day took over and enabled me to have a restful night’s sleep.

Congratulations UNESCO for getting Qatar and Levuka on your list. 😉



Air Pacific Trademark Applications: An Opportunity for Reforms to Protect Traditional Cultural Expressions

By Salanieta Tamanikaiwaimaro

In January, 2013, Fiji Airways launched its brand in an effort to promote Fiji and this marks an exciting transition from Air Pacific to Fiji Airways. This transition is an important one for the Airline as it represents the hopes and aspirations of the Airline and by extension the nation of Fiji. The Fiji Airways logo was designed by Makereta Matemosi.

On 25th January, 2013 Siwatibau & Sloan published a series of notices in the newspapers on behalf of Air Pacific Limited to notify the general public of its trademark application. The community has three months from the date of the notice to respond with objections should they wish.

The Trademark Applications namely TM No.s 752/12, 753/12, 736/12, 737/12, 732/12, 733/12, 754/12, 755/12, 758/12, 759/12, 744/12, 745/12, 742/12, 743/12, 734/12, 735/12, 760/12, 761/12, 750/12, 751/12, 756/12, 757/12, 746/12, 747/12, 748/12, 749/12, 740/12, 741/12, 738/12, 739/12 have been the subject of much discussion and generally there are mixed views on the subject.

One of the controversies about this is in relation to the manner in which the Logo is being broken down where there is a separate application for each motif.

The Airline naturally wants to protect each motif in an effort to protect its branding which is fairly reasonable.

On the other hand, the art of designing on “masi” or “tapa” along with the various motifs and marks have long associations with local indigenous communities within Fiji and the wider Pacific. It is also reasonable that communities who use the motifs would want to protect their use of the same. Objections were sent to the iTaukei Institute of Language & Culture by the people of Moce which was sent to the Administrator General. The usual process would be that the Administrator General upon receiving various objections will facilitate a Hearing in which the objections would be heard.

Intellectual Property and Traditional cultural expressions have been the subject of global discussions as early as 1967 when there was an amendment to the Berne Convention for the Protection of Artistic and Literary Works for the protection of unpublished and anonymous works.

The current discussions and dialogue is healthy and can be channeled to revisit our intellectual property mechanisms in Fiji and the need to review existing machinery. The Patent Act is long overdue for revision as it is still dependent on filing in the United Kingdom which was a condition back in the colonial times and is still the same as Fiji has yet to amend and revise this. The Trademarks Amendment Decree 2012 recently revised the Trademarks Act to substitute the Solicitor General in place of the Administrator General. Other than that, the Trademarks Act remains largely the same and most of the provisions are outdated and uses the British classification system rather than the Nice Classification system. According to Siwatibau and Sloan the Law Firm retained to apply for the Trademarks on Air Pacific Limited’s behalf,service marks are not registrable in Fiji and UK-based applications tend to be processed more quickly and do not need to be advertised for opposition purposes. Independent trade mark application or an application based on prior United Kingdom registration can be filed at the Trademarks Office.

Air Pacific has the capacity to invoke feelings of national pride and the launch of the new brand was generally very well received after all it is Fiji’s national airline.

Whilst International law does not directly impose obligations on Fiji to protect indigenous art forms, they serve as useful reference points for policy and law. This is why it is useful to see the developments in International law in this area.

In 1993, New Zealand hosted the first International Conference on the Cultural and Intellectual Property Rights of the Indigenous Peoples where the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples was made. There were over 150 delegates from fourteen countries attended , including indigenous representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA, and Aotearoa.

The Declaration sets out the principle that Indigenous people are entitled to define for themselves what their intellectual and cultural property is and it calls on governments to recognize that Indigenous people are guardians of customary knowledge and should have the right to protect and control the dissemination of that knowledge. It also recognized that existing protection mechanisms for the protection of Indigenous Peoples cultural and intellectual property rights was insufficient and encouraged the development of an intellectual property rights regime that is developed in full cooperation of indigenous peoples that incorporates collective (as well as individual) ownership and origin, retroactive coverage of historical as well as contemporary works, protection against debasement of culturally significant items, cooperative rather than competitive framework.

Fiji ratified the Convention for the Safeguarding of the Intangible Cultural Heritage on 19th January 2010. Other Pacific countries who are also a party to the Convention include Papua New Guinea, Palau, Vanuatu and Tonga. Fiji in ratifying this Convention has undertaken to take the necessary measures to ensure the safeguarding of the intangible cultural heritage in Fiji. To a large extent, Fiji lives up to the standards of ensuring that there are proper mechanisms in place for the safeguarding of the intangible culture heritage and there are many custodians of indigenous cultural expressions through the various institutions that are present within Fiji such as the Vanua, the iTaukei Institute of Language & Culture and numerous other stakeholders.

Controversies on cultural intangible expression are not new in the Pacific. In Australia, these discussions have been taking place since 1966 when the reverse side of the dollar currency contained the unauthorized use of designs from a bark painting of work of an artist David Malangi although he was later compensated. The Hon. John Von Doussa QC presented a paper to the International Association for the Protection of Intellectual Property and the Malaysia Bar Council’s Intellectual Property Committee – Joint Conference in 2006 on some of Australia’s Legal Protection mechanisms. The Australian Government has put in place Recognition of Aboriginal Customary Laws which are specific measures of protection.

Solutions
Intellectual Property Rights Mechanisms can be modified to empower the Solicitor General to undertake certain inquiries whenever an office is considering an application involving elements drawn from the Indigenous communities and such applications might require the prior written consent of the relevant community.

New Zealand enacted the Trade Marks Act 2002 (NZ) which established the Maori Trade Marks Advisory Committee .

Fiji can leapfrog in certain areas by reviewing the existing intellectual property rights mechanisms and establishing an Advisory Council that can provide advice on indigenous components to Applications. The Review process could take the form of an Independent Review which includes identifying other classification systems and sui generis aspects related to Fiji’s unique environment.

I am personally of the view that Air Pacific can apply for the trademark of the logo in its entirety but not of the individual motifs that are composite parts of that whole expression as it interferes with the right of use of these motifs by its custodians, namely the indigenous communities in Fiji and the Pacific who could be prejudiced by these limitations.

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