Updated: Nov 2, 2021
By Damian Kelly, Brad Phillips and Sabrina Habu
One of the things that make the Pacific Islands region unique is its diverse patchwork of cultures, language and traditions. With thousands of indigenous groups spread across even more islands, and all with their own rich history of culture, custom and art, how do producers of original artistic and cultural content ensure copyright in their works are legally protected?
Intellectual property is subject to a variety of different local regimes across the Pacific, which has traditionally meant that, in many cases, cultural products and expressions of local artists and cultural communities are often left inadequately protected. Some protections are available for local artists/authors of original work under domestic Pacific copyright legislation. In this article, we have provided an overview of the law of copyright in Fiji, Papua New Guinea (PNG), Samoa, the Solomon Islands and Vanuatu to empower local artists against unauthorised use and appropriation of their original work.
What is Intellectual Property?
Intellectual property rights can be defined simply as the protections afforded to the property of your mind or proprietary knowledge. According to the 1967 Convention Establishing the World Intellectual Property Organisation, ‘intellectual property' includes rights relating to:
literary, artistic and scientific works;
performance of performing artists, phonograms, and broadcasts;
inventions in all fields of human endeavour;
scientific discoveries;
industrial designs;
trademarks, service marks, and commercial names and designations;
protection against unfair competition; and
all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Today, these rights are, for the most part, codified into law through respective copyright, trademark, design and patent legislation (and supplemented by common law in common law jurisdictions). While all these protections are available to local artists and may have their benefits depending on the circumstances, the law relating to copyright is most relevant in relation to protecting original work.
What is copyright?
Generally, copyright protects the form of expression of ideas (the actual creative work itself), rather than the ideas, information or concepts expressed. Copyright covers a broad range of original works and generally you do not need to register or apply to be afforded protection (However some jurisdictions, such as the Solomon Islands, allow for registration (although not necessary to be afforded protection).
Copyright in things such as literary, dramatic, musical or artistic works is infringed by a person, who not being the owner of the copyright, and without the license of the owner does things like:
(a) reproduces the work in any material form;
(b) publishes the work;
(c) broadcasts or transmits the work;
(d) passes the work off as their own;
(e) makes an adaptation of the work;
(f) in the case of a literary, dramatic or musical work:
(i) performs the work in public;
(ii) permits a place of public entertainment to be used for a performance in public of the work where the
performance constitutes an infringement of the copyright in the work.
We have set out below, a high-level summary of the scope of copyright protection for a range of Pacific jurisdictions:
Please scroll along the bar to the right to see the full table.
What can I do if my copyright is infringed?
A range of remedies are available for authors/owners where their copyright has been infringed under the respective legal regimes of the countries we have discussed above. Such remedies may include (but are not limited to):
(a) an award of damages by a court (in the form of money lost by the owner as a result of the breach of copyright);
(b) a court order requiring copyright infringers to desist in the activity breaching copyright;
(c) a court order requiring copyright infringers to destroy or deliver up illegal copies of someone else’s works.
What if my copyright is infringed overseas?
Whether reciprocal enforcement options and remedies are available will be dependent on where your copyright is infringed and where the work was published. Under International law such as the Berne Convention and/or the TRIPS Agreement, parties have agreed that works originally published outside their jurisdiction will obtain similar copyright protections to those published in their jurisdiction. However, we stress that the options available will be dependent upon the countries involved.
Conclusion
Copyright is an important consideration for creatives working in the Pacific to ensure their original works and the potential associated income is protected. Although Copyright applies automatically, there are a number of steps that you can take to further safeguard the use of your original work.
Our lawyers at the Pacific Legal Network have on-the-ground experience in regard to all forms of intellectual property including copyright. For more information relating to protecting your work and ensuring economic value, please do not hesitate to contact us.