Pass the kava: implications for patent protections over traditional knowledge in Samoa's new Intellectual Property Act of 2011.

• Author: Ji, Fei

1. Introduction II. Background A. Historical Influences on Samoa B. Traditional Knowledge Definitions III. Samoa's Past and Present IP Frameworks A. Patents Act 1972 B. Trends before the Intellectual Property Act 2011 C. Intellectual Property Act 2011 IV. Analysis A. The Intellectual Property Act 2011 as Applied to Kava B. Future Implications of the Intellectual Property Act 2011 V. Conclusion I. Introduction

   The Fa'a Samoa, or the Samoan way, is a cultural description of the central tenets to which the people of Samoa adhere. (1) It revolves around the aiga (family), the matai (chiefs), and the church. (2) This is evident in the emphasis on respect for one's "betters," namely older generations who hold high titles like matai or positions of integrity like pastors, (3) or, for example, the United Nations Special Missions delegation that visited the island on May 26, 1959. (4)

   The main issue at stake on this day was the establishment of the independent country of Samoa, releasing the island from a fifty-year trusteeship administered by New Zealand. (5) As the United Nations Trusteeship Council was welcomed outside the Fono, or legislative house, the day began with the King's 'Ava Reception. (6)

   Native to the South Pacific islands, kava--or 'ava as it is used primarily in Samoa--is a member of the pepper family that has been used in traditional ceremonies for centuries. (7) In a very specific and complex process, both in preparation and presentation, the root of the kava plant is made into a drink that is passed around to the high-ranking participants of the 'ava ceremony. (8) Because of its slightly intoxicating and sedative effects, kava is seen as a truth-bringer. (9)

   Almost fifty years later, researchers in Scotland discovered another truth imparted to them through the kava plant. (10) They found that certain kava derivatives had positive influences in inhibiting leukemia cell growth as well as other inflammatory diseases. (11) With such a finding, Samoa and the other South Pacific islands have potentially a gold mine's worth of kava (12) if they can discover a way to protect it legally under intellectual property laws. This may prove difficult, however, as most South Pacific nations customarily do not value western ideals of property rights and the written record of such rights. (13)

   Yet, intellectual property (IP), while a relatively new field of law, has become an important topic in the growing world economy. (14) The significance of IP protections on a country's legal and financial status has even islands in the middle of the Pacific

   Ocean taking heed of the advances and benefits of IP laws. (15) As these small, developing countries struggle to build their own economies and become feeders into the international trade market, adaptations in local IP laws help encourage their first steps into the flow of global commerce.

   Nevertheless, globalization comes with a price. While IP protections can help developing nations economically compete with first world nations, they also asymmetrically can result in inequities such as biopiracy, especially in the field of traditional medicines. (16) The conflicts between protecting traditional medicines, a subset of the field of "tradition-based intellectual activity referred to as traditional knowledge," (17) and updating national laws to reflect international IP norms are hot topics. (18)

   Samoa is one such developing nation that has tried to take these conflicts and concerns into account with a revision of its older IP laws. In 2011, Samoa passed the Intellectual Property Act 2011, (19) which came into effect October 1, 2012. (20) This new law replaces the previous existing Patent Act of 1972, (21) which was created just a few years after the formation of Samoa as an independent country. (22) Considered the cradle of Polynesian culture, (23) Samoa was the first Polynesian island in the South Pacific to regain its independence in the twentieth century. (24) Additionally, Samoa was the first amongst the Pacific Island nations to have written its own patent legislation. (25) It is fitting, then, to suggest that Samoa is a Polynesian leader in regards to encouraging patent legislation innovation and reform.

   This Comment looks at Samoa's recent approach to protecting traditional knowledge under intellectual property rights, namely patents, through the lens of the island's ceremonial plant, kava. Part I traces some of the historical influences of colonialism, independence, and globalization on Samoa. Additionally, the definition of traditional knowledge is described in both a global and local context. Part II examines Samoa's past efforts at building a working model for IP protections, especially in regards to traditional knowledge. Then, relevant patent sections of the new Intellectual Property Act of 2011 are discussed and analyzed with respect to its significant departures from the old laws. Part III gives examples of existing kava patents and shows how kava can be included under the umbrella of traditional knowledge. Part III also illustrates how the Intellectual Property Act 2011 can be applied to future kava patents and promote Samoa's standing with its island neighbors and the IP world. In these ways, the new Act can help Samoa keep a good balance in its struggle for local traditional knowledge protection while trying to increase its participation in the global intellectual property arena.

2. BACKGROUND

   1. Historical Influences on Samoa

      1. Colonialism

         The history of the Samoa islands spans back about 3,000 years. (26) Ancient Samoans were prolific colonizers themselves; (27) however, the first Europeans credited with "discovery" were the Dutch explorer Jacob Roggeveen and the French explorer Louis Antoine de Bougainville. (28)

         Three main imperial nations had the biggest stakes in the Samoan islands: Germany, Great Britain, and the United States. (29) It was not until the Tripartite Convention in 1899, however, that a true imperialistic power was established over Samoa. (30) This Convention broke up the nine Samoan islands with the main Western Samoa islands of Savai'i and Upolu to Germany and the Eastern Samoa islands of Tutuila and Manu'a to the United States. (31) Germany controlled Western Samoa until the onset of World War I. (32) New Zealand then ruled over Western Samoa past World War I and World War II when the League of Nations issued a mandate for trusteeship until 1962. (33) Consequently, ties are close between the two countries, and many similarities exist between the two forms of government. (34)

      2. Independence and Government Structure

         During New Zealand's trusteeship, growing discontentment (35) led to the creation of the Constitution of the Independent State of Western Samoa 1960, in which Western Samoa declared independence. (36) It was adopted at the Constitution Convention in 1960 and enacted in 1962. (37) While the Constitution does not have provisions for intellectual property, it does address rights regarding property in that "[n]o property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily...." (38)

         Despite being a parliamentary democracy, (39) Samoa was effectively under a constitutional monarchy until 2007 because one man held the position of Head of State for 45 years. (40) Due to its strong British colonial influences, Samoa operates under the Westminster system, a system of government that it shares with other commonwealth countries like New Zealand, Australia, and Canada. (41) However, Samoa's unicameral legislative body, the Fono, has been modified according to custom in that of the forty-nine members, forty-seven members have the chief title of matai. (42) Another instance in which Samoan tradition is incorporated into the Constitution is found within the judiciary, where a separate court exists to deal with customary law in regards to land rights and matai titles. (43)

      3. Current International Organizational Status

         In 1970, Samoa joined the Commonwealth of Nations, (44) a collection of fifty-four independent countries, which were all at some point ruled under the British Empire. (45) While membership in the Commonwealth provides seemingly lofty benefits, such as allowing "otherwise isolated and impoverished nations to network with powerful allies," it does not hold much clout realistically in terms of trade privileges or economic policy. (46) However, Samoa's memberships in similar regional

         organizations like the Pacific Islands Forum, the Pacific Community, the Polynesian Leaders Group as well as more international bodies like the United Nations, the World Bank and, recently, the World Trade Organization (47) allude to its eagerness to enter the world stage.

   2. Traditional Knowledge Definitions

      1. Global Definitions of Traditional Knowledge

      Samoans do not know kava as piper methysticum. Rather, it is 'ava, an essential part of most traditional ceremonies honoring many different occasions, whether it be funerals, foreign visits, matai meetings or weddings. (48) Just because kava is used in abundance in Samoan traditional ceremonies does not immediately mean that it qualifies as traditional knowledge. Furthermore, while kava is traditionally used by grinding up the root and making it into a drink, (49) non-traditional uses of Kava exist. Since the late 1800s, herbal supplements have been made from kavalactones, a kava derivative. (50) Kavalactones make up 15% of the kava root. (51) To date, more than nineteen different kavalactones have been isolated from kava, with six major and five minor types. (52) The argument for kava as traditional knowledge must distinguish between use of the kava plant itself and kava derivatives like kavalactones. The first step, then, is to define traditional knowledge.

      The problem is, traditional knowledge lacks a clear meaning and covers a lot of information. (53) It is difficult to find a universally accepted definition. (54) In...