Subject Matter of Protection

Section 1- Interpretation

"indigenous knowledge" means any knowledge:
(a) that is created, acquired or inspired for traditional economic, spiritual, ritual, narrative, decorative or recreational purposes; and
(b) whose nature or use has been transmitted from generation to generation; and
(c) that is regarded as pertaining to a particular indigenous person or people in Vanuatu.

Scope of Protection

Section 62 - Registration of designs involving indigenous knowledge

(1) If it appears to the Registrar that an application is for the registration of a design that is based on, arose out of, or incorporates elements of, indigenous knowledge, the Registrar must refer the application to the National Council of Chiefs.

(2) The Registrar must not register a design that is based on, arose out of, or incorporates elements of, indigenous knowledge unless:
(a) the custom owners of the indigenous knowledge have given their prior informed consent to the registration; and
(b) the applicant and the custom owners have entered into an agreement on the payment by the applicant to the custom owners of an equitable share of the benefits from using the design.

(3) However, the Registrar may register the design without the prior informed consent of the custom owners if the Registrar is, after consultation with the National Council of Chiefs, satisfied that:
(a) the custom owners cannot be identified; or
(b) there is a dispute about ownership of the indigenous knowledge concerned.

In such a case, the Registrar must not register the design unless the applicant and the National Council of Chiefs have entered into an agreement on the payment by the applicant to the National Council of Chiefs of an equitable share of the benefits from using the design.

(4) If an agreement mentioned in subsection (2) or (3) has not been entered into within 12 months after the design application has been lodged:
(a) the Registrar may register the design; and
(b) the owner may use the design; and
(c) the Registrar is to determine the amount payable to the custom owners or the National Council of Chiefs by the owner of the design, being payment of an equitable share of the benefits from using the design.

(5) Any payments made to the National Council of Chiefs under an agreement mentioned in subsection (3) or a determination under paragraph (4)(c) must be used for the purposes of indigenous cultural development.

(6) An appeal lies to the Court from a decision ofthe Registrar determining an amount under paragraph (4 )( c).

(7) An agreement mentioned in subsection (2) or (3) may contain other conditions, including how and when the design is to be used.

(8) The National Council of Chiefs may issue written guidelines for the purposes of this section.

(9) The National Council of Chiefs must consult with the Vanuatu National Cultural Council before entering into an agreement under subsection (3) or issuing guidelines under subsection (8).