By Trevor Little
September 07 2012
With the protection of indigenous rights set to become more important in the coming years, international discussions on how best to safeguard such rights continue in heated fashion. This year the debate included the United Nations’ Permanent Forum on Indigenous Issues calling on WIPO to afford greater recognition of indigenous peoples in its decision-making processes and respect for their right to safeguard, preserve or promote traditional resources as they see fit. Similar tensions are being played out at jurisdiction level, with the latest developments in New Zealand providing an example of the challenges posed by trying to protect indigenous rights in existing IP frameworks.
Speaking to WTR earlier this year Gregg Marrazzo, president of INTA and senior vice president and deputy general counsel at The Estée Lauder Companies, stated: “As a personal observation, you hear about the protection of indigenous rights and it is an area that I really believe will become more important over the next 10 years.” The latest issue of WTR contains an in-depth examination of current global efforts to protect traditional cultural expressions, as well as an examination ofa recent opposition hearing in which the Intellectual Property Office of New Zealand refused to register applications by Te Runanga o Toa Rangatira Incorporated (the Runanga) for KA MATE, UPANE KAUPANE, WHITI TE RA and KA ORA (Te Runanga O Toa Rangatira Incorporated v Prokiwi International Limited ( NZIPOTM 14, June 1 2012)). Since publication, efforts to protect Maori intellectual and cultural property have taken a new turn.
As outlined in WTR, the words of the applied-for trademarks form part of the Ka Mate haka, a traditional Maori dance authored by Te Rauparaha, a chief from the Ngati Toa tribe – with the dance currently associated internationally with New Zealand. Considering the application by the Runanga (a Ngati Toa representative body), the office stated that the marks had no distinctive character because other traders were likely, in the ordinary course of their business, to want to use the marks legitimately in relation to their own goods or services.
In their analysis of the decision, AJ Park’s Lynell Tuffery Huria and Jude Antony argued that, if correct, “the ruling provides further evidence that the existing IP framework is inadequate to prevent the misuse or misappropriation of Maori intellectual and cultural property”.
In 2011 the Waitangi Tribunal, convened by the New Zealand government to investigate claims brought by Maori relating to actions or omissions of the Crown which breach the promises made in the Treaty of Waitangi, agreed with the claim that the Crown has failed to provide adequate levels of protection for Maori intellectual and cultural property. The Tribunal recommended an alternative framework and a new commission to adjudicate on objections to unauthorised commercial use raised by kaitiaki (such as Ngati Toa) of aspects of Maori cultural property and objections from the community to offensive or derogatory use of Maori culture.
In the latest development, the Ngati Toa iwi has initialled a Deed of Settlement with the Crown, which, amongst other things, provides for recognition and acknowledgement of their connections to the haka Ka Mate, requiring legislation that provides for a right of attribution in favour of Ngati Toa.
Commenting on the practical implications of the proposed legislation, Tuffery Huria and Antony note that, while an innovative step, it would “fall short of providing sufficient protection for a piece of Maori intellectual property, because the legislation does not enable Ngati Toa to stop culturally offensive or unauthorised commercial use of Ka Mate.”
However, they comment that the deed “provides for the Ka Mate attribution legislation to be reviewed by the Crown five years after its commencement with a view to considering additional protection of Ka Mate if it is not already provided for by that time in more generic legislation or policy”, which might suggest “that a more generic piece of legislation or policy providing stronger protection for Maori intellectual and cultural property is envisaged”.
Whether at national or international level, the tensions between existing international property frameworks and indigenous rights continue to pose challenges for rights holders, indigenous peoples and legislators, and the road to reconciliation remains a long one.
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