Patrick Devlin, in The Law and Cultural Conflict (2003), argued that the law should be used to enforce a society’s culture, as society is made up of the idea’s, norms, morals and ethics of a community. Traditional cultural expression such as a song, artwork or symbols reflects a societies history, culture and social identity which results in considerable economic benefits for indigenous peoples as well as the preservation and continuation of their culture. So, the question posed in this article is what protection is provided to indigenous communities when these cultural expressions are abused by the Western world and their policies. In this article, I will discuss some of the steps taken to respect and protect indigenous cultural expressions, specifically in the context of the protection afforded to the intellectual property of the Māori people.
A discussion regarding the property and intellectual property rights of Māori people should always begin with the Treaty of Waitangi, which guarantees Māori people full protection over their property rights. Article 2 of the treaty written in both English and Māori are relevant in connection with intellectual property ('IP') rights. However, the wording of both versions of the text spark a considerable debate about whether it actually protects the IP rights of Māori people. The English version makes provision for the protection and undisturbed possession of their land, estates, forests and other properties. The wording does not make provision for the protection of their cultural expressions. The Māori versions guarantees full authority and ownership over all 'taonga' which means treasure which include both tangible and intangible property. Both versions of the provision have been a topic of debate as they essentially protect two entirely different things, because of this the Aotearoa New Zealand government are conflicted on whether to include the IP rights of Māori people in the English version of the text.
The issues of protecting the cultural and religious rights of indigenous people relates to the appropriateness of using American Legal Concepts to protect the knowledge, designs and expressions passed down through generations, which are considered to be collectively owned. Furthermore, from an IP perspective, the communal ownership of these cultural works and the fact that traditional knowledge is already considered public domain make it difficult to accommodate Māori IP rights within the American intellectual property system. As they do not meet the requirements for the application of conventional intellectual property protection, they are left out of the conversation all together.
It is no secret to Māori people that the current Western intellectual property system does not take into account their needs and have been active in the international struggle regarding the protection of indigenous IP rights. In the 1990s, the first International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples was held, where it was declared that 'Indigenous Peoples of the world have the right to self-determination and must be recognised as the exclusive owners of their cultural and intellectual property'. Furthermore, the statement was made at the conference that the existing protection mechanisms are inadequate protection of indigenous peoples' cultural and intellectual property rights. This has chartered a new path toward the protection of indigenous IP rights with new legislation such as the Trade Marks Act of 2002 having being enacted.
Another issue that arose from the lack of protection of Māori IP rights is the rapid commercialisation of their symbols or language in trademarks and the inappropriate use of customary knowledge in advertising. For example, the well known Ka Mate Haka has been used in advertising for Italian cars, Scottish Whiskey and British employment websites. Another example are the Koru Patterns which are traditionally used in carvings, jewellery and tattoos, yet are now used on souvenir products, artwork of non-Māori people, and logos for major corporate brands. In lieu of this, the aim of Māori people is not to prevent the use and enjoyment of their culture by non-Māori people but prevent the inappropriate use of it in the commercial sector – especially since Māori themselves do not benefit from it.
Cultural intellectual property rights are less about material and economic gain and more about setting boundaries around their social, cultural and symbolic practices in order to prevent commercialisation by non-Māori people. The lack of development in the protection of the cultural intellectual property rights of indigenous people have left them in an incredibly vulnerable position, open to exploitation and abuse. As we know Māori are unable to exercise control of their trade in any real way under the Western intellectual property framework, however they are also not acquiring the benefits of this trade whether on a national or international scale. To redress this issue, the Māori proposed a solution: even if ownership of their cultural knowledge and expressions cannot be protected under the Western concepts of international property, they should be allowed guardianship over such knowledge and expressions. Furthermore, that the cultural knowledge and expressions of indigenous people such as the Māori should not be protected under Western concepts of intellectual property but developed in accordance with the customary rules and protections already in place in these indigenous societies. On this point it is clear that the existing IP systems in place in Aotearoa New Zealand are inadequate to meet the expectations that the Māori have for the protection of their 'mātauranga' (Māori knowledge), cultural heritage and expressions. Essentially, further steps should be taken to bridge the gap between the Western IP concepts and indigenous IP concepts.
In conclusion , it is clear that intellectual property concepts including trademarks and copyrights could be beneficial to the Māori in protecting and benefiting from cultural expressions; however, their level of control is limited, especially in the commercial setting, because of the fact that they do not meet the requirement for protection under the Western concepts of IP. Therefore, the Waitangi Tribunal offers an opportunity for increased clarity and understanding with regards to Māori cultural IP rights especially within a commercial sector. Furthermore, the foreign law specialist Kelly Buchanan, suggests in her article, 'Māori Culture and Intellectual Property Law', that there is a growing need for more progressive steps to be taken in the development of IP protection within the indigenous law sector.
Resource List
Buchanan K “New Zealand: Māori Culture and Intellectual Property Law” (2020) The Law Library of Congress 2-15.
Post R “ Law and Cultural Conflict” (2003) 78 Chicago-Kent Law Review 485-486.
Riddle K & Sterling R “Understanding Māori Rights and Interest in Intellectual Property arising from research and Innovation” (2021) Te Kotahi Research Institute 5-16.
Edited by Thushani Naidoo
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