Indigenous Culture & Traditional Knowledge

There is some momentum towards recognising, respecting and attempting to accommodate indigenous culture and traditional knowledge within intellectual property legislation.

The official report of the Waitangi Tribunal regarding the Wai 262 Indigenous Flora and Fauna and Cultural Intellectual Property claim was released in 2011. The report contends that New Zealand’s intellectual property laws have never enshrined the Crown’s obligations under the Treaty of Waitangi to protect and respect the special relationships Maori have with their cultural works as well as flora and fauna. The report seeks to find ways of reconciling both Maori and western values and outlines the types of governmental level changes that are required if Maori culture, identity and traditional knowledge are to be recognized and respected. However, the report also acknowledges, particularly in relation to intellectual property, that implementation of the recommendations would require New Zealand to be a ‘first-mover’ in international law reform relating to traditional knowledge.

Maori cultural works

The report seeks different levels of protection for Maori cultural works according to the importance of the cultural works to Maori generally or specific iwi (tribes) or hapu (communities). Taonga works, which come in many forms and continue to be created, are defined as “a work, whether or not it has been fixed, that is in its entirety an expression of Maori knowledge; it will relate to or invoke ancestral connections, and contain or reflect traditional narratives or stories”. The relevant level of community that the taonga work emanated from have a responsibility to protect those works by way of a guardianship relationship. Taonga-derived works are inspired by Maori knowledge or taonga works, but do not relate or invoke ancestral connections. They tend to evoke modern personalities rather than ancestors, tell contemporary stories rather than ancient ones, and attract new communities of followers rather than the ancient Maori hapū or iwi.

The report contends that the guardianship relationship of taonga works needs to be recognised and respected, which requires that the guardians have enough authority and control to protect them. This authority and control needs to be stronger than merely preventing offensive and derogatory public uses. Hence, the advisory role currently in place under the Trade Marks Act 2002 is insufficient to fulfil the guardianship relationship for taonga works. Rather, those who seek to use taonga works would generally need to consult with the relevant guardians and at least acknowledge them and possibly be subject to economic compensation such as a licensing fee. The report further contends that these rights are enduring for the life of the taonga work and would not be subject to expiry such as would occur when copyright or trade mark rights lapse. In this respect the guardians would have similar rights in relation to taonga works that the Crown has in relation to recognising and protecting various works under the Flags, Emblems and Names Protection Act 1981. By contrast, the protection sought for Taonga-derived works is restricted to the use of such works in a manner that is offensive or derogatory. However, the report recommends only enforcing these rights retrospectively in relation to uses that are offensive or derogatory. Further, non-commercial use, whether private or public, past or future, should not be subject to those rights provided they are not offensive or derogatory. The report recommends that the determination of these factors needs to be addressed on a case by case basis by a specialist Commission with specific adjudicative, facilitative, and administrative functions. The Commissions view would be final. Hence, amongst other functions, it would replace the Maori Advisory Committee under the Trade Marks Act 2002, and its decisions would be binding upon the Commissioner. The report recommends the establishment of a public register of taonga works and guardianship relationships. However, if such works are kept secret, this would not prevent them from being protected.

The suggested changes are considered TRIPs compliant as they are additional protections in addition to the minimum requirements specified by the TRIPs Agreement. It is recognized that much of the misuse of Maori cultural works occurs outside of New Zealand. While domestic changes cannot rectify this, it is proposed that New Zealand should advocate for mutual recognition of indigenous cultural rights in multi-lateral and bi-lateral free trade agreements it enters into.

Flora and Fauna

The report defines taonga species as species of flora and fauna over which whanau (families), hapu (communities), or iwi (tribes) claim guardianship obligations. The guardianship obligations consist of inherited traditional knowledge involving those taonga species, the credibility of which can be tested by experts in the subject. Different hapu etc will have different guardianship obligations in relation to the same species. However, each relationship with taonga species will seek equilibrium or sustainability.

Bioprospecters can benefit from Maori traditional knowledge by improving the efficiency with which they find biological material for creating commercial products. Currently consent to take specimens is generally only required from the landowner and/or the Crown. While various Acts such as the Conservation Act 1987 have regard to the principles of the Treaty of Waitangi, the degree to which this affects practices such as bioprospecting is not sufficiently laid out, although this can be addressed in departmental guidelines. New Zealand is party to the Convention on Biological Diversity, and many concerns of Maori appear to be addressed by the access, conservation and benefit sharing provisions of that Convention. However, the Convention currently has little practical influence since it is subordinate to international IP regimes. In particular, the TRIPS Agreement does not require patent applicants to disclose whether traditional knowledge or genetic resources have contributed to the invention, nor whether they were obtained with prior informed consent and a benefit sharing arrangement.

In New Zealand genetic modification is regulated under the Hazardous Substances and New Organisms Act 1996 (HSNO Act). Section 6(d) requires that the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga be taken into account when making a decision under that Act. However, claimants are concerned that this provision is subservient to other more general provisions and can essentially be sidelined when all factors for consideration are weighed. There is also concern that IPONZ allows isolated gene sequences to be patentable rather than being a mere discovery or something that lacks utility. Section 15 of the current Patents Act allows inventions to be refused patentability if their use would be contrary to morality or public order. The report is confident that the morality and ordre public provisions in the TRIPs Agreement, which has now been enacted in the Patents Act 2013, are wide enough to accommodate the guardianship interests in the genetic and biological resources of taonga species and Māori knowledge thereof. This will be particularly relevant where exploitation of IP rights might damage or even destroy guardianship relationships.

The report notes the Crowns concerns that the patent and PVR regimes are ill-suited to protecting guardianship interests, and that attempting to do so would stifle research and development. Further, once Maori knowledge is in the public domain it is impractical to try to control its use. However, the report identifies a blind spot in the patent system potentially granting patents for uses that are already part of Maori knowledge on account of examiners being unlikely to find the relevant Maori knowledge in scientific databases. The recent Patents Act’s introduction of a Maori advisory committee will aid the Commissioner in this assessment along with whether an invention is likely to be contrary to Maori values. However, the report recommends that the advisory committee be able to advise the Commissioner in regards to applications deemed relevant by the committee, not just those that the Commissioner deems relevant. A register of guardianship relationships with taonga species and Maori knowledge in the use thereof is proposed, although registration would be optional and would not be required in order to have a right to object.

The report rejects the notion that Māori have, or should be given, any special proprietary rights over the genetic and biological resources of taonga species on the basis of cultural association. Nonetheless, it finds that Treaty obligations require the protection of Maori guardianship relationships with taonga species where exploitation of the species could adversely affect that relationship. In light of this, it recommends mandatory disclosure of genetic and biological resources or Maori knowledge that contributed to the research or invention of a patent or PVR application to reduce the risk of adversely affecting Maori guardianship relationships. The consequence of non-disclosure would be dependant on the degree of threat or harm to those guardianship relationships.