On 2 July the Waitangi Tribunal released its report, Ko Aotearoa Tēnei (‘This is Aotearoa’ or ‘This is New Zealand’), on the Wai 262 claim which, among other issues, detailed the affect of Intellectual Property (IP) rights on Māori culture and identity.
Māori Definitions
Taonga works very generally means artistic and cultural works that are significant to the culture or identity of Māori iwi or hapū e.g. the haka (ritual dance).
Taonga derived works means artistic or cultural works that are not significant to the culture or identity of particular iwi or hapū but have a recognisably Māori element e.g. the Air New Zealand koru logo.
Mātauranga Māori very generally means knowledge, comprehension or understanding of everything tangible or intangible.
Kaitiaki are cultural guardians.
The issue
In New Zealand, Māori are obliged to act as Kaitaki towards taonga works and related knowledge. The issue is whether these obligations are catered for by current IP laws operating in New Zealand. The Tribunal has been clear that Kaitaki are entitled to protection but not a veto in all cases. A balance between Māori obligations on one hand and the requirements of IP laws on the other is crucial in determining the issue.
Patents and Plant Variety Rights were also discussed regarding the protection afforded to relationships between Kaitiaki and Taonga species.
Current IP Law
Under the Trade Marks Act 2002, all trade mark applications involving a Māori word, image or text are referred to the Māori trade marks advisory committee which advises the Trade Mark Commissioner on the likeliness of offence caused to Māori through the use of the proposed trade mark. Importantly, this advice is not binding on the Commissioner.
There is no express protection afforded to Māori in the Copyright Act 1994.
The Tribunal’s recommendations in relation to IP
The Tribunal recommends two main changes to New Zealand law relating to IP:
1. New standards of behaviour:
- Prohibition on offensive or derogatory public use of Taonga works, Taonga-derived works and Mātauranga Māori (together the Māori Works).
- Those who wish to use Taonga words and / or Mātauranga Māori for commercial purposes must consult with and, where appropriate, gain consent of Kaitiaki.
2. The establishment of a multi-disciplinary Māori Commission (We note this Commission would replace the existing Māori trade marks advisory committee, and its decisions would be binding on the Trade Marks Commissioner).
- Power to receive complaints from anyone alleging offensive or derogatory public use of the Māori Works.
- Power to decide whether consultation is sufficient, or whether consent is required from the relevant Kaitiaki.
- Provide guidelines for the use, care, protection and custody of the Māori Works.
- Maintain a register of Kaitiaki in respect of identified Taonga works.
These recommendations are not binding on the Government which leaves open the question of the extent to which Māori involvement in IP governance decisions will be incorporated into IP law. Prime Minister John Key said the Government would consider the Tribunal’s report.