Monday, July 18, 2011

Waitangi Tribunal says establish a register of traditional knowledge

One of the recommendations of the Waitangi Tribunal in the WAI 262 report is to establish a register of traditional knowledge.

The Tribunal observed that Maori are obliged to act as kaitiaki (cultural guardians) towards “taonga species” of flora and fauna within their tribal areas.  “Taonga species” in turn are flora and fauna that are significant to the culture or identity of Maori tribes.

The Tribunal sees considerable value in a register in which kaitiaki are able to register their interest in taonga species and/or publish matauranga Maori (traditional knowledge).

Register of interest

The act of a kaitiaki registering their interest in taonga species will provide a clear statement to third parties of Maori interest.  It is intended to give patent applicants fair warning of the kaitiaki interest and of the need to engage with them.

Applicants are thereby provided with a level of certainty required to protect their economic interests.  They know in advance which taonga species will require engagement.

One question I have is how will entries be moderated and verified?  How can we be sure that every entry in the register is justified as a taonga species?  As noted by the Tribunal, certainty and transparency are fundamental to successful engagement between the parties.

Publication of matauranga Maori

Another aspect of the register is the ability for kaitiaki to record in summary form aspects of matauranga Maori that they apprehend might be used by patent applicants.  It looks to me like a kind of defensive publication mechanism.

The register will not work as notice to potential applicants unless it is public and available for perusal.  The two official languages in New Zealand are Maori and English.  To reach a wider audience I think the register should have English translations for individual entries.

It is anticipated that this aspect of the register will be used by those kaitiaki whose traditional knowledge is already locatable and accessible in the public domain.  Those who prefer not to publish their traditional knowledge are entitled to keep such knowledge secret.

I expect the register will provide a convenient database for patent examiners and patent applicants to search.  The publication date of individual entries will presumably be the date of recordal of those entries in the database.  The register will need to be maintained to an evidential standard required by a Court.

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