Wednesday, July 18, 2012

Trade marks and traditional knowledge

Kiwi HakaA recent decision from the Intellectual Property Office of New Zealand (IPONZ) highlights yet again the fundamental disconnect between Western-style intellectual property rights and the protection of traditional knowledge.

Te Runanga O Toa Rangatira Incorporated v Prokiwi International Limited [2012] NZIPOTM 14 (1 June 2012) examined the protection available (or lack thereof) for the lyrics in a haka, a traditional ceremonial dance or performance.

The Haka

According to evidence before Assistant Commissioner Walden the haka Ka Mate was originally composed by chief Te Rauparaha of Maori tribe Ngati Toa Rangatira in 1820. It is believed that the Chief composed the haka on encountering a hirsute but friendly face after a narrow escape from enemies.

The words of the haka are as follows:
Ka mate, ka mate! ka ora! ka ora!
’Tis death! ‘tis death! (or: I may die) ’Tis life! ‘tis life! (or: I may live)
Ka mate! ka mate! ka ora! ka ora!
’Tis death! ‘tis death! ’Tis life! ‘tis life!
Tēnei te tangata pūhuruhuru
This is the hairy man
Nāna nei i tiki mai whakawhiti te rā
Who brought the sun and caused it to shine
Ā, upane! kaupane!
A step upward, another step upward!
Ā, upane, kaupane, whiti te ra!
A step upward, another... the Sun shines!
The haka is incredibly well known throughout New Zealand. It is performed on sports fields, on streets, in schools and in bars.

The trade mark applications

There were four trade mark applications at issue in this case. All four were filed by Te Runanga O Toa Rangatira Incorporated (the Runanga) as the formal representative body of Ngati Toa Rangatira. The opposed marks were as follows:
814421 KA MATE
814532 WHITI TE RA
814533 KA ORA
Prokiwi successfully opposed each of the trade marks on the ground that none had distinctive character.

The Hearing Officer concluded that the haka Ka Mate is an important part of New Zealand's heritage. A New Zealand icon. A powerful reference to New Zealand. It was clear to the Hearing Officer that certain traders of New Zealand themed goods and services, would, in the ordinary course of their business, wish to legitimately use the entire wording of the haka.

If the opposed marks were registered, honest traders would effectively be hindered in using the haka Ka Mate in relation to New Zealand themed merchandise and commercial sporting events in New Zealand.

It is not clear whether the Assistant Commissioner considered the opponent Prokiwi to be an honest trader. She records evidence of the New Zealand Rugby Union's "contact with Prokiwi concerning alleged unauthorised use of All Black imagery by Prokiwi on its souvenir products on more than one occasion".

The fundamental disconnect

Evidence led by the Applicant reveals the fundamental disconnect between intellectual property rights and the protection of traditional knowledge. The haka, according to the Applicant, does not belong to the composer per se but instead is a taonga (treasure) of the iwi (tribe) to which the composer affiliates.

The deponent goes on to state:
The haka Ka Mate also has kaitiaki (guardians). [The tribe] Ngati Toa Rangatira are the kaitiaki of the haka Ka Mate and it is our lineage that creates this kaitiaki relationship. The primary obligation of kaitiaki is to protect and safeguard the mauri (life force) of the taonga as well as the matauranga (knowledge) that sits beneath it.

As kaitiaki, our relationship with this taonga will be perpetual. As long as it continues to exist, our obligation will continue. A large component of this will be protecting the mauri (life force) of the haka Ka Mate from mistreatment such as offensive and derogatory use.
A succinct statement of the problem in my view. Western style intellectual property rights typically require some sort of novelty, an identified creator, are owned by a legal 'person' and are of finite duration.

Patents and registered designs (design patents) have to be novel. Copyright works need to be original. Trade marks must have distinctive character.

In this case we have an identified creator. However, it is not always so easy to identify an inventor for a patent or the author for copyright or a registered design.

The incorporated society that is the applicant for these trade marks is a legal person that is able to own intellectual property rights such as copyright, trade marks, patents and registered designs. However, the stated expectation is that traditional knowledge is collectively 'owned' in the sense of guardianship by a group that is not a legal person.

Intellectual property rights are finite. In New Zealand registered designs last for 15 years, patents for 20 years, and copyright for 50 years from the date of the death of the author. Trade marks are only valid while they have a distinctive character and are used on the goods and services for which they are registered. These rights are certainly not perpetual.

This case serves as yet another reminder that intellectual property laws were not designed with traditional knowledge in mind. Intellectual property rights do protect some aspects of traditional knowledge, but not to the extent expected by their guardians.

Photo courtesy of author Jad_23 under Creative Commons licence. 

1 comment:

  1. Hearing officers has to trained in a good way that they can make right decisions at any situation.


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