Traditional knowledge - the proverbial square peg

South Africa is wrestling with the issue of how to protect traditional knowledge. Do you tweak traditional intellectual property rights to accommodate traditional knowledge? Or do you create a whole new sui generis (independent) regime?

The Waitangi Tribunal

In New Zealand we have been looking at this issue for years. We have the Waitangi Tribunal, set up to make recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach promises made in the Treaty of Waitangi.

Last year we saw a decision issue on the 262nd claim brought before the Waitangi Tribunal. The genesis of WAI 262 is concern at the ease with which native flora and fauna can be lost to overseas interests. This claim puts under the spotlight the Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over indigenous flora and fauna. The report is unique in that it looks to build a partnership between Māori and the Crown beyond the grievance process. The report looks to establish a culture in New Zealand where both cultures are promoted, rather than one being promoted above the other.

The report acknowledges that current intellectual property laws and policies in New Zealand were not designed to deal with indigenous relationships with flora and fauna. Furthermore, current laws and policies allow third parties to use traditional knowledge without acknowledgement and consent. Furthermore, the report states that Maori tribes do not have ownership rights in “taonga species” or in traditional knowledge relating to those species.

It makes some recommendations to the Government as follows:

• establish a Maori advisory committee to advise the Commissioner of Patents about whether inventions are derived from Maori traditional knowledge or use taonga species;
• establish a register of traditional knowledge;
• introduce a legal requirement for patent applicants to disclose the source and the country of origin of any genetic or biological material contributing to the invention; and
• grant the commissioner the power to refuse patents that unduly interfere with the relationships between kaitiaki (guardian) and taonga.

Tweaking the existing regime

It has been almost two years since the Waitangi Tribunal released the WAI 262 report. Law makers have done nothing to implement its recommendations. The decision took almost 20 years to issue from the date the claim was first lodged. So maybe we have a while to wait before we see a substantive review of our intellectual property regime.

Progress on protection of traditional knowledge is further ahead in South Africa. The South African Parliament is considering a proposed Intellectual Property Laws Amendment Bill (the Traditional Knowledge Bill).

The Traditional Knowledge Bill has some 'issues', which is a polite way of putting it. One commentator describes the Bill as potentially damaging and that it appears to be proceeding:

... in spite of an independent report (the RIA Report), commissioned by the Department of Trade and Industry (DTI) in 2009, which seriously questioned both the need for the bill and the route taken to address the issue...
The TK Bill seeks to recognise and protect traditional knowledge within the existing forms of intellectual property, such as copyright and patents, but most expert opinion, including that of the World Intellectual Property Organisation (WIPO), is that, if traditional knowledge requires protection, it should be in the form of a new type of legal instrument rather than being subjected to IP.
In its diplomatic criticism of the TK Bill, the WIPO Secretariat describes the government’s approach as “novel and unusual”, which is a polite way of saying that it is unworkable.

An independent approach

What has recently emerged is an alternative South African bill called the Protection of Traditional Knowledge Bill.

IP law firm Spoor & Fisher published a summary of the new Bill on their website. The article states that:

[t]he new Bill, unlike the old Bill, proposes a sui generis approach to the protection of traditional knowledge.  In short, this means that traditional knowledge will be dealt with as a new category of intellectual property rather than fitting it into the already existing categories of intellectual property. This approach has generally been regarded internationally, including by the World Intellectual Property Organisation, as the proper approach for the protection of traditional knowledge.
The protection proposed to be offered by the new Bill can be divided into 3 categories, namely

• Traditional Work, akin to copyright;

• Traditional Designs, akin to Designs; and

• Traditional Marks; akin to Trade Marks.

The noticeable exception is traditional knowledge relating to an invention, but this is due to the Patents Amendment Act, 2007 which established rules for dealing with inventions based on or derived from traditional knowledge.

Further steps

The new Bill has been published for consultation. The submission deadline has passed. It will be interesting to gauge the reaction from submitters. I suspect there will be general support for the approach but a lot of comment about the detail.

Does South Africa square peg traditional knowledge into an existing intellectual property rights framework? Or is a whole new regime needed?

New Zealanders will be watching with interest.

Photo courtesy of author Yoel Ben-Avraham under Creative Commons licence.

Another look at traditional knowledge

The Times of India reports that negotiators from India, Colombia, Peru and New Zealand will shortly meet in Bali to talk about traditional knowledge.

One of the items on the agenda is some kind of agreement on what exactly they mean by "traditional knowledge". Talks have been going on for a decade at international fora such as the World Trade Organisation (WTO) and the World Intellectual Property Organization (WIPO). I don't think anyone is expecting a resolution at this meeting.

Another item on the agenda is who gets to share the royalty or fee that arises from the use of traditional knowledge, genetic resources or traditional cultural expression. Apparently the Peruvians and the Colombians want the resources to flow to the local communities. The Indians on the other hand want to see sovereign governments get the funds. One commentator wants to see companies using genetic resources to state clearly that they have been legally accessed.

I'm not sure what our New Zealand officials are going to say. However, I'm fairly sure that New Zealand will not be criticised by other countries for its treatment of traditional knowledge. Here we have the Waitangi Tribunal, set up to make recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach promises made in the Treaty of Waitangi.

Last year we saw a decision issue on the 262nd claim brought before the Waitangi Tribunal. The genesis of WAI 262 is concern at the ease with which native flora and fauna can be lost to overseas interests. This claim puts under the spotlight the Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over indigenous flora and fauna.The report is unique in that it looks to build a partnership between Māori and the Crown beyond the grievance process. The report looks to establish a culture in New Zealand where both cultures are promoted, rather than one being promoted above the other.

The report acknowledges that current intellectual property laws and policies in New Zealand were not designed to deal with indigenous relationships with flora and fauna.  Furthermore, current laws and policies allow third parties to use traditional knowledge without acknowledgement and consent.

Furthermore, the report states that Maori tribes do not have ownership rights in “taonga species” or in traditional knowledge relating to those species.

It makes some recommendations to the Government as follows:

• establish a Maori advisory committee to advise the Commissioner of Patents about whether inventions are derived from Maori traditional knowledge or use taonga species;
• establish a register of traditional knowledge;
• introduce a legal requirement for patent applicants to disclose the source and the country of origin of any genetic or biological material contributing to the invention; and
• grant the commissioner the power to refuse patents that unduly interfere with the relationships between kaitiaki and taonga.

Photo courtesy of author Traumador under Creative Commons licence.

Waitangi Tribunal says no to indigenous ownership

One of the findings of the Waitangi Tribunal in the WAI 262 report is that Maori tribes do not have ownership rights in “taonga species” or in traditional knowledge relating to those species.

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 Treaty of Waitangi entitles Maori to a reasonable degree of control over traditional knowledge relating to taonga species and how that knowledge is used.  But it does not entitle kaitiaki to ownership of taonga species.  The Treaty’s English text refers to exclusive ownership.  The Maori text refers to tino rangatiratanga (authority and control).  The Tribunal preferred the Maori text.

The Tribunal observed that Maori created taonga works and matauranga Maori (traditional knowledge).  But Maori did not create taonga species.  In fact the taonga species created Maori culture.  Cultural association with taonga species does not automatically mean exclusive proprietorial rights.

Kaitiaki interests must be fairly and transparently balanced alongside other interests.  These interests include:

• the interests of those who conduct research and/or hold IP rights;
• the public interest in research and development
• the interests of the species themselves

This lack of ownership means that kaitiaki are not entitled to a veto over uses of intellectual property in taonga species in all cases.

Guest Post: A J Park attends handover of Wai 262 report in Ahipara

Thanks to Lynell Tuffery Huria for this article.

Last Saturday was a clear, beautiful day. It was an appropriate day for the official handover of the Flora and Fauna and Cultural and Intellectual Property Report, more commonly known as WAI 262. I attended the handover at Roma Marae in Ahipara, New Zealand, the home of Haana Murray, the sole surviving claimant.

The report, “Ko Aotearoa Tenei – This is Aotearoa (or This is New Zealand),” has been 20 years in the making. It is a landmark report despite the fact the New Zealand Government is not bound by any of the report’s recommendations. The report is long overdue, not only for the claimants and their legal representatives, but for all Māori. The report is also significant to people overseas who see the claim as synonymous with the plight of indigenous peoples around the world—people who also strive for recognition of their own cultural intellectual property rights.

Over 250 people gathered at Roma Marae, in the small village of Ahipara, population 1100, to witness the official handover of this report. The ceremony included acknowledgements of those who that had been involved with the claim, and in particular, those who had passed on. Their photos were positioned amongst tangata whenua (local Māori) so that their part in this process was not forgotten.

At over 1000 pages, the report itself is rather lengthy. The government has already indicated the report will take some time to digest.

Chapter 5 of the report was released last October, in anticipation of an urgent review of Te Reo Māori (the Māori language), which is considered to be in crisis. But none of the recommendations in that chapter have been adopted.

We eagerly await the government’s review of the full report.

Background - what is WAI 262?

WAI 262 is the 262nd claim before the Waitangi Tribunal. The origins of the claim date back to 1988, when two women found the Department of Scientific and Industrial Research (DSIR) had deposited several cultivars of native kumara at a research institution in Japan. These kumara had been brought to New Zealand by the Māori people, but were no longer available here. These women travelled to Japan to bring the kumara back to New Zealand.

The women became concerned at the ease with which this native flora and fauna could be lost to overseas interests, and the lack of Māori involvement in the decision making process. The women felt the government and DSIR had ignored Māori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over this particular indigenous flora and fauna.

As work towards filing a claim with the Waitangi Tribunal began, the concerns extended to include the ever increasing loss of native plants and animals, the destruction of ecosystems, the continuing erosion of mātauranga maori (traditional Māori knowledge), and the continuing creation and amendment by the government of intellectual property legislation that failed to recognise Māori intellectual property rights.

The claim was lodged in 1991 by six individuals on behalf of six tribes.

What did the claimant’s seek?

The claim asserted the Crown breached the Treaty of Waitangi, because the Crown:

• failed to actively protect the exercise of tino rangitiratanga and kaitiakitanga by the claimants over indigenous flora and fauna, and other taonga (“treasure”), and also over mātauranga Māori (Māori traditional knowledge)
• failed to protect the taonga itself
• usurped tino rangatiratanga and kaitiakitanga of Māori in respect of flora and fauna and other taonga through the development of policy and enactment of legislation
• agreed to various international agreements and obligations that affect indigenous flora and fauna and intellectual property rights and rights to other taonga.

The claimants also asked that one of the remedies include a framework based on tikanga Māori (or Māori customary values) that recognises Māori rights to exercise tino rangatiratanga and kaitiakitanga over indigenous flora and fauna, other taonga, and mātauranga Māori.

What’s in the report?

The report is unique in that it looks to build a partnership between Māori and the Crown beyond the grievance process. The report looks to establish a culture in New Zealand where both cultures are promoted, rather than one being promoted above the other.

The report is far reaching, and recommends changes to laws, policies, and practises that affect Maori culture, health, education, language, and identity.

An example of one of the recommendations is to establish a Māori advisory committee to advise the Commissioners of Patents and Plant Variety rights on whether inventions are derived from Māori traditional knowledge or use taonga species.

You can read the full report online here.

The close of a long chapter

It has finally arrived!  Tomorrow the Waitangi Tribunal releases its decision on the 262nd claim it has received since its inception in 1975.  The claim was lodged in 1991 by six individuals on behalf of six Maori iwi (tribes).  It’s been 20 years and 5 of the originial 6 claimants have passed away.  The sole survivor is Saana Murray from Ngati Kuri.  It promises to be an emotional day.

The ceremony tomorrow is being held at Roma Marae (meeting house), Ahipara in Northland.  It starts with a Powhiri (welcome) at 11:00am for the Waitangi Tribunal, the Crown and other invited guests.

The report handover ceremony starts at noon.  A local Kaumatua (elder) will deliver a Karakia Timatanga (opening prayer).  Saana Murray herself will speak on behalf of Ngati Kuri.  The Waitangi Tribunal Director will present a statement of findings.  Representatives from each of the remaining Iwi will speak.  Each claimant Iwi will then be presented with a copy of the 1,000 page report.  A local Kaumatua will perform a Karakia Whakamutunga (closing prayer).

A Hakari (feast) is scheduled for 2:00pm then a Poroporoaki (eulogy) at 3:30pm.

The report is not yet public.  Copies were given to local media earlier this week on the understanding that the report was embargoed until the following week.  However, one story has already been published today by the media outlining the Waitangi Tribunal recommendations.

I will wait and read the report myself rather than rely on the article.  The article does note that one of the recommendations is to set up a Maori advisory committee to work with the Intellectual Property of New Zealand (IPONZ).  The suggestion is that IPONZ will have the power to refuse patents that unduly interfere with relationships between kaitiaki (Maori) and taonga (precious things).

The New Zealand Patents Bill 2008 isn’t too far off the mark.  It will establish a Maori advisory committee that will advise IPONZ on request whether an invention appears to be derived from Maori traditional knowledge or from indigenous plants or animals.  If an invention appears so derived, the committee will advise whether the commercial exploitation of that invention is likely to be contrary to Māori values.

In any event, tomorrow marks the end of a long chapter in the lives of these claimants and their families.

Te Tai Tokerau

Normally I wouldn’t write about political machinations in New Zealand.  They tend to be small scale petty disputes.  However, tomorrow’s by-election is a little different.  In this case there are some constitutional principles involved arising from the Treaty of Waitangi that affect how we do things here.  And this by-election is soaking up Parliamentary focus and further delaying more important legislation.  Like the Patents Bill.

Most voters in New Zealand register for an electorate known as a general electorate.  Those New Zealanders who are of Maori descent may choose to place their names on a separate electoral roll.  This map shows both the Maori electoral boundaries and the electoral boundaries used for general electorates.

In November we will each vote for one of several candidates standing in our electorate.  Some of us will have our names on a general electorate.  Some of us will have our names on a Maori electorate.

The Maori Party was formed in 2004 with the resignation of Tariana Turia from center-left party Labour.  In the last election in 2008 the Maori Party won 5 of the 7 Maori electorates.  This year the member for the Maori electorate Te Tai Tokerau, Hone Harawira, resigned from Parliament thereby forcing a by-election in his electorate.  I guess we can say he resigned.  At the time the Maori party was going through a disciplinary process to evict him.

Tomorrow’s by-election is expected to cost $500,000.  It’s a three horse race.  Hone Harawira under his new Mana Party is running against a candidate from the Maori Party and a candidate from the Labour Party.  If Harawira wins tomorrow he will probably qualify as the leader of the Mana Party, a Parliamentary party.  He will receive more funding and privileges in the run-up to the general election in November than he would as a mere independent MP.

Harawira is unpopular in most circles, to put it mildly.  It will be an interesting race to watch.  But is it the best use of Parliamentary focus, time, and taxpayer funding?

The Treaty of Waitangi

In the late 1830’s there were about 2,000 settlers and approximately 125,000 Maori in New Zealand.  William Hobson was appointed as New Zealand counsel.  He was sent on behalf of the British Crown to obtain sovereignty over all or part of New Zealand with the consent of a sufficient number of Maori chiefs.

And so was born the second most quoted document in the history of New Zealand.  The Treaty of Waitangi was signed at Waitangi (which is why it’s called the Treaty of Waitangi) on 6 February 1840.

The Treaty was signed by Hobson, some English residents and 40-45 Maori chiefs.  The document has two texts.  One Maori and one English.  The Maori text of the Treaty was taken around the northern parts of New Zealand to obtain additional Maori signatures.  Copies were sent around the rest of the country for signing.  By the end of the year over 500 Maori had signed the Treaty.  Today the Treaty of Waitangi is on permanent display in the National Archives in Wellington.

On 21 May 1840 William Hobson proclaimed sovereignty over New Zealand’s North Island through the Treaty of Waitangi.  He claimed sovereignty over the South Island by right of discovery.

As I mentioned above, the Treaty of Waitangi has two texts.  One in Maori.  One in English.  What makes it a little difficult is that the English text is not an exact translation of the Maori text.  Boiled down to essentials, the Treaty is an agreement in which Maori gave the Crown rights to govern and to develop British settlement.  The Crown guaranteed Maori full protection of their interests and status, as well as full citizenship rights.

One of the fundamental differences between expectations is found in Article 2.  The Maori version uses the word “rangatiratanga”.  It promises to uphold the authority that tribes had always had over the lands and taonga (roughly “precious things”).

The English text is thought to emphasise property and ownership rights.  The Queen guaranteed to Maori the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them.

 The Treaty of Waitangi Act 1975 established a Waitangi Tribunal.  The role of the Tribunal is to make recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach promises made in the Treaty of Waitangi.

The Tribunal has authority only to make recommendations.  In most cases its recommendations do not bind the Crown.  Its process is inquisitorial rather than adversarial.  It is able to conduct its own research rather than decide a matter solely on evidence and legal arguments presented to it.

Next month we are going to see a decision issue on the 262nd claim brought before the Waitangi Tribunal.  The genesis of WAI 262 is concern at the ease with which native flora and fauna can be lost to overseas interests.  This claim puts under the spotlight the Maori rights of tino rangatiratanga (authority) and kaitiakitanga (guardianship) over indigenous flora and fauna.

It is expected to be a significant decision that will have a profound effect on our approach to intellectual property rights.