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.

A failed conspiracy

Another Guy Fawkes night has been and gone.  It’s a slightly odd ceremony we have carried over in New Zealand and Australia from our history as British colonies.

The origins of Guy Fawkes are found in 1605 involving a failed conspiracy known as the “Gunpowder Plot”.  The object of the Gunpowder Plot was to blow up the English Parliament and the ruling monarch King James I.  Guy Fawkes and his conspirators were arrested before the plan could be carried out, intended to be on 5 November 1605.

So, more than four centuries later, many of us celebrate the failed plot by lighting bonfires, burning effigies of Guy Fawkes (or the villain of the day), and letting off fireworks.  Many people attend organised fireworks displays.  Others stage their own displays at home.

Every year there is the usual debate about whether fireworks should be sold to the public.  Every year there are reported injuries from burns, lacerations, bruising and foreign objects landing in eyes.  Over the years we have seen a gradual restriction in the selection and potency of fireworks on sale.  We have seen age restrictions imposed.  This year fireworks were only available for sale on the four days leading up to 5 November.

I expect there will come a time when organised public displays are all the entertainment on offer.

Many of us still enjoy getting together with friends on what is usually a mild late spring evening.  We barbeque home-raised beef and lamb and sip local wine.  We wait for nightfall and the opportunity to light our own fireworks with only slightly less anticipation than our children.  I guess we should enjoy it while we still can.

Photo courtesy of author Harold Neal under Creative Commons licence.

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.

Queen’s birthday

One of the benefits of being a constitutional monarchy is that we have an annual public holiday.  Today we celebrate the birthday of Queen Elizabeth II.  Her actual birthday is 21 April.  But let’s not let facts get in the way of our right to choose when we have our holidays.  We celebrate it on the first Monday in June.

Like most New Zealanders I woke to my usual alarm which in my case is 5:15am.  The initial relief of realising I did not have to go to work today quickly gave way to irritation that I had forgotten, again, to turn my alarm off.

For many of us it is a stark reminder that we are well on our way into winter.  There are no more statutory holidays for the next four bleak winter months until Labour Day on the fourth Monday in October.

It is perhaps time to look at the relevance of the British Monarchy to New Zealand society.  Personally I think we are pretty much left to govern our own nation without undue influence from abroad.  Whether we become a republic or whether we remain a monarchy will not really affect the day-to-day running of our country.  The issue is an emotional issue rather than a practical issue for many New Zealanders.

New Zealand is a sovereign independent unitary State with a constitutional monarchy as I mentioned above.  The basic constitutional framework is set out in the Constitution Act 1986.  Section 2 of this Act proclaims the Sovereign as the Head of State of New Zealand.  The Governor-General is appointed by the Sovereign and is the Sovereign’s representative in New Zealand.

Legislation in New Zealand does not become law until the Governor-General approves it.  Section 16 of the Act provides that Bills passing through our unicameral Parliament do not become law until the Governor-General assents to it.  In practice, the Governor-General will only exercise his or her power to refuse assent to Bills on ministerial advice.

One power of the Governor-General of more interest is the power to dissolve Parliament.  In 1996 we had our first general election under the MMP (Mixed Member Proportional) system.  It’s a voting system based on the German model where each voter gets two votes, one for a candidate in his or her local electorate, and one for the party of his or her choice, chosen from those registered parties who have nominated a party list of members.

From my point of view the effect of MMP is that post election we end up with a centre left and a centre right party.  Neither has enough votes to govern alone.  So each one tries to string together a majority from a handful of minor parties.  It’s no small task.  The platforms of minor parties include indigenous sovereignty, libertarianism, anti-immigration, environmental activism, and fundamentalist Christian.  And that’s just the minor parties.  There are still more independents who have fallen out with their former parties.

Most of the post-election agreements take the form of formal coalitions or informal “got your back” agreements to support the ruling party on confidence and supply.  If the parties can’t sort it out within a reasonable timeframe then the Governor-General can step in and dissolve Parliament.  The mere fact that we have that provision is a good incentive to the parties to sort it out themselves.

The Governor-General also has the power to appoint ministers and judges, issue writs for elections and bestow honours.  It wouldn’t really matter whether these powers are carried out by the Governor-General as the Queen’s representative or by someone else.

In summary I don’t think the monarchy has much effect on our daily lives at all.  I suspect many New Zealanders are emotionally attached to Queen Elizabeth II.  This does not mean we are necessarily a country of royalists.  We just like the current Queen.  Many of us enjoyed watching the royal wedding of Prince William.  I think that wedding can only have increased the popularity of the monarchy among the younger generation.

We are unlikely to become a republic anytime soon.