Part One: Wider Issues
Introduction
This paper highlights an area of the law that the Focus Group consider impacts on the rights of iwi under the Treaty of Waitangi. This law is known as the Patents Act 1953.
Advances in technology, New Zealand's signing of the General Agreement on Tariffs and Trade (GATT) Uruguay Round outcome (resulting in the World Trade Organisation (WTO)), and the complexity and age of the existing laws influenced the Ministry of Commerce to undertake a reform of New Zealand's industrial property rights statutes. These are the Patents Act 1953, the Trade Marks Act 1953 and the Designs Act 1953.
The intent of the reform is to simplify the law, make the administration of the Acts more efficient and bring the Acts up to date with the social and economic developments that have occurred since the Acts were first drafted. It was initially envisaged that these reforms would be incorporated in a proposed Intellectual Property Law Reform Bill. The proposed Bill was also to make some amendments to the Plant Variety Rights Act 1987.
At the same time, Maori have approached the government seeking redress for ownership claims to land and natural resources and raised concerns about a range of inappropriate uses of Maori art, imagery, history and taonga resources. These concerns have focused on the abuse of Maori cultural and intellectual property by others for commercial gain, and the absence of ownership rights and effective protections for these taonga by and for Mäori.
The Treaty of Waitangi
Court cases have established the Treaty of Waitangi as a foundation document of Aotearoa which continues to regulate the relationship between its two parties, the Crown and Maori, to be considered regardless of its incorporation into Acts of Parliament.
Maori seek to exercise te tino rangatiratanga as guaranteed to them by Article II of the Treaty. Te tino rangatiratanga reflects the status of Maori as tangata whenua and gives rise to rights of self-determination and tribal self-development. Rangatiratanga incorporates rights and responsibilities to make decisions on the use, control and protection of natural resources according to Maori cultural values and customary preferences. There are other rights encapsulated in the Treaty which Maori may also seek to raise, including oritetanga (equitable treatment of interests) under Article III.
In terms of the Treaty of Waitangi, patents are granted by the Crown and therefore the Treaty relationship between the Crown and Maori is relevant to all aspects of the patenting process. Maori have expressed concern about whether the Crown adequately involves iwi or considers their values and concerns in the drafting, interpretation or administration of the Patents Act.
At present, for example, the law makes no reference to the Treaty, its principles or obligations, nor provides for any express iwi participation in decisions on patenting matters of actual or potential concern to iwi.
The Breadth of Maori Concerns over Use, Control and Protection of Intellectual Property in relation to Life Forms
Two overarching matters have been raised by members of the Focus Group that impact on the overall approach to the reform of laws relating to the patenting of life form inventions. These issues are:
- ownership, control and protection of original life forms, species and traditional knowledge; and
- the piecemeal approach of trying to reform one piece of a wider picture of laws impacting on Maori rights to life forms.
Ownership
In terms of rangatiratanga under the Treaty, Maori assert that they were guaranteed the right to exercise ownership over their taonga resources and the decision-making rights on use and protection that flow from ownership. Taonga resources, in this sense, include significant species and traditional knowledge that might be used to create new life forms or be the subject of a patent.
The patents system does not itself deal with fundamental issues of ownership of the original life forms from which inventions might be derived. The original materials are presumed to be available for public use, subject only to whatever legal or ethical restrictions are imposed. For example, controls on threatened species or consent issues in relation to human rights. A grant of a patent, however, does create an effective property right which Maori assert flows from ownership of the original life form, that is, the right to use that life form as a biological source of material for genetic research.
Maori, therefore, see the issues of patenting and intellectual property in life form inventions as a subset of the broader rights of ownership. Until the fundamental ownership issues raised by Maori under the Treaty of Waitangi are resolved by the Crown, the best that can be achieved by focusing on reform of the Patents Act is interim recognition of Maori values and rights to participate in decision-making within the limits of the existing system. For this reason, the Focus Group has recommended for iwi consideration that the Crown place priority on urgent resolution of these ownership issues.
Piecemeal Approach
A much broader range of laws impact on Maori rights, responsibilities and interests in the ownership, use, control and protection of taonga resources than are covered by the Patents Act. Those other laws include laws regulating access, for example, the Wildlife Act 1953 and the Conservation Act 1987, and laws which control other aspects of intellectual property, for example, the Trade Marks Act 1953 and the Designs Act 1953. The question of how to best deal with the overarching set of Maori principles and concerns in this are as relevant. The Focus Group discussed options that might be considered by Maori, such as whether these issues can be dealt with by a simple reform of the existing patenting system, or whether there is a need for separate legislation dealing with Maori intellectual property issues in general.
As Maori take a holistic approach to these matters, there is a need for an integrated discussion of the Maori opinions and interests in the issues as a whole, in preference to dealing with one separate aspect such as patenting. For this reason, the Focus Group has recommended that a process be established for discussion of overall Maori concerns, with respect to cultural and intellectual property issues, as an input into reform.
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