Introduction
For many years indigenous and local communities have raised concerns about misuse and misappropriation of traditional knowledge in general, and particularly the interaction of traditional knowledge with intellectual property (IP) regimes. Māori have raised similar concerns in the Waitangi Tribunal, as well as internationally through bodies such as World Intellectual Property Organization (WIPO).
These concerns can be considered from two perspectives:
- The inability of conventional IP rights systems to both provide adequate protection for traditional knowledge, or to limit the use of traditional knowledge to the appropriate holders of that knowledge only.
- The acquisition by parties other than traditional knowledge holders of IP rights over traditional knowledge-based creations and innovations.
Some of the aspirations expressed by indigenous people and communities for the protection of cultural and spiritual taonga may not be compatible with the objectives and purposes of IP legislation. For example IP rights are usually limited in duration and involve disclosure to the public and the eventual contribution to the public domain. There are clearly limits in the extent to which protection which might be considered to meet the needs of indigenous communities, including Māori communities, can be achieved within an IP framework.
Other examples of the diverging expectations, in terms of what an effective level of protection might include, relate to the requirement of "originality" and the requirement to identify an individual (or commercial entity) as the author/creator of a work or innovation and vest IP rights in them. By contrast, the rights that indigenous people often assert may be collective, rather than individual, in nature with traditional knowledge and traditional knowledge-based innovations and practices possibly being developed incrementally over several generations.
Where it is not possible to achieve or reconcile different goals within the existing IP rights system with the goals and objectives of traditional knowledge holders, it may be possible to do so using a mixture of complementary legal and non-legal measures. Such mechanisms may include, for example, customary law, databases and registers, contracts, and preservation programmes. This is the focus of a good deal of work both in Aotearoa-New Zealand and around the world.
What is being done about these issues?
The relationship between IP rights policy and legislation and the traditional knowledge of indigenous and local communities is one that the Ministry of Economic Development has sought to respond to for a number of years.
One such example relates to the Trade Marks Act. Following extensive consultation with key Māori and other stakeholders, a comprehensive overhaul of Aotearoa-New Zealand's trade marks legislation took place in 2003. The new Trade Marks Act saw the inclusion of amendments to guard against the registration of trade marks based on Māori text and imagery and other "signs", where the registration or use of that proposed mark was likely to be offensive to a significant section of the community, including Māori. Cabinet has agreed to make similar changes to the Patents Act.
Our domestic and international experience suggests that further work needs to be done to address the concerns raised by Māori, and other indigenous peoples about the impact of intellectual property laws on traditional knowledge, both in terms of cultural preservation and economic development opportunities.
The Ministry wrote this IP Guide to:
- help whanau, hapu, iwi, businesses or other ropu to understand intellectual property (IP) rights;
- show how IP rights may be useful to you and your ropu;
- give you practical information about how to get and enforce IP rights; and
- explain some of the risks, limits and possible benefits of IP for preserving, protecting and promoting Mātauranga Māori and traditional knowledge.
This guide has information on each type of IP right, as well as some practical examples and tools to help whanau, hapu, iwi, businesses or other ropu who want to protect and enforce their IP rights.
The IP rights discussed in this guide are:
- Trade marks
- Patents
- Copyright
- Designs
- Performers' rights
- Plant variety rights
- Geographical indications (Place names)
- Trade secrets/Confidentiality information
A CD ROM accompanies this guide, and gives practical examples of important IP ideas to show you how to use IP rights to protect your cultural and intellectual property. You will also learn how to protect your traditional knowledge from being wrongfully used by others.
The Ministry of Economic Development manages the laws and policies on IP. The Ministry prepares policies and laws about intellectual property rights, and supports Aotearoa-New Zealand's interests at international bodies such as the WIPO, and the World Trade Organization (WTO).
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