Review of WIPO Principles and Objectives - Presentation

Slide 1: [Outline (1)]

• Introduction
• Context
• Document Framework
• Treaty considerations
• New Zealand legal/policy framework
• Customary considerations

Slide 2: Outline (2)

• Key Objectives/Principles
  • Misappropriation/Misuse
  • "Value and respect"
  • Preventing misappropriation of TK
  • Responsiveness to aspirations of TK holders
  • Flexibility
  • Empower TK holders and communities

Slide 3: Outline (3)

• Significant Gaps in WIPO Objectives/Policies
  • International Human Rights norms (e.g. Self-Determination)
  • "Public Domain"
  • Adequate Resourcing
  • Dispute Resolution mechanisms
  • Fuller and effective involvement of Indigenous Peoples

Slide 4: Introduction

• Review undertaken in personal capacity
• Relationship to WAI 262
• Have been following WIPO process since 1998
• Fact Finding Mission
• WIPO and CBD processes

Slide 5: Contextual Background

• Indigenous Peoples and processes of decolonisation.
• Justified on basis of "historical continuity, cultural autonomy, original occupancy, and territorial grounding" (Maaka and Fleras)
• Self-Determination, Tino Rangatiratanga
• DDRIP, WGIP, CBD, UNESCO, Sub-Commission on Promotion and Protection of Human Rights (Reports of Madame Erica-Irene Daes)

Slide 6: Context (2)

• States feel threatened by Indigenous reassertion of Rights.
• New Zealand, USA and Australia recent intervention at WGIP to limit definition of "self-determination" to "preserve political unity and territorial integrity of any States" (December 2005)
• AIR Trust (New Zealand and other States) are "preoccupied with perceived threats to states, rather than the very grave and pervasive threats to indigenous peoples"

Slide 7: Context (3)

• Developed nations and UN bodies focused on commercialization of TK ( "access and benefit sharing");
• Developing countries concerned with protecting resources from over exploitation;
• Indigenous Peoples caught in the cross fire:
  • Lack of resources
  • Concerned for basic human/traditional rights
  • Lack of an effective voice in UN processes

Slide 8: Context (4)

• Local Events:
  • Return of Kumara in 1988
  • Filing of WAI 262 claim in 1991
  • Mataatua Declaration 1993
  • Intellectual Property Law Reform process 1994
  • GATT:TRIPS Bill 1995
  • Piecemeal reforms e.g. Trademarks Act 2002, government policy developments
  • Increasing misappropriation of Māori TK

Slide 9: WIPO Framework

• General Comments:
  • Dichotomy between TK and TCEs
  • Framework :
    • policy objectives
    • guiding principles
    • substantive provisions
  • Focus is on misappropriation of TK/TCEs
  • Seek to avoid creating new property rights to protect TK/TCEs

Slide 10: Framework (2)

• General Comments:
  • Registration/databases optional but necessary for "greater" protection (Art 7, 8/4)
  • "Public Domain" is still an issue (Art 8, 8/5)
  • Retrospective? (Art 9, 8/4 & Art 10, 8/5)
    • "brought into conformity within a reasonable period"
  • Management/Enforcement "Agency" (Art 4, 8/4, Art 13,8/5)

Slide 11: Framework (3)

• General Comments:
  • Legal remedies (Art 8, 8/4)
• Other Comments:
  • International process and direction uncertain
  • Final shape/form of Instrument uncertain (binding, non-binding, Treaty, Declaration etc)
  • Would it be adopted in New Zealand and how?

Slide 12: Traditional Cultural Expressions (Doc 9/4)

• Subject matter of protection (Art 1, 8/4):
  • Tangible and intangible;
  • "Products of intellectual and creative activity, including individual and communal creativity"
  • "Characteristic of a communities cultural identity and heritage"
  • "Maintained by individuals or community in accordance with customary law and practices"

Slide 13: Traditional Cultural Expressions (2)

• Scope of Protection (Art 3, 8/4)
  • Three "layers" of protection:
    • A. TCEs of "particular cultural or spiritual significance"- need to be registered or notified to qualify for protection (i.e. PIC needed);
    • B. TCEs not registered not require PIC where used for "creative inspiration" but may have to pay $$ if "gainful intent". Some protection for culturally offensive use.
    • C. Secret TCEs protected.

Slide 14: The Good

Slide 15: The Bad

Slide 16: The Ugly

Slide 17: Lego

Slide 18: "Māori Mix" Cigarettes in Israel

Slide 19: Plastic Salad Servers

Slide 20: United States Sony Playstation Game

Slide 21: [Football Boots]

Slide 22: "Tane Toa"

Slide 23: New Zealand "Bath Culture" Soaps

Links:

• Adze (Toki) [link to Bath Culture New Zealand website]
• Hook (Hei Matau) [link to Bath Culture New Zealand website]
• Face Cloths [link to Bath Culture New Zealand website]
• Koru Soap [link to Bath Culture New Zealand website]

Slide 24: Traditional Cultural Expressions (3)

• Term of Protection - may be indefinite as long as continues to meet criteria but pressure to conform to IP system so that TCEs enter "public domain".
• Registration and Notification - (Art 7)
  • Entered onto a public register
  • Registration declaratory and doesn't create rights
  • Rights of third parties not affected
  • Registration Agency responsible for sorting out disputes

Slide 25: Traditional Cultural Expressions (4)

• TCE provisions complementary to existing IP laws and laws and programs for preservation and promotion of TCEs (Art 10):
  • IP laws
  • UNESCO provisions on safeguarding intangible cultural heritage
  • What of customary means of protection?

Slide 26: Traditional Cultural Expressions (5)

• International and Regional protection (Art 11):
  • TK holders living in foreign country may receive benefit of protection.
  • Difficult to see how this could be put into practice e.g. where foreign dispute body has no knowledge of the customs or practices of the TK or TCE concerned.

Slide 27: Traditional Knowledge (Doc 8/5)

Policy Objectives (Doc 8/5 p.3)

• Recognise Value
• Promote respect
• Meet actual needs of TK holders
• Promote conservation of TK
• Empower TK holders
• Prior Informed Consent
• Equitable Benefit Sharing

Slide 28: Traditional Knowledge (2)

Guiding Principles (p.9)

• (a) Responsiveness to "aspirations and expectations" of TK holders
• (d) Flexibility - take account of TK diversity
• (f) Consistency with "existing legal systems governing access to genetic resources"

The authority to determine access to genetic resources, whether associated with TK or not, rests with national governments and is subject to national legislation

Slide 29: Traditional Knowledge (3)

Guiding Principles (p.11)

• (h) Respect for customary use of TK
• (j) Provide assistance to TK holders (doesn't mention $$$ assistance)

Slide 30: Traditional Knowledge (4)

Substantive Provisions

• Misappropriation (Art1)
  • Use of words such as "willful offensive use" (v) and "as far as possible and appropriate" water down protection
• Scope of Protection (Art 3) - TK "refers to the content or substance of knowledge resulting from intellectual activity in a traditional context, and includes the know how, skills … and knowledge embodying traditional lifestyles … and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources"

Slide 31: Traditional Knowledge (5)

Eligibility for Protection (Art 4)

• TK must be "generated, preserved and transmitted in a traditional context"
• "Distinctively associated with a traditional community which transmits it between generations"
• "integral to the cultural identity of an indigenous community"…relationship expressed by formal or informal "traditional practices, protocols or laws"

Slide 32: Traditional Knowledge (6)

• Equitable Benefit Sharing (Art 6, p.28):
  • Only in relation to commercial or industrial use;
  • PIC not required for non-commercial use
  • Customary laws "may" play a role in sharing benefits from TK
• Prior Informed Consent (Art 7, p.31):
  • Subject to "relevant national laws" and "national legislation"

Slide 33: Traditional Knowledge (7)

Exceptions and Limitations (Art 8 p.34)

• Governments can "exclude from the principle of PIC the fair use of TK which is already readily available to the general public"

Slide 34: Treaty of Waitangi

Relevant Treaty Principles

• Tino Rangatiratanga - as a minimum, Māori should have a significant degree of control over the development and implementation of any national or international regime that affects their cultural, spiritual and intellectual rights.
• Kāwanatanga - Crown has a right to govern and make international treaties but must do so in a way that respects and actively protects tino rangatiratanga me o rātou taonga katoa.

Slide 35: Treaty of Waitangi (2)

Relevant Treaty Principles

• Partnership - full effective involvement of Māori
• Good Faith - don't back track on positions
• Active protection
• Redress - WIPO framework could amount to a form of redress
• Reciprocity - Although treaty is a partnership their currently exists a significant power differential so Crown can "call the shots". Where the Crown can show it has acted in good faith and its conduct towards Māori reasonable, Māori are then, and only then, obliged to reciprocate with good faith and reasonable conduct.

Slide 36: Concluding Comment

• Despite its narrow/commercial IP focus for protecting TK/TCEs, there is much content within the WIPO Objectives and Principles that could be of use to Māori in elaborating a local sui generis system of protection for their cultural and intellectual heritage rights.
• However, from a Māori perspective, such a framework would need to have as its starting point, the Te Tiriti o Waitangi, tikanga Māori and be adapted in a manner that gives expression to customary law."

Slide 37: Me Rongo

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