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The protection of traditional knowledge is a complex, sensitive issue in New Zealand and internationally. New Zealand is, to some extent, in a unique position because of our constitutional situation. Our founding document, the Treaty of Waitangi, includes principles such as the government’s duty to the rights of the Māori people to protect their treasures (which include material and non-material heirlooms, including traditional knowledge).
We found the three papers by the WTO Secretariat on the issues of: traditional knowledge, the provisions of Article 27.3(b), and the relationship between the TRIPS Agreement and the Convention on Biological Diversity (CBD), both interesting and helpful - but perhaps for different reasons than some others here today. In our view, the papers (and communications from other Members) focus primarily upon the mechanisms that could be used to protect traditional knowledge, without there being a prior understanding of exactly what “protect” means in the context of TRIPS.
One of the issues we are considering in New Zealand (and this is also relevant at the international level) is how to reconcile the interests of those who wish to preserve traditional knowledge and protect it from any use except by traditional knowledge holders, and those who wish to allow for the development of traditional knowledge (including where this involves use by others), and enable the traditional knowledge holders, where appropriate, to share in any benefits which may result from this.
There are good reasons why different communities may emphasise the differing objectives of either preservation or development. Some aspects of traditional knowledge are viewed, by some traditional knowledge holders, as precious expressions of their culture that should not be used by others. For some Māori, their language and images are cultural treasures that should not be used by non-Māori, particularly when this conflicts with the sanctity of, or traditional protocols associated with, the knowledge. There has been an adverse reaction, from some Māori, to several recent episodes where Māori language or imagery, which they consider sacred, were used by non-Māori, for example in Lego toys, in the design of Adidas rugby boots and where an image derived from the traditional Māori tattoo, or ‘moko’ was used by a restaurant in Amsterdam. It has been suggested that there are other aspects of Māori traditional knowledge, for example ‘kapa haka’ (traditional songs and dances), which may be shared or even commercially exploited, provided there is appropriate recognition of the source of the knowledge. Intellectual property rights are relevant in achieving this objective – that is, to facilitate the appropriate development of traditional knowledge. But they are not necessarily able to achieve the absolute preservation of traditional knowledge.
New Zealand considers that discussion of specific mechanisms to be implemented at the international level may be premature. It is important first to consider and discuss the full range of mechanisms - intellectual property-based or sui generis - that may assist indigenous peoples to both protect and develop their traditional knowledge. We would also like to sound a warning about the need to ensure that this process is informed by the wishes of traditional knowledge holders themselves. The need to consult with traditional knowledge holders is paramount, and in New Zealand we have more work to do to identify, in conjunction with Māori, appropriate measures that need to be taken at the national and international level to adequately protect their traditional knowledge.
There are currently no specific provisions in New Zealand’s intellectual property laws directed at the protection of traditional knowledge. Aspects of traditional knowledge are, however, protected to some extent by existing, general, intellectual property laws (within the limitations inherent in those laws - for example the difficulty in accommodating collective rights). For example, traditional literary or artistic works may qualify for protection as copyright works under the Copyright Act 1994. Certain works might be eligible for protection as registered designs under the Designs Act 1953. But in addition we have made some progress in developing measures that are specifically designed to either preserve, or facilitate the appropriate use of, traditional knowledge.
For example, a Bill is currently before Parliament that will amend our Trade Marks Act, to prevent the inappropriate registration in New Zealand of trademarks (and enable the invalidation of existing trademarks) that contain Māori text and imagery. The Bill prohibits registration (or provides for invalidation) where this would be offensive to a significant section of the community, including Māori. The Bill also provides for the establishment of an advisory committee to provide guidance on whether the use or registration of a mark derivative of Māori text or imagery would be or is likely to be offensive to Maori.
Also in the trade marks area, the Government, through the Māori Arts Board of the Arts Council of New Zealand ("Creative New Zealand"), has funded the development of the Māori Made Mark. The Māori Made Mark is a certification mark of authenticity and quality, which indicates to consumers that the creator of work is of Maori descent and produces work of a particular quality. The Arts Council of New Zealand is the current owner of the trademark, but we anticipate that once the mark is well established it will be transferred to an autonomous Māori entity. The Maori Made Mark was developed in response to concerns raised by Maori regarding the protection of cultural and intellectual property rights, the misuse and abuse of Māori concepts, styles and imagery and the lack of commercial benefits accruing back to Māori. The mark is considered by many as an interim means of providing limited protection to Māori cultural property, by decreasing the market for copy-cat works produced by non-Māori.
In addition, the Government is continuing to consider whether the development of a sui generis system to protect traditional knowledge would be appropriate. New Zealand has also provided assistance to Pacific Island countries who have mandated the South Pacific Commission to develop a draft model law for the protection of traditional knowledge.
New Zealand considers that instituting appropriate measures at the national level is an essential precursor to international action to preserve, or facilitate the use of, traditional knowledge. Given the interconnectedness of the global economy, we also consider that action may be necessary at the international level – but we don’t yet have a view on what form it should take. We will continue to work on this issue domestically, and to participate in work in other international fora such as WIPO [external link to World Intellectual Property Organisation website], with a view to progressing this.
