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deBeer, Mariaan --- "Protecting echoes of the past: intellectual property and expressions of culture" [2006] CanterLawRw 4; (2006) 12 Canterbury Law Review 94


PROTECTING ECHOES OF THE PAST: INTELLECTUAL PROPERTY AND EXPRESSIONS OF CULTURE

Mariaan de Beer[*]

I. Overview

It is difficult to think of a culture which does not have as part of its own cultural expression the use of the human voice, with or without accompaniment. To Maori, this expression is particularly poignant: 'These songs put us in touch with ourselves, our identity, and our roots, for as we sing them the scenes of history and visions of ancestors pass dimly before our eyes.'[1] It is within this context that potential mechanisms to protect traditional Maori song must be assessed.

The conceptualising of 'intellectual property' is a process troubled by difficulties of definition, and in the context of indigenous peoples is hampered by fundamental contrasts in approach. A significant issue is the inherently different beliefs of European and indigenous or traditional communities in terms of which intellectual endeavours should be protected. In protecting the intellectual property rights of indigenous peoples, both as individuals and as communities, it is vital that all stakeholders involved operate within the same frame of reference. Achieving a united perspective will be challenging given the Eurocentric nature of the current international intellectual property system.

Organisations such as the World Intellectual Property Organisation (WIPO) have attempted to establish an international consensus as to what is important and achievable in terms of indigenous intellectual property protection, but these attempts have not been completely successful. At the time of writing, none of the United Nations Member States have adopted the Model Provisions of 1982, and attempts to negotiate an international treaty (initiated in 1982) have been unsuccessful. A number of governments have taken initial steps to protect indigenous intellectual property, with particular success in the area of artworks and other expressions fixed in a material form. It is on these types of intellectual endeavour that most academic literature and litigation has focused internationally. Australia has demonstrated a flexible approach as it would now seem to be relatively simple for indigenous artists to establish originality (thereby gaining copyright protection) in their works.[2] Protecting expressions of culture other than artwork has been more difficult. Traditional Maori song is effectively without protection in New Zealand, leading to the conclusion in some quarters that a sui generis system of protection with unique parameters will be necessary to protect such intangible and often unrecorded expressions of culture.[3]

This article addresses the contrasting worldviews and definitional difficulties which underpin the current struggle to provide adequate protection for indigenous intellectual property. It also assesses the adequacy of current initiatives and international protective measures with regard to how well the self-expressed[4] needs of indigenous and traditional communities are met by each suggested or implemented protective mechanism. The efforts of WIPO are a particular focus. Finally this article considers the New Zealand situation, focusing particularly on traditional Maori song. The current means of protection for Maori expressions of culture are evaluated, considering the potential impact of the Waitangi 262 (Indigenous Flora and Fauna) claim and use of the toi iho Maori Made Mark. New means of protection for Maori song are also considered, combining elements of both the current intellectual property system and sui generis alternatives.

It is clear that the current international intellectual property system lacks the flexibility to include traditional cultural expressions. A new form of protection vesting in an entity larger than the individual (such as the indigenous community of the artist) may be necessary.[5] However, with the cooperation of the international community and the input of indigenous and traditional communities, it is to be hoped that a range of positive and defensive legal tools can be developed.[6]

II. Conflicting Worldviews

The range of intellectual endeavours which need to be considered within the international intellectual property system is only limited by the ability and creativity of the human intellect. A number of different intellectual 'products' are currently protected, but indigenous communities argue that more comprehensive protection is needed. Indigenous communities recognise and affirm a number of facets to their intellectual property and cultural property. While most traditional knowledge and culture can be described as 'old' it is also important to recognise the continual process of growth and change which keeps indigenous communities vibrant and successful. Fundamentally contrasting worldviews form the basis of European and indigenous expectations of the international intellectual property system. It is important to comprehend these differences, as an understanding of the differences in approach is useful in addressing the merits and pitfalls of creating a sui generis or expanded system of protection. If the current intellectual property system is assumed to be appropriate, and its objectives assumed to be applicable to indigenous and traditional communities, then a lack of understanding will continue to hamper the protection process.[7] However, it is important that the need for understanding and discussion does not result in a lack of action in the long term.[8] A major difference in perspective between the two world views goes to the importance or value of owning property. Property ownership remains a fundamental tenet of the European worldview, and of the conventional intellectual property regime. Underkuffler states that 'the concept of property is powerful ... [and holds] a fundamental place in our constitutional structure ... property has been more than simply an imaginative or symbolic concept, it has been the medium through which struggles between individual and collective goals have been refracted.'[9] In essence, the individual who owns property is more influential and powerful within the European worldview than an individual who does not. This view underpins the European view of intellectual property as well, creativity for its own sake not being valued in the same way as intellectual endeavours which can be exploited subsequent to the gaining of intellectual property rights.

The indigenous worldview seldom thinks in terms of individual ownership of cultural property. The idea of an individual artist 'owning' the artwork they created using indigenous themes, is incomprehensible to many groups including the Australian Aborigines and Torres Strait Islanders.[10] Conferring intellectual property rights on an individual artist in order for them to be able to reap financial rewards to the exclusion of others of their community is not acceptable to many indigenous communities. In other contexts the ability to control their intellectual output is of huge significance to indigenous peoples. Intellectual property rights are necessary in terms of economic gain and control for the benefit of the community, and also in terms of a larger struggle for self-determination. Particularly in the 19th and 20th centuries, intellectual property protection and control was (and still is) closely associated with a long history of colonisation and imperialism which has affected indigenous peoples internationally. The Western view of property ownership was clearly expressed by John Locke who equated freedom of the person with the acquisition and control of property.[11] A reclaiming of cultural resources is symbolically linked with the more tangible reclaiming of tribal lands as part of a larger self-determination struggle.[12] Economic benefit is seldom the sole motivator in obtaining intellectual property rights over cultural and intellectual property.

European and indigenous views of the structure of intellectual property rights also diverge. The European view of intellectual property rights is in essence based on rewarding a creative individual for their contribution to society by protecting their intellectual endeavours, most often for a limited period of time (although moral rights for example may exist in perpetuity, and trademarks are effectively protected as long as they are used in trade). There is a focus on the ability to exploit the endeavour for financial reward during the time period, and to be able to prevent others from exploiting it during that time. In order to qualify for intellectual property protection, several requirements must be met, most often including identifiable authorship or inventorship, originality or effort and disclosure to the public. The criteria for protection vary depending on the type of rights sought and provided for by legislation.

Many of these requirements for conventional intellectual property protection cannot be met by indigenous peoples, either because the expressions of culture fall outside the criteria by their very nature, or because a community refuses to comply with a requirement because of customary law which forbids it. The traditional dances of the Torres Strait Islanders of Australia are an example of this difficulty. As the dances are seen by the community as sacred, they must be performed without alteration or amendment to avoid the imposition of severe penalties by the community.[13] This means that the requirement of 'originality' cannot be met.

Where sacred materials are involved, disclosure will often also not be an option as supernatural or community sanctions may be linked to the dissemination of sacred materials to inappropriate audiences.[14] A government intellectual property office or department may well be perceived as an inappropriate audience.

Individual or identifiable authorship, a key requirement in the conventional intellectual property system, is also problematic for indigenous peoples where cultural materials are involved.[15] Most cultural expressions are based on a cultural history common to an indigenous group,[16] and incremental changes to expressions of culture, made over time by a number of individuals, are not sufficiently catered for in current legislation that protects individual ownership. The concept of an individual 'owning' cultural property that they have been involved in developing is incomprehensible in the Maori context.[17] Authorship by a community, however, falls outside the scope of copyright in Australia, New Zealand, Canada, Italy, Japan and the United States among others.[18] The deficiency of Australian law in dealing with works 'essentially communal in origin' was acknowledged by French J in Yumbulul v Reserve Bank of Australia Ltd.[19]

Sections 14 and 18 of the New Zealand Copyright Act 1990 requires that the work to be protected have a level of originality, be in a fixed form and have an identifiable author or be commissioned by an identifiable individual. Protection is also limited in time by virtue of ss 22 to 25.

Protecting intangible expressions of culture will be very difficult under this legislation and similarly under intellectual property legislation in Canada, Italy, Japan and the United States.[20]

There is the potential for copyright protection within the conventional system in situations where a work is commissioned, and this may be an avenue for indigenous peoples to explore. If it can be said that an indigenous community, through its encouraging of certain members to develop cultural expressions, is thereby commissioning these expressions, intellectual property rights may be found to vest in the community. This would be highly beneficial to communities, but the parameters of the term 'commission' must be clarified first. More than mere encouragement would be necessary, and arguably a benefit of some kind should accrue to the artist or author. The requirements for protection in the European intellectual property system are indicative of another central difference; that of the separation of cultural and intellectual property in the European intellectual property system. The protection of the French language by the French government is one of the few examples within European nations of the protection of culture through legislation. Within the conventional intellectual property system there would seem to be a distinct understanding that expressions of culture such as folk songs are in the public domain, and that neither individuals nor communities should be able to protect these through intellectual property rights.[21] Indigenous peoples in contrast normally take a far more holistic approach. The separation of culture and intellect has been described by indigenous commentators as 'unnatural, false and artificial, and the legal constructs that follow [as] narrow and limiting in their definitions.'[22] As a result conventional intellectual property protection will seldom be adequate to protect the breadth of intellectual property and cultural property that indigenous communities value. A significant difference in approach between the two systems is that economic exploitation is seldom the imperative driving force for protection of expressions of culture by indigenous peoples.[23] The ability to protect expressions of culture from inappropriate use will most often be the primary goal of an indigenous protection regime. As conventional intellectual property rights are focused almost solely on the maximising of financial gain this continues to be problematic for indigenous peoples.[24] Once the differences between the European and indigenous worldviews have been acknowledged and explored, it is also important to bear in mind that indigenous peoples are not without their own sanctions and control mechanisms where intellectual property is concerned. An Australian commentary on European and indigenous systems of protection states that 'the boundary between formal and informal knowledge systems may often be false. The informal system may have rules waiting to be discovered. The formal system may have informal beliefs, accidents, or conjectures providing impetus for further inquiry.'[25] Both systems will have elements which are beneficial in considering the protection of intellectual and cultural property.

III. Definitional Difficulties

One of the challenges of working in the areas of traditional knowledge and cultural expressions is not the lack of appropriate terminology, but the diverse meanings and connotations associated with the available terms. Many of the words used in the field of intellectual property have different meanings in different localities with a single language, let alone regions with a variety of languages.[26]

The following terms are in common use in academic and WIPO discussion of the intellectual and cultural property of indigenous communities: folklore; traditional cultural expressions; cultural property; tangible and intangible; protection; traditional knowledge; and time limited protection. For the purposes of current and future discussions, it is important that these terms are used consistently. Their most commonly understood definitions are set out below.

Folklore and Traditional Expressions of Culture

Folklore is one element of traditional culture. It is a tradition-based cultural expression, and is reflective of indigenous communities' cultural and social identity.[27] While the term is still used in some discussion documents its use is increasingly questioned by indigenous peoples. This is because of its perceived derogatory connotations (such as the link to fairytales or mythology).[28] The term 'traditional expressions of culture' is slowly replacing folklore as a more neutral term reflecting the constant evolution of indigenous communities and cultures.

WIPO suggests a definition of traditional expressions of culture which is worth setting out in full:

Traditional cultural expressions and folklore are handed down from one generation to another, reflect a community's cultural and social identity, consist of characteristic elements of a community's heritage, are made by author's unknown and/or by communities and/or by individual communally recognized as having the right, responsibility or permission to do so. The works are often created as vehicles for religious and cultural expression, and are constantly evolving, developing and being recreated within the community.[29]

The WIPO Model Provisions of 1982 provide a classification of the 'most typical' expressions of folklore, the classification being based on the forms of the expressions, namely expression by words, musical sounds, action and expressions incorporated in a material object.[30] Expressions as diverse as folk tales, songs, dances, plays, art and architecture are included in the term. Therefore, folklore would seem to include both traditional expressions of culture which have existed over generations, and more recently developed and developing reflections of the community in which they are developed.

Cultural Property

Cultural property is a term most clearly utilised in the Australian context, where Aboriginal groups have been working on clearly defining what property they wish to have protected. Cultural property has been defined in Australia to include a range of materials, from literary, performing and artistic works, languages, spiritual knowledge, all items of moveable cultural heritage (presumably works of art and sculpture), to the documentation of indigenous peoples' heritage in archives, film, photographs, videotape or audiotape and all forms of media.[31]

Tangible and Intangible Materials

The distinction between these terms is clear but significant. In a number of countries tangible indigenous materials such as artworks have a measure of protection[32] while intangible expressions have largely been left to the future, perhaps being perceived as too difficult to legislate for. Traditional song, dance and performance largely fit within this 'intangible' category. Intangible cultural materials, in particular where they are secret or sacred in nature, fall outside the scope of the European intellectual property system, where one of the basic prerequisites for protection is that the material in question be recorded in a material form. Sacred material may be rendered of little value once recorded, removing the reason for attempting to protect it in the first place. In the United States of America the use of sacred materials of an American Indian tribe was seen to render the material evil, removing the desire of the community to protect it or even be associated with it.[33]

Traditional Knowledge

Johanna Gibson states that a distinction is often drawn between folklore and the more 'technological' traditional knowledge, but that this distinction is problematic.[34] Traditional knowledge is frequently described and understood as communal or public knowledge,[35] or as knowledge held by an individual on behalf of a community (where access to community knowledge is dependent on the individual's position or role in the community hierarchy). However, a simplistic understanding of the concept of communal ownership should be avoided as not all members of a community will make equal contributions to the cultural expressions of that community.[36]

In intellectual property terms, traditional knowledge is most often associated with knowledge and subject matter which is capable of being used industrially, for example in the pharmaceutical industry. To indigenous communities the distinctions between types of traditional knowledge are largely useless. WIPO documents suggest that there are in fact two senses in which the term traditional knowledge can be used. In one sense, traditional knowledge is a term encompassing 'the content of knowledge itself as well as traditional cultural expressions, and signs and symbols associated with traditional knowledge', while in a more precise sense traditional knowledge refers to 'the content or substance of traditional know-how, skills, practices and learning.'[37]

When classifying material as traditional knowledge it is important to assess whether the community which owns it perceives it to be in the nature of traditional knowledge.

Time-Limited Protection

Both traditional knowledge and expressions of culture tend to combine old and new elements. Old elements exist in the sense that the knowledge has been maintained and passed down through generations, while new elements are continually added due to the continuing evolution of indigenous communities.[39] This continuing adaptation is positive in the sense of keeping the information fresh and relevant, but may cause problems in giving long-term protection to the information, particularly where questions of authorship arise.[40]

Protection

The different meanings and expectations which attach to the term 'protection' is one of the more difficult aspects of intellectual property terminology. In Western terms, protection of intellectual property means the ability of the holder of the intellectual property rights to exercise those rights without interference, and to be able to prevent others from infringing those rights.

To indigenous peoples, protection may mean a range of things, such as being able to prevent exploitation by outsiders or individual community members. Alternatively protection could centre on controlling the use of intellectual property so that only culturally appropriate and non-derogatory use is made of materials.[41]

IV. The Indigenous Drive to Protect Intellectual and Cultural Property

The cultural resources of indigenous and traditional communities, whether they are contemporary or historical in nature, have intrinsic cultural and social significance to those communities.[42] It is this significance, which exists on a number of levels, that provides the impetus for indigenous peoples to strive to protect their intellectual and cultural property.

Cultural and intellectual activities can represent economic benefits to indigenous peoples, but they are also and perhaps more importantly, instrumental to the preservation and continuation of indigenous cultures.[43] This is particularly true in the situation where traditional knowledge and cultural expression are only passed on through oral tradition and only to certain individuals in the community's hierarchy. The continuance of Maori song was traditionally approached in this manner, where different individuals knew different parts of songs. If one individual died, their part of the song was lost. This pattern led to the near extinction of the song tradition within Maori culture.[44]

A desire to foster the growth of indigenous culture and heritage in a coherent manner is an important justification for reclaiming indigenous cultural property and demanding protection for it. Sadly, in some cultures elder members of the community are hesitant to share sacred information with the younger generation because of past abuses of the information, and concerns over whether the information will be treated with respect.[45] Appropriate protection for cultural property and information may lead, counter-intuitively, to increased access to the information where it is felt that the information will be kept safe.

In the Maori context, three key threats to cultural and intellectual property have been identified and these form part of the incentive to develop protective mechanisms.[46] Each of these threats may be dealt with to some extent by positive action within the conventional intellectual property system. The first threat is expropriation, for example where an individual or corporation is able to register a modified Maori symbol, or a Maori word as a trademark, for example where the word 'Awatere', a Maori place name, was able to be registered by a vineyard as a trademark.[47] This is a culturally inappropriate use of the name, as it may prevent Maori from using it in the context of trade. This type of problem may be able to be dealt with relatively easily by adapting current trademark legislation to limit the ability of non-indigenous parties to register trademarks with a Maori connotation.

The second threat identified is that of inappropriate use of customary knowledge, whether by individual Maori, or by non-Maori individuals or corporations. In this area, intellectual property law may need to be adapted to require a consideration of which uses of customary knowledge are appropriate and which uses are inappropriate. Any such adaptation would have to be the result of a deliberate and detailed evaluation of which customary beliefs and concerns are capable of being addressed through legislation. Such a consideration of customary beliefs is not catered for within current systems of protection, creating an incentive to develop for different protection which is culturally sensitive.

The third threat identified is overprotection. This occurs where customary knowledge is fixed in time through legislative intervention and is therefore unable to be develop to its full potential. However, if Maori have input into a framework of protection, or if the current intellectual property system is able to respond flexibly and sensitively to Maori, then this threat may be minimised.

Jahnke et al focus on another element of protection, which is that indigenous peoples want to be in a position to ensure that the power to control exploitation and use of intellectual or cultural property is in the right hands.[48] Appropriate use of intellectual and cultural property enables the importance of the material to be stressed, and the control of access ensures the survival of the information. If Maori are in control of protection of Maori intellectual property then this threat is mitigated. Concerns over a lack of protection among indigenous peoples often involve the increasingly international nature of commerce, meaning that exploitation of folklore and expressions of culture is difficult to monitor and control. Extensive protections within the jurisdiction of one country are useless if other countries do not enforce international intellectual property provisions.[49]

There is a continued fear of commercialisation within Maori culture. This fear dates back to the 1960s in the context of Maori song when copies of the song collections of Sir Apirana Ngata and Pei Te Hirunui began to appear for sale.[50] Mclean would argue that these types of collections in fact have little commercial value, largely because the audience for traditional song in its pure form remains limited. Whether this is entirely accurate is questionable. During the 1960s there were numerous broadcasts of Maori music in Australia and further abroad with the purpose of enhancing tourism interest in New Zealand. After one broadcast the 'phone lines were jammed' with listeners eager to hear more Maori music and find out more about New Zealand.[51] It is no doubt difficult to gauge the flow-on effect of this positive response, but some measure of increase in tourism to New Zealand may well have resulted. A desire by Maori to be compensated for this use of their expressions of culture, or a desire to prevent this type of exploitation occurring at all, is entirely comprehensible as the recordings were treated as if they were a part of the public domain. A desire to have control over this type of action leads to increased pressure to gain protection for indigenous expressions of culture.

Opportunities for economic benefit also play a part in the drive towards protection. As the WIPO reports suggest, it is possible that the use of traditional cultural materials as a source of 'contemporary creativity can contribute towards the economic development of traditional communities through the establishment of community enterprises, local job creation, skills development, appropriate tourism and foreign earnings from community products'. Intellectual property protection can play a part in this move towards the encouragement of sustainable exploitation by indigenous communities of their cultural expressions. The key element of this exploitation must be cultural appropriateness.

Conversely, conventional intellectual property protection could lead to conflict within indigenous communities over ownership and the means of exploitation which may be seen as appropriate. The indigenous drive for protection must be tempered by an understanding that intellectual property protection may not be wholly positive, and may cause as well as solve problems for indigenous peoples in protecting their heritage. While WIPO suggests that intellectual property protection will complement traditional patterns of cultural expressions and traditional knowledge systems, and it is not aimed to supplant the community's own customs and practices,[53] it seems inevitable that conventional intellectual property protections by their very nature will have an impact on traditional customs and practices with regards to protection. The drive towards protection must then also involve a drive towards greater levels of effective indigenous input into solutions.

V. International and Domestic Initiatives

Indigenous communities have clear expectations of future protection regimes for their intellectual property and expressions of culture. They seek the ability to prevent the inappropriate use of their resources both by members of indigenous communities and by outsiders, and to maintain control over any exploitation of those resources.[54] The WIPO Fact-Finding Missions of 1998/99 involved consultations with representatives of 28 countries in an attempt to comprehensively identify the needs and concerns of traditional knowledge holders. The Report on the missions was released to the public in 2001, and identified three needs of indigenous peoples which were most often expressed during the consultations: Having intellectual property protection to support economic development; to prevent inappropriate exploitation; and to prevent the gaining of intellectual property rights over indigenous materials by non-indigenous parties.[56] The United Kingdom based Commission on Intellectual Property Rights noted in its 2002 report that 'a multiplicity of measures, only some of them IP-related, will be necessary to protect, preserve and promote traditional knowledge.'[57] Creating these protections has been a challenging task, significantly hampered by a lack of participation by indigenous communities involved.[58] A number of initiatives have been undertaken both internationally and domestically, and a few are selected for particular comment below.

The three needs expressed by indigenous peoples provide a clear basis from which to assess international and domestic initiatives embarked on to provide intellectual property protection. The international organisation most involved with the creation of protection mechanisms for indigenous communities is the World Intellectual Property Organisation (WIPO)[59] which became a specialised agency of the United Nations in 1974.[60] Aside from its own work, WIPO cooperates closely with other intergovernmental and United Nations organisations such as the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and the Permanent Forum on Indigenous Issues.[61]

Intellectual Property Protection to Support Economic Development

The first need identified by indigenous peoples is that of protection for intellectual and cultural property in order to support economic development.[62] In essence, the ability of indigenous peoples to use their intellectual property and resources for the benefit of their own societies and communities must be protected.

The Tunis Model Law on Copyright for Developing Countries 1976 was one attempt to address this need. The intention of the framers of the Model Law was to give developing countries a legislative platform on which to base their own intellectual property legislation. In theory developing countries would then be able to protect their own folklore (which was desirable on a domestic level) and the intellectual property of other countries (thereby creating international trade opportunities). The protection provided covers works that are not fixed in a material form, and it is not limited in duration. This is significant to indigenous peoples, as these types of folklore have historically been exploited without protection because of their lack of fixation.[63]

The Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions were adopted under the auspices of WIPO and UNESCO in 1982 and were another attempt to meet indigenous needs. The Provisions aimed to provide a sui generis model for intellectual property based protection of traditional cultural expressions.[64]

The Model Provisions were aimed more specifically at meeting the second and third needs of indigenous peoples (discussed below) but if successful would have had an impact on the ability of indigenous peoples to exploit their own expressions of culture for economic benefit. The ability to exercise intellectual property rights outside of one's own country is a powerful tool, and for indigenous peoples would have allowed the prevention of inappropriate exploitation, while allowing appropriate exploitation by indigenous peoples themselves.

A relatively recent development in protection of the ability of indigenous communities to gain an economic benefit from their traditional knowledge and expressions of culture is the Model Law for the Protection of Traditional Knowledge and Expressions of Culture for the Pacific Peoples 2002.[65] Under the Model Law, 'traditional cultural rights' attach to the expressions of culture, giving the traditional owners of the expressions of culture exclusive rights to use them.[66] This type of right, if adopted by governments, could be effective in allowing appropriate economic exploitation within the customary context.

Another means of obtaining an economic benefit through traditional knowledge and expressions of culture is for indigenous or traditional communities to share in the profits gained by multinational corporations and other commercial entities from using indigenous intellectual and cultural property. This principle is clearly applicable in the context of traditional knowledge, particularly where this knowledge is used to produce drugs prescribed by Western medicine. Where effective traditional knowledge exists to address a particular medical problem, the drugs produced may earn millions or even billions of dollars - even a relatively small proportion of the profits would be very beneficial to indigenous communities. The 'Merck Agreement' entered into by the Costa Rican Association Instituto Nacional de Biodiversidad (INBio) and the Merck pharmaceutical company is one (controversial) example of an agreement which could earn Costa Rica $30 million.[67] The agreement is controversial both due to the uncertain nature of a return for the indigenous peoples of Costa Rica, and because the financial returns are linked to successful patent applications by Merck. The agreement has again fostered a situation where traditional knowledge is shared without a guaranteed level of protection for the indigenous or traditional communities' interests. In the context of traditional expressions of culture, the New Zealand company Moontide provides an example of a more tangible benefit to indigenous peoples. The company wanted to launch a range of swimwear featuring a koru design, and had the foresight to negotiate use of the koru with an elder in the local Maori community, as well as developing the range with a Maori entrepreneur. The local Maori community received a proportion of sales from the range, and the company gained a commercially viable and unique design.[68] These types of arrangement must of course be negotiated between the parties involved. Such direct negotiation gives independence from government initiatives but involves a risk for indigenous peoples if they are not well advised as to the benefits and detriments of the agreement.

Intellectual Property Protection to Prevent Inappropriate Exploitation by Others

The second need expressed by indigenous peoples and traditional communities was that of preventing the inappropriate exploitation of their traditional expressions and traditional knowledge by outsiders.[69] The type of protection desired in this case is the positive right to prevent the use and commercialisation of expressions of culture by individuals and corporate entities outside the indigenous community. This need is exemplified in the concerns of Maori over the use of traditional song and dance such as the haka, which as featured on numerous advertising campaigns, along with Maori moko and artwork. The unwanted exploitation protested against here is the use of expressions of culture as if they are simply a part of the public domain, an approach which can lead to culturally inappropriate use.

The Model Provisions of 1982 would seem, on its face, to meet the needs of indigenous peoples in terms of inappropriate exploitation. The act against which protection is provided under the Model Provisions is 'illicit exploitation', which is widely defined to include use without authorisation of materials, and deception and distortion with regards to the representation of folklore to the public.[70] Culturally inappropriate exploitation will seldom be without deception or distortion (whether this is as to the origin or authenticity of the material or as to another element of its use), making the provisions a potentially useful tool for indigenous peoples. Under the Model Provisions, authorised use of expressions of culture is not an offence. A concern with regards to the efficacy of the Provisions is the lack of clarity as to who would comprise the authority competent to give authorisation. The 'competent authority' under the Provisions could be the state, a local indigenous body, the particular indigenous community or a combination of these entities.[71] This is problematic as it seems contradictory to state that protection will advantage the interests of indigenous communities while removing the ability of those communities to decide who is authorised to use their expressions of culture. Section 10 of the Model Provisions provides for the collection of fees for the promotion and safeguarding of national culture and folklore. How these fees would be collected and in what manner they would be used, is left to the discretion of each state. This could potentially also be unsatisfactory from the perspective of indigenous peoples as it would be easy for the funds to remain with a government agency to control.

Punitive action under the Model Provisions would seem to be focused on imprisonment, fines and seizure of any offending materials which involve illicit exploitation and unauthorised use.[72] While punitive action would be a positive outcome for indigenous peoples, the bringing of a successful action is likely to be dependent on government intervention and the ability of indigenous peoples to fund legal proceedings. Limitation periods on the bringing of an action are similarly under the control of government, leaving indigenous peoples responsible for monitoring any infringement so that it can be acted upon[73] in a timely fashion. The biggest hurdle faced by indigenous peoples in using the Model Provisions 1982 remains the fact that governmental interest in indigenous expressions of culture remains limited, and that indigenous concerns often remain as a relatively low priority. The Model Provisions were designed with the intention that they be adopted by all states to ensure a consistent legislative scheme while allowing for individual state amendment as appropriate. This international adoption scenario has not however occurred. While elements of the Model Provisions have been used by a number of nations as the basis for their own legislation to protect folklore and cultural expression (India for example making extensive changes to its Copyright Act 1957 to protect the interests of performers, although not protecting folklore as such),[74] no countries have adopted the Model Provisions in their entirety.

A more recent initiative aimed to meet the second expressed need of indigenous peoples is the Model Law for the Protection of Traditional Knowledge and Expressions of Culture for the Pacific Peoples 2002. The Model Law is one of the initiatives of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), itself established in 2000.[75] Two rights attach to expressions of culture and traditional knowledge under the Model Law. First, traditional cultural rights are given to the owners of the expressions of culture and traditional knowledge, entitling them to exclusive use of it.[76] This right to exclusive use by its very nature gives the ability to exclude inappropriate exploitation by others. Second, moral rights attach to the expressions of culture and traditional knowledge, giving the right to attribution, the right against false attribution and the right against derogatory treatment of the works in question.

Traditional owners are defined widely under the legislation as the relevant group, clan or community, or as an individual recognised as a representative of that group, clan or community. The Model Law meets the needs of indigenous peoples in giving protection to a wide range of expressions of culture (both tangible and intangible) and traditional knowledge, and in creating situations where non-customary use would require the prior and informed consent of the traditional owners.[77] Less satisfactorily, there is the option for the government to institute a 'Cultural Authority' to manage the giving of consent on behalf of indigenous peoples. This would have to be carefully implemented to ensure that the rights and interests of indigenous peoples are met by the Authority's decisions and approach.

The WIPO Performances and Phonograms Treaty (WPPT) which came into force in 2002, is an international initiative which indirectly prevents inappropriate exploitation of expressions of culture by protecting performers in their performances of the expressions of folklore.[78] The WPPT provides for both moral and economic rights, leading to an expectation that performances will be protectable in the 41 states that had ratified the WPPT by 15 April 2004.[79] However, a key concern with this Treaty is its limitation to the aural aspects of performances. Maori song often involves hand movements or dance which would not be protected by the Treaty.

Domestically, several countries have created sui generis legislation to protect expressions of culture and traditional knowledge.[80] These systems incorporate elements of both the conventional intellectual property system and indigenous approaches to the protection of knowledge. Kenya provides for a system of protection of traditional knowledge that specifically identifies the inapplicability of concepts of inventiveness and novelty to traditional knowledge. Kazakhstan introduced intellectual property laws in 1999 based on the traditional knowledge of the Kazakh people. Conventional intellectual property concepts are applied but on the basis of a recognition of traditional knowledge, thereby integrating the two worldviews.[81] These domestic approaches are positive in showing initiative which has been lacking in European nations overall.

Intellectual Property Protection to Prevent the Exploitation of Indigenous Materials Which Has Been Sanctioned by the Conventional IP System

The third need identified by indigenous peoples is the necessity for defensive rights to prevent others from gaining or maintaining intellectual property rights over expressions of culture and traditional knowledge. The type of rights involved could be rights of pre-emption, for example, to be able to prevent prejudicial registration of trademarks. The use of Maori words and geographical indicators as trademarks (where these are not offensive but are merely culturally inappropriate) would be a manner of exploitation not covered by current legislation, although registration which would be offensive to Maori is prohibited by the New Zealand Trade Marks Act 2002.[82] These Trade Marks Act provisions are discussed below.[83]

VI. Protecting Maori Intellectual Property and Expressions of Culture

The concerns of Maori over intellectual and cultural property have been well documented. Te Pareake Mead succinctly characterises these concerns as stemming from a tension between individual and collective rights, or alternatively as a tension between values of property and ownership.[84] Te Pareake Mead perceives the inherent problem as the 'second wave of colonisation', an extension of the initial physical colonisation of New Zealand by Europeans, to include the appropriation of indigenous knowledge and cultural property.

Sir Tipene O' Regan in a lecture in 2005 stated that Maori culture remained worthy of study, and that its inherent value justified protection on behalf of all New Zealanders.[85] This sentiment is increasingly echoed throughout New Zealand, as awareness occurs at a governmental level as well as at an individual level amongst New Zealanders, as to the importance and unique nature of Maori culture. Nepia suggests that the sense of 'public ownership' of the Maori haka and songs has in part been arrived at due to the popularity of the songs,[86] perhaps also supported by an increasing awareness of the role of Maori culture in shaping a 'New Zealand' identity. While the New Zealand government has been proactive in protecting some aspects of indigenous intellectual property in response to Maori concerns, it would be inaccurate to state that these actions have been comprehensive. New Zealand efforts have centred, consistent with other countries, largely on the protection of visual and tangible artistic endeavours of the Maori people. The New Zealand government has recognised the need to provide sui generis systems of protection for traditional knowledge and expressions of culture which are in the public domain in their report to the Intergovernmental Committee on Intellectual Property and Genetic Resources, in 2004. However, this admission does not seem to have been followed by any legislative action.[87]

In documents presented to WIPO discussions the New Zealand government did not note any specific provisions which were directed to the protection of traditional knowledge or expressions of culture, but did elaborate on initiatives in trademark law which are directed towards the prevention of registration of marks which are offensive to Maori.[88] The provisions in the trademark law create a Maori Trade Marks Advisory Committee, which may be consulted by the Commissioner of Trademarks where an application for registration involves a mark with a Maori element. While there has never been litigation over the application of the provisions they have certainly been used. During 2003 there were 333 trademark applications referred to the Maori Trade Marks Advisory Committee and of these eight were considered by the Committee to require more information or likely to be offensive.[89] It appears that the marks were referred back to the applicants for reworking and resubmission of their applications, rather than being clearly declined. The ability of the Committee to consider marks with reference to Maori concerns is positive. However, it will be difficult to measure the success of the provisions until a particularly controversial mark comes before the Commissioner of Trademarks. The willingness of the Commissioner to ignore the recommendations of the Committee will then be tested. It is unlikely that this will occur often given the option for an applicant to amend their application in order to meet the requirements of the Act.

Maori moves to increase protection of their intellectual property can be seen in initiatives such as the creation of the 'toi iho™' brand launched in 2002.[90] The brand is divisible into three 'marks': The toi iho™ Maori made mark is for artists (whether individuals or groups) who are of Maori descent; the toi iho™ mainly Maori mark is for groups of artists where the majority are of Maori descent, who work to produce, present or perform works across various art forms; finally, the toi iho™ Maori co-production mark is aimed to denote collaborative ventures between Maori and non-Maori in the arts.

The toi iho™ brands have been enthusiastically accepted in the Maori community and by 'exclusive' retailers in the tourism and arts sectors. A large part of this success has been the intentional insertion of 'quality' as a requirement for use of the mark.[91] While the criteria behind such a requirement are no doubt subjective, applications to use the mark would seem to have been uncontroversial. Artists and commentators have been equally pleased with the fact that works of art with a Maori lineage or whakapapa are able to be identified as such to differentiate them from the cheaper imported products.[92] There are proud references to the fact that overseas visitors and collectors can see art and performance that is 'uniquely Maori', being given recognition for this.[93] The Australian 'Label of Authenticity' and 'Collaboration Mark' are very similar to toi iho™, also requiring certification of the artist's indigenous lineage.[94] Both types of brand will likely be of increasing significance as the tourism industry expands internationally.

The Maori people have been vocal and active within the international indigenous struggle for intellectual property rights and protections. The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples of 1993 was the result of the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, convened by the nine tribes of Mataatua in the Bay of Plenty.[95] The Declaration affirms certain rights of indigenous peoples and also recommends a number of actions to those peoples, including the development of codes of ethics and the developing and maintaining of indigenous practices and expressions of culture.[96] While the drafting of such international documents may not have an immediate effect on the legislative landscape, the maintenance of pressure on governments and intergovernmental organisations may lead to long term changes.

The Waitangi 262 (Indigenous Flora and Fauna) Claim

The Wai 262 (Indigenous Flora and Fauna) Claim (Wai 262 claim) was a significant step by the Maori people as part of their attempts to regain control over their natural, cultural and intellectual resources, a process which has gained momentum since the 1970s.[97] As a result of Maori pressure, the Treaty of Waitangi Act was passed in 1975. The Act established the Waitangi Tribunal as a body which would hear and inquire into claims of Crown breaches of the principles of the Treaty of Waitangi and showed that the Crown was willing to address past injustice. The background to the Wai 262 claim (filed in 1991) was the increasing concern of Maori over the loss of native plants and animals, destruction or ecosystems and the continuing erosion of Matauranga Maori (traditional Maori knowledge).[98] The statement of claim itself is based upon the rights guaranteed to Maori by the Treaty of Waitangi. The rights in Article 2 confer upon Maori the 'full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess.'[99] The word used in the Maori version of the Treaty was 'taonga' which is a comprehensive term commonly translated in English simplistically as 'treasures' but in fact refers to all elements of the estate of a tribal group, including all material, non-material, tangible and intangible things.

Most of the material over which control is claimed relates to the protection, management and control of natural organisms and plants, and traditional knowledge. A tikanga Maori framework of protection is advocated by the claimants for this knowledge, but could equally well be adapted to apply to intangible cultural materials such as traditional performances and songs, which are not directly covered in the scope of the claim.[100] Significantly for the purposes of Maori cultural and intellectual property rights, the right of Maori to protect, enhance and transmit their cultural and spiritual knowledge is asserted in the statement of claim.[101] Williams sees this cultural and spiritual knowledge as a resource which contributes to the status of Maori as a culture, and in particular refers to the fact that each of the world's natural languages has been specifically crafted over time, to reflect and express the culture of that community.[102] Protecting language as part of that cultural resource is therefore significant to the survival and development of Maori society in the future.[103] This development would include the continuing development of traditional song. While the Tribunal has government funding to hear claims it only has recommendatory powers, and therefore no power to enforce these recommendations regardless of how significant the impact of these might be. This situation is frustrating for both Maori and Pakeha. For Maori (especially claimants) it is frustrating that favourable Tribunal decisions can be ignored by government thereby wasting time and resources invested in bringing claims, and increasing the sense of devaluing of Maori concerns. Both Pakeha and Maori must find the uncertainty of the Tribunal process frustrating: it is difficult to build a productive and united nation without acknowledging and resolving past concerns and injustices. In general terms there are clearly concerns as to the efficacy of the Tribunal process. There are also concerns specific to the Wai 262 claim. A major concern is that the Tribunal may take a European legal approach to an inherently Maori issue. This European approach can be seen in the report of Dengate Thrush for the Waitangi Tribunal. Williams in his report for the Tribunal Matauranga Maori and Taonga argues that there is a fatal flaw in the underlying assumptions which inform Dengate Thrush's conclusions.[104] Dengate Thrush writes from the perspective that European legal principles will apply to the management and ownership of Maori resources and from this concludes that there is no means by which Maori resources and traditional knowledge could qualify for any useful patent protection. This view negates the entire Wai 262 claim which is based on the inappropriateness of European legal protections for Maori intellectual and cultural property. If Maori cultural and intellectual property was able to be fitted within the European system the claim would not have been necessary n the first place. Williams would seem to be correct in his contradictory view, which is that if the principles of the Treaty of Waitangi are to be applied fairly then flexibility and adaptability of conventional systems will be necessary. Williams states that it is important that there is no assumption as to the 'common sense' application of European legal principles to Maori Tribunal proceedings. The fact that the Tribunal is empowered to use Maori protocol in its hearings and can hear traditional evidence confirms that Maori legal perspectives are not to be discounted in favour of European legal principles.

A Tribunal finding in favour of the claimants would be a very positive result for Maori in the struggle for protection for indigenous cultural and intellectual property. The Report of the Tribunal has however not been released at the time of writing, and it seems unlikely that any recommendations in favour of the claimants will be simple to enforce or apply. It seems likely that protections for Maori song will then have to be found independently from the Tribunal process in the short term.

Traditional Song Case Study

E kore e hekeheke he kakano rangatira
Our ancestors will never die for they live on in each of us.[106]

Traditional song has historically been part of the daily life of Maori serving numerous purposes and being highly valued as a reference point with the past. The continued survival and appropriate use of Maori song has however been under threat since the arrival of the first European colonisers to New Zealand, and it is imperative that this form of cultural production is protected appropriately and soon.

There are nine categories of Maori song spanning a far larger than range than the haka which is perhaps the best known expression of Maori culture outside of New Zealand.[107] There are songs for almost any occasion or situation, including karakia (incantations), patere (songs composed mostly by slandered women),[108] whakaaraara pa (watch songs) and hari kai (food bearing songs). Sung forms include waiata (love songs and laments), pao (sung mostly for entertainment) and oriori (songs of instruction to young people).[109] Literally thousands of Maori song texts have been preserved in written form, both published and unpublished.[110] Among the public at large, however, the existence of these records is largely hidden, due perhaps to their limited appeal as 'popular music'.

Loss of song has been a continuing phenomenon within the Maori community. Since the arrival of the early missionaries Maori were discouraged from singing their traditional songs and encouraged to substitute European hymns.[111] By the late 19th and early 20th centuries, the music performed by Maori in concert parties or as a welcome for tourists, was essentially European music with Maori lyrics[112] and it would seem that the composing of Maori song had almost ended by the time of World War One.[113] At least one commentator states that none of the song types, apart from action songs, were still being composed in the 1960s.[114] The action songs which replaced traditional waiatas maintained contact with the Maori language, but provided no experience of the uniqueness of traditional music for younger Maori.

Problems also arose when the occasions for certain songs ceased to occur. When this happened, the songs were no longer sung and due to a lack of fixed recording of the lyrics the songs were lost.[115] A reluctance to perform songs separate from their occasion was particularly pronounced in the case of waiata tangi, which only a few singers were willing to sing and have recorded outside the situation of a funeral because of a fear of supernatural sanctions.[116]

While Maori songs were (and remain) widely known, they are tribally owned, and jealously guarded. While the tight control over songs may have had the effect of preventing European individuals and other tribes having access to songs, this control also had the effect of contributing to the near extinction of a number of songs as early as the 1950s. By the 1950s when Mclean was pioneering the field of ethnomusicology in New Zealand, the singing tradition was fast dying out, and this was a concern to Maori elders who Mclean recorded during his travels around New Zealand.

The Significance, Traditional Protection and Ownership of Maori Song

As Maori society, like other Polynesian Islands, had a completely oral culture, music and song were integral elements of the societal structure and function.[117] Songs were always functional, many songs being designed to actively teach or impart knowledge, either of ritual or of traditional practices. Rakena suggests that this factor in part explains why there was less of a concern to maintain the original Maori melodies for songs (which could be replaced by European ones) as long as the lyrics remained coherent and purposeful.[118]

There are a number of cultural protections against the inappropriate use of Maori traditional song. One Maori belief recorded was that if a singer was unable to complete a song in one breath, this was an omen of disaster or death, most likely to affect the singer.[119] This belief has been one reason behind a generational gap in the learning of Maori song, where young Maori in the 1960s were frightened of learning traditional songs in case they made a mistake. This kind of belief meant that only those with the appropriate practice and training behind them would use the songs, thereby protecting the expression of culture.

Hill states that traditionalism was a cultural protection against inappropriate use of Maori song which also led to a decline in knowledge of the songs.[120] Tribal barriers could mean that if young Maori wanted to learn a song which strictly speaking was not one for their tribe to sing, older members of the tribe would refuse to teach them the song.

A third level of cultural protection for Maori song was the development of alternative forms to prevent sacred songs being adulterated through a Western influence. This was particularly important to Maori, as 'songs are not just formulae of note and words but a reforming of the community of the present, and in performance, a recollection of the community of the past.'[121] This recollection of the past is obviously significant to Maori, and may explain the insistence of older members of the community that songs were only sung when the occasion for them arose, and were only taught to those who belonged to their tribe of origin. Traditional ownership of Maori song would seem to have followed a largely communal pattern in common with most indigenous communities.[122] Where an individual composer was involved, it seems that individual authorship was only significant until the song was adopted by the community and performed. Tribal ownership of a song was established by inserting references to local places and people into the song lyrics - it would seem then that songs could become part of the repertoire of several tribes through this insertion of appropriate different people and place names.[123] This approach makes it difficult to establish authorship, and thereby conventional intellectual property protection.

The acknowledgement of authorship is still observed by performers today (where authorship is known) through stating the details of the individual who composed it. Ownership 'rights' are also still acknowledged through the refusal to perform particular songs if other singers know them better, or through clearly stating that the song originally belonged to another tribe.[124]

As long as the tribe was able to perform the song ownership remained with the tribal group. However, where there was a lack of individual singers who could perform the song, ownership would seem to have passed to the final singer who could perform the song correctly.[125]

It was common in the context of karakia for these to be passed on from father to son, and karakia were in fact seen to be individually owned by tohunga (priest).[126] The karakia of a tohunga (if effective) were seen to have an almost economic value to the tribe. This type of ownership would fit much more easily within the conventional intellectual property system, given that individual ownership is involved. However, as with many traditional expressions of culture it is likely that any potential intellectual property protection will have expired given the large periods of time which have passed between the karakia being composed and protection being sought.

An intriguing view of ownership held by Maori that Mclean recorded and interviewed is the concept that Mclean termed the 'empty barrel'.[127] The idea of the empty barrel is that within Maori culture each singer has a finite number of songs which may be performed ad infinitum in the appropriate situations. Where the song is however recorded, for example by an ethnomusicologist such as Mclean, it is 'given away' and is unable to be performed by the particular singer again. If this belief is a widely held one, and there is no indication that it is (the concept only being expressed by individual singers in Mclean's works) this would have huge ramifications for potential intellectual property regimes for Maori song.

A belief that an expression of culture such as a song can be treated as analogous to a physical piece of property, which once 'given' passes to the individual it has been given to, would mean that current methods of protection of intellectual property which require a work to be 'fixed', as in a recording, or a means of protection that allows licensing of the works, would not be consistent with Maori beliefs at all. A second ramification of such a belief would be that once a song is given away, there is nothing left for Maori to protect. Retrospective legislation which vested ownership of recorded songs with Maori would arguably not be culturally appropriate unless there was some also culturally appropriate means by which Maori could 'reclaim' ownership of the materials. An element of the empty barrel concept which is unclear in Mclean's work is whether the song is given away on behalf of the individual singer of it, or if the song once given away is then also lost to the tribe of the singer. Many of the individuals who Mclean interviewed and recorded were the last custodians of the songs of their tribe who consented to being recorded in the knowledge that if they did not do so the songs would likely be lost for ever. It seems implicit in Mclean's work that the songs were given away only on the part of the individual singer, but given the fact that only a very few singers knew the songs involved this may in practice be the same thing as giving it away on the part of the whole tribe. If a song is able to be given away on behalf of a whole tribe then the recording of the song is obviously highly problematic and will require careful consideration in terms of protection. It is obviously not in the interests of a tribe if individual members of it are able to give away expressions of culture by the simple act of recording it for someone else.

Protecting Maori Song Today

Protecting traditional Maori song satisfactorily under the current conventional intellectual property system would seem to be almost impossible. While newly composed songs would be able to be protected through measures such as copyright, traditional songs suffer from difficulties in terms of identifying a composer, and it is equally difficult to find a situation where an identifiable composer has not been deceased for more than 50 years.

If direct protection is impossible, one constructive option could be to give Maori increased control over the dissemination of Maori song, particularly in the lucrative tourism market, where there is added value associated with the association of a 'Maori flavour' in souvenirs. Recordings of Maori music sell well in the tourism sector and the content and presentation of these recordings will seldom have been developed with a consideration of no more than the possible financial return.[128]

The tikanga Maori framework of protection suggested by Maui Solomon and the Wai 262 claimants may well, with some adaptation, be the best and most successful mechanism of protecting Maori song. This type of framework would be characterised by a number of features. It is evident that for a system to be appropriate for Maori it would have to be developed Maori in order to ensure their input from the beginning. This may be difficult given the high level of government and legislative control over Maori interests. There also seems to be uncertainty as to which Maori entity would administer any system of protection. Tribalism is seen by Solomon as a continuing concern due to its resulting division of Maori as a larger people-group.[129]

An important feature of a tikanga Maori framework of protection would be its reflection of Maori cultural values and ethos.[130] This makes good sense, because when protecting an expression of culture it is important that any means of protection is seen as appropriate by the indigenous group whose interests are being protected. If it is feasible such a system should also reflect pre-existing community approaches to sanctions for inappropriate exploitation and the overall approach to control of expressions of culture among Maori.

The acknowledgement, protection and promotion of rights and obligations to manage, utilise, and protect resources in accordance with Maori cultural values and preferences would be the final essential feature of the tikanga Maori framework of protection advocated by Solomon.[131] A fundamental historical gap in the Crown approach to Maori issues has arguably been in this area of acknowledging the necessity of protecting Maori culture in general terms.

Whatever model is finally selected for such a protection regime will have to take into consideration the structure of Maori society, and the interrelationships between iwi, hapu, whanau and individuals.[132] Integral to any potential solutions will be the real participation of Maori in creating these solutions.[133] The ability 'to protect, in a positive sense, their traditional cultural expressions, which when collectively owned, should be protected in the name of the relevant community.'[134]

VII. Conclusions

It is clear both that indigenous peoples need adequate systems of protection of intellectual and cultural property and that these systems of protection do not exist at present.[135] As indigenous peoples increasingly gain political independence, the parallel pressure for control of their intellectual and cultural property will increase.

Where legislation does exist this is seldom as effectively implemented as could be hoped. A common theme in studies assessing the efficacy of international attempts to provide protection is the continued belief among entities that exploit expressions of culture, that expressions of culture are part of the 'public domain' and are therefore available for anyone to use and exploit.[136] This approach severely limits the efficacy of any legislation aimed at preventing exploitation. Where government agencies take a lax approach to enforcement, the effect of such beliefs is compounded. In those countries where there is some legislative provision for indigenous communities, the level of awareness among the indigenous community of these options would seem to be very limited.[137]

The need for an international forum for debate and dialogue for indigenous peoples was acknowledged by the formation of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in 2000 (IGC).[138] Membership of the IGC is diverse and many non-governmental organisations and indigenous groups have been involved in WIPO projects and fact-finding missions. Sui generis legislation also remains an objective for the IGC, with the extensive review of sui generis mechanisms in various jurisdictions continuing throughout the second term of the IGC.[139]

Unfortunately the IGC process, through its focus on discussion and dialogue serves to confirm the conclusion that little substantive action has been undertaken to meet indigenous rights. WIPO states that the IGC has made progress in terms of articulating 'in IP terms the needs and expectations of Indigenous peoples and traditional communities in relation to their traditional cultural expressions, marking out a conceptual framework within to view those needs and expectations, and methodically developing policy options and practical tools in response to them', but says nothing about the implementation of such tools and policies.[140]

During the 1980s a number of participants in the creation of the Model Provisions stressed the necessity for international measures to extend the protection of folklore and expressions of culture outside the borders of their originating nation. An international treaty was seen to be a potential solution but it was decided that there had been too little experience on the part of governments to make it an option. In 2006, despite the creation of the IGC the situation remains unchanged, with no comprehensive international treaty in place.

The international situation then seems uncertain and inadequate. Even in countries where there is a level of protection for traditional expressions of culture, this would appear not to be actively used in practice. [141] However, in New Zealand it cannot be said that the level of protection is significantly higher, particularly in terms of protection of intangible cultural expressions. The concerns of Maori over who will have control over traditional expressions of culture, including songs once they are recorded, are easily understood in the modern era.[142] Technology has made it progressively easier to make copies of expressions of songs, meaning that the opportunities for inappropriate exploitation and abuse by outsiders to the community are magnified, as are the potential profits from this inappropriate use.

Part of the problem in creating protections in the New Zealand system is arguably a lack of coherent consideration of significant questions. There are questions as to ownership and management - who should own expressions of culture and traditional knowledge if these are protectable? If it is decided that Maori as a group are the community of origin, further questions arise as to who will have control of expressions of culture and their use. Whoever has control over authorisation for use will arguably also have control over the economic benefits which may flow from expressions of culture such as traditional song. If Maori can be seen as a largely communal group the role of the individual Maori creator or author must be considered.

The type of protection mechanism which is chosen or developed will also have to be carefully considered. Who would select and develop (and perhaps more importantly approve of) the eventual system is uncertain. Would such a system work in conjunction with the conventional intellectual property system, or would it remain independent? If it was independent, the ability of modern Maori artists and composers to gain conventional intellectual property protections as well as protection within the new framework may have to be reconsidered to deal with concerns over double-dipping.

Until these questions and others are considered it will remain difficult to create a suitable means of protection for intangible expressions of culture such as traditional Maori song.

Suggestions for a potential tikanga Maori framework of protection for Maori cultural and intellectual property assume that the New Zealand government in fact intends to provide a sui generis framework of protection for Maori expressions of culture. This could well be an inaccurate assumption. A new framework of protection, whether this would work in

parallel or in conjunction with the conventional intellectual property system, may well not be a feasible option. Developing a new system will be expensive due to factors such as extensive consultation, research, development and implementation processes. Other national concerns such as the economy may also have precedence over protecting indigenous intellectual property.

A significant issue which will need to be dealt with in the search for protection of indigenous expressions of culture is the transition for non-indigenous individuals and commercial entities from the conventional intellectual property system to a more culturally appropriate system. In many cases protection for indigenous materials, the prevention of inappropriate use and the sharing of economic benefits will have an impact on the livelihoods of non-indigenous individuals. While the use of expressions of culture by non-indigenous peoples may well have been inappropriate and exploitative it will be difficult to achieve agreement among non-indigenous peoples that their profit margins should be lowered or their employment should be terminated to satisfy the needs of indigenous peoples. A fear of redistribution of wealth and economic benefits is likely to slow the impetus of international initiatives to protect indigenous peoples.

The protection of indigenous expressions of culture is of significance to all humanity, as our links to the past anchor our place in the present and provides a direction for the future. For European peoples this link to the past has been weakened through a worldview which separates the intellectual from the cultural. However, for Maori this link with the past remains a continual focal point and are part of what makes New Zealand society and culture unique. The protection of traditional song is essential to the maintenance of Maori culture and the fostering of our uniquely Pacific heritage.

The approach which should be taken in the search for a satisfactory protection for traditional Maori song is exemplified in a Maori proverb: 'He manga wai koia kia kore e whitikia. It is a big river indeed that cannot be crossed'.[143]

With understanding and compromise, a resolution can be found for the challenges which currently prevent the protection of traditional song and which limit indigenous expressions of culture today.


[*] B A/LLB(Hons). The author is currently employed by Chapman Tripp Sheffield Young, Wellington, in the commercial/property law group.

[1] John M Thompson, The Oxford History of New Zealand Music (1991) 52.

[2] Sabine Sand, 'Sui Generis Laws for the Protection of Indigenous Expressions of Culture and Traditional Knowledge' (2002) 22 University of Queensland Law Journal 188.

[3] Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States Washington College of Law <http://www.wcl.american.edu/journal/lawrev/48/pdf/kuruk.pdf.html> at 8 August 2005.

[4] As expressed by indigenous peoples of 28 countries to the World Intellectual Property Organisation - World Intellectual Property Organisation Report on the Fact-Finding Missions on Intellectual Property and Traditional Knowledge 1998-99 (2001) World Intellectual Property Organisation - Traditional Knowledge <http://www.wipo.int/tk/en/tk/ffm/report/index.html> at 1 January 2006.

[5] Johanna Gibson 'Intellectual Property Systems, Traditional Knowledge and the Legal Authority of Community' (2004) 7 European Intellectual Property Review 280.

[6] World Intellectual Property Organisation, Intellectual Property Handbook: Policy, Law and Use World Intellectual Property Organisation -About Intellectual Property <http://www.wipo.int/about-ip/en/iprm.html> at 11 November 2005.

[7] Gibson, above n 5, 280.

[8] Aroha Te Pareake Mead, 'Legal Pluralism and The Politics of Maori Image and Design' (2003) 7(1) He Pukenga Korero 34.

[9] Laura S Underkuffler 'On Property: An Essay' (1990) 100 Yale Law Journal 127, 128.

[10] Terri Janke, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (2003) World Intellectual Property Organisation - Traditional Knowledge <http://www.wipo.org/tk/en/studies/cultural/minding-culture/studies/finalstudy.pdf.html> at 25 July 2005.

[11] Kenneth Greene, 'Reconnecting Economic Rights' (1990) 103 Harvard Law Review 1368.

[12] Moana Nepia, Maori Intellectual and Cultural Property Rights — Issues Surrounding Maori Art and Dance (2003) DANZnet Magazine<http://www.danz.org.nz/Magazines/DanznetArchive/Dec03/Mori /php.html> at 12 January 2005.

[13] Janke, above n 10, 87.

[14] Mervyn Mclean Maori Music (1996) 170.

[15] While there is some protection for anonymous works, this is very limited in scope.

[16] Intellectual Property Rights Commission, Integrating IPR and Development Policy (2002) Commission on Intellectual Property Rights<http://www.iprcommission.org/papers/pdfs/final_report/Ch4final.pdf.html> at 29 January 2005.

[17] Robert Jahnke and Huia Tomlins Jahnke, 'The Politics of Maori Image and Design' (2003) 7(1) He Pukenga Korero 10.

[18] World Intellectual Property Organisation, above n 6, 58.

[19] (1991) 21 IPR 482, 490.

[20] World Intellectual Property Organisation, above n 6, 58.

[21] A McCann, Irish Traditional Music and the Copyright Debate (2003) Irish Folk Festival <http://www,musicandcopyright.org/iff2003.html> at 08 August 2005.

[22] Jahnke above n 17, 7.

[23] Intellectual Property Rights Commission above n 16, 75. See also Gibson above n 5, 286.

[24] Jahnke above n 17, 8.

[25] World Intellectual Property Organisation, above n 4, 63.

[26] World Intellectual Property Organisation Glossary <http://www.wipo.int/tk/en/glossary/#tce.html> at 20 September 2005.

[27] Kamal Puri Protection of Traditional Culture and Folklore <http://www.folklife.si.edu/resources/Unesco/puri.html> at 20 September 2005.

[28] World Intellectual Property Organisation above n 6, 75.

[29] World Intellectual Property Organisation, Intellectual Property and Traditional Cultural Expressions/Folklore 5 (2004) World Intellectual Property Organisation <http://www.wipo/int/tk/en/folklore.html> at 11 November 2005.

[30] Published by the United Nations, Educational, Scientific & Cultural Organisation, Paris and by the World Intellectual Property Organisation, Geneva Model provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions (1985). The Model Provisions can be accessed at <http://www.wipo.int/tk/en/glossary/#tce.html>.

[31] Indigenous Rights - Intellectual Property Aboriginal and Torres Strait Islanders Commission ATSIC<http://www.atsic.gov.au/issues/Indigenous_Rights/intellectual_property/Default.asp.html> at 12 September 2005.

[32] As in Australia and the United States of America, although this protection has been perceived as limited and not uniformly helpful to indigenous peoples: The Native American Graves Protection and Repatriation Act 1990 (USA); Protection of Movable Cultural Heritage Act 1986 (Aust).

[33] Sand, above n 2, 188, 189.

[34] Gibson, above n 5, 280.

[35] In the sense of being in the public domain.

[36] Gibson, above n 5. See also Chidi Oguamanam, 'The Protection of Traditional Knowledge: Towards a cross-cultural dialogue on Intellectual Property Rights' (2004) 15 Australian Intellectual Property Journal 34, 38. 'Technological traditional knowledge' in this context means knowledge that is most easily adapted for the purposes of Western science and medicine.

[37] World Intellectual Property Organisation 'Revised Version of Traditional Knowledge: Policy and Legal Options (2004) 29: this article can be accessed at <http://www.wipo.int/documents/en/meetings/2004/igc/pdf/grtkf ic 6 4 rev.pdf.html>.

[38] Ibid.

[39] Intellectual Property Rights Commission, above n 16, 73.

[40] Ibid 75. Some types of traditional knowledge are of course recorded in a material form. Examples include textile designs recording traditional stories.

[41] Ibid.

[42] Gibson, above n 5, 280.

[43] Ibid 280.

[44] Mclean, above n 14.

[45] Intellectual Property Rights Commission, above n 16, 78.

[46] Jahnke, above n 17, 8.

[47] Pita Sharples, 'Maori Party Press Statement on Geographical Indications Bill' (Press Release, 15 December 2005) <http://www.scoop.co.nz/stories/PA0512/S00245.html> at 20 January 2006.

[48] Jahnke, above n 17, 5.

[49] World Intellectual Property Organisation, above n 6, 61.

[50] MervynMclean 'Can Maori Chant Survive?' (1964)47 TeAo Hou 50 <http://teaohou.natlib.govt.nz/teaohou/issue/Mao47TeA/c18.html> at 12 January 2006.

[51] Editorial 'A 'Hit' in Melbourne' (1953) Te Ao Hou 9 <http://teaohou.natlib.govt.nz/teaohou/issue/Mao03TeA/c7.html> at 12 January 2006.

[52] World Intellectual Property Organisation, above n 29, 6.

[53] Ibid 8.

[54] Gibson, above n 5, 288.

[55] World Intellectual Property Organisation, above n 4.

[56] Ibid.

[57] Intellectual Property Rights Commission, above n 16, 78.

[58] Peter K Yu, 'Traditional Knowledge, Intellectual Property and Indigenous Culture' (2003) 11 Cardozo Journal of International and Comparative Law 239, 244.

[59] World Intellectual Property Organisation, above n 6, 3.

[60] Susan Frankel and Geoffrey Mclay, Intellectual Property in New Zealand (2002).

[61] A full list of the organisations WIPO works with is available at <http://www.wipo.int/tk/en/cooperation/html> at 15 January 2006.

[62] World Intellectual Property Organisation, above n 6, 63.

[63] Ibid 60.

[64] World Intellectual Property Organisation Background Paper No 1 Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions / Expressions of Folklore 22 (2003) Traditional Cultural Expressions (Folklore): Key resources <http://www.wipo.org/tk/en/folklore/key.html> at 1 February 2006.

[65] Secretariat of the Pacific Community, 'Regional Framework of the Protection of Traditional Knowledge and Expressions of Culture', commonly known as the Model Law for the Protection of Traditional Knowledge and Expressions of Culture for the Pacific Peoples 2002.

[66] Ibid cl 6.

[67] Someshwar Singh, 'Traditional Knowledge Under Commercial Blanket' (1999) Third World Network <http://www.twnside.org.sg/title/blanket-cn.html> at 29 August 2005.

[68] World Intellectual Property Organisation 'Intellectual Property and Traditional Cultural Expressions/Folklore' 14 (2003) <http://www.wipo.int/tk/en/folklore/html> at 20 June 2005.

[69] World Intellectual Property Organisation, above n 6, 63.

[70] World Intellectual Property Organisation, UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions 1982, ss 3 and 6.

[71] World Intellectual Property Organisation, UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions 1982, s 3.

[72] Valsala G Kutty, National Experiences with the Protection of Expressions of Folklore/Traditional Cultural Expressions: India, Indonesia and the Philippines (2002) 15.

[73] World Intellectual Property Organisation - UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions 1982, s 6.

[74] Kutty, above n 72, 120.

[75] Model Law for the Protection of Traditional Knowledge and Expressions of Culture for the Pacific Peoples 2002.

[76] Model Law for the Protection of Traditional Knowledge and Expressions of Culture for the Pacific Peoples 2002, cl 6.

[77] Model Law for the Protection of Traditional Knowledge and Expressions of Culture for the Pacific Peoples 2002, cl 7(2) and 7(5).

[78] World Intellectual Property Organisation Performances and Phonograms Treaty 1996.

[79] World Intellectual Property Organisation, above n 64, 45.

[80] Panama, the Philippines and the Bangui Agreement of the African Intellectual Property Organization fall within this category.

[81] Gibson, above n 5, 283.

[82] Trade Marks Act 2002 s 17(1)(c). See Sharples, above n 47.

[83] Below Part VI.

[84] Aroha Te Pareake Mead, Understanding Maori Intellectual Property Rights (2004) Conferenz - Information in Action <http://www.conferenz.co.nz/library/m/mead_aroha.html> at 20 August 2005.

[85] Sir Tipene O'Regan 'Maori Research and Scholarship' (Paper presented at the Knowledge Management Conference, Christchurch, 2 September 2005).

[86] Nepia, above n 12.

[87] World Intellectual Property Organisation, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Report of the Sixth Session 2004 (2004) Para.41 World Intellectual Property Organisation <http://www.wipo.int/documents/en/meetings/2004/igc/pdf/grtkf_ic_6_14.pdf.html> at 10 December 2005.

[88] Trade Marks Act 2002 (NZ), s 17(1)(c).

[89] Maori Trade Marks Advisory Committee Annual Report (2004) Intellectual Property Office of New Zealand <http://www.iponz.govt.nz/iponz-docs/A/Annual_Report_2004_2.pdf.html> at 28 January 2006.

[90] <http://www.toiiho.com.html> at 28 January 2006.

[91] Ibid.

[92] Robert Sullivan, 'Indigenous Cultural and Intellectual Property Rights' (2002) 5 D-Lib Magazine. <http://www.dlib.org/dlib/may02/sullivan/05sullivan.html> at 25 November 2005.

[93] Roi Toia, (2004) 59 Mana Magazine <http://www.whenua04.com/pressroom/roitoia.html> at 13 November 2005.

[94] Janke, above n 10, 142.

[95] Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993) Maori Independence Site<http://aotearoa.wellington.net.nz/imp/mata.html> at 9 July 2005.

[96] Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993), ibid cl 1.

[97] Maui Solomon, Intellectual Property Rights and Indigenous Peoples' Rights and Obligations (2001) In Motion Magazine <http://www.inmotionmagazine.com/ra01/ms2.html> at 21 September 2005. The Wai 262 claim has not yet been reported but a summarised form of the claim can be found on the Ministry of Economic Development website in the form of an 'Information Sheet: Treaty of Waitangi Claim Wai 262' <http://www.med.govt.nz.html> at 26 May 2006.

[98] Ibid.

[99] Treaty of Waitangi 1840, Article 2.

[100] World Intellectual Property Organisation above n 64.

[101] Statement of Claim 2.5(h). See Solomon, above n 98.

[102] David Williams, Matauranga Maori and Taonga, (2001) Waitangi Tribunal Publication 13.

[103] World Intellectual Property Organisation, above n 64.

[104] Peter Dengate, Thrush, Indigenous flora and fauna of New Zealand (1995).

[105] Williams, above n 103, 7.

[106] Timoti Karetu (ed), The Reed Book of Maori Proverbs (1999) 43.

[107] Mervyn Mclean Maori Music (1996) 3.

[108] Ronald Biggs, 'The Oral Literature of the Polynesians' (1964) 49 Te Ao Hou 42. <http://www.teaohou.natlib.govt.nz/teaohou/issue/Mao49TeA/c26.html#c26-9 at 15 January 2006.

[109] Mclean, above n 108, 3.

[110] Mervyn Mclean, To Tatau Waka: In search of Maori Music (2004) 9.

[111] Mclean, above n 108, 276.

[112] Graham Parsons, Songs Old and New: Supporting a Cultural Heritage (1993) The Australian Association for Research in Education <http://www.aare.edu.au/99pap/par99043.html> at 29 January 2006.

[113] Biggs, above n 109.

[114] Ibid.

[115] Mclean, above n 108, 276.

[116] Ibid.

[117] Te Oti Paipeta Rakena, ' The synthesis of Polynesian and Western traditions in contemporary NZ composers' (1998) DMA Dissertation at University of Austin 29, 34.

[118] Ibid 29.

[119] Ibid 17.

[120] A Mihi Hill 'Some Thoughts on the Future of Maori Chant' (1964) 48 Te Ao Hou 39. <http://teaohou.natlib.govt.nz/teaohou/issue/Mao48TeA/c20.html> at 1 February 2006.

[121] Rakena, above n 118, 35.

[122] Kutty, above n 72, 217.

[123] Ibid.

[124] Ibid 219.

[125] Ibid 220.

[126] Ibid.

[127] Mclean, above n 111, 79.

[128] Jahnke, above n 17.

[129] World Intellectual Property Organisation, above n 64.

[130] Ibid.

[131] Ibid.

[132] Ibid.

[133] Rosemary Coombe, 'The Recognition of Indigenous Peoples and Community Traditional Knowledge in International Law' (2001) 14 St Thomas Law Review 275, 284-5.

[134] Gibson, above n 5, 288.

[135] Manisha Gupta, No free lunches (2004) Humanscape.org.<http://www.humanscape.org/Humanscape/new/aug04/nofreelunches.htm/> at 1 September 2005.

[136] WIPO Pressroom, WIPO member states get to grips with protection of traditional knowledge and folklore (November 2004) WIPO <http://www.wipo.int/edocs/prdocs/en/2004/wipoupd2004243.html> at 18 January 2006.

[137] Kutty, above n 72, 21.

[138] World Intellectual Property Organisation, above n 64, 24.

[139] Gibson, above n 5, 285.

[140] World Intellectual Property Organisation, above n 6, 63.

[141] World Intellectual Property Organisation, above n 6, 64.

[142] Gibson, above n 5, 284.

[143] PaulMoon Traditional Maori Proverbs: Some General Themes (1997) <http://www.otago.ac.nz/DeepSouth/vol3no1/moon2.html> at 1 February 2006.


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