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New Zealand Law Foundation Research Reports |
Last Updated: 3 April 2021
November 2019
INTELLECTUAL PROPERTY
COMMERCIALISATION AND PROTECTION OF MĀTAURANGA MĀORI IN NEW ZEALAND UNIVERSITIES
Summary report into a research project funded by the New Zealand Law Foundation
Dr Lida Ayoubi
Senior Lecturer
Law School, Auckland University of Technology (AUT)
Table of Contents
Acknowledgements
Like much of research in academia, the idea for this research project was born out of pure curiosity. A quick online search and a few short phone calls later, I decided I needed to know more.
There are many people to thank for the completion of the research underlying this summary report. First and foremost, I would like to extend warm thanks to Lynda Hagen and the New Zealand Law Foundation for their generous research funding.
I am most grateful to all the intellectual property and commercialisation experts at eight New Zealand universities who contributed to this research by agreeing to participate in interviews conducted in person or over the phone. They patiently answered my numerous questions and generously shared their experience, insight and views.
I would also like to thank Prof Charles Rickett, Dean of AUT Law School for his continuous support of this project. Others to whom I am indebted include Prof Pare Keiha, Prof Geoff Perry, Prof Susy Frankel, and many other colleagues at AUT and elsewhere who offered their support and expertise.
Finally, I am also thankful to Mari Theron for providing valuable research assistance.
1 Introduction
“Protecting and transmitting mātauranga Māori is a responsibility shared between Māori and the Crown: neither party can succeed without the help of the other.”1
It is now commonly known that the traditional knowledge (TK) and traditional cultural expressions (TCEs) of indigenous peoples are ineffectively protected around the world. Traditional knowledge and culture of Māori, commonly referred to as mātauranga Māori, is no exception. One of the ways in which mātauranga Māori is often misappropriated is through intellectual property (IP) law and the commercialisation of intellectual property rights. The Western IP system creates and grants private property rights to intellectual creations of individuals that meet the criteria established by the law, including those under the various IP statutes in New Zealand (NZ).2 The mismatch between the requirements of IP law (such as novelty, individual authorship and ownership, and a limited term of protection) and characteristics of mātauranga Māori leaves Māori knowledge and culture open to misappropriation, either directly or in relation to innovation derived from mātauranga.3
Intellectual property is often developed as the result of research and creative endeavours. Universities account for around 28% of New Zealand’s research and development (R&D) expenditure. Commercialisation of that R&D generates more than $500 million annually, amounting to about 15% of total university income.4 Part of that revenue is generated through
1 Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting
Māori Culture and Identity (Wai 262, 2011) [Wai 262] at 204.
2 These include intellectual property (IP) specific statutes including the Copyright Act 1994, Trade Marks Act 2002, Patents Act 2013, Designs Act 1953, Layout Designs Act 1994, Plant Variety Rights Act 1987, and Geographical Indications (Wine and Spirits) Registration Act 2006 as well as other statute that have a number of provisions on intellectual property related offences including the Fair Trading Act 1986, Consumer Guarantees Act 1993, Crimes Act 1961, and Major Events Management Act 2007. Common law also protects unregistered interests in intellectual property through torts such as passing off and breach of confidence.
3 See for a discussion of the mismatch generally, and in relation to NZ IP laws and mātauranga Māori in particular, Susy Frankel Intellectual Property in New Zealand (LexisNexis, Wellington, 2011) ch 3; Susy Frankel and Jessica C Lai Patent Law and Policy (LexisNexis, Wellington, 2017) ch 2; Susy Frankel “Branding Indigenous Peoples’ Traditional Knowledge” in Andrew T Kenyon, Megan Richardson and Wee Loon Ng-Loy (eds) The Law of Reputation and Brands in the Asia Pacific (CUP, Cambridge, 2012) 253; DL Fernando “Intellectual Property and the Protection of Indigenous Culture in the United States and New Zealand: An Effective Solution for Indigenous Communities?” (2013) 12 Cardozo Pub L Policy and Ethics J 149.
4 Universities New Zealand Te Pōkai Tara “Driving Research and Innovation key facts”
commercialisation of intellectual property rights that arise out of university research. New Zealand universities have IP policies in place that regulate the ownership and commercialisation of any IP that is developed by academic staff or students. The benefits from the commercialisation of any such IP rights would normally belong to the researcher and the university, either separately or jointly.
University research can involve reliance on mātauranga Māori. However, in some instances, NZ universities’ IP and other relevant policies fail to acknowledge the rights and interests of Māori in relation to their mātauranga. In other cases, such reference is minuscule, vague or does not provide clear guidelines as to how research and innovation and commercialisation of any resulting IP should be managed for the protection of Māori rights.5 Finally, where such reference is made more clearly, the question remains as to the efficiency and effectiveness of the processes that implement the policy.
Without appropriate consideration for rights of Māori, universities, as “gatekeepers” of knowledge and information,6 can inadvertently become part of the wider misappropriation of mātauranga which is most notably documented in the Waitangi Tribunal’s Wai 262 report.7
The concerns raised in the Waitangi Tribunal’s Wai 262 claim regarding the impact of IP law on taonga works and associated mātauranga Māori are at the centre of the analysis of universities’ IP policies, as summarised in this report. These concerns related to the “misuse and misappropriation of taonga works and mātauranga Māori ... and the inability of kaitiaki to benefit commercially from the use of their own cultural creations when they wish to do so in accordance with their tikanga”.8
The Government has to some extent attempted to address the issue of misappropriation of mātauranga Māori in research. In 2005, the then Ministry of Research, Science and Technology (MoRST) adopted the Vision Mātauranga (VM) policy framework intended to provide
5 When asked about the wording and enforcement of a clause in the IP policy of one of the universities that requires the identification and evaluation of mātauranga Māori in university research, one Interviewee responded that “I think [the body mentioned in the policy] are still working through the mechanisms of making that work ... they are still working out what filtering mechanism they will use.” Interview 9, 31 January 2019.
6 Peter Drahos and J Braithwaite Information feudalism: Who owns the knowledge economy? (2002, NY, The New Press) at 35. For instance, research in Australia showed that “nearly every medicine dependent on [Indigenous medicinal knowledge] for its origins had a university involved in its initial identification and development” and that the university then “formed partnerships with pharmaceutical companies.” Chris Kavelin “Universities as the Gatekeepers of the Intellectual Property of Indigenous Peoples’ Medical Knowledge” (2008) 37 Australian J of Indigenous Education 34 at 38.
7 Wai 262, above n 1, chs 1 and 2.
“strategic direction for research of relevance to Māori” and recommended the creation of an “interface between indigenous knowledge and Research, Science and Technology.”9 The policy is focused on “unlocking the innovation potential of Māori knowledge, resources and people to assist New Zealanders to create a better future”.10 It does not, however, make any references to the rights of Māori to protection of their mātauranga, particularly in relation to IP law, under international human rights law or the Treaty of Waitangi 1840.
An evaluation of the Vision Mātauranga policy in 2009 found that its influence “within research organisations was limited” as “researchers were unsure of the benefits of Vision Mātauranga or how it might relate to their own work”.11 Furthermore, the evaluation found that there are limited formal mechanisms for the promotion of Vision Mātauranga and that there are no reporting and monitoring systems available regarding the policy’s implementation.12 Furthermore, some of the claimants in the Wai 262 claim before the Waitangi Tribunal “criticised MoRST for the failure of Vision Mātauranga to mention the Treaty” and that “despite long recognition on its part of the value of supporting mātauranga Māori as a distinct knowledge system, MoRST had failed to act accordingly.”13
In its Wai 262 report, the Waitangi Tribunal discusses the Vision Mātauranga policy as part of reviewing the performance of science sector agencies. The Tribunal recommends that “science sector agencies give greater prominence to Vision Mātauranga, or make mātauranga Māori a strategic priority in its own right.”14 The Tribunal limits the discussion of mātauranga Māori in educational institutions to the teaching and learning of mātauranga. However, it would be beneficial to extend the Tribunal’s recommendations regarding the treatment of mātauranga by science sector agencies to universities as educational institutions that engage in scientific research and commercialisation of resulting IP. If mātauranga interests should be given greater prominence in the allocation of funding for research, it is only reasonable that those interests should also be considered in the commercialisation of the outcomes of such funded research.
While the rights and interests of Māori in the context of funding university research has received some government attention, protection of such rights in the commercialisation of IP
9 Ministry of Research, Science and Technology (MoRST) “Vision Mātauranga” (July 2007)
<www.mbie.govt.nz> at 2 and 4.
11 MoRST “Evaluation of Vision Mātauranga and the Māori Knowledge and Development output class” (October 2009) The Hub by SIA <https://thehub.sia.govt.nz> at [1.17].
13 Wai 262, above n 1, at 202.
resulting from that research seems to have gone unnoticed. Research suggested that while there seem to have been some developments since the 2009 review of the VM policy and the Tribunal’s report in 2011, many of the issues highlighted in these instruments still persist, particularly in the IP commercialisation context. 15
This report provides a summary of the results of the research analysing the state of the protection of mātauranga Māori in university IP commercialisation in New Zealand. The policies and processes of eight New Zealand universities in commercialising IP were assessed particularly against the recommendations of the Waitangi Tribunal regarding the treatment of mātauranga Māori.
For this assessment the author conducted fifteen interviews involving eighteen individuals from all eight NZ universities. The interviewees are experts in charge of commercialising IP that is the outcome of university research. Some interviewees hold positions across different departments or offices within a university that could relate to research development, IP commercialisation, and Māori interests.
To facilitate an open discussion of the universities’ policies and practices, the interviews are anonymised and references to specific individuals or institutions are removed. This section aims to highlight the issues that exist in relation to the protection of mātauranga Māori in NZ universities generally, rather than to focus on one institution, team, or individual specifically. For referencing and consistency purposes, the interviews are numbered, and the date of each interview is cited.
As Bowrey argues “the major obstacle to better protection of Indigenous intellectual property has not been a lack of legal interest, or disagreement about the need for reform, but the considerable uncertainty about how to achieve this objective.” 16 This report and its underlying research are hoped to contribute to the discussion of measures for the advancement of the rights and interests of Māori in their mātauranga. The focus of analysing the issues raised in the following sections is on strengthening the protection for mātauranga from misappropriation
15 See the developments listed on MBIE’s website “Vision Mātauranga in Practice” <www.mbie.govt.nz>; discussed in Waitangi Tribunal An Appropriation of Rangatiratanga and Mātauranga: An Analysis of Crown Tertiary Education and Science and Innovation Policies (Wai 2698, 2017) at part 5.
16 Kathy Bowrey “Indigenous Culture, Knowledge and Intellectual Property: The Need for a New Category of Rights” in Kathy Bowrey, Michael Handler and Dianne Nicole (eds) Emerging Challenges in Intellectual Property (Oxford University Press, Oxford, 2011) 46 at 66.
through university IP commercialisation, as well as on encouraging mātauranga-based university innovation that would benefit Māori and the larger community.
The author would like to acknowledge that unlike intellectual property rights, which are rather clear and defined legal monopolies, the concepts of traditional knowledge and culture and the relationship of indigenous peoples to such knowledge and culture are not.17 Furthermore, the author acknowledges that IP does not always arise as a result of research. It could simply be the outcome of creative thinking. However, for purposes of brevity and consistency, the term “researcher” is used throughout this report to refer to any university staff member or student who develops work that involves IP rights subject to commercialisation.
2 Protection of Mātauranga Māori in University IP Commercialisation
This section discusses the common themes that stand out when assessing the interface of protection for mātauranga Māori and IP commercialisation at New Zealand universities.
2.1 Mātauranga Māori in universities’ IP policies
Reference to mātauranga Māori in the IP policies of the eight NZ universities is varied.18 Some do not include any such references.19 Other policies express the university’s commitments to the principles of the Treaty of Waitangi, but do not elaborate on how Treaty principles are to
17 See for a discussion of difficulties around defining traditional knowledge Frankel and Lai, above n 3, at 31-32. 18 See for a discussion of reference to Māori IP in NZ universities’ policies, Tipene Eruini Merritt “Aligning the Policies of New Zealand Universities to Provide Consistency in Recognising and Protecting Māori Intellectual Property” (Master of Laws Dissertation, University of Waikato, 2017) ch 6.
19 See for example. Auckland University of Technology (AUT) “Intellectual Property Policy” (Date of Issue: 1 July 2017, Date for Review: 1 July 2018). It is the author’s understanding that the 2017 version of the policy is not yet reviewed. The University of Otago “Intellectual Property Rights Policy” (Date of Policy 1 June 2001, Last approved revision 14 March 2017, Review date 22 February 2022) does not directly refer to mātauranga Māori but a related policy on Research Consultation with Māori (Date of policy 1 September 2003, Last approved revision 14 July 2010, Review date 1 July 2015) cl 1 states that the University “has a commitment to partnership with Māori consistent with the Treaty of Waitangi and the University’s stated objectives ... Both Ngāi Tahu and the University acknowledge the need for guarantee of both confidentiality and Intellectual Property surrounding the consultation processes”.
be considered in the commercialisation of university research IP.20 General references to Treaty obligations may not necessarily translate into consideration for mātauranga issues.21
Finally, others include more detailed provisions for protection of mātauranga in IP commercialisation. However, lack of clear terminology or guidelines around the identification and assessment of mātauranga could lead to problems in applying these instructions.22
Research showed that when reference to mātauranga Māori is present in an IP policy, or other instruments affecting IP commercialisation, the commercialisation teams appear to show a greater commitment to identifying and addressing mātauranga issues. This seems to be the case even in the absence of clear guidelines in the IP policy as to how mātauranga Māori should be identified and subsequently dealt with.23
On the contrary, where reference to mātauranga Māori is lacking from the policy, the commercialisation team(s) tend to not view the identification and assessment of mātauranga interests as a crucial part of the IP commercialisation processes. In these instances, an
20 See for example University of Canterbury “Intellectual Property Policy” (Last modified: September 2017, Review date January 2018. At the time of writing of this report, the policy is under review) cl 1.12 stating that “the University has a commitment to the principles of the Treaty of Waitangi and the University will respect and act according to the outcomes of any Treaty claims relating to indigenous IP rights.”; and University of Auckland “Intellectual Property Created by Staff and Students Policy” (date approved: August 2008, last reviewed: June 2013) cl 1.3.
21 When asked about the enforcement of the clause in the IP policy of their institution that calls for regard to be had to the University’s obligations in respect of the Treaty of Waitangi, one Interviewee responded that “I don’t think this provision is really enforced”.
22 See for example University of Waikato “Intellectual Property Rights Policy” (Last reviewed August 2016, Next review date August 2021) cl 31 stating that “any intellectual property based wholly or partly on mātauranga Māori must be assessed by the Pro Vice-Chancellor (Māori) or his or her nominee, who will advise the Intellectual Property and Investment Advisory Committee on the ownership, appropriate use and protection of mātauranga Māori, and any benefit sharing arrangement that is justified.”; Victoria University of Wellington (VUW) “Intellectual Property Policy” (Approved on 18 July 2013, Date for review 18 July 2016) cl 5.1.8. stating that “any intellectual property based wholly or partly on existing mātauranga and taonga Māori, should first be assessed by Toihuarewa which will advise the University on the extent of Māori ownership that is justified.”; Massey University “Intellectual Property Policy”(Last review May 2014, next review May 2017) sch 7 cl 3 stating that “where the University has a commercial interest in New Intellectual Property Rights that can reasonably be said to be ... derived from any Māori Traditional Knowledge, the Commercial Office must notify the Assistant Vice-Chancellor (Māori & Pasifika) if and when it decides to proceed with Commercialisation”.; and, Lincoln University “Intellectual Property” (2013- The author understand the policy is under review at the time of writing of this report.) stating that “Māori/iwi have a right to shared ownership of any IP that is created from Matauraka Māori, and that such shared ownership will be recognised through written agreement of the respective parties. Further, should any material benefits be pursued through proposed use of IP, then permission for such use will be obtained by and the share of derived benefits agreed, between Māori/iwi and all other involved parties prior to pursuing said use.”
23 Interview 8, 24 January 2019. The Interviewee indicated that “we’ve not a lot of detail and there is no regulation behind this with a series of steps with which you interpret the policy”. Interviewee 6 stated “we always, every project, we always ask the question: is there a VM aspect?”.
awareness of mātauranga interests or the VM policy may still exist among the commercialisation experts. However, they tend to rely on other parties or bodies within the university primarily to address Māori interests in this regard.24
2.2 Identification of mātauranga Māori in IP commercialisation
Commercialisation of intellectual property in universities normally requires the translation of the research that academics and students conduct into commercially viable and profitable ventures.25 This can be through measures such as registering intellectual property arising from a research project, transferring or licensing any such IP, or setting up spin-off companies that own and commercialise the registered or unregistered intellectual property rights.
The IP commercialisation process often starts with the identification and disclosure of any IP arising out of university research. What follows would depend on the IP in question, the type of technology involved, and the state of the research or the innovation. For instance, further funding or research and development may be required to produce commercially viable intellectual property. Often a market search would follow to assess the state of the art and the potential commercial success of the associated IP. This could involve consulting with the relevant industry, end users, or investment bodies. Finally, the last step would be securing the IP – for example through registration where necessary - and choosing a commercialisation pathway as mentioned above.26
Therefore, a question worth exploring in the context of IP commercialisation is when and how mātauranga Māori components would be identified in university IP that is considered for commercialisation.
2.2.1 Disclosure by researchers
The process of identifying commercially viable IP arising out of university research in New Zealand appears to be rather flexible and case-specific. Often, commercialisation offices take
24 Interview 2, 21 January 2019. The Interviewee commenting on the absence of reference to mātauranga Māori in their home institution’s IP policy, stated that in case there is a concern about mātauranga in research that is the subject of commercialisation, they would refer the researcher to a designated VM person and “what happens after that I am not involved. I just send [sic] email to the researcher to say go talk to [the designated person] and he [or she] may not talk [to designated person]”.
25 For instance, in Interview 4, 24 January 2019, the Interviewee stated that “we check the [University’s] research that has applicability and we try to create a product or service or commercialise it”.
26 Interviewee 2, above n 24, descried the process and their role in it as “managing projects from ideation to prototyping to editing, all the way to licence[ing] to industry or sell[ing] to users”. Similarly, Interviewee 5, 24 January 2019, described their role as “assessing innovations that come from academic staff and students to see whether or not their IP is strong enough to warrant an investment in”.
an active role in reaching out to researchers across the university to raise awareness around IP commercialisation and detect any existing opportunities. Researchers themselves may approach the commercialisation teams or experts for a discussion of the potential commercialisation of their research outcomes.27 This can be through attending regular drop-in sessions or scheduling specific meetings. Alternatively, or sometimes as the result of the initial discussions, a researcher may complete what is commonly known as an “invention disclosure form”.28
The initial interactions between the researchers and the commercialisation staff or the completion of the invention disclosure form, as one of the first steps in IP commercialisation, could play an important role in identifying any aspects of the research that involve the use or development of mātauranga Māori.
Research showed that in many instances, the researchers are not specifically asked to disclose any mātauranga interests in their research, either as part of the invention disclosure form or as part of the communications with the commercialisation teams. Most of the experts interviewed indicated that the invention disclosure form and the initial commercialisation evaluations at their institution include questions around the identity of the contributors to the research and the resulting innovation and potential ownership of IP by third parties but not questions around mātauranga Māori specifically.29 While these questions may help identify mātauranga
27 Interviewee 2 described how the commercialisation team had a more pro-active approach to identifying research previously but in recent years “we got a few researchers from each Faculty. They are kind of like advocates. They know who we are, and they promote our services within their colleagues, so we don’t do much promotion anymore. It is more word of mouth pretty much”.
28 See foe example Interviewee 4, above n 25, stating that “we have a form that we often get people to fill out but sometimes we fill it ourselves and try to get as much details as we can”; Interviewee 5, above n 26, stating that “the process would be to fill in an invention disclosure form. So that is the formal document that we need for people to officially engage with us. The reason that we get that is so that we have got a record of it and that we can use it for auditing purposes”; and, Interviewee 12, 8 April 2019, stating that “we have an online system and so the IP disclosure form in an online form that anyone can [complete]”.
29 Interviewee 4, above n 25 stated that “we have a whole section about collaborations. Have there been other organisations involved in the development? Has it used anyone else’s knowledge, product, process or intellectual property? Are there any external inventors? Are there any other parties that could claim ownership of this intellectual property? So yeah, on our disclosure form we have a question about other owners or potential owners.” Interviewee 6, 24 January 2019, indicated that there is no reference to prior identification of mātauranga Māori in the invention disclosure form but that “we have a fairly open forum for discussing development of IP and involved the research consultants [that would have the background knowledge on mātauranga in the research] in that.” Interviewee 8, above n 23, indicated that a member of the commercialisation team will sit with the researcher and discuss questions like “who else has contributes? Any external parties?”. Interviewee 12, above n 28, indicated that “what we look for in the first round of evaluation is [whether] there [are] any other third party claims or is it an area where there could be claims or a liability from other IP holders.” Interviewee 14, 12 April 2019, indicated that “under third party IP considerations ... we would be flagging if there are datasets or essentially if there is
components of the research, they do not appear to be an adequately effective way for such identification.30
The main problem with relying on general searches for third party IP claims or ownership is that much of mātauranga Māori may not necessarily resemble Western intellectual property rights that are more easily identifiable and manageable. As such, mātauranga may inaccurately be seen as knowledge in the public domain or publicly available information and not necessarily an obstacle to commercialisation in the same way that a granted patent or provisional patent application would be.31
Identification could also occur organically as the result of discussing the research and its background.32 Answers to specific questions that the commercialisation staff might pose to the researchers are another tool for identifying mātauranga aspects in research.33 For instance, the AUT Intellectual Property Commercialisation Procedures instrument states that researchers may be required to provide information to AUT Ventures regarding the background of the research and its development.34 The instrument does not mention Māori or mātauranga Māori and its suggested questions are around the “identity of any person or persons who contributed to the creation of the IP”,35 any pre-existing claims to the IP rights,36 and details of any known
third party IP ownership that the [research] project is relying on.” They further commented that “at the moment, the questioning around inventorship and ownership in the disclosure form is pretty broad. We don’t specifically prompt a Māori component in there, but I don’t know that any I have seen do actually”.
30 When asked about questions around mātauranga in the invention disclosure form at their institution, Interviewee 5, above n 26, stated that “no, it doesn’t seem as though there is. I think that is probably another one where we would say that it looks as though this [research] involves or may involve some kind of traditional knowledge so that something will need to be looked into with more detail but it is certainly not on the form”. Interviewee 8, above n 23, stated that “I would expect that we should be advised [by the applicant researcher] of [any mātauranga components] as that would be a huge part of commercialisation; of whether the decision to commercialise it or leave it etc. But again, there is nothing formal there. I don’t have it as a tick box in [the invention disclosure] form”.
31 See for a discussion of mātauranga Māori and the public domain Frankel and Lai, above n 3, at 26-30.
32 Interviewee 13, 8 March 2019, indicated that usually when “there is a biological component” to the research, the commercialisation team would normally ask the researcher questions like “where did you get them? What happened?” and that “this is something that we would talk to the academics in that first meeting with them”. Commenting on whether the invention disclosure form of the Interviewee’s home institution includes a disclosure of origin question, the Interviewee commented that it is “not in the invention disclosure form, although I think there is a question around ‘are there any rights that exist or obligations’”.
33 Interviewee 13 indicated that “those questions should elicit the kind of red flags that say ‘hey we need to look at that a bit more closely because there might be an indigenous aspect that we need to consider here’”.
34 AUT “Intellectual Property Commercialisation Procedures” (Version 1 July 2017, Review date 1 July 2018) at
[4.5.6].
use or commercial application for the IP.37 If these questions are asked and answered diligently and honestly, they can help identify the existence of mātauranga Māori interests.
Discussion of potential mātauranga interests could also arise out of the obligations that certain universities place on researchers for disclosure of any such interest. The Massey University IP Policy requires Massey researchers to notify the Commercial Office when they are considering commercialising “material that can be reasonably said ... to be derived from any Māori Traditional Knowledge”.38 This provision could facilitate the identification of mātauranga interests early on in the commercialisation process, where the researcher has knowledge of any such issues and shares that knowledge. This is, however, not a requirement at all New Zealand universities.
It is not difficult to imagine that questions posed to researchers or obligations placed upon them may not necessarily lead to the identification of mātauranga underlying the research.39 For instance, one expert indicated that it is not uncommon for researchers to claim incorrectly that their research does not have a mātauranga component when providing a Vision Mātauranga statement for funding applications.40 Another Interviewee commented that “it can be the case that the academic thinks that there is a VM aspect and there really kind of is not and the opposite can happen too”.41 This may be due to several reasons, ranging from lack of familiarity or of an in-depth understanding of mātauranga Māori to dishonesty and the inclination to “cut corners”. 42 This is why sole or heavy reliance on disclosure by researchers themselves would be detrimental to the protection of mātauranga interests in university IP commercialisation.
Identification of mātauranga in the initial stages of commercialisation is arguably more likely to happen if checks and balances for mātauranga were part of the earlier stages of the research that is now before the commercialisation team, and that the team considers those earlier
37 At [4.5.6 (vii)]. See also University of Auckland Intellectual “Intellectual Property Created by Staff and Students Policy”, above n 20, cl 6.2.
38 Massey University “Intellectual Property Policy, above n 22, Sch 3, cl 3.
39 On relying on the researchers to meet their obligations under the university’s policies, Interviewee 7, 25 January 2019, stated “is it fool proof? Absolutely not. There is bound to be things that get missed”.
40 Interview 10, 23 March 2019.
42 Interviewee 7, above n 39 stated that “we can’t assume, especially [with] recent arrivals to New Zealand, recent academics, that they have a good understanding of Māori concepts including mātauranga Māori, and assume that they have kind of trawled their way through all of these policies as well” and that “I would be surprised if the vast majority of the [university’s] employees knew about the IP policy, let alone the details within it, and given that I have worked at other New Zealand universities, that is something that is not unique to [the Interviewee’s university]”.
measures. For instance, one Interviewee indicated that “when we [the commercialisation team] do the initial assessment, we will look into the research funding contract and see what other parties were involved and who owns the IP, whether there is an existing agreement.”43 In this instance, if the funding body had highlighted mātauranga issues in a research project seeking funding, the application would have been sent to a competent authority to be assessed for Māori ownership of the IP in the research. Subsequently, the commercialisation team would check the outcome of that process as part of their assessments for commercialisation.44 Similarly,
Interviewee 14 indicated that there are checks and balances, such as the VM policy:45
in the research applications process ... there is essentially an approvals cascade, a delegation process, where normally the Head of Department and Dean will sign off and then it will come to the Research Office as well. So, we are essentially trying to consider at each of those levels, and sort of check each other’s assumptions, where we think that likely [the research] needs a further discussion... so broadly speaking ... yes at some level we do rely from process perspective on self- declaration, but with the proviso that there is more than one set of eyes going over that self- declaration to logic check it.
However, reliance on the identification of mātauranga interests in pre-commercialisation stages that a research project goes through may not always be effective.46
Identification of mātauranga could arguably happen more easily because the research involves Māori academics or communities. In such instances, the commercialisation team would primarily rely on and be guided by the existing information and subsequently seek further advice and guidance from other sources outside the research team or the engaged external parties.47 It was suggested by a number of experts that when the research could highly benefit from Māori engagement because of the nature or the type of research, “there is actually more willingness if not to include [a] VM [statement]” and there is arguably less resistance to declaring the mātauranga components in the research.48
45 Interview 14, 12 April 2019.
46 Interviewee 7, above n 39, indicated that “things may come from [the commercialisation team] to [the Māori advisor] that haven’t perhaps been picked up through the [research office]”.
47 Interview 13, 8 March 2019. The Interviewee commented that “when the researchers will be driving research where there is a lot of overlap or interaction with Māori, in those cases, we tend to some extent be guided by them. If we don’t feel comfortable with the engagement or they are looking for further support, then we’d bring in [the advisor] to help guide what consultation needs to look like and what arrangements are appropriate”.
2.2.2 Identification by commercialisation experts
The commercialisation teams at New Zealand universities normally consist of experts with backgrounds in a range of areas including IP law, science, technology, business, and marketing. In some cases, the experts may also to varying extents be familiar with mātauranga Māori, te reo or tikanga Māori.49 In those cases, if the knowledge of an individual within the team is known to the others, he or she may be the first port of call for questions around mātauranga Māori.50 In the absence of clear regulations or guidelines, however, this would happen on an informal basis which does not sufficiently meet the threshold of the universities’ legal obligations to ensure Māori interests are identified and protected.
All the individuals interviewed showed an eager willingness to help protect mātauranga Māori in the commercialisation process.51 Consequently, it might be the case that mātauranga Māori aspects in a university research project are identified by the IP commercialisation staff.52 However, several factors can overshadow the experts’ eagerness. For instance, the lack of recognition for mātauranga interests or clear guidelines in the university’s IP policy discussed in the previous section is one factor.53 This is problematic because in such instances identifying mātauranga would largely depend on the expertise and initiative of the staff themselves, rather than an official process.54 The other concern is an expert’s lack of appropriate knowledge of
49 Interviewee 7, above n 39, indicated that “a lot of my colleagues at [the commercialisation team] but also in the [research office] have a reasonable understanding of, I suppose, Māori values”.
50 Interviewee 3, 8 March 2019 stated that “because of my background of writing and interest in Māori intellectual property and indigenous innovation, then I sometimes get referred questions around that”.
51 Interviewee 2, above n 24, stated “at this stage we don’t have an official kind of Māori IP policy or consultation requirement. But ... we recognised that several other institutions within New Zealand do, and it is effectively our obligation as a university to recognise [Māori interests] in the correct way in the future.” Interviewee 12, above n 28, stated that “there is a need to apply quite a lot of experience and knowledge in questioning [in the evaluation of research for commercialisation] so [the commercialisation team] would be pretty confident that nothing fell through the cracks”.
52 Interviewee 14, above n 45, stated that “we specifically look at the relevance of research to Māori and the involvement of Māori in research projects in term of delivery and co-development and also Māori as potential beneficiaries of IP commercialisation”. Interviewee 6, above n 29, indicated that “we don’t explicitly look for it, but we expect to detect it. Because we ... are sitting next to the research consultants who angle the research for the University, they are aware of any like VM type aspects to the research” and that “we always, every project, we always ask the question: is there a VM aspect?”.
53 Responding to the question of how research with mātauranga components may be referred to the competent authority at the university, Interviewee 7, above n 39, stated that “it depends on the case ... I don’t think there is any hard and fast step by step process”.
54 Interviewee 6, above n 29, stated “it is our job to do due diligence and during that due diligence is when identification of the VM aspects occur”. Interviewee 8, above n 23, stated that “generally I don’t have a tick box or anything on our form. Anytime we have anything come in, generally it is in the back of your mind; is there anything associated with mātauranga Māori that we could take into account? To date, we have had nothing. If there were ... we would then proceed to consult with the [the assigned authority as per the IP policy]”.
mātauranga Māori. Commercialisation staff may also serendipitously become aware of the existence of mātauranga interests during the commercialisation process,55 but this is not a consistently reliable method of protection.
When a commercialisation staff member or team may suspect that the research is derived from mātauranga and involves Māori interests, they seem to rely heavily on their inter-personnel knowledge and relationships.56 One expert stated that if they suspect there is a mātauranga aspect, “we would be certainly discussing it with the hierarchy” because “we used to have a [VM person] but [they] left ... so unfortunately we don’t have anybody now”.57 Contacting the university’s Māori and pasifika academics or bodies, in the absence of a designated advisor, is also an approach adopted by commercialisation experts.58 Another expert stated that they would approach the university’s appointed Vision Mātauranga advisor as “I have no other port of call really”.59 However, they confirmed that they do not believe to be officially required to do so and they do not contact the VM advisor “as a matter of course”.60
This could partly be due to viewing the VM policy as relating to research funding only and not the commercialisation of the IP that results from such research or any other university research.61 Another expert indicated that they would “now” contact the advisory person
55 Interviewee 2, above n 24, gave the example of being advised of the “need to talk to iwi” for the use of a natural resources as part of commercialising a university research innovation through discussions with a business consultant who had set up a successful business in the same industry. The consultant was not utilising the same natural resource and was not asked directly about any existing mātauranga but happened to have knowledge into Māori interests and decided to share that with the team.
56 For instance, Interviewee 11, 8 March 2019, commented that “probably it would be the commercialisation manager I think who should be making those connections with people [to identify mātauranga Māori in research]. But sometimes it just works more organically than that ...maybe I have got contact with people and I would offer
... I would say that it is the commercialisation manager who has that overarching responsibility and then others will help out, if they have got contacts”.
57 Interviewee 8, above n 23, stated that “because we have an open door policy, I would actually go and talk with [the head of the office]. [They] would be your first port of call I would think”.
58 Interviewee 12, above n 28, stated that there is no designated advisor “within the office. We would invariably refer off to our colleagues in the Māori and Pasifika area, based on each individual case”. Interviewee 8, above n 23, stated that “we used to have a [VM person] but [they] left ... so unfortunately we don’t have anybody now but we would probably consult [one of the University’s Māori academics] or look further”. Interviewee 14, above n 45, indicated how the office of the Assistant Vice-Chancellor (Māori and Pasifika) would be contacted if a research project is “flagged” for Māori interests. Interviewee 9, 31 January 2019, indicated that “if my office [commercialisation] or the research group think there might be ownership implications, then they will send [the research to be assessed]”.
59 Interview 1, 21 January 2019. Interviewee 4, above n 25, indicated they would contact the advisor if needed as they are “just a few desks over”.
61 Interviewee 2, above n 24, stated that “we don’t really pay attention to Vision Mātauranga. It is important for research grants but for commercialisation ... takes a very small part of it.” Similarly, to the question of familiarity
“because we [the commercialisation team] have specifically talked about this recently”.62 Another expert commented that they are somewhat familiar with the VM policy.63 Finally, one of the experts stated that they are not familiar with the VM policy and that:64
I don’t think there is a person with a job description who would look at [the existence of mātauranga component in commercialised research]. I think it is just something that would be done on an ad hoc basis. So, it would be done as needed. If we had an application and it related to, I’m making this up, Manuka honey ... then it would be something for us to have a look at. But if it was something that was a new chemical compound for treating cancer, then it’s a no. It is not something that we would think there is [sic] any traditional knowledge issues around it.
The statement above highlights the risk of leaving the identification and assessment of mātauranga in commercialised university research to commercialisation experts who may not necessarily be experts on mātauranga and tikanga Māori. Relying solely on the IP commercialisation teams to identify the existence of mātauranga Māori interests is detrimental to the protection of Māori interests as it presumes knowledge, expertise, and initiative that many experts may not adequately possess.65
2.2.3 Identification as part of ethics processes
An ethics application is another opportunity for identifying mātauranga Māori interests.66 The relevant forms that the applicants complete often include questions regarding any Māori interests in the research. This may be regarding the work that an applicant has done already, any necessary future engagement with iwi or other individuals or groups, or precautionary measures to consider for the protection of Māori interests.
It is worth noting that ethics approval is normally only required when the research involves engagement with human beings or animals. Even then, there are exceptions to this requirement, for example if the human engagement is a one-off interview where the personal or professional opinions of the interviewee are not sought.67 This is the first difficulty with relying on the ethics
with or use of the VM policy, Interviewee 4, above n 25, responded that “I don’t really know the policy. I haven’t really had a chance to come across it in my day to day”.
63 Interviewee 8, above n 23, stated that “I couldn’t recall it verbatim, but I have been aware of it”.
65 Interviewee 2, above n 24, stated that “I don’t know much about the Māori benefits and Māori exploitation”. 66 Discussing the connection between the ethics process and assessment of mātauranga Māori in commercialised research in their institution, Interviewee 9, above n 58, stated that the current IP policy uses “the Ethics as possibly a trigger point” for identification of mātauranga Māori.
67 AUT “Applying for Ethics Approval: Guidelines and Procedures: Exceptions to Activities requiring AUTEC approval” <www.aut.ac.nz> cl 6.5.
approval process for identification of mātauranga interests in research. Not all university research would go through the process.
Furthermore, the ethics system seems to focus on the conducting of the research itself, for example collection of data or material, and not so much the commercialisation of any IP arising out of the research project later on and its impact on Māori interests. Finally, it is unclear how effective and efficient the ethics system would be in a case of non-compliance. Researchers are often required to report back at different stages of their research project and reflect on how they have followed the requirements of their ethics approval. However, the ethics system seems primarily to place the burden on the aggrieved individuals to report non-compliance and seek remedies. It is rather difficult to envisage how the kaitiaki would be able effectively to protect their interests in mātauranga that have been used in research if the researcher fails to meet the conditions of the ethics approval.
This is not to say that ethics approval cannot be helpful for protection of mātauranga Māori in IP commercialisation at universities. The views of an ethics committee, especially when a mātauranga expert is present or consulted, can be valuable for the continued protection of mātauranga interests in university research. Early identification of Māori interests in university research can inform the work of the commercialisation experts for the protection of such interests. However, as mentioned earlier, this is only if the existence and conditions of ethics approval are considered at the commercialisation stage.
Research indicated the lack of a consistent practice for investigating the existence and conditions of an ethics approval for the research subject to commercialisation. The Intellectual Property Description Form of OtagoInnovation includes a section titled “Ethics and Regulatory Permits” that instructs the applicant to “include details of all permits in place and note if any required approvals are outstanding”.68 The commercialisation experts of other universities interviewed either stated that the invention disclosure form at their institution does not include questions around ethics approval,69 that they are unaware or unsure whether there are any such
68 University of Otago, Intellectual Property Description form 2018, copy e-mailed to the author.
69 Interviewee 3, above n 50, stated that the invention disclosure form at their institution does not enquire about ethics and that they do not check for it either. Interviewee 4, above n 25, indicated that in the invention disclosure form “there is no specific question about [ethics]” but that “we [the commercialisation team] are situated literally 10 metres away is the desk for the Ethics people, so we do ask them about ongoing research”. Interviewee 5, above n 26, indicated that “I think it is something that is not formally built in our process but it is something that we are fully aware of in the sense that, depending on what the project relates to, then we would require ethics approval for that particular project to get to a certain packet of work done so that we can show potential investors that this thing actually does work”. Interviewee 8, above n 23, indicated “no, that isn’t a question that is in the
checks and balances in the invention disclosure form,70 or that they do not normally check for existing ethics approvals71 in the commercialisation process.
Some of the interviewees indicated that they might consider questions around ethics approval if further research is needed to develop the research into yielding intellectual property.72 In one instance, following the discussion at the interview, the expert interviewee decided to edit the invention disclosure form of their institution to include an option for declaring any existing ethics approvals or applications (as well as for declaring any mātauranga Māori in the research).73
Almost all interviewees highlighted that when the commercialisation staff are involved in research development, either at the early stages of a project or for further development of existing research that could yield commercially viable IP, they would consider the requirements for ethics approval. However, as stated before, pre-existing ethics approval, which would have included an investigation of mātauranga aspects, is not normally checked in retrospect.
2.3 Decision-making related to mātauranga interests
All experts interviewed indicated that their work involved an enquiry into the existence of any external or third party interests in the IP arising out of university research that is considered for commercialisation. Identification of the proprietor(s) of a Western intellectual property right would arguably often be reasonably straightforward. Many such interests such as trade marks, patents, and designs would have been registered with the IPONZ. Additionally, in the case of unregistered rights, such as copyrights and trade secrets, there would often be an indication of such rights through the existence of contracts or licensing agreements. This means commercialising experts can identify IP rights and access their owners quite easily.74 By contrast, Māori taonga, especially intangible taonga such as underlying mātauranga Māori, are
form. However, we have not had to deal with any biological based commercialisation opportunities at the moment
... So it has never been raised because we have never had one that would sort of deal with ethics yet.” Interviewees 6, above n 29; 12, above n 28; and, 14, above n 29, also indicated that the forms at their institutions do not have a question around ethics.
71 Interview I. Interview 2, above n 24, stated that “I never ask ‘do you have ethics?’ ... I just assume that they have ethics because ethics is very, it is a researcher thing”.
72 Interviewee 2 commented that “the only time I would ask [about ethics] is if they planned to do a testing”.
73 E-mail communication between the author and interviewee 8, above n 23.
74 It is worth noting the difficulty associated with identifying the author or owners of orphan copyright works.
more difficult to recognise and attribute to an individual owner.75 Mātauranga Māori is a vast and complex body of knowledge and its identification, recognition, protection, and appropriate use is thus best left to experts.76
Furthermore, one of the challenges identified in the protection of mātauranga interests in the commercialisation of university research is ensuring early engagement with kaitiaki.77 Some NZ universities have created specific roles for the provision of advice on mātauranga Māori or Māori interests as related to university research. These roles are often assigned to a kaiarahi,78 Mātauranga Māori Advisor,79 Research Development Advisor (Māori) or a group of experts.80
One of the instances that highlights the importance of the availability of a competent authority is the statement of a commercialisation expert commenting on the identification of mātauranga Māori issues: “it is like learning a new language, so I don’t give advice often on that. I just say [to the researcher] go talk to [the dedicated VM person].”81
Relying on the commercialisation staff to identify and assess issues around mātauranga Māori is even more problematic where the commercialisation team does not have access to a competent authority for guidance.82 Another difficulty is when it is up to the commercialisation expert, especially in the absence of clear guidelines, to contact the competent authority after
75 Wai 262, above n 1, at xviii. This and other conflicts between Māori worldviews and Western IP law was underlined as early as in the mid-1990s. See for example Brian Garrity “Conflicts between Maori and Western Concepts of Intellectual Property” (1996) 8(4) AULR 1193.
76 See for a discussion Frankel and Lai, above n 3, at 31-32, and Valmaine Toki “Tikanga Māori - a traditional knowledge system” in Natalie Stoianoff (ed) Indigenous Knowledge Forum – Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture (LexisNexis, Sydney, 2017) 457.
77 Interviewee 15, 8 April 2019, highlighted the need to engage with kaitiaki in relation to university research “in an authentic and genuine way and in a safe way as soon as possible rather than a month out from submission [of a grant application or commercialisation proposal] and somebody is scrambling to ... find Māori to talk to”.
78 University of Auckland <https://unidirectory.auckland.ac.nz/profile/g-hema> and Lincoln University
<www.lincoln.ac.nz/About-Lincoln/Staff-Profiles/?StaffID=Payne%20Dione>.
79 The AUT Research and Innovation Office previously included a Mātauranga Māori advisor position. At the time of writing this report, that position no longer appears to be available.
80 The Research Development Advisor (Māori) is a recently established position at VUW
<www.victoria.ac.nz/research/support/research-office>. Furthermore, Toihuarewa that consists of Māori academics at VUW is another authority for assessing Māori interests in research. As per the IP policy, research that is identified as including mātauranga Māori at the Ethics stage should be referred to Toihuarewa for assessment <www.victoria.ac.nz/maori-at-victoria/rangatiratanga/toihuarewa>.
82 For example when asked about checking for mātauranga Māori in the commercialisation process, Interviewee 2 indicated that “I don’t know much about the Māori benefits and Māori exploitation ... and that’s because we don’t have a [person], you know the research office, they do have [a] person, [name of the person], and we don’t have a person like [name of person] to help us discuss topics like this. [Name of person] is there, is next to us, the same floor, but is really occupied with the research of other stuff not commercialisation”.
identifying a mātauranga aspect to the research.83 While it might not be plausible to involve a competent authority in every project that a commercialisation team considers, the input of such authority should inform the identification efforts and not merely be an afterthought.84
The importance of access to a competent advisor or advisory team is even more apparent when considering the nature of kaitiakitanga over mātauranga. It may not always be easy to identify who the kaitiaki for a certain mātauranga matter is, who should be contacted, or how appropriately to make enquiries about use and commercialisation.85 In such cases, the insight of a skilled advisor with the appropriate knowledge and connections to the community86 is crucial and invaluable.87
In addition to identification and assessment of mātauranga Māori, the competent authority could provide guidance on another aspect of engagement with kaitiaki, that being benefit sharing. The AUT IP policy envisages that the financial benefits arising from commercialisation would be shared with the “University and the researcher(s)/inventor(s), and with external business or investor parties where applicable”.88 Other universities have similar provisions in their policies. The external or third parties could include Māori groups, iwi, or hapu who have directly or indirectly contributed to the development of the IP in the research that is commercialised. However, explicit reference to benefit sharing with Māori would arguably provide further certainty in the protection of their interests. Such reference would be
83 Interviewee 6, above n 29, stated “in terms of things like Wai 262 that is a bit beyond our ken when we identify that, that there is an issue, we will go and seek legal help to understand what the implications are.” Interviewee 15, above n 77, explained how the commercialisation team would usually indicate to the Māori advisor that there is a project which may involve mātauranga issues. Interviewee 4, above n 25, indicated that the commercialisation team would contact the Māori advisor if “there was something that we feel has a question over it”.
84 Interviewee 13, above n 47, commented on the involvement of the advisory person by stating that “we don’t bring [the advisor] in on every project that we do and say ‘hey do you think there is an issue here’ mainly because [the advisor] has got limited resources as well and we should be able to do a pre-screen”.
85 Interviewee 10, 23 March 2019, commented that “my first job is to work out the genesis of the project; what is the level of mātauranga in there, what is the level of engagement with Māori in there, and what sort of, I guess, cultural safety provisions they have around their collection of the data, who is responsible for this and what agreements they have with Māori to achieve those and making sure that there are clear lines, there are clear roles linked to responsibilities”.
86 Interviewee 10 commented that “I don’t know everything, so I can only help people sometimes by being a conduit, by leading the towards other people”.
87 Interviewee 13, above n 47, commented that “I tend to bring [the advisor] in as soon as I am aware there is any kind of Māori aspect to a project ... because [they] can add a lot of value in terms of well how do you engage, how do you structure this engagement, what are some of the other considerations you need to be aware of and what are some of the protocols we need to be aware of”.
88 Auckland University of Technology (AUT) “Intellectual Property Policy”, above n 19, cl 2.2.9.
part of the larger framework of ensuring mātauranga Māori interests are protected in university research commercialisation, in line with universities’ Treaty obligations.
Commercialisation teams may sometimes be guided by the procedures of other government bodies or departments on how to engage with kaitiaki. For instance, if the subject of IP commercialisation is research that is done following a permit issued by the Department of Conservation (DoC), then DoC would be able to provide further guidance on the consultation for potential commercialisation.89 However, this may not always be possible, in which case the importance of access to a competent authority for advice on consulting the kaitiaki becomes apparent.
The decision as to whether to commercialise university IP lies with the universities, although almost all Interviewees confirmed that the researchers involve have reasonable involvement and get a fair amount of say in decision making if they are being reasonable. 90 This is significant because it implies that the university, as opposed to the kaitiaki, would have the final say in whether and how research that involves mātauranga Māori should be commercialised. It is worth noting that as kaitiaki, Māori should also have a say in the commercialisation of research that goes beyond the mere provision of advice.
3 A way forward
As discussed, intellectual property commercialisation experts at all eight New Zealand universities are aware of the need to protect Māori interests in university research development and commercialisation. This awareness, however, and the mechanisms in place vary greatly from institution to institution. Furthermore, regardless of what is already in place, it appears that every institution could benefit from strengthening its efforts to protect mātauranga Māori in research commercialisation.
While the process of IP commercialisation, as highlighted by the Interviewees, is variable and case as well as process-driven, it is crucial to provide the commercialisation teams as well as researchers with clear overarching guidelines and principles as well as resources that would help them perform their duties.
90 For instance, Interviewee 1, above n 59, stated that “even if they [the researchers] told us [the commercialisation team] and we were aware of it and we didn’t have their cooperation then we actually probably couldn’t make a go of it anyway”. Other Interviewees made similar statements.
This section presents five recommendations that, if adopted and adapted by universities to their needs and unique structures, could contribute to enhancing respect of and protection for Māori interests in the commercialisation of university research generally, and of IP rights in such research more specifically. Universities may consider setting up working groups to address the issues raised in this report and those that relate specifically to the needs and conditions of their researchers and institutional research and commercialisation priorities.
3.1 Inclusion of mātauranga Māori in universities’ IP policies
As a first step, it is recommended that NZ universities include a recognition of mātauranga Māori interests in their IP and commercialisation policies. The rights of kaitiaki to be acknowledged as the source of mātauranga Māori and to have their interests recognised are stipulated in the Wai262 report. This would involve the introduction of such recognition in universities’ policies where none is currently available, and clarification or strengthening of an already available recognition.
Recognition of the potential role of mātauranga Māori in university research is arguably the most important step in protecting Māori interests in the context of IP commercialisation at universities. First, such recognition would alert a commercialisation team or individual of the need to protect Māori interests in the commercialisation process. It will also place an obligation on the commercialisation experts to attempt to address such interests, rather than rely on the other teams or individuals in the university to do so. Finally, if the recognition is accompanied by clear guidelines it can also inform a holistic framework for identification, assessment, and protection of mātauranga Māori in research that is being commercialised.
Mātauranga Māori cannot and perhaps should not be defined using strict terms. However, there should be a clear framework in place with overarching principles that would ensure and facilitate the identification and assessment of mātauranga interests. In addition to the Treaty principles, other frameworks around management and protection of Māori interests in relation to mātauranga and taonga species and works are emerging which could assist universities in adopting IP and commercialisation policies that protect Māori interests in research. For instance, the Charter of the Māori Data Sovereignty Network relies on rangatiratanga, kotahitanga, manaakitanga and kaitiakitanga as guiding principles for ensuring that Māori have
sovereignty over Māori data.91 The Charter defined Māori data as “data produced by Māori or that is about Māori and the environments we have relationships with”.92 Much of such data would be subject to intellectual property rights and potentially valuable from a research commercialisation standpoint. As such the Māori Data Sovereignty framework and similar initiatives would be helpful to university policy making and implementation.
It is worth noting that, as indicated by the expert Interviewees, some universities’ IP and commercialisation policies are under review.93 It is recommended that in those instances, as well as in other institutions, recognition and protection of mātauranga Māori and Māori interests be included in the IP and commercialisation policies.
3.2 Streamlining the protection of mātauranga Māori
3.2.1 Identification and assessment of mātauranga Māori
To protect Māori interests, in line with the recognition of their rights in mātauranga, it is recommended that universities adopt appropriate and effective identification and assessment practices when developing and commercialising intellectual property.
Due to the nature of the interests at stake, it is important to allow for flexibility around how best to address the mātauranga aspects of research that is the subject of commercialisation.94 It is, however, recommended that universities put in place principles and guidelines that would guarantee adequate and effective recognition of such interests early on in the IP commercialisation process.
The Waitangi Tribunal has commented on what the recognition of existing kaitiaki may involve. Such recognition can range from obtaining consent to disclosure and consultation.95 The Tribunal clarified that the degree of recognition and the appropriate response should be decided on a case by case basis.96 The Wai 262 report recognised the importance of guidelines
91 Te Mana Raraunga - Māori Data Sovereignty Network “Charter” <www.temanararaunga.maori.nz/tutohinga> at 3.
93 Interviewee 2, above n 24, stated that there is a review process in place at their institution to “develop a policy that enables us to kind of address [Māori interests] in the correct way in the future”.
94 Interviewee 15, above n 77, commented on having a flexible approach to addressing mātauranga interests by stating that “I am happy with that because that is how it happens in the Māori world ... There could at some point be a kind of step by step process but in my experience, even where there are heavily prescribed processes around Māori issues, most often than not most of those steps will be leapfrogged, because they are either unnecessary or things occur naturally with the flow of the conversation.”
and codes of conduct for safeguarding the interests of kaitiaki in the research development process.97 The Tribunal encouraged universities to play a proactive role in developing guidelines that would help identify mātauranga Māori interests and engage the appropriate kaitiaki.98
The principles and guidelines that universities adopt would be best developed in cooperation with Māori,99 or a competent authority as discussed in the following section. This would be in line with both the university’s obligations to abide by the Treaty principle of “partnership” as well as art 18 of the UNDRIP that recognises a right for indigenous people to participate in decision making affecting their rights.100
The goal of protection of mātauranga is not to grant exclusive ownership to kaitiaki that would stop innovation and research at universities. Acknowledgement of the existing kaitiaki and allowing for a degree of control and protection of kaitiaki interest can therefore co-exist with the use of mātauranga for further research and development by non-kaitiaki actors. De Beer argues that doing so would also make 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”.101
To ensure that mātauranga interests in research that is subject to commercialisation are adequately identified or that an existing identification (in past stages) is adequately considered in the commercialisation process, specific questions around mātauranga interests can be designed. These questions would involve the different stages of research as applicable; for instance, ethics applications, access to material, collection of material, discussions with
99 Interviewee 13, above n 47, commented that when the researcher “holds the relationships with the local iwi groups that [the researcher] is working with [the commercialisation team] are not going to get in the middle of that” and when research “tends to be jointly developed, the iwi are a partner in that research from day one rather than [the commercialisation team] find something now”. Interviewee 15, above n 77, commenting on the impact of Māori engagement in research on successful engagement with kaitiaki stated that “it will often look more convincing from a Māori perspective if they [kaitiaki] can see that you are working with a Māori person to be giving you that advice so that they can be sure that whatever opportunity might arise out of those communications, that all the necessary protocols are observed and that transition of information, sharing of information can occur in a safe way”.
100 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 A/Res/61/295 (2007) [UNDRIP] art 18.
101 Mariaan de Beer “Protecting Echoes of the Past: Intellectual Property and Expressions Of Culture” [2006] CanterLawRw 4; (2006) 12 Canta L R 94, at 17.
individuals potentially in possession of mātauranga, collaborations with individuals, and receiving material or information from other researchers that contain mātauranga.
These questions can be added to the documents or platforms for the initial disclosure of an invention as well as being considered by the commercialisation expert that handles each piece of research. The evaluation of the research through these questions will help the identification of mātauranga interests which can then be referred to the relevant competent authority, for example, the proposed advisory committee in the following section. Furthermore, it would be beneficial to treat the invention disclosure form as a legal document and educate and inform the researchers about their obligations under the IP and research policies and their employment agreements.
It is important that researchers have an obligation to provide disclosures of origin statements, evidence of consultation and, when appropriate, evidence of any access and benefit sharing agreements when mātauranga Māori, particularly accompanying genetic resources, is part of their research that is commercialised. This disclosure can be included in the initial invention disclosure application and discussions with commercialisation experts and can potentially match the proposed disclosure of origin requirement under patent law reform in NZ.102 This information can also assist the Patents and Trade Marks Māori Advisory Committees in decision making where relevant.
This will also help overcome the issue of sole reliance on the researchers or the commercialisation experts having the necessary knowledge and showing initiative in identifying mātauranga interests. The questions would guide and inform the expert’s decision to refer the research to others with the necessary knowledge and expertise for an in-depth evaluation of any existing mātauranga and the appropriate steps in addressing Māori interests.
Universities could also benefit from linking the processes used across ethics, research development, funding, and IP commercialisation.103 Existence of an ethics application, a VM statement or any other relevant information should be checked at the commercialisation stage. Most, if not all, major university research projects would require funding support and for that would go through the checks and balances that should and hopefully would identify mātauranga
102 MBIE “Discussion Paper: Disclosure of origin of genetic resources and traditional knowledge in the patents regime” (September 2018).
103 Interviewee 10, above n 40, stated that “I think the Ethics Committee should have a requirement from participants [researchers] who have signed up to a VM process that they can feedback on that process to the Ethics Committee”.
Māori interests. However, when dealing with an issue as prevalent as misappropriation and exploitation of indigenous knowledge or traditional knowledge and when the stakes are high, relying on one entity or source to identify and successfully deal with concerns around mātauranga Māori is not advisable. Hence, streamlining would be crucial to the protection of mātauranga interests.
3.2.2 Introduction of a competent authority
To ensure that Māori input is part of the commercialisation decision making, it is recommended that a competent authority, in the form of an individual or team, is available to assist the universities’ IP and commercialisation teams.
In assessing the performance of different sectors, including the education agencies, in treatment of mātauranga Māori, the Waitangi Tribunal commented that “for all the positive initiatives of some of the mātauranga agencies ... lack of decision-making power [for Māori] is a cause of prejudice. The Treaty requires Māori to at least share in the decisions taken to preserve and transmit their mātauranga.”104 As Maui Salomon has opined, “the Wai 262 claim [sought] to give Māori the ability to define for themselves the parameters of their cultural and intellectual property rights and to control how those rights are developed”.105
Therefore, Māori input should guide the creation of overarching guidelines and principles. It is, therefore, recommended that a position is created or filled for one or more kaiarahi that would assist the IP commercialisation experts in the process of identification and protection of mātauranga interests in commercialised research. As one of the Interviewees commented on the need for policies around Māori interests in IP commercialisation and the role of a competent authority, “it is nice to have something on paper” and “you actually do need a person present”.106 The availability of a competent authority also helps ensure that certain individuals are not constantly burdened with provision of advice or guidance.107
104 Wai 262, above n 1, at 204.
105 Maui Solomon, Barrister “Māori cultural and intellectual property rights” (Institute for International Research Conference Speech, Auckland, 24 February 1997).
107 Interviewee 10, above n 40, commented “we had this issue [in the academic research context] with this concept called ‘dial a kaumatua’ where people were just harassing Māori elders or trust boards with their own research proposals trying to get them to tick them off”. Interviewee 15, above n 77, commented on the same point “if your projects doesn’t directly oblige you to, in the very earliest of stages, include Māori, then it might be difficult, depending on who you contact to even get a meeting or an email reply. It is often assumed that this is the case because Māori just are too busy or disinterested in the Research. I think what some researchers fail to understand is that Māori who hold Governance roles across the different Iwi groups, Iwi trust, will generally hold those roles
The benefit of having an expert Māori advisor for research commercialisation is not limited to the provision of advice on a specific research project or innovation. Many experts provide general information and guidance to researchers throughout the university that helps raise awareness around Māori interests and use and protection of mātauranga Māori in university research.108 They can also upskill the experts in the research development and IP commercialisation teams.109 This would in turn positively contribute to effective identification and protection of mātauranga interests when the IP in a research project is considered for commercialisation.
The competent authority can be a stand-alone individual or team that liaises with different bodies within the university or could be accommodated within an existing body that deals specifically with commercialisation generally or specifically in relation to IP.110 Alternatively, universities may consider establishing bodies that mirror the patents and trade marks Māori Advisory Committees.
The information provided by many of the experts interviewed shows that due to the nature of mātauranga, often the input of more than one person is sought.111 In other words, many institutions are informally already relying on the advice of a group of people, but without a formal committee structure. Formally creating such a committee or advisory group with clear scope and jurisdiction would help to strengthen the protection for mātauranga and assist universities in meeting their Treaty obligations. This provides a degree of control over mātauranga for kaitiaki, as recommended by the Waitangi Tribunal.
in addition to full time careers and even in some of the larger and more sophisticated Māori groups where you have a large suite of operational staff, the work load will be heavy so they might not reply in the time that you’d hope for. Or, they might be suffering from fatigue in that they constantly get cold called by researchers”.
108 Interviewee 15, above n 77, commented on their role involving working with the commercialisation team at their institution “to make regular opportunities available to attend, say for example, a one to three-hour session on mātauranga Māori, Vision Mātauranga and kind of a broad discussion of the connection that Māori have to the research commercialisation technology spaces”.
109 Interviewee 9, above n 58, commented on the positive impact that the expert Māori advisor had made on the work of the research office staff through educating them on mātauranga Māori. Interviewee 15, above n 77, commented on the awareness raising for the commercialisation staff through “one hour sessions that will cover everything from Māori pronunciation, use of Māori language, Māori cultural practices, Tikanga Māori, engagement and VM [Vision Mātauranga].” Interviewee 14, above n 45, commented on the skillset of the advisory person by saying that “in the Research Office at the moment we rely on [the advisory person] from the perspective of enhancing our iwi and hapu relationships [and] brining a broader view in terms of what may be considered with the mātauranga Māori framework”.
110 Examples of such existing bodies are the University of Waikato Intellectual Property and Investment Advisory Committee, or VUW’s Intellectual Property Standing Committee.
111 Interviewee 10, above n 40, commented “if I can’t answer it ... I will consult and take, bring another person into the consultation process”.
After an initial identification of potential mātauranga issues in research that can later be commercialised for IP rights, such issues can be referred to the committee for advice. However, in doing so, it is important to ensure that the committee has a meaningful role in IP commercialisation decision making. It is worth noting that arguably under art 18 of the UNDRIP and the Treaty of Waitangi, Māori input should be sought in the creation of any such positions and processes, as they involve a matter affecting their rights and interests.
3.2.3 Provision of remedies and enforcement mechanisms
To complement the abovementioned mechanisms for safeguarding mātauranga interests in IP commercialisation, it is recommended that universities’ IP or other relevant policies introduce monitoring and enforcement measures.
Research showed that it is currently unclear whether lack of proper engagement with kaitiaki and consultations in the commercialisation of research that has a mātauranga component would have any real consequences. The outcome of university research that is subject to commercialisation may have conditions attached due to an existing ethics approval. However, as discussed earlier, the impact of non-compliance with ethics conditions on the commercialisation of research IP is unclear.
Consultation or engagement with kaitiaki may have also been raised if the research project was considered as requiring a Vision Mātauranga statement. Similar to ethics considerations, however, it is unclear whether the VM process imposes concrete obligations on the researchers and the extent of its enforcement also remains rather vague.112
Therefore, universities should aim for proactive monitoring of compliance by researchers rather than relying on aggrieved kaitiaki or Māori partners to provide feedback on lack of appropriate use of mātauranga. This can be achieved through regular and vigorous reporting obligations. The existing, or introduced, competent authorities that identify or assess Māori interests in university research can be tasked with monitoring the researcher’s compliance with the advice they are given regarding their research.
In line with monitoring, enforcement measures could range from withdrawal of funding or ethics approval (where such grant has been conditional upon complying with conditions around
112 Interviewee 10, above n 40, commenting on the VM process stated that “there is no real authority around it at all. I can only guide. I am what they call a cultural Sherpa. I am not there as an enforcement officer or as a follow- up... so there is a bit of discontinuity from what I do and what the ethics people want them to do” and that “that’s why I wanted feedback; so then the Māori start giving feedback to me and from that I can refine my consultation plan”.
protection of Māori interests); stopping the commercialisation process until mātauranga interests are effectively addressed as per the protocols and processes in place; or in more serious cases, introducing penalties for intentional failure to comply with the requirements. Universities could consider introducing other enforcement measures as deemed appropriate. In doing so, Māori interest groups and their presentative bodies within the university should be consulted as per the principles of the Treaty.
3.2.4 Ensuring consistency between universities
Finally, it is recommended that NZ universities cooperate to maximise the impact of their efforts for protection of mātauranga interests through ensuring consistency of their policies and practices.
Consistency between universities’ practices is essential as research that contains IP can often involve the sharing of research material. Intellectual property commercialisation at NZ universities appears to be flexible and not dependent on defined processes. The commercialisation teams seem to prefer and appreciate this flexibility.113 While this flexibility can be preserved, protection of mātauranga Māori would benefit from a degree of consistency achieved by university commercialisation teams following articulated overarching principles that protect Māori interests.114
In cases of research collaborations, the IP or commercialisation team may draft a material transfer agreement.115 Drafting of such agreements for research that contain mātauranga Māori in a way that ensures the protection of such mātauranga at the destination institution would be easier if universities were following similar principles and practices. Consistency between universities also helps to avoid conflicts in collaborative research endeavours.
113 For instance, Interviewee 2, above n 24, commented that “given the nature of our job [a] process will never work. We have a high level process, but it just never works with us”.
114 See also Merritt, above n 18, at 56.
115 Interview 3, above n 50. The Interviewee stated that “if we want to have a researcher at our university send some material, i.e. biological samples to another university, then there will be an agreement, a material transfer agreement and in that there is often clauses around intellectual property and what they can do with the material”.
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URL: http://www.nzlii.org/nz/journals/NZLFRRp/2019/12.html