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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
SHARING THE BASKET:
DELIVERY OPTIONS FOR TE MāTāPUNENGA
wayne rumbles
i. INTRODUCTION
The work of Te Mātāpunenga was always envisaged to be shared
with a wider audience. As stated by Dr Alex Frame, a member of the editorial
Board of Te Mātāpunenga:1
It is envisaged that the “end users” of Te
Mātāpunenga will be members of Māori communities, students at
all levels within New Zealand, Government at many levels of policy and
decision-making,
and judicial officers across the range of Courts and Tribunals.
It is also envisaged that the compilation will be of interest to
international
scholars seeking an understanding of Māori Customary law.
This chapter explores some of the options to achieve delivery of Te
Mātāpunenga to these end users and briefly identifies some issues
to be considered. Te Mātāpunenga has had a long gestation and
has been the topic of discussion in some form or other at nearly every Advisory
Panel meeting of the
Te Mātāhauariki Research Institute. Many of those
discussions centred on the people who were going to use the material
and how it
was to be delivered.
A. Publicly available
All of the source material on which Te Mātāpunenga draws is
publicly available, and it is presented in a manner where any potential user can
go directly to the sources and draw their
own conclusions. In many ways it is
study reference and is not being held up as the definitive source but rather a
starting point
for discussion and dialogue, which was indeed one of the founding
principles of Te Mātāhauariki.2 The researchers were
mindful of
1 Alex Frame and Paul Meredith “Performing Law: Hakari and Muru” in Te Mātāpunenga: A compendium of References to Concepts of Māori Customary Law Te Mātāhauariki Institute Occasional Paper series, Number 8 (Te Mātāhauariki Institute, Hamilton, 2003) 49 at 51.
2 See Rachel Parr Te Mātāhauariki Methodology: The Creative
Relationship Framework Te Mātāhauariki Institute Occasional Paper
series, Number 5 (Te Mātāhauariki Institute, Hamilton, 2002).
tension between Western concepts of public domain knowledge3 and the kaitiaki interest in respect of taonga works and mātauranga Māori.4To negotiate this tension all research was undertaken by a bicultural and bilingual team,5 applying the “Creative Relationship Framework” as outlined by Rachel Parr in Te Mātāhauariki Methodology: The Creative Relationship Framework.6
The material was continually ‘tested’ through Te
Mātāhauariki’s advisory panel meetings and the Institute’s
Pū Wānanga programme of consultations and discussions with senior
Māori leaders and scholars.7
B. Copyright
As the then Foundation for Research, Science and Technology (FRST) funding
supported Te Mātāhauariki for more than 10 years,
the editorial board
of Te Mātāpunenga considered what was to become of the work
beyond the FRST funding.8 An agreement between the editorial board of
Dr Alex Frame, Professor Richard Benton and Paul Meredith, Te
Mātāhauariki Institute
and the University of Waikato was entered into.
The agreement in short states that any intellectual property rights which may
reside
in “the concept, scheme, arrangement, or accompanying explanations
in the work shall reside with the Institute so long as it
subsists and
thereafter in the University”. On assignment of such rights the editorial
board will retain right of attribution.9 Therefore, although Te
Mātāhauariki Institute no longer has a physical existence, there is
ongoing wairua to see Te Mātāpunenga disseminated to contribute
to “development in Aotearoa/New Zealand of a ‘common law’
which reflects the concepts
and values of both our major founding
cultures”.10 The spirit of the aforementioned allocation of
rights is that the work will be publicly available to as wide an audience as
possible.
3 For a general discussion on public domain see Rosemary Coombe “Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property” (2002) 52 DePaul L Rev 1171.
4 Ko Aotearoa tēnei: a report into claims concerning New Zealand law and policy affecting
Māori culture and identity Wai 262 (Waitangi Tribunal, Wellington, 2011) at 38.
5 Paul Meredith and Rachel Parr Collaborative Cross Cultural; Research for Law and Institutions for Aotearoa/New Zealand: A Summary Paper Te Mātāhauariki Institute Occasional Paper series, Number 1 (Te Mātāhauariki Institute, Hamilton, 2001).
6 Parr Te Mātāhauariki Methodology: The Creative Relationship Framework, above n 2.
7 For further discussion of Pū Wānanga see Nena Benton “Towards a More Inclusive Jurisprudence for Aotearoa: Te Pū Wānanga 1999–2003” in Richard Benton (ed) Conversing with the Ancestors (Te Mātāhauariki Institute, Hamilton, 2006).
8 On 1 February 2011 the Foundation for Research, Science and Technology and the Ministry for Research, Science and Technology merged into the new Ministry of Science and Innovation (MSI). See www.frst.govt.nz/ for further details.
9 In line with part 4 of the Copyright Act 1994.
10 Frame and Meredith “Performing Law: Hakari and Muru” above
n 1, at 49.
C. Methods of dealing with corrections, additions and
deletions
In the spirit of creating that discussion and dialogue already mentioned it
would be ideal for a work such as Te Mātāpunenga to be able to
respond to that discussion. The work should be viewed as a living document,
which will grow and evolve over time, and
this was always the vision for Te
Mātāpunenga. Any project that deals with people’s practices
will be open to question regarding both the choice of material and the
interpretations
of (albeit contemporary) third parties. There is also a
probability or perhaps certainty that further material will turn up which
will
add to, alter the nuance of or contradict material in Te
Mātāpunenga.11 This is especially true when knowledge
is derived from an oral culture. In an oral culture abstract knowledge, such as
concepts of
justice and social order, are contained in a pre-existing network of
knowledge, interconnected in extraordinarily complex and non-linear
ways.
Consequently, a practitioner of Māori customary law could have assumed that
the audience would have the framework of knowledge
that sits behind the
practice.12 Therefore, ideally any delivery system for Te
Mātāpunenga would be able to deal with and respond to this
legitimate feedback. A further point to note is that there can be no assumption
of
prior understanding of the supporting pillars of a customary practice for
Te Mātāpunenga. Indeed, part of the aim of Te
Mātāpunenga is to create the foundational basis in order to assist
in the understanding of contemporary expressions of Māori customary
law.
ii. Te
MāTāpunenga – some delIVery optIons
There are a number of publishing options available; dissemination no longer
relies on just hard-copy books. Each publication option
presents issues and
benefits and these should be considered in light of the aims of Te
Mātāpunenga to facilitate dialogue and understanding, and it may
well be that a combination of delivery methods best meets these
aims.
11 For an example of contested knowledge see in the area of biodiversity Arturo Escobar “Whose Knowledge, Whose nature? Biodiversity, Conservation, and the Political Ecology of Social Movements” (1998) 5 Journal of Political Ecology 53.
12 Doug Brent “Oral Knowledge, Typographic Knowledge, Electronic
Knowledge: Speculations on History of
Ownership” (1991) 1(3) Ejournal <www.ucalgary.ca/ejournal/
archive/rachel/v1n3/article.html>.
A. Hard copy
To publish in the form of a hard-copy book does have a certain amount of
prestige and status. A hard copy makes citation straightforward
and would
facilitate its use in court and other legal situations.13 A hard copy
also has an aesthetic that is difficult to reproduce in the other forms of
publication, and recent research shows a hard
copy is more likely to be shared
and discussed than other digital forms.14 In some ways a hard-copy
book encapsulates the knowledge in familiar form that is easy to have on a
bookshelf in the office, library
or classroom. Once a book has a publisher, it
is relatively straightforward to distribute and recover costs and profits
(presuming
it sells). A book is also easy for libraries to purchase, being a
one-off cost.
The difficulty with a hard-copy book is that it will be a large publication
with many colour plates and is therefore relatively expensive
to print. This,
combined with the small print run (in a global sense), means that the cost of
such a hard-copy publication would
be outside the reach of many in the community
and even of some small law firms.15 With a hard copy the material is
static and can only respond to its audience and updates through the expensive
republication of successive
editions. Although a loose-leaf publication
overcomes the necessity of republication in it entirety, it is best suited to
materials
that are updated on a regular cycle and does increase both the initial
price and has ongoing subscription costs.
B. Digitisation
If Te Mātāpunenga is digitised and access is delivered
online, Te Mātāpunenga would contribute to the rapidly
increasing process of digitisation as a means of preservation and/or improving
access and knowledge
of cultural heritage collections.16 While the
source material used in Te Mātāpunenga is publically available,
not all of it is digitally available and therefore digitisation would
13 Although the use of digital legal materials is increasing and becoming widely accepted in our courts and for legal research, much of this is digital copies of existing hard-copy material. See, for example, the online resources/databases of LexisNexis <www.lexisnexis.co.nz/>, Brookers <www.thomsonreuters.co.nz> and Westlaw <www.westlawinternational.com/>.
14 Steven Chen and Neil Granitz “Adoption, Rejection, or Convergence: Consumer Attitudes
toward Book Digitization” (2011; July) J Bus Res.
15 See Nick Holmes “Legal Publishing at the Crossroads” (2009) 9 Legal Information Management, 172 at 173 for a general discussion about the rising costs of legal publishing and increasingly the cost being prohibitive for small law firms wanting to purchase these titles.
16 Kirsten Francis and Chern Liew “Digitised Indigenous Knowledge in Cultural Heritage Organisations in Australia and New Zealand: An Examination of Policy and Protocols” (2010) 46(1) Proceedings of the American Society for Information Science and Technology
<http://onlinelibrary.wiley.com/doi/10.1002/meet.2009.145046025/pdf>
.
significantly alter the accessibility to some of its source material. A
further consideration is that what is public domain for one
culture may be
sacred or restricted for another.
As Francis and Liew point out:17
The digitisation of Indigenous cultural information presents an interesting
dichotomy of cross-cultural relationships between an ideology
from a liberal
Western ideology which developed from the 19th century, and an Indigenous point
of view; this intersection has been
called by a leading researcher in the field,
Martin Nakata, as the “cultural interface”.
While this cultural interface does present opportunities for preservation,
dissemination and understanding of knowledge and history
for both indigenous and
non-indigenous peoples, we need to be mindful of the words of the Joint
Statement from the Indigenous World
Association and Indigenous Media Network of
the UN Commission on Human Rights in 2005:18
Our collective traditional knowledge is the very foundation of our cultures.
It is indivisible from our identities and our laws, institutions,
value systems
and cosmo visions.19 It derives and develops from our daily
interaction with our ancestral territories. Thus, the protection, preservation
and development
of our knowledge cannot be separated from our right to maintain
and strengthen our distinctive spiritual and material relationship
with our
lands, territories, inland waters and coastal seas.20
Indigenous cultures provide for rules and regulations on communicating,
sharing, using and applying traditional knowledge. These rules
and regulations
are cultural obligations we have to comply with and are part of our own
customary laws. Our distinctive spiritual
and material relationship with our
ancestral territories and their environments contains similar duties and
responsibilities that
we need to attend to when using plants, animals or other
living beings for our own needs.
17 Ibid.
18 Joint Statement from the Indigenous World Association and Indigenous Media Network “Review of Developments Pertaining to the Promotion and Protection of the Rights of Indigenous Peoples, including their Human Rights and Fundamental Freedoms: Principal theme: “Indigenous peoples and the international and domestic protection of traditional knowledge” E/CN.4/Sub.2/AC.4/2005/CRP.3 (2005).
19 See: Statement of the International Indigenous Forum on Biodiversity at the Ad Hoc Open-
Ended Working Group on Access and Benefit Sharing (Bonn, Germany, 22–25 October
2001) para. 6.
20 See also: The Kimberly Declaration; International Indigenous Peoples Summit on
Sustainable Development (Khoi-San Territory, Kimberley, South Africa, 20–23 August
2002) para. 3.
Also, future generations are strong rights-holders in our cultures and our
responsibility for their rights and well-being requires
us to meet specific
obligations on their behalf.
Our cultural obligations towards communicating, sharing, disseminating, using
and applying our knowledge should be legally recognized
and respected by the
non-Indigenous actors of the Information Society.
While the compilers of Te Mātāpunenga were aware of this
sentiment in the production of the material, it is also hoped that Te
Mātāpunenga will contribute to understanding and recognition of
customary law within the legal arena.
All forms of digitisation carry the risk that the material will be copied and
even if copy protection methodologies are implemented
these are likely to be
able to be circumvented within a relatively short period.21 However,
this point should not be overstated as even with hard-copy publication all
illicit copying cannot be successfully restricted,
especially in light of most
scanners being able to scan direct to pdf format ready for digital
delivery.
For most digital delivery systems the end user does not own or possess the
material but rather has access to the material.22 It is the point of
access which provides opportunities for cost recovery, either as pay per view or
a subscription model.23 Digitisation can occur with a number of
technologies.
1. Compact disc
A compact disc (CD) is in many ways like a book in digital form. Unlike a
book, a CD would require access to a computer but not necessarily
the internet.
The production of a data CD is relatively cheap, although in practice a CD of
printed material is as expensive as,
or even more expensive than, hard-copy
printed material because of pre-production costs. A CD can easily be created in
a manner which
provides hyperlinks throughout the material connecting related
terms, allowing a reader to instantly navigate to associated material.
A CD
could also be linked to external sites and online material; for
example,
21 Casey Chisick and Mark Perry “Copyright and Anti-Circumvention: Growing Pains in a
Digital Millennium” (9 June 2000) NZIPJ 261 at 262.
22 This is not the case for CD delivery which in this respect is more like a hard-copy book but may also be covered by a licence.
23 Viktors Berstis and Maria Himmel (2001) “Royalty Collection
Method and System for use of Copyrighted Digital Material
on the Internet”
United States patent US 6,282,653 B.
direct links to some of the sources.24 This type of hyperlinked
navigation encourages deeper understanding of the material and exploration
beyond the linear.25
However, like a hard-copy book the material is static and like books can only
respond to its audience through a new edition.26 A CD is cheaper and
faster to produce but still requires distribution to subscribers.
2. Webpage – static
Material could be hosted on a static (non-interactive) website. If access to
the material is to be free, once set up a website like
this can be left with
very little management. In many ways this is very similar to the CD and can
provide hyperlinks inside the document
in order to follow links and connections,
as well as links to outside sources. This type of archiving of the material
could be hosted
on our own website (www.lianz.waikato.ac.nz) or by some
third party such as the University of Waikato Research Commons (http://
researchcommons.waikato.ac.nz/).
When a new edition is ready it could be quickly and easily updated. However,
unlike the CD and hard copy, by using a static website
the material could be
incrementally updated. That is, one section or entry could be updated at a
time.
Even with a relatively static website, there are ongoing costs involved with
hosting and maintaining the site. Therefore, it is necessary
to have a
continuing commitment to the publication from an institution or
publisher.
3. Webpage – interactive
A model which is becoming more prevalent on the internet for dissemination of
material is the interactive website. The interactivity
can be at the level of
the material with a higher level of linkages within and external to the material
such as the National Library
Digital Collections (www.natlib.govt.
nz/collections/digital-collections) and the Encyclopedia of New Zealand (www.teara.govt.nz/en).
24 For example, a link could be made to the Maori Newspapers <www.nzdl.org/cgi-bin/librar y?a=p&p=about&c=niupepa&l=mi&nw=utf-8> allowing users to instantly refer to sources where they have an active internet connection.
25 Isabelle De Ridder “Visible and Invisible Links” (2002) 6(1) Language Learning and
Technology 123.
26 It is true that some publications such as Encyclopaedia Britannica and
World Book use online updates to update the original
material.
Alternatively, the interactivity can be between the
material/institute/university/ publisher and the audience, where the audience
or
end users can comment and even perhaps contribute to the content. This option
does require a further level of commitment, because
no matter what the level of
public involvement there is a requirement of some sort of moderation to avoid
possible liability arising
from comments posted by what can be anonymous
contributors.
The amount of public participation can range from:
• simply supplying an email address for comments such as we do on the Te
Mātāhauariki site
(www.lianz.waikato.ac.nz);
• online forums and discussions such as the Traditional Knowledge portal
• specific discussions/comments linked to entries (www.ip-watch.org/
weblog/index.php?p=479&res=1024_ff&print=0).
4. Wiki
Wikis are perhaps the most interactive options of all, where the public are able to edit and add material directly to the site. The most famous of this type of site is Wikipedia (http://en.wikipedia.org), where members of the public can contribute to the collective knowledge of the community. While a wiki can be a very open system, it can also have any level of editorial filter before public publication on the web, but any level of editorial function requires constant commitment.27 While wikis are being used within disciplines in the academy or institutions only a few external academic-focused wikis exist.28 For example, Citizendium (http://en.citizendium.org) was developed as a more rigorously fact-checked alternative to Wikipedia. However, as of 2011 it has only passed
156 expert-approved articles through the vetting process since it was created
in 2006.29 Another example is Scholarpedia (http://www.scholarpedia.org), which only
accepts articles from experts in their field and all articles are peer-reviewed
prior to publication, making it more
like a traditional journal or encyclopaedia
than a true wiki. Although there have been a number of
27 See, for example, the LexisNexis Academic Product Wiki <wiki.lexisnexis.com/academic/
index.php?title=Main_Page>.
28 Steve Kolowich “Whither the Wikis?” (14 July 2010) Inside Higher Ed <www. insidehighered.com/news/2010/07/14/wikis>.
29 Date accessed 16 November 2011. There is a backlog of 15,893 articles
in various stages of development.
articles professing the credibility of Wikipedia and the like, the fact
remains that wikis have a credibility problem. This perception
is especially
true in the academy and I would suggest this also permeates the legal
profession.30
iii. concLusion
While these options are still to be navigated, if a work such as this is to
achieve its greatest audience and utility, in my opinion
it requires a level of
interactivity that balances both the integrity of the material with ease of
access and connection to its audience.
It may be that to achieve this some form
of hybrid delivery system is adopted, something like Adams on Criminal Law
(Adams).31 Adams is delivered in hard copy (albeit
periodically updated in loose-leaf form), and parts of the larger work are
reproduced for specific
purposes.32 In addition or in conjunction
with the hard-copy form, Adams is also published online (which is
constantly updated) and on CD. While such an extensive multi-delivery platform
may not be necessary,
in my opinion the ideal delivery for Te
Mātāpunenga would be some form of complete33 or
condensed hard-copy book in conjunction with some form of moderated interactive
online delivery.
30 See, for example, Aniket Kittur, Bongwon Suh and Ed Chi “Can you ever trust a wiki?:
impacting perceived trustworthiness in Wikipedia” CSCW ’08 Proceedings of the 2008
ACM conference on Computer supported cooperative Work (ACM, New York, 2008)
477, “An Empirical Examination of Wikipedia’s Credibility” (2006) 11(6) First Monday
<http://frodo.lib.uic.edu/ojsjournals/index.php/fm/article/view/1413> and Andrew George “Avoiding Tragedy in the Wiki-Commons” (19 March 2007) Available at SSRN: <http:// ssrn.com/abstract=975096> .
31 See Brookers <www.thomsonreuters.co.nz/catalogue/>. As I teach Criminal Law I am most familiar with this product. There are other examples of multiple format delivery systems for content.
32 For example, Jeremy Finn Adams on Criminal Law 2011 Student Edition (Thomson Reuters, Wellington, 2010).
33 At the time of writing, it appeared likely that a complete hard-copy edition of Te Mātāpunenga
would be prepared for publication in 2012.
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