The Case for Sui Generis Protection for Maori Cultural

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The Case for Sui Generis Protection for Maori
Cultural Intellectual Property

• Aroha Te Pareake Mead
• Victoria School of Management
• Call of the Earth Llamado de la Tierra

2
Kaupapa Vision

• To provide the maximum level of protection of
  Maori cultural heritage for future generations
  while ensuring increased opportunities for Maori
  economic development utilising cultural resources

3
Values

• Active protection of cultural heritage
• Promote cultural transmission
• Ensure cultural economic development
• Recognise Maori Self-Determination

4
Framework

• Protect Maori cultural heritage from exploitation
• Promote utilisation of cultural resources for
  Maori development under conditions
• Develop informed consent and benefit-sharing
  procedures

5
Todays Situation

• Maori are not currently the primary beneficiaries
  of our cultural assets
• Many Maori cultural resources are already in
  exclusive non-Maori ownership
• Maori cultural resources are in an increasingly
  high commercial demand locally, regionally and
  globally

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Times are changing

• Not just for Maori but also for
• Conduct of research
• Application enforcement of intellectual
  property
• Informed by global developments
• Develop responses that reflect our own values and
  priorities

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Available Options

• 1. Status Quo
• 2. Strengthen existing laws policy
• 3. Exempt Maori develop a comprehensive
  Maori-specific mechanism
• 4. Sui generis incl. Maori-specific
• 5. Sui generis pluralism approach

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1. Status Quo

• Exclusive ownership
• Applicant assertion
• Finite time period
• Innovation
• Commercial Application

• Communal ownership
• Customary resource
• Inter-generational
• Definition is stretched
• Customary use

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Status Quo Breeds Abuse

• Four recent ip Court Cases
• John Moore vs US ownership of his own body parts
• Monsanto vs Schmeiser Canada GMO seeds found on
  Schmeisers property
• Madey v Duke University 2003 experiments not
  Patent exempt
• India vs US at the WTO Tumeric

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United States Patent 5,397,696 March
14, 1995 Papua New Guinea human T-lymphotropic
virus Abstract The present invention relates
to a human T-cell line (PNG-1) persistently
infected with a Papua New Guinea (PNG) HTLV-I
variant and to the infecting virus (PNG-1
variant). The establishment of this cell line,
the first of its kind from an individual from
Papua New Guinea, makes possible the screening of
Melanesian populations using a local virus
strain. Assignee The United States of America
as represented by the Department of Health
(Washington, DC)
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Gene Patents US
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Harvard University's attempts to patent a
genetically altered mouse, known as the
oncomouse, failed on December 5 2002 when the
Court ruled in the case of Harvard College v
Canada (Commissioner of Patents). In a
five-to-four split, the Court decided that the
transgenic mammal did not fit the Patent Act's
definition of "composition of matter". The Court
said that provisions in the Act do not allow for
the protection of inventions using higher forms
of life.
Harvard University's attempts to patent a
genetically altered mouse, known as the
oncomouse,
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2. Strengthen existing laws policies

• Need to agree to scope of amendment,
• Prohibitive Time frame NZ Trademarks
• Slow down but not stop misappropriation
• Cant solve the remaining outstanding issues
• Not enough and no leadership

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3. Exempt Maori develop a comprehensive
Maori-specific mechanism

• Ethnic-specific that could limit Maori interests
  new materials? Partnerships?
• Rely solely on customary law
• Wouldnt catch misappropriation through
  current ipr
• Global coverage - WTO

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4. Strengthen ipr PLUS develop sui generis
Maori specific mechanisms

• Toi Iho Maori Trademark PLUS Trademarks Act
• More acceptance of artistic creations
• Little acceptance of matauranga Maori and natural
  resource-based property rights - WAI262
• Can we achieve this for traditional knowledge?

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Indigenous Trademarks
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Australian Trademark 96440

• Lodged 11 March 2003 Owner John Allen Warren,
  Odona Blackledge
• Services for providing food and drink temporary
  accommodation

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5. Adopt a pluralism approach to sui generis

• Accommodate several layers of legal authority
• Customary law
• Common law
• Intellectual property current
• Maori specific Toi Iho
• Treaty of Waitangi Settlements
• Sui generis

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The Case for Sui Generis

• Existing common law is insufficient
• Strengthening existing ip laws is critical but
  should not be the only action taken
• Requires a sui generis pluralism approach
• Takes the issue beyond ip common law to other
  laws, traditional resource rights Posey
• should also be Maori cipr-specific laws
• Customary law should have a role