Role of the Crown and Indigenous Peoples in Protecting and Managing Traditional Knowledge Erica Gregory

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Role of the Crown and Indigenous Peoples in
Protecting and Managing Traditional
KnowledgeErica Gregory

• Presentation for the International Federation of
  Reproduction Rights Organisations
• Auckland, New Zealand
• 3 November 2006

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Introduction

• What is traditional knowledge (TK)?
• Thoughts on the role of indigenous people
• Thoughts on the role of the Crown
• Why is MED considering TK issues?
• MED work to date
• The IP/TK work programme
• What are other government agencies doing?
• Concluding thoughts

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What is Traditional Knowledge (TK)?

• No one definition broadly can be considered
  distinctive knowledge, traditionally associated
  with a certain community and/or people.
• May refer to TK in relation to science,
  agriculture, medicine, biodiversity, cultural
  expressions, elements of languages etc
• Tradition-based (not necessarily old), evolving
  and generational
• Maori may relate more to the term matauranga
  Maori

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Role of Indigenous Peoples

• Guardians or kaitiaki of TK
• Nurture and train others to ensure the
  transmission of TK
• Continue to build on the existing body of
  knowledge
• Set parameters for the on-going creation,
  maintenance and use of TK

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Role of the Crown

• Needs to consider the environment and policies
  within which TK is created, maintained and used,
  and any underlying problems
• Develop policies that focus on enabling the
  creative potential of TK to contribute to Maori
  development, recognising the benefit to New
  Zealand as a whole
• At the international level act on the basis
  that international rules must allow adequate
  flexibility to develop domestic policy, which
  includes maintaining flexibility for the
  government to respond to WAI 262 and its TOW
  obligations

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IP and Maori Development Policy why get
involved in TK?

• MED, DOC and TPK, MCH and DPMC are instructing
  departments in the Wai 262 claim
• All current IP laws and treaties (esp. WTO TRIPs)
• Process for development of IP laws
• Negotiation of international instruments
• Other TOW claims re IP
• International processes developing mechanisms for
  the protection of TK or considering TK issues
  (WIPO, CBD, WTO TRIPS Council, UNESCO,
  UNCTAD,ILO, WHO, APEC and others)
• Economic potential of TK for TK holders and NZ as
  a whole

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MED Work to date

• Consultation with Maori re IP law reform process
• 1990 proposed IP Law Reform Bill on hold pending
  consideration of concerns about Maori cultural
  and intellectual property
• 1994 4 national hui Maori concerns re
  proposed changes to Trade Marks and Patents Acts
• Maori Trade Marks Focus Group
• Patenting of Life Forms Focus Group

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MED Work to date (2)

• 1995-97 Maori Trade Marks and Patenting of Life
  form focus groups produce discussion documents
  and make recommendations (complemented by
  Ministry publications)
• 1997 8 consultation hui re Maori and trade marks
• 1999 policy recommendations to Cab. including
  focus group rec. re establishment of
  consultative group
• 1999 4 hui, 2 workshops, re patenting of life
  forms

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MED Work to date (3)

• 2002 Trade Marks Act passed, includes absolute
  ground to refuse registration of offensive marks,
  and Maori Advisory Committee
• 2002 Discussion document re boundaries of
  patentability Maori and patenting of biotech
  inventions
• 2003 policy recs re Maori consultative
  committee, patenting of humans expressly
  prohibited
• Changes to patents and trade mark legislation
  only stop gap measures, sui generis measures
  may be required
• 2001-2006 participation in WIPO
  Intergovernmental Committee on IP and Genetic
  Resources, Traditional Knowledge and Folklore
  (scope for domestic work)

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The IP/TK work programme

• Aims to address two problems
• Protection against the inappropriate grant of
  IPRs over TK subject matter to third parties
  (misappropriation and misuse of TK)
• Limited capacity of IPRs to protect TK
  (preservation and commercial imperatives of TK
  holders)
• IP system can only address part of this problem
• Modifications to existing IPRs possible
• New sui generis IP-type rights possible
• Non-IP solutions are also necessary

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3 stage IP/TK work programme

• Objective development of range of innovative,
  cross-cultural and multi-disciplinary solutions
• Stage one capacity building, engagement,
  awareness and information sharing
• A bottom-up approach discussion documents
  dont work without preparation and engagement
  kanohi ki te kanohi (face to face) discussions
  essential
• Stage two problem definition
• Stage three consultation on options
• Policy recommendations

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Protection and management of TK beyond IP

• Protection of TK can include
• Preservation (safeguarding against loss or
  dissipation of TK and the environmental factors
  that gave rise to it)
• Safeguarding against inappropriate or
  unauthorised use by others
• Can have social, cultural, economic and
  environmental objectives
• A range of possible solutions from different
  policy perspectives

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TK and other NZ government agencies

• Matauranga Maori Programme (Dept of Conservation
  - includes the Matauranga Kura Taio Fund under
  the Biodiversity strategy
• New Zealand Qualifications Authority a
  dedicated Maori qualifications framework
  recognising indigenous knowledge
• Bioprospecting policy development (also MED)
• Biotechnology Strategy (Min of Research Science
  Technology) sets out a vision and direction for
  the development of biotechnology in NZ and
  identifies a need to foster and draw on Maori
  biological knowledge and innovative capacity.

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TK and other NZ government agencies (2)

• Foundation for Research Science and Technology
  has a Maori Knowledge and Development output
  class. Its Strategic Portfolio Outline for Maori
  Development supports enhanced Maori management of
  natural, cultural and historical resources and
  maintenance of matauranga "Maori and mechanisms
  for the protection of cultural property and
  management of intellectual property.
• Ministry of Culture and Heritage - repatriation
  policy for Maori ancestral remains/koiwi tangata
  Maori and a review of the Antiquities Act
• Creative New Zealand - Tohunga Tauira Programme
  and Toi Iho trademark
• National Library has developed a set of
  principles relating to the preservation of
  intellectual and cultural property.

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Conclusion

• Matauranga Maori or Maori Traditional Knowledge
  belongs to Maori
• Maori have a role in nurturing and growing TK
• The Crown has a role in fostering opportunities
  to enable the creative potential of TK to provide
  cultural, social, economic and environmental
  benefits for Maori, recognising the potential
  benefits for New Zealand society as a whole
• Important that the Crown and Maori work together
  to maximise the potential benefits for all

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For more information

• www.med.govt.nz
• Or contact
• traditional.knowledge_at_med.govt.nz