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Protecting Indigenous Culture

18 Apr 2006

The nation reacted in outrage when sales of cigarettes in Israel under the brand name MAORI were discovered last year – and for more than just health reasons.

New Zealand has witnessed exponential growth in ‘cultural heritage tourism’ and the use of Maori imagery, symbols and designs to promote commercial products in the last decade. New Zealand’s indigenous culture encapsulated within artwork, music, performance, and designs is becoming more common.

The addition of Maori symbols, place names and traditions is now starting to be recognised as “adding value” to New Zealand business in the local and international markets. But claims of misappropriation, cultural insensitivity, and lack of recognition are the catch-cry of some indigenous people who feel their rights are being exploited.

Generally, Maori are not against the promotion of their culture but insist that they have some control over how their ‘intellectual property’ is used. Their taonga (language, symbols, designs and knowledge) must be mediated by them with their express approval and consent.

The most obvious legal mechanism to protect indigenous culture is the intellectual property regime. Indigenous culture is essentially a form of intellectual property insofar as it is a product of human imagination.

CONFLICTING VIEWPOINTS

However, the orthodox intellectual property regime relies totally on the idea that the ‘intellectual property’ must be ‘owned’. Indigenous people view their ‘cultural heritage’ in terms of a collective right associated with family, clan, iwi, hapu or kinship group.

Further, it is the welfare of the community that is paramount in indigenous societies. This is in sharp contrast to the dominant legal approaches to indigenous intellectual property, such as copyright and patents, which are designed to reward the creator or inventor for ‘their’ idea.

The different view points of the western legal position and indigenous cultural knowledge is conflicting. One is based on individual rights for an economic return whilst the other is based on communal rights for a collective benefit and is based on identity not profit.

What is the government doing to address protection of indigenous cultural knowledge?

GOVERNMENT INVOLVED
 
The Trade Marks Act 2002 provides for trade mark applications featuring a Maori word, device or symbol to be submitted to a Maori Advisory Committee for consideration as to whether the trade mark is likely to be offensive to Maori.

A similar Committee is likely to be set up for patents. Draft legislation includes a provision to set up a Committee that will consider whether an invention is derived from traditional Maori knowledge, and if so, whether the commercial exploitation of that invention is likely to be contrary to Maori values.

In 2004 the Intellectual Property Office of New Zealand (‘IPONZ’) initiated a programme to research the current Intellectual property rights systems in relation to traditional knowledge. IPONZ has also commissioned a study on the economic potential of traditional knowledge for Maori, including indigenous branding.

As part of the programme, IPONZ is preparing an Intellectual Property guide for Maori and is planning to hold an intellectual property/traditional knowledge national symposium.

The second stage of the work programme involves identifying problems associated with the intellectual property regime and traditional knowledge from a New Zealand context. A formal document will be prepared and submissions invited from interested parties. Release of the document would be accompanied with face to face consultations as appropriate.

Stage three involves the development of options to address the protection of traditional knowledge. IPONZ is hoping for inter-departmental and across-governmental response on the submissions received and information gathered in order to address the vast issues surrounding the protection of traditional cultural knowledge.

INDIGENOUS BRANDS

When it comes to using indigenous imagery as a brand for commercial gain, a new process is emerging. Businesses are becoming increasingly aware of the need to explore the cultural sensitivity, offensiveness and ownership of a trade mark which is made up if indigenous imagery or references, prior to making using of it. Such consultation may be with elders, clans, iwi, language institutions, government departments, and artists, for example.  This all goes towards promoting authenticity and depth to a product or service – and more importantly, is promoting our culture correctly.

Trade mark law, copyright law, consultation, and the Treaty of Waitangi, all assist in safe guarding certain intellectual property rights.  Indigenous branding should only be used only after careful planning and consideration. Before using a brand incorporating an indigenous image or word, it is best to consult and seek the advice from the parties who are likely to be affected.

An edited version of this article was published in FMCG magazine April 2006