Protection for traditional knowledge and cultural expressions

The definition of a generation gap is when one accidentally refers to a CD as a 45’ or asks if a particular track is available in LP form.

With this Bill, I wonder if that gap is widening even further with realization that over the last five years, CD sales have plummeted a massive 23 percent.

The way of listening to a popular track is now most commonly accessed through downloading and sharing of files. The International Federation of Phonographic Industries in fact report that some twenty billion tracks were downloaded illegally in 2005 alone.

The Recording Industry Association told the select committee that even the legitimate digital business is expanding rapidly. Music is being made available now through lawful means via licensed services such as iTunes, Digirama and Amplifier, with current projections expecting that in two years time, at least 25% of all music sales worldwide will be digital.

So we are talking about a whirlwind industry which has relegated vinyl to the backshelf in favour of the iPod classic, the touchscreen iPod touch, the video-capable iPod nano or the screenless iPod shuffle. As of September 2007, the iPod was the best selling digital audio player in history, having sold over 110 million units worldwide.

We are in the midst of a sound revolution and it is in that context that we in the Maori Party welcomed the amendments to the Copyright Act to address new technologies such as the internet, whilst also maintaining the existing balance between the interests of owners and those of users of copyright works.

As a performer and a writer, myself, my interests in copyright have been not so much about the profits gained entrenched in a music economy, but the threats posed to intellectual and cultural property ownership issues.

I do not expect to see any of the patere or pao I’ve composed available as a mobile phone ringtone, but I do have ongoing concerns about the need for protection around the appropriate transmission of our cultural heritage.

The digital world is one of instantaneous communication and it is absolutely vital that the cultural knowledge that has been developed over generations is protected from exploitation for a commercial age.

The concept of Maori cultural and intellectual property rights is of course extremely relevant as Aotearoa awaits the Tribunal findings on WAI 262, some seventeen years after the claim was first lodged by Ngati Kahungunu, Ngati Kuri, Ngati Wai, Te Rarawa, Ngati Porou and Ngati Koata.

WAI 262 asserts exclusive rights to cultural knowledge and property, consistent with international discussions taking place in such fora as the World Trade Organisation, the World Intellectual Property organization, or the Convention on Biological Diversity.

In essence the concerns are to do with the commercialization of knowledge – the way in which we consider as taonga, ng
toi M
ori (arts), whakairo (carving), history, oral traditions, waiata, te reo M
ori – treasures which are increasingly being targeted in the international world.

The protection and retention of matauranga Maori, traditional knowledge, is also to protect against the exploitation and misappropriation of cultural taonga. We have witnessed the most horrific abuse of our traditional artefacts - our mokomokai (preserved heads) being displayed hung on meat-hooks; or the use of moko to promote a Halloween mask.

Tangata whenua have also been concerned about the failure of legislation and policies to protect existing M
ori collective ownership of cultural taonga, and in particular the lack of equitable benefit-sharing or acknowledgment of the traditional knowledge protection mechanisms of indigenous peoples.

Our cultural property has been created over generations and exists far outside the realms of individual ownership.

A particularly fascinating example of the complexity of copyright laws related to Maori, was described by Alistair Smith, in a paper entitled ‘Fishing with new nets: Maori internet information resources and implications for internet for indigenous peoples’.

Smith traces the experience related to the Bohemian artist, Gottfried Lindaeur. In 1996, Lindauer’s portraits of Maori chiefs from the last century, were scanned and placed on the web by Auckland City Art Gallery.

This generated considerable outrage from descendants of the chiefs profiled in Lindaeur’s portraits, who believed that cultural property rights lay with them.

And yet conventional intellectual property law apply only to Lindauer’s works and as fifty years have passed since his death, the copyright law enables these portraits to be regarded as being in the public domain.

To assist in navigating some of these complexities, Government has produced Te Mana Taumaru Matauranga, which gives some valuable advice regarding intellectual property rights, laws and international agreements.

Yet while we all take place in the waiting game for WAI 262, both this guide and this Bill before the House today, are inevitably of limited value in protecting the expression of matauranga Maori and associated cultural property.

As such, we were fascinated at the choice of which issues were specified as requiring further review by the Select Committee in this Copyright (New Technologies) bill.

We of course took note of the authorised comment from the outstanding three time Academy award winning director, producer and writer, Peter Jackson. His comment, which was stipulated as only able to be used for the purposes of these submissions, argued that the Director should be recognised as the author of audio-visual works, urging us, and I quote,

“if we, as a country, profess to honour and promote our creatives then let’s get behind it legislatively and ensure that they can get some financial benefit from the sales of the works that they create….Our Copyright Act should reflect this, let’s make it happen by keeping up with the rest of the world”.

Accordingly, the Ministry of Economic Development advised the Select Committee it would begin work on this issue in early 2008.

Yet while concerns around intellectual and cultural property rights were raised by Te Ropu Whakahau, the professional association for Maori who work in libraries, archives and information services, the reporting back on the bill is remarkably silent on this issue.

Te Ropu Whakahau concluded, and again I quote from their submission,

“we contend that there is a need to develop a category of collective ongoing and enduring rights that will ensure that Maori retain the right to control the appropriate expression and transmission of our cultural heritage. This control is one that can’t be invested in an individual and protected by conventional intellectual property mechanisms such as copyright”.

There are interesting international precedents that could have been examined.

The Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture, 2002, is an intellectual property based sui generis system which draws on copyright principles to provide protection for traditional knowledge and cultural expressions.

The concept of sui generis – one of its own kind – has already been introduced in Aotearoa in the Trade Marks Act 2002. Amongst its provision, the Commissioner of Trade Marks is able to refuse to register a trade mark if it is considered offensive to Maori.

This was a very welcome and innovative move – and it is considered that the Waitangi Tribunal rulings on WAI 262 will also recommend the implementation of sui generis systems to protect Maori knowledge.

Another interesting model is that provided by the Saami people of Norway, Sweden, Finland and Russia.

They have established Samikopiija – a reproduction rights organisation representing the interests of Saami culture. The organisation has been set up to administer collectively their rights and to ensure that appropriate remuneration is paid to the Saami for reproduction of intellectual property.

This Bill, the Copyright (New Technologies) Amendment Bill was in the ideal position to build on all of these developments, both domestically and internationally, and just as it did with the recommendations around the Directors, also grab the opportunity to demonstrate leadership in requiring comprehensive protection of matauranga Maori, Maori knowledge.

It is a matter of great disappointment to the Maori Party that the House has not been presented with such an opportunity, and it is therefore inevitable that the Maori Party has been unable to support this Bill.