Aroha Mead, August 2003 The Case for Sui Generis Protection for Maori Cultural & Intellectual Property Aroha Te Pareake Mead Victoria School of Management

Aroha Mead, August 2003

The Case for Sui Generis Protection for Maori Cultural

& Intellectual Property

Aroha Te Pareake MeadVictoria School of Management

Call of the Earth Llamado de la Tierra


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


Values

Active protection of cultural heritage

Promote cultural transmission Ensure cultural & economic

development Recognise Maori Self-

Determination


Framework

Protect Maori cultural heritage from exploitation

Promote utilisation of cultural resources for Maori development under conditions

Develop informed consent and benefit-sharing procedures


Today’s 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


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


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


1. Status Quo

Exclusive ownership

Applicant assertion Finite time period Innovation Commercial

Application

Communal ownership

Customary resource

Inter-generational Definition is

stretched Customary use


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 Schmeiser’s property Madey v Duke University 2003

experiments not Patent exempt India vs US at the WTO Tumeric


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)


Gene Patents – US

0

1000

2000

3000

4000

5000

1981-85 1986-90 1991-95 1996-2001


The Harvard oncomouse

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.


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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 Can’t solve the remaining outstanding

issues Not enough and no leadership


3. Exempt Maori & develop a comprehensive Maori-specific mechanism

Ethnic-specific that could limit Maori interests [new materials? Partnerships?]

Rely solely on customary law Wouldn’t ‘catch’ misappropriation

through current ipr Global coverage - WTO


26.4.3 26.4.12 5.5.20


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?


Indigenous Trademarks


Australian Trademark 96440 Lodged 11 March 2003: Owner John

Allen Warren, Odona Blackledge Services for providing food and

drink; temporary accommodation


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


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

Documents

Aroha Mead, August 2003 The Case for Sui Generis Protection for Maori Cultural & Intellectual Property Aroha Te Pareake Mead Victoria School of Management