One-minute read
Recent years have seen growing interest in protecting and maintaining traditional cultural expressions and the rights of the communities that own them. This has led inevitably to questions about how this knowledge can be reconciled with IP rights, such as trademarks, and some well-publicized clashes between traditional cultural expressions and the IP system. Attempts to identify the problems, and find solutions, at the international level have more often than not led to disagreements and complications. But developments in individual countries—including New Zealand, South Africa and the Pacific Islands—suggest that it is possible to meet the concerns of both sides. Education and awareness raising are key to addressing the problem, and should lead to greater understanding on both sides of the argument.
W hatever term you use—traditional knowledge, traditional cultural expressions or folklore—there is a renewed interest in the life, knowledge and heritage of the world’s indigenous peoples. Perhaps this comes from a fear that what knowledge remains could be lost, perhaps it is part of a desire to live in a more sustainable manner and, in some way, escape the pressures of the modern world. Whatever the reason, organizations all over the world are trying to use this traditional knowledge to boost their brands.
But traditional knowledge and IP might not be as incompatible as some suggest. WIPO’s intergovernmental committee on intellectual property and genetic resources, traditional knowledge and folklore has met regularly since 2001 and is doing a good job of identifying the problems, if not yet finding the solutions. And individual countries, led by New Zealand, have been trying to find workable solutions to a problem that is unlikely ever to have a single, worldwide answer.
Traditional values
One of the reasons why the idea of protection for traditional cultural expressions (the phrase used in today’s workshop WT01—Indigenous Rights Reconciled with Trademark Rights) creates such debate is that the expressions themselves are valuable. They can create distinctive and valuable brands, which is why they are so often exploited. There are many examples of companies using the language and culture of indigenous peoples to create distinctive brands. One of the most recent involved a French security company that decided to call itself Maori Group out of admiration for the New Zealand rugby team. Pita Sharples, a Maori politician, described this decision as “an absolute affront to our intellectual and cultural property rights” and Helen Clark, New Zealand’s prime minister, also criticized the name. But, ultimately, there was nothing she or anybody else could do to stop the company giving itself that name.
David Haigh, founder and CEO of Brand Finance and one of the speakers at today’s workshop, believes that he can value these expressions using the same principles that he would attach to registered trademarks. “The rate a licensor would pay is a reflection of the value of that expression to the business,” he says. He says he would look at how customers react to a brand associated with, for example, an indigenous tribe, and then produce a range of valuations based on that.
The New Zealand solution
The classic objection to establishing a sui generis right for traditional knowledge is that it is too difficult to establish ownership. In 2000 UK pop star Robbie Williams unwittingly highlighted this debate by getting a Ta-Moko or Maori tattoo on his left shoulder. Maori tattoos are considered taonga —cultural treasures—and a number of Maori objected to him sporting the tattoo, which was widely photographed and imitated by his fans. Williams promptly responded that the tattoo was put there by Maori artist Te Rangitu Netana so, as far as he was concerned, there was no problem.
Critics of establishing a sui generis system for protecting traditional cultural expressions have pointed to disputes between indigenous tribes over the ownership of different songs, artwork or other expressions as evidence of the impossibility of designing a system that can ever effectively protect those rights. But this might not be the insurmountable obstacle that some claim. In New Zealand, two different Maori tribes were able to resolve an ownership dispute over the popular song Kore Kare Ana, which shows that there is a decision-making structure capable of solving ownership disputes. The existing IP system is also full of longstanding and apparently unsolvable IP disputes.
New Zealand is often mentioned when discussing traditional knowledge because the country has gone further than many others in trying to reconcile trademark rights and traditional cultural expressions. The government established a Maori trademarks advisory committee as part of the Trade Marks Act 2002. This committee advises the Commissioner of Trade Marks on the likely offensiveness of trademarks containing Maori text and imagery.
Karen Te O Kahurangi Waaka chairs the five-person committee that she says is “very aware of the modern world in which we are working.” The committee reviews trademarks sent to it by the Commissioner and is widely praised by the trademark community for quickly and efficiently handling any marks passed to them. While the members reject very few marks outright as offensive, they also comment on those that don’t pass the threshold for offensiveness but “that we feel need a bit more work, are inappropriate or don’t make sense,” Waaka claims. These recommendations are then passed back to the trademark applicants. “As far as I know they take it on board,” Waaka says. The committee has also provided guidelines stating which marks never need to be passed to them. For example the use of the word Kiwi without any accompanying Maori logo does not need to be reviewed.
New Zealand is the only country that has established such a system, and possible resolution of a long-standing claim for further recognition of Maori rights means that it could be the first to take further steps to protect traditional cultural expressions. The claim is being looked at by a commission established by the New Zealand government called the Waitangi Tribunal. This is a permanent commission that assesses claims from Maori based on the Waitangi Treaty, a document signed by the British Crown and various Maori chiefs in 1840 and whose exact meaning has been disputed since then. One of these claims is known as the Indigenous Flora and Fauna and Maori Intellectual and Cultural Property Claim or Wai 262 claim, which was put forward by people “who want to be able to protect what is Maori,” according to Waaka.
The claim is not about restoring land, but about how Maori’s way of life and world view can be respected in today’s environment. The tribunal is looking at what mechanisms could be used to achieve this, and—unsurprisingly given the complexity and sensitivity of the issue—it has taken time. The claim was first lodged in 1991 and final submissions only took place in June 2007. The tribunal usually takes two to three years to produce a report, so no further action is expected before 2009. It is possible that it could recommend the creation of a separate cultural heritage right, which would be “a wonderful result” according to Leo Watson, a barrister who is one of the counsel for the northern tribes in the Wai 262 claim. But Watson stresses that the claimants are not wedded to the idea of a new right, if another way can be found to protect their heritage. “Maori tribes have to first learn more about this area of law, and then decide how a cultural heritage right might best assist. There are likely to be a range of solutions,” he says.
“What they are doing in New Zealand is terrific,” according to Marion Heathcote, a partner of Davies Collision Cave in Sydney, and another speaker at the workshop today. But she believes that there is no one-size-fits-all solution to reconciling trademark rights and traditional cultural expressions. The Maori people had less difficulty in establishing a trademark commission, for example, because there is only one Maori language and the different tribes still have a common identity and heritage. In Australia, the situation is different, with a series of different indigenous peoples spread across a far larger area. This in part explains why Maori symbols are more commonly misused—it is a stronger brand. In Australia the problem is more related to copyright and, specifically, the exploitation of Aboriginal artwork without the permission of the creators.
The need for education
Educating both the holders of traditional knowledge and those wanting to use it is a vital part of moving the process forward. Robbie Williams is not the only celebrity to get a Maori tattoo, but part of what caused offense was that, when questioned in interviews about his tattoo, he showed very little knowledge about its meaning or the people that first produced the design. Fellow musician Ben Harper also had a Maori tattoo, but has proved far more able to talk about what it means in interviews.
Those who favor additional protection of traditional knowledge say that trademark owners also need to stop viewing protection of traditional cultural expressions as little more than a tedious search of yet another register, or an attempt by indigenous peoples to avoid their knowledge ever being used. They need instead to think of the opportunities of a workable system. Indigenous peoples can be very commercially minded and are prepared to license use of IP if it is done “in a manner consistent with their values, with their prior consent and with a share of the benefits,” according to Watson.
Watson has been involved in work to ensure that the Ka Mate Haka, used by the New Zealand rugby team and which the traditional knowledge holders have been trying to register as a trademark since 1999 without success, was animated properly in a rugby league video game. The animation company proactively sought the consent of the tribe despite not being legally required to do so. The collaboration “enhanced the result for both parties,” according to Watson and included creative benefit sharing for the tribe including the opportunity for Maori youth to undergo training with the company in computer gaming and animation.
Beyond WIPO
But will these small advances ever turn into a worldwide movement towards protecting traditional cultural expressions? WIPO’s intergovernmental committee on intellectual property and genetic resources, traditional knowledge and folklore (IGC) has made slow progress on the issue since 2001. Heathcote, who is involved in the work of the committee, believes that it may have suffered after trying to go too fast in the beginning and that the issue has now got “bogged down” in wider disputes between developed and developing countries at the organization. Drafts produced by the IGC, which included the aim of setting up an additional register for traditional cultural expressions, drew many comments from some member states and organizations asking for more dialogue.
Heathcote feels progress at WIPO is more likely to come from a universal declaration recognizing traditional cultural expressions that could be dealt with by individual governments. A gap analysis, looking at which issues WIPO members disagree on, is being prepared before the IGC’s next meeting, scheduled for October this year.
Debate over how to accommodate traditional cultural expressions is unlikely to end any time soon. The chance of a global, universally backed, agreement coming from one of the multinational organizations, such as WIPO or the WTO, is remote. But as awareness of the rights of indigenous peoples the world over increases, individual countries and companies can add momentum to a process that gives a voice to people whose knowledge and ingenuity has often been used and misused without permission or attribution. N
Pacific Islands—the model law
New Zealand isn’t the only country trying to put the issue of traditional cultural expressions on the agenda. The secretariat of the Pacific Community, an intergovernmental organization that aims to help the development of the Pacific Island people, has developed a model law to protect traditional knowledge and expressions of culture. The law creates a new right, known as a “traditional cultural right” together with the moral right of attribution and sets out how this right should be protected. Anyone who wanted to use such a right would need to get permission, either directly through the traditional owners, or through a cultural authority that would need to be established as part of the law. Failure to do so could result in civil claims for damages.
No country has yet attempted to pass legislation based on the model law, and Florence Fenton, a partner of Munro Leys in Fiji and another speaker at today’s workshop, believes that in Fiji politicians are more likely to prioritize updating the country’s main Trade Mark Act, which dates back to 1935.
Pioneering legislation is more likely to come from the more advanced IP jurisdictions such as Australia, New Zealand or South Africa, which has developed a policy framework document that recommends changes to the country’s 1993 Trade Marks Act to give GIs additional protection, to recognize indigenous terms and expressions and to provide for their registration as trademarks. It would also set up a national database for the recordal of traditional intellectual property and is part of a general program to protect traditional knowledge in its IP laws.
The proposal to establish a database in South Africa underlines the fact that different countries will find different methods of reconciling traditional knowledge and IP. In India, the government has already created a traditional knowledge digital library—a database designed to prevent traditional knowledge, and in particular medicinal cures, from being patented overseas. But in New Zealand “the jury’s out on database registers, unless they are part of a range of solutions” according to Watson. He believes that establishing databases doesn’t deal with the issue of sacred information and sacred knowledge and that the benefit of making this information public without ensuring that there is also sufficient protection is not clear.
