Tuesday, May 12, 2009

IP law vs. Indigenous knowledge – an example from New Zealand

It's been a while since we've updated you on patent-related activities, and there have been several developments over the past few weeks, including more serious term end examinations. Future updates will hopefully be less lengthy, and timelier!

After our last post on TK, we came upon this new piece by Rachel Dawson. I thought this case illustrates the views of several people and their apprehensions.

The case of Ka Mate Haka explains and echoes concerns of several in developing countries as they sit on verge of losing their traditional knowledge to developed world or are forced to tolerate its abuse by other people.

The Ka Mate Haka which is a kind of dance performance by all “The All Blacks” (rugby team of New Zealand) before a rugby game is one of New Zealand's most iconic images for many people. It is this performance that has become an issue which is causing many ripples in New Zealand administrative circles. Lot of discussions are going on how to protect this dance form as there have been cases where this dance form has been abused or used for commercial gain without allowing any benefit sharing to the protectors of this art.

Ka Mate- The origin

The Haka is a composition played by many instruments. Hands, feet, legs, body, voice, tongue, and eyes all play their part in blending together to convey in their fullness the challenge, welcome, exultation, defiance or contempt of the words." "It is disciplined, yet emotional. More than any other aspect of Maori culture, this complex dance is an expression of the passion, vigor and identity of the race. It is at its best, truly a message of the soul expressed by words and posture." Alan Armstrong in his book Maori Games and Haka (Reed, 1964)

A haka is a complex dance and an important social custom of Māori (New Zealand's indigenous people), for conveying a tribe's reputation. The best known of all Haka is the Ka Mate, which was composed by a chief named Te Rauparaha in the 1820s and surrounds an allegorical story of a man called Maui who snared the sun in order to enable "long sunny days" (representing peace).

Te Rauparaha - the High Chief of the Ngati Toa and was in charge of lands from Porirua right up to the Kapiti Coast to Levin as well as Kapiti Island. Te Rauparaha composed Ka Mate as a celebration of life over death after his lucky escape from pursuing Ngati Maniapoto and Waikato enemies. Te Rauparaha arrived at the northern shore of Lake Taupo in about 1810 and was told that Ngati Te Aho chiefs Tauteka and Te Riupawhara were waiting to destroy him, in revenge for killing their kin and desecrating their bodies. So he made his escape south to Motu-o-puhi Pa on an island in Lake Rotoaira.

The Ngati Aho war party arrived in hot pursuit, and the Motuopuhi chief Wharerangi invited them in to search the place. He had hidden the fugitive in a kumara pit and had told his wife, Te Rangikoaea, to sit on top of it. According to custom, this was considered strange. Firstly, no male would ever place himself in a position beneath the genitals of a woman. Secondly, the female organs were believed to have a shielding effect. Of course, in times of danger Te Rauparaha was willing to forego custom in order to survive.

Ownership of Ka Mate

There have been many controversies surrounding this topic, as Ka Mate Haka has become a good marketing tool due to its popularity and has also lead to some abuse of the original dance by commercially oriented people. This dance form is essentially done by men and when a woman did it for a Fiat car commercial all Maori found it very offensive but use of dance for commercial was not illegal as any copyright protection which existed has expired now. Apart for this there is no other protection which is available to the tribe.

The tribe also tried to get a trademark over Ka Mate Haka but IP office of New Zealand refused the application of grounds that this dance has become far too popular in international context as well apart from national frame of reference and is now known to represent New Zealand as a whole, therefore it cannot be given to a single trader. However, the government acknowledged that Ka Mate Haka belongs to Ngati tribe and so they were compensated for decades of use of this dance by the All Blacks and others. But, primary objective of Ngati Toa tribe is prevention of misappropriation and inappropriate use and not payment of royalties or any kind of rights over performance of the dance.

Although no other treaty than Treaty of Waitangi of 1840, but New Zealand government has made some attempts to deal with cultural sensitivities of Maori people. A Maori Advisory committee is made to which all trademarks pertaining to word “Maori” or any related images are forwarded for review so as to make sure it will not hurt sentiments of Maori people. The Patents Bill, currently being reviewed, introduces the use of a Committee to review whether commercial exploitation of inventions involving traditional knowledge or indigenous plants and animals would be contrary to Māori values.

But apart from all that has been done and discussed what still remains to be seen is how exactly will the protection be given to this traditional knowledge of Maori people. I am of the opinion that under present scenario it can be said that developing the dance was much easier than protecting it from abuse.

Well but this is not all, the case illustrated above depicted plight of aboriginals of New Zealand but I think we are not very far from this situation. Take for example our Yoga, or folk art from different regions, western world has already set their eyes on these and are now strengthening their claws by seeking patent protection for Yoga. Also, I perceive that massage art of Kerala is also in potential danger and it won’t be long before we will hear some abuse of this art by some capitalists or industrialist, if potential steps to protect such knowledge are not taken.

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