The Case for Sui Generis Protection for Maori Cultural by ces12174

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									   The Case for Sui Generis
Protection for Maori Cultural &
     Intellectual Property

                Aroha Te Pareake Mead
           Victoria School of Management
        Call of the Earth Llamado de la Tierra


Aroha Mead, August 2003
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


Aroha Mead, August 2003
Values

   Active protection of cultural heritage
   Promote cultural transmission
   Ensure cultural & economic
    development
   Recognise Maori Self-Determination



Aroha Mead, August 2003
Framework

   Protect Maori cultural heritage from
    exploitation
   Promote utilisation of cultural resources
    for Maori development under conditions
   Develop informed consent and benefit-
    sharing procedures


Aroha Mead, August 2003
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

Aroha Mead, August 2003
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

Aroha Mead, August 2003
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

Aroha Mead, August 2003
1. Status Quo

   Exclusive ownership      Communal ownership
   Applicant assertion      Customary resource
   Finite time period       Inter-generational
   Innovation               Definition is stretched
   Commercial               Customary use
    Application



Aroha Mead, August 2003
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


Aroha Mead, August 2003
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)

           Aroha Mead, August 2003
Gene Patents – US

     5000

     4000

     3000

     2000

     1000

          0
                1981-85   1986-90   1991-95   1996-2001


Aroha Mead, August 2003
     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.




Aroha Mead, August 2003
                          THE INDIGENOUS™
                          STORY.

                          The Indigenous
                          Purifying Collection
                          draws inspiration from
                          the ancient healing
                          traditions of Native
                          North Americans. Key
                          ingredients are
                          sustainably harvested in
                          partnership with Native
                          Peoples. Indigenous
                          sales help support
                          Native Groups who
                          work to preserve Native
                          culture, land and
                          economic opportunity.

                          Sales from the
                          Indigenous Purifying
                          Collection help support
                          the following
Aroha Mead, August 2003   Indigenous projects.
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

Aroha Mead, August 2003
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

Aroha Mead, August 2003
 26.4.3 26.4.12 5.5.20




Aroha Mead, August 2003
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?



Aroha Mead, August 2003
Indigenous Trademarks




Aroha Mead, August 2003
    Australian Trademark 96440

    Lodged 11 March 2003: Owner John
    Allen Warren, Odona Blackledge
   Services for providing food and drink;
    temporary accommodation




Aroha Mead, August 2003
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

Aroha Mead, August 2003
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

Aroha Mead, August 2003

								
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