"The Case for Sui Generis Protection for Maori Cultural"
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