Protecting Cultural Rights

The misappropriation of Maori culture for commercial gain has become an increasing cause of concern.  Recently, the Maori Party took offence at a French Company’s use of the name “Maori Group” to provide bodyguards and other security services. Stars such as Robbie Williams, Mike Tyson, Ben Harper and French football star Eric Cantona have also used moko to promote their images.

Unfortunately, there is currently little that can be done about the use of Maori text and imagery to promote international businesses.

New Zealand domestic law may stop a trademark such as “Maori Group” from being registered, but the existing regime is somewhat inadequate for protecting cultural rights.  Applications for trademarks containing Maori text and imagery are referred to the Maori Trade Marks Advisory Committee, which then advises the Intellectual Property Office whether the trademark is likely to be offensive to Maori.  However, the Maori Trade Marks Advisory Committee is only an advisory body – its decisions are not binding.

Also, less tangible assets such as matauranga Maori in relation to the use of native plants for medicinal purposes (such as rongoa) are difficult to protect under the existing intellectual property regime.  It can be difficult to find an organisation or organisations representing all the original holders of the matauranga.  Also, it may be difficult to show that traditional medicine involves “new manufacture”, which is required for a patent to be granted.

Currently the Waitangi Tribunal is hearing the WAI 262 claim, in which the claimants have argued that they are unable to use or protect or commercially exploit (where appropriate) their traditional knowledge, cultural property and biological resources.

The Tribunal has not yet released its decision on the WAI 262 claim yet.  However, the government has recently released a discussion document, Bioprospecting: Harnessing Benefits for New Zealand, as the basis for consultation on bioprospecting activity and issues in New Zealand.

This includes the protection of matauranga Maori, as matauranga Maori about native plants may be valuable to bioprospectors who seek to use those plants to develop a commercial product.

Have your say on management and protection of the use of matauranga Maori.

In the meantime there may be some measures Maori can take to protect their cultural assets.  Some Maori icons and names have been successfully trademarked, which protects these from being used by another trader.  Also, rongoa with active ingredients that can be isolated may be able to be patented.  If you are a Maori artist, a trader with a Maori design or name, or have a traditional product you wish to market or prevent others from exploiting, you would be wise to talk to your lawyer about this.  There may be ways to protect them.