• Notes - NZCIEL

last modified July 24, 2013 by strypey


Introduction? There is a general perception on the political left that corporations are using "intellectual property" mechanisms to privatise indigenous knowledge. Examples raised include cases where legal mechanisms such as patents have been used to try to enclose common knowledge, such as the attempt by [which corporation] to patent the medicinal use of the Neem tree of India. [A quick search turns up two patents on the medicinal use of tea tree oil, making the traditional use  in these applications of the oil from manuka and kanuka trees by tangata whenua technically illegal.]

http://www.freepatentsonline.com/7311928.html http://www.patentstorm.us/patents/5738863.html  

However, it is undeniable that both indigenous groups, and individual members of indigenous peoples, have made use of copyrights and trademarks. In Aotearoa, a number of commercial publications by and for tangata whenua make use of all-rights-reserved copyright. Trademark law has been the mechanism for the Toi Iho, a mark of authenticity for cultural objects created by artisans of tangata whenua, and Ngati Toa have been attempting to register aspects of the Ka Mate haka, so as to protect it from offensive usage.


Kete Tuaauri - knowledge of incantations and rituals (interior individual/ arts)  
Kete Tuatea - knowledge of the unknown (interior collective/ ethics)  
Kete Aronui - practical knowledge (exterior/ science) 


Te kete tuauri – the basket of peace, love, and goodness

Te kete tuatea – the basket of prayers, rituals, and incantation

Te kete aronui – the basket of war, agriculture, woodwork, stonework, and earthwork.


Tuatea - Light (past/ present knowledge), Tuauri - Dark (the unknown/ future/ potential knowledge), and Aronui - Pursuit (current knowledge quests)


Tuauri: The first basket contained karakia pertaining to the conduct to all things connected with Ranginui and Papatuanuku, and also the departments of things connected with their children. 

Tuatea: The second basket contained the balance to the first basket. 

Aronui: The third basket contained all actions pertaining to the knowledge of arts by means of which would benefit humankind.  


 Kete Aronui, knowledge of the earth and the natural world, which is for all (body).

Kete Tuauri, our rational knowledge, which we keep for ourselves (mind).

Kete Tuaatea, knowledge of the spiritual world, which we give out for others (spirit).


"Ko te kete tuauri – knowledge of ritual, memory & prayer

Ko te kete tuatea – knowledge that is evil & harmful to mankind

Ko te kete aronui – knowledge to help mankind" 

In contrast he offers an AQAL (All Quadrants, All Levels) model, in which everything in the universe evolves through all four facets of its reality; interior individual (art); interior collective (ethics); exterior individual and exterior collective (science).  



Representatives of Tangata Whenua were concerned enough to file a Tiriti o Waitangi claim, generally known as the WAI262 claim, in an attempt to protect their traditional knowledge, and their cultural approach to knowledge in general.  

The Mataatua Declaration on indigenous knowledge included a statement that the attendees:  
"Acknowledge that Indigenous Peoples have a commonality of experiences relating to the exploitation of their cultural and intellectual  

This has been echoed by a plethora of indigenous declarations, including the UN Declaration on the Rights of Indigenous Peoples:  


How do limited intellectual monopoly laws fit with the 4 quadrants?

4 Quadrants and Information Laws
   Interior  Exterior
 Individual  Personal Privacy

 Public Reputation

[/ Patent/ Copyright/ Trademark/ PVR etc?]


 Trade Secrets/

Sacred or Secret Knowledge

 Public Domain/

Geographical Indicators


The public/ private divide is itself a dualistic and arbitrary one. Take a real world example. Who I am having sex with at any given time is my private business. However, whether overtly or covertly, I will eventually communicate to my hapuu, my circle of whanau/ friends/ housemates, about an ongoing sexual relationship, and whether it is open or monogamous, casual or committed etc If it is ongoing, and committed enough, I may decide with my partner to make it overtly public, through the ritual of a wedding.

The same lack of clarity applies to information forms covered by limited intellectual monopolies. A patented method, or a copyrighted work is clearly not private, as it's not secret, nor even intended to be secret. In fact the very reason for granting the monopoly is to make them public. Yet they are not fully public either, as they are not in the public domain. There is a parallel here with the implied sexual relationship announced to the world by a wedding. Just because the marriage is a matter of public record, doesn't mean the sex is.

Maybe the problem here is that I'm using the wrong sets of opposites? Maybe the opposite of private is shared? Maybe the opposite of public is secret? Maybe we abandon the words public and private altogether? Contrast Secret/ Shared and Person/ Society? A patent is not secret, but it is both shared and not shared. It may be either granted to an individual or collective, although it is about something collective - a person will never be granted a patent about something to do with their own body.

The fundamental divide for Western liberals the core concern is whether indigenous knowledge is being privatised by corporations, or being moved straight into the public domain by governments. For indigenous people, there is no difference. In both cases, their right to manage, control and define their knowledge base is being overridden by colonising structures. In most cases, where their knowledge has the potential to benefit mankinds as a whole, indigenous people are willing to gift the use of their knowledge to other societies. But whether they are free to gift, or whether there is misappropriation, makes a huge difference to their sense of identity and self-determination.

"Companies and institutions, both governmental and private, must not undertake experiments or commercialization of any biogenetic resources without the consent of the appropriate Indigenous Peoples." 

My first perception of CC was as means to broker a truce in the escalating copyright war of legal cluster bombing by entertainment corporations and their representatives (RIAA, MPAA etc), and technological geurilla warfare by file-sharing advocates like the Pirate Bay, and the League of Noble Peers (creators of the Steal This Film documentaries). CC aims to places artists, musicians and writers back in the forefront of the copyright debate. ] 

Interesting that while the text of the agreement between Ngati Toa and the Crown talks about an intention to "record the significance" of Ka Mate to Ngati Toa, and balancing the "rights and interests" of the iwi with those of the general public, commercial media report that the government "acknowledge Maori ownership of the haka". The fact that Ngati Toa are denied any royalties for commercial use or right of veto make it clear that the government are not acknowledging ownership, and its hard to say whether this sloppy journalism simply reflects a lack of understanding of the issues involved, or an entrenched view of rights in intellectual work as property, requiring an owner. 

 [trademarks, on the other hand, because they do not expire, could offer a mechanism within the existing legal system for perpetual protection of indigenous symbols, characters from mythology etc (refer Ngati Toa attempting to trademark the Ka Mate haka).] 

[since an indigenous CC licence would presumably be a plugin to copyright law, my first question is what sorts of indignous knowledge might be subject to copyright?] 

[copyright only covers a text, not the ideas underlying it, although the characters and other story elements, if highly distinctive, can be considered part of the copyright (ref fanfic FAQ). Copyright could be used to defend against offensive uses of indigenous stories, or to prevent, or obtain royalties from commercial versions. However, unsuitable for asserting perpetual rights to collectively-owned stories (ref who owns story), due to expiry of copyright ]

[Another 'Māori made' mark controlled by a flaxroots organisation, Te Puia (registered TM?): http://www.webcitation.org/5qPWk1BkD http://www.tepuia.com/te_puia_mark_of_authenticity.htm]