• Turning Cultural Heritage Into "Intellectual Property"

last modified July 24, 2013 by strypey

In practice, these two cultures of knowledge management come into conflict in a number of ways, but I would say they fall into one of these two broad categories from the indigenous point of view. Either sacred knowledge being publicised (violation of collective privacy), or knowledge held in common by an indigenous group being privatised by corporations, at the expense of both the indigenous group, and the public good. What indigenous peoples need is respect for their collective privacy, and a way of sharing their practical knowledge, while perpetually maintaining their moral rights, and ensuring that their descendants benefit from the fruits of that sharing. The Mataatua Declaration again:

"... the first beneficiaries of indigenous knowledge (cultural and intellectual property rights) must be the direct indigenous descendants of such knowledge;". 

Since trade secrets occupy the same quadrant as sacred knowledge, and trademarks occupy the same quadrant as practical knowledge, are these mechanisms adequate and available to protect indigenous knowledge? Despite their superficial similarities, trade secrets are primarily about competitive advantage, whereas sacred knowledge is about the reinforcement of identity. Besides which, trade secrets are protected simply by not revealing them to outsiders; clearly this cannot help in cases where collective privacy is being violated.

Similarly, the trademark approach is problematic, as trademark law is also designed to operate in a commercial environment, to protect consumers from counterfeits goods, and to maintain the public reputation of the company providing them. The usefulness of trademarks for protecting noncommercial cultural taonga (treasure) is summed up by a remark by Matiu Rei on the proposal to trademark the haka Ka Kate, paraphrased by an NZPA journalist as "defending a trademark was too expensive for the iwi". (14)

What about using a trademark in a way that allows greater resources to be pooled in its defence? "Toi Iho" is a trademarked brand, which asserts the Industrial Design Rights of Tangata Whanua over their art and craft traditions. It functions as a quality mark that ensures an artwork is not just Māori looking, but 'Māori made' (15). Creative New Zealand recently cut funding to this project, citing the lack of a 'viable business model'.  "Creative New Zealand has conducted several reviews of Toi Iho™ since its inception and a consistent theme was that while the ideas underpinning the brand have considerable merit, it has failed to deliver on its promise in terms of increasing sales of Māori art by licensed artists and stockists (retailers)." (16) The value and success of Toi Iho is judged here in purely monetary terms, regardless of its effects on the pride and mana (self-esteem and social recognition) of Māori artists, or its contribution to the public discussion about the authenticity of indigenous art.

In its coverage of the attempts by Māori leaders to reclaim the shared brand, Voxy.co.nz reports that "While Te Waka Toi’s chair, Darrin Haimona delivered the news to a relieved and appreciative group of TTIF [Transition Toi Iho Foundation] trustees, he was clear CNZ [Creative New Zealand] required a legal entity into which the Toi Iho marks can be legally transferred". (17) The cutting irony here is that because Toi Iho works under trademark law, a legal 'person' must own it. Tangata whenua are required to fit themselves into a structure that suits the pākehā legal system before they can take control of a conceptual system created by Māori, for Māori cultural protection, even though the current governmental "owner" has abandoned it.

The limited intellectual monopolies which are designed to eventually deliver knowledge into an unrestricted public domain also fail to protect indigenous knowledge, as they are not perpetual, nor would we want them to be. As the law stands, using standard copyright to protect perpetual knowledge would trap tangata whenua into joining the corporations that are busy privatising their mātauranga in clamouring for increased scope and duration for copyright monopolies, or accepting the loss of their moral rights as the work enters the public domain.

For example, if Ka Mate was the sole work of Te Rauparaha, as is often reported in the news media, then under copyright law the words of Ka Mate entered the public domain 50 years after his death. In that case, whether copyright was all-rights-reserved or some kind of CC licence is quite irrelevant. Yet, to assume that the haka is simply an authored commodity, equivalent to a commercial pop song, fundamentally misunderstands its nature. John Archer's article on Ka Mate (18) suggests that although the haka may have been performed by the famous rangatira, the whakapapa (lineage) of the words is much older, with many possible origins and interpretations, similar to that of folk songs and nursery rhymes in pākehā culture. According to Archer's interpretation, the authorship of Ka Mate was a gradual process of remix and reinterpretation, and to grant a monopoly on it to representatives of one iwi is therefore to deny the traditional usage and shared kaitiakitanga of other iwi. Still, this broader understand makes it all the more sacred as a ritual, whose performance connects tangata whenua in an unbroken line to their polynesian ancestors. It is easier with this understanding to empathise with the angst caused by the words being used as mere raw material in the public domain, to be printed on tea towels, or used to advertise cars.

This hands-off attitude of the New Zealand state in regard to the misappropriation of Ka Mate stands in stark constrast to the hands-on attitude of the Indonesian state towards its indigenous people. As a response to the Trade Related aspects of Intellectual Property (TRIPs) agreement, in 2002 the Indonesian state extended its copyright to claim perpetual ownership of all creative works "commonly authored" or of "unknown authorship (19). This nationalisation of the cultural commons of all peoples living on the islands claimed as territory by the Indonesian state was a massive confiscation of collective property, as significant as the state confiscation of the seabed and foreshore in Aotearoa. It was done with a similar excuse that this was the best way to protect the cultural commons from commercial exploitation, and misuse. How state ownership as copyright will protect the collective and anonymous work of indigenous people is far from clear. 

Next: Whose Law?