Transcript Traditional Knowledge and Intellectual Property

Role of the Crown and Indigenous Peoples in
Protecting and Managing Traditional Knowledge
Erica Gregory
Presentation for the International Federation of Reproduction Rights
Organisations
Auckland, New Zealand
3 November 2006
Introduction
•
•
•
•
•
•
•
•
What is traditional knowledge (TK)?
Thoughts on the role of indigenous people
Thoughts on the role of the Crown
Why is MED considering TK issues?
MED work to date
The IP/TK work programme
What are other government agencies doing?
Concluding thoughts
What is Traditional Knowledge (TK)?
• No one definition – broadly can be considered distinctive
knowledge, traditionally associated with a certain
community and/or people.
• May refer to TK in relation to science, agriculture,
medicine, biodiversity, cultural expressions, elements of
languages etc
• Tradition-based (not necessarily old), evolving and
generational
• Māori may relate more to the term mātauranga Māori
Role of Indigenous Peoples
•
•
•
•
Guardians or kaitiaki of TK
Nurture and train others to ensure the transmission of TK
Continue to build on the existing body of knowledge
Set parameters for the on-going creation, maintenance
and use of TK
Role of the Crown
• Needs to consider the environment and policies within
which TK is created, maintained and used, and any
underlying problems
• Develop policies that focus on enabling the creative
potential of TK to contribute to Māori development,
recognising the benefit to New Zealand as a whole
• At the international level – act on the basis that
international rules must allow adequate flexibility to
develop domestic policy, which includes maintaining
flexibility for the government to respond to WAI 262 and its
TOW obligations
IP and Māori Development Policy – why get
involved in TK?
• MED, DOC and TPK, MCH and DPMC are instructing departments in
the Wai 262 claim
– All current IP laws and treaties (esp. WTO TRIPs)
– Process for development of IP laws
– Negotiation of international instruments
• Other TOW claims re IP
• International processes developing mechanisms for the protection of
TK or considering TK issues (WIPO, CBD, WTO TRIPS Council,
UNESCO, UNCTAD,ILO, WHO, APEC and others)
• Economic potential of TK for TK holders and NZ as a whole
MED Work to date
• Consultation with Māori re IP law reform process
– 1990: proposed IP Law Reform Bill on hold pending
consideration of concerns about Māori “cultural and
intellectual property”
– 1994: 4 national hui – Māori concerns re proposed
changes to Trade Marks and Patents Acts
• Māori Trade Marks Focus Group
• Patenting of Life Forms Focus Group
MED Work to date (2)
• 1995-97: Māori Trade Marks and Patenting of Life form
focus groups produce discussion documents and make
recommendations (complemented by Ministry
publications)
• 1997: 8 consultation hui re Māori and trade marks
• 1999: policy recommendations to Cab. including focus
group rec. re establishment of “consultative group”
• 1999: 4 hui, 2 workshops, re patenting of life forms
MED Work to date (3)
• 2002: Trade Marks Act passed, includes absolute ground to refuse
registration of offensive marks, and Māori Advisory Committee
• 2002: Discussion document re boundaries of patentability – Māori
and patenting of biotech inventions
• 2003: policy recs re Māori consultative committee, patenting of
humans expressly prohibited
• Changes to patents and trade mark legislation only “stop gap”
measures, sui generis measures may be required
• 2001-2006: participation in WIPO Intergovernmental Committee on IP
and Genetic Resources, Traditional Knowledge and Folklore (scope
for domestic work)
The IP/TK work programme
• Aims to address two problems:
• Protection against the inappropriate grant of IPRs over TK subject
matter to third parties (misappropriation and misuse of TK)
• Limited capacity of IPRs to protect TK (preservation and commercial
imperatives of TK holders)
• IP system can only address part of this problem
– Modifications to existing IPRs possible
– New sui generis IP-type rights possible
• Non-IP solutions are also necessary
3 stage IP/TK work programme
• Objective: development of range of innovative, cross-cultural and
multi-disciplinary solutions
• Stage one: capacity building, engagement, awareness and information
sharing
– A bottom-up approach – discussion documents don’t work without
preparation and engagement – kanohi ki te kanohi (face to face)
discussions essential
• Stage two: problem definition
• Stage three: consultation on options
• Policy recommendations
Protection and management of TK beyond IP
Protection of TK can include:
• Preservation (safeguarding against loss or dissipation of
TK and the environmental factors that gave rise to it)
• Safeguarding against inappropriate or unauthorised use
by others
• Can have social, cultural, economic and environmental
objectives
• A range of possible solutions from different policy
perspectives
TK and other NZ government agencies
•
•
•
•
Mātauranga Māori Programme (Dept of Conservation includes the Mātauranga Kura Taio Fund under the
Biodiversity strategy
New Zealand Qualifications Authority – a dedicated Māori
qualifications framework recognising indigenous
knowledge
Bioprospecting policy development (also MED)
Biotechnology Strategy (Min of Research Science &
Technology) sets out a vision and direction for the
development of biotechnology in NZ and identifies a need
to foster and draw on Māori biological knowledge and
innovative capacity.
TK and other NZ government agencies (2)
•
•
•
•
Foundation for Research Science and Technology has a Māori
Knowledge and Development output class. Its Strategic Portfolio
Outline for Māori Development supports enhanced Māori
management of natural, cultural and historical resources and
maintenance of mātauranga "Māori” and “mechanisms for the
protection of cultural property and management of intellectual
property”.
Ministry of Culture and Heritage - repatriation policy for Māori
ancestral remains/kōiwi tāngata Māori and a review of the Antiquities
Act
Creative New Zealand - Tohunga Tauira Programme and Toi Iho
trademark
National Library – has developed a set of principles relating to the
preservation of intellectual and cultural property.
Conclusion
• Mātauranga Māori or Māori Traditional Knowledge belongs to Māori
• Māori have a role in nurturing and growing TK
• The Crown has a role in fostering opportunities to enable the creative
potential of TK to provide cultural, social, economic and environmental
benefits for Māori, recognising the potential benefits for New Zealand
society as a whole
• Important that the Crown and Māori work together to maximise the
potential benefits for all
For more information
www.med.govt.nz
Or contact:
[email protected]