20 years after the 262nd Treaty of Waitangi claim was lodged by members of six iwi (Ngāti Kuri, Ngāti Wai, Te Rarawa, Ngāti Porou, Ngāti Kahungunu and Ngāti Koata), the Waitangi Tribunal released its 1,000 plus page report about "Wai 262" on 2 July 2011.
Wai 262 asserts the Crown has failed to adequately protect Maori interests connected with indigenous flora and fauna, taonga and traditional knowledge/practices. Wai 262 is a very important claim under the Treaty of Waitangi because the scope of the claim is complex and encompasses what is often described as "Maori cultural and intellectual property rights".
The Tribunal's recommendations are far reaching but are not binding on the Crown. However, in the event some of the recommendations are adopted, there are likely to be significant changes to the intellectual property landscape in New Zealand. For example, the recommendations include law and policy changes and the establishment of new advisory committees, including for intellectual property rights such as for patents.
Like the rest of the report, the Tribunal's recommendations for intellectual property rights are intended to be forward looking rather than retrospective. In other words, existing patent and trade mark rights (for example) are unlikely to be affected.
The Tribunal recommends the establishment of a Maori Advisory Committee for patent rights to advise the Commissioner of Patents if inventions are derived from indigenous flora, fauna and/or traditional knowledge and practices. The Commission will have a wide range of powers, including the power to refuse to register patents.
Other recommendations include a legal requirement for patentees to disclose whether or not an invention claimed uses indigenous flora, fauna and/or traditional knowledge as well as the establishment of a register for traditional knowledge/practices. A register of this type would be designed to act as a notice to third parties and potentially invalidate new patent applications that utilise traditional knowledge/practices.
Unlike other areas of intellectual property law, the Trade Marks Act 2002 provides express grounds for the Commissioner of Trade Marks to refuse registration of trade marks that contain Maori text or imagery (Maori works) that is likely to offend a significant section of the community, including Maori. The current Act also established a Maori Trade Mark Advisory Committee to assist the Commissioner to decide whether or not trade marks that contain Maori works are likely to be offensive.
The Tribunal recommends the Advisory Committee be replaced by a new Commission, which will have the authority to hear objections, make decisions, keep a register of works and develop and produce guidelines for the use and protection of Maori works. Unlike the current Advisory Committee, the Commission's decision would be binding.
What does this all mean?
The Tribunal's recommendations signal potential change for intellectual property rights in New Zealand in the future. Businesses should be mindful when creating or using new intellectual property rights that may have origins from indigenous flora and fauna, taonga and/or traditional knowledge/practices. Where businesses look to exploit/commercialise such intellectual property rights, they should adopt best practice and at the very least consult directly with iwi.
We expect any changes to existing intellectual property laws will not be made lightly and certainly not before a comprehensive review of the Tribunal's recommendations is made. Furthermore, any changes to intellectual property laws will have to be carefully considered in light of New Zealand's international obligations (e.g. under the Agreement on Trade Related Aspects of Intellectual Property Rights), given that intellectual property rights have a strong international influence. Accordingly, we do not anticipate any changes to existing intellectual property laws in the near future.