May 2016 Māori Law Review

Book review – Indigenous Intellectual Property: A Handbook of Contemporary Research

Indigenous Intellectual Property: A Handbook of Contemporary Research

Edited by Matthew Rimmer

Edward Elgar Publishing (ISBN 978 1 78195 5895 2015)

Reviewed by Aroha Te Pareake Mead (Ngāti Awa, Ngāti Porou), Chair, IUCN Commission on Environmental, Economic and Social Policy (CEESP)

Discussion

Indigenous intellectual property is a highly topical, complex and fascinating field as it encompasses many different levels of policy and law. It is more expansive than common intellectual property issues as it deals with more than the notion of owning a work or invention. To understand why and how intellectual property has impacted on indigenous peoples requires delving into colonisation and racism. Of seeing patterns of behaviour over generations of indigenous peoples being seen as ‘the other’ and having their customs, knowledge and traditions regarded as ‘discoverable’ by non-indigenous and therefore up for grabs to take, use and profit from with no regard to the rights of indigenous communities. It requires factoring culture, values, traditions, customary law, identity, sacredness, ethics and many other concepts into intellectual property policy and law.

Editor Matthew Rimmer has compiled an impressive collection of perspectives on indigenous intellectual property issues. The collection traverses the complex landscape in which indigenous intellectual property issues are being discussed and implemented. There are twenty-four contributing authors whose credentials as academic and legal scholars and practitioners are undeniable. Of the twenty-four authors there are four who identify as indigenous.

The research that informs the chapters of this collection is extensive. The bibliography is 94 pages and contains an invaluable listing of source documents, reports and publications. For researchers, students and practitioners the bibliography in itself is an exceptional resource.

The compilation features a preface and six chapters. The preface features the historical case of a 1930 publication by William Ramsay Smith that was almost word for word a reproduction of an earlier manuscript by Aboriginal author David Unaipon. This case provides a compelling and thought-provoking introduction to the handbook and suggests that what happened to David Unaipon “is a microcosm of indigenous intellectual property law, practice and reform.”[1]

Chapter One – International law

Considers indigenous intellectual property issues in international law and standards setting processes. The chapter confirms the fragmented state of international law and its limited ability to respond to pressing indigenous intellectual property issues. It also includes a thorough examination of the United Nations Declaration on the Rights of Indigenous Peoples and how the Declaration provides a human rights based framework to consider intellectual property issues.

Chapter Two – Copyright Law and Related Rights

Explores the role of copyright law in the protection of arts and culture covering both the history of the struggle for recognition of indigenous intellectual property rights in Australia as well as more contemporary situations such as the use of indigenous cultures in films. This chapter focusses predominantly on Australian cases.

Chapter Three – Trademark Law and Related Rights

Looks at the effectiveness of trademark law in protecting indigenous culture. This section touches on the Treaty of Waitangi Indigenous Flora and Fauna claim (Wai 262) and resultant Waitangi Tribunal report as well as the efforts of Ngāti Toa Rangatira to be acknowledged as the cultural guardians of the haka, ‘Ka Mate Ka Mate’ and to exercise authority over its use. The chapter went to press before the Haka Ka Mate Attribution Act had been enacted in 2014 and therefore does not provide the most up to date status on Ngāti Toa’s efforts.

Chapter Four – Patent Law and Related rights

Examines patent law, science and indigenous knowledge and how these inter-relate in specific policy areas with a focus on international negotiations such as the World Trade Organisation, the World Intellectual Property Organisation, the Nagoya Protocol and climate change forum. The issue of communal and collective ownership is explored, and one author provides an analysis of the effectiveness of the US Indian Arts and Crafts Act 1900 to provide greater protection against deceptive marketing of Indian arts.

Chapter Five – Privacy Law and Identity Rights

Considers the politics of identity and reputation covering issues such as confidentiality in the field of anthropology, ethics, indigenous knowledge and intangible and tangible cultural property. One author explores the idea of using anti-racial discrimination law as a tool to protect collective identity issues.

Chapter Six – Indigenous Intellectual Property: Regional Perspectives

In some ways this section of the collection could stand alone as a separate publication. The four contributing authors map the history as well as possible future of traditional knowledge and indigenous intellectual property policy through country specific cases (New Zealand, Canada and South Africa).  One author provides a critical analysis of the Waitangi Tribunal’s report on the Wai 262 Indigenous flora and fauna claim and describes the Tribunal’s findings as a failure to deliver Māori control and tino-rangatirtanga[2].  This would be one of the more diplomatic criticisms of the Tribunal’s report from Māori commentators, others were far more scathing.  The final paper in this chapter takes a more global perspective on the importance of indigenous sovereignty and self-determination and the potential for customary law to contribute to solutions to many outstanding indigenous cultural and intellectual property issues.

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Overall, Mathew Rimmer’s Handbook of Contemporary Research on Indigenous Intellectual Property Issues provides a comprehensive overview of the complex legal and policy landscape that indigenous peoples, governments and inter-governmental processes are all trying to use, amend and negotiate in order to design more effective long-term cultural protection.  The majority of authors throughout this collection situate their analysis within relevant international norms and standards. The publication therefore is a useful resource not only for those following indigenous intellectual property issues but also those interested in international law and the responsiveness (or lack thereof) of international processes to redress and address historical and current indigenous concerns about the lack of legal protection afforded to indigenous cultures, traditions, values and knowledge.

A consistent theme throughout the chapters is that while there have been numerous efforts to try and address indigenous intellectual property issues,  ‘best practice’ or even ‘good practice’ has yet to be achieved. There remain significant gaps and inadequacies at national and international levels and one can only wonder why it is taking so long. Is history repeating itself?  The publication has an ‘all rights reserved’ copyright.

Aroha Te Pareake Mead

Ngāti Awa, Ngāti Porou

Chair, IUCN Commission on Environmental, Economic and Social Policy (CEESP)

www.iucn.org/ceesp

Notes

[1] Preface: the Legacy of David Unaipon, Indigenous Intellectual Property: A Handbook of Contemporary Research, edited by Matthew Rimmer,  xxvii

[2] Ibid., 508.

Author: Aroha Mead

Aroha Te Pareake Mead is from Ngati Awa and Ngati Porou and is the global Chair of the IUCN Commission on Environmental, Economic and Social Policy(CEESP). She has been involved in indigenous cultural and intellectual property issues for over 25 years as a researcher, public policy Manager commentator, claimant expert in the Wai-262 Indigenous Flora & Fauna claim and Course Director of a Post-Graduate course on indigenous intelletual property policy.