Māori knowledge under the microscope: Appropriation and patenting of mātauranga Māori and related resources

• Author: Hai‐Yuean Tualima,Daniel F. Robinson,Tim Stirrup,Jessica C. Lai
• DOI: http://doi.org/10.1111/jwip.12125
• Published date: 01 July 2019
• Date: 01 July 2019

© 2019 The Authors. The Journal of World Intellectual Property © 2019 John Wiley & Sons Ltd

J World Intellect Prop. 2019;22:205–233. wileyonlinelibrary.com/journal/jwip

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205

Received: 18 June 2018

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Revised: 16 November 2018

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Accepted: 10 April 2019

DOI: 10.1111/jwip.12125

ORIGINAL ARTICLE

Māori knowledge under the microscope:

Appropriation and patenting of mātauranga

Māori and related resources

Jessica C. Lai

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Daniel F. Robinson

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Tim Stirrup

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Hai‐Yuean Tualima

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1

School of Accounting and Commercial Law,

Victoria University of Wellington, Wellington,

New Zealand

2

Environment Group, School of Humanities

and Languages, Arts and Social Sciences,The

University of New South Wales, Sydney, New

South Wales, Australia

3

Auckland Uniservices Ltd., Auckland, New

Zealand

4

Environment Group, School of Humanities

and Languages, University of New South

Wales, Sydney, New South Wales, Australia

Correspondence

Daniel F. Robinson, Room 360 Morven

Brown, Environment Group, Arts and Social

Sciences, The University of New South Wales,

NSW 2052, Australia.

Email: d.robinson@unsw.edu.au

Funding information

University of New South Wales, Grant/Award

Number: FASS Faculty Grant Scheme;

Victoria University of Wellington, Grant/

Award Number: Faculty Grant Scheme

Abstract

Since the early 1990s there has been considerable global

discussion and debate surrounding biodiscovery activities and

the utilisation of both genetic resources (including biochemical

derivatives) and associated traditional/Indigenous knowledge

(TK/IK). Concerns about misappropriations and biopiracy have

often been raised; however it has been difficult to quantify the

scale of this problem beyond some common examples and

anecdotes. This paper contributes to emerging research in this

area (e.g., see Oldham et al. 2013, PLOS One, 8, e78737; and

Robinson and Raven, 2017, Aust Geogr, 48, 311) and seeks to

quantify patent utilisation of specific GRs where there is

documented TK. A patent landscaping approach was under-

taken with a focus on plants with associated mātaraunga Māori

(Māori knowledge) from Aotearoa New Zealand. We explain our

methodology and highlight 77 patent families of interest

identified through our search. Although the findings are not

definitive about misappropriation without additional analysis of

the patents’specifications and claims, and sources of mātauranga

Māori, the data we outline may be useful for drawing out cases

of misappropriation and biopiracy. These findings might also be

useful for considering the potential implications of these for

Māori claims under the Waitangi Tribunal Wai 262, potential

access and benefit‐sharing (ABS) systems, and intellectual

property regulations or reforms.

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INTRODUCTION

Since the early 1990s there has been considerable global discussion and debate surrounding bioprospecting or

biodiscovery activities and the utilisation of both genetic resources (including biochemical derivatives) and associated

traditional/Indigenous knowledge (TK/IK). This debate has often concentrated around the Conferences of the Party of the

Convention on Biological Diversity (CBD, 1992), which sets up provisions for fair and equitable sharing of benefits arising

from the utilisation of genetic resources (GRs)—“access and benefit‐sharing”or access and benefit‐sharing (ABS)

provisions. On the one hand, there have been groups of actors that envisaged a “win–win”from benefit‐sharing between

the researchers and the providers who steward or conserve biodiversity—often local communities and their governments

(Reid et al., 1993). This was then countered by several NGOs and activists who decried incidents of misappropriation and

biopiracy (Mooney, 2000; Shiva, 1997) followed by many examples and case studies where Indigenous peoples and local

communities felt they had been exploited by researchers and companies (Robinson, 2010). As Māori Professor Linda

Tuhiwai Smith explains: “… the term ‘research’is inextricably linked to European imperialism and colonialism. The word

itself, ‘research,’is probably one of the dirtiest words in the Indigenous world’s vocabulary”(Tuhiwai Smith, 2005, p. 1).

While examples seemed to proliferate in the past few decades, it has been difficult to quantify the scale of this problem

beyond some common examples and anecdotes. This paper contributes to emerging research in this area (e.g., see Oldham,

Hall, & Forero, 2013; Robinson & Raven, 2017) and seeks to quantify patent utilisation of specific GRs where there is

documented TK.

Indigenous peoples have raised these broader concerns in multiple declarations such as the Mataatua

Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples in 1993 in Aotearoa, New Zealand.

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These concerns have also been embedded in the United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP) in 2007, with multiple provisions asserting Indigenous rights to natural resources, land and sea areas,

cultural heritage and associated knowledge and practices.

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Simultaneously, negotiations toward the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

were concluded in 1994 as Annex 1C of the World Trade Organization (WTO) Agreements, more or less globalising

minimum standards relating to intellectual property rights (IPRs). This has led to new requirements for the patentability of

microbes, plants, animals and their components, or “sui generis”forms of plant variety protection (TRIPS, Article 27.3b).

Many of the concerns of countries regarding misappropriation and biopiracy have been submitted to the TRIPS Council

over the years (e.g., African Group Submission to the TRIPS Council, 2003; Peruvian Submission to the TRIPS Council,

2007). This has led to an expanded review of Article 27.3b and the relationship between the TRIPS Agreement and the

CBD.

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In particular, the establishment of databases (for the purposes of assessing novelty and nonobviousness) and

disclosure requirements (regarding origin of GRs and TK used) in the patent process are viewed by some as potential

bridging mechanisms between the TRIPS Agreement and the CBD (as discussed in Lai, 2014, pp. 148–150 and 269–271).

Examinationoftheseissueshasalsobeenundertakeninimmense detail in the World Intellectual Property Organization

(WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and

Folklore (IGC), and by the WIPO Secretariat. The WIPO IGC was formed in 2000 and in recent years has been trying to

break a deadlock on specific provisions for three potentially binding legal texts on intellectual property (IP) and GRs, TK,

and traditional cultural expressions (TCEs; see Robinson, Ahmed, & Roffe, 2017).

Each of these fora approachesthe issues and concerns from their own mandates and priorities:the CBD asserts

sovereign rights over biological resources and its primary objective is conservation of biological diversity; UNDRIP

asserts the rights of Indigenous peoples across a wide range of fundamental rights; whileTRIPS asserts a free trade

agenda; and the WIPOSecretariat implements core IP treatiesas well as pursuing the IGC process. Perhapsbecause

of these multiple fora,mandates and agendas, it has been very hard for decision‐makersto make new progress in this

space. One exceptionhas been the 2010 NagoyaProtocol on Access to Genetic Resourcesand the Fair and Equitable

Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, which has enhanced the

details of the ABS provisions of the CBD and clarified ABS to include biochemical derivatives within the definitionof

GRs, and to also includeassociated TK. It has also included provisionsencouraging countries to recognisecommunity

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