Māori Traditional Knowledge and New Zealand Patent Law: The 2013 Act and the Dawn of a New Era?

• Date: 01 March 2014
• Author: Jessica C. Lai
• Published date: 01 March 2014
• DOI: http://doi.org/10.1002/jwip.12017

M

aori Traditional Knowledge and New Zealand

Patent Law: The 2013 Act and the Dawn of a

New Era?

Jessica C. Lai

University of Lucerne

In August 2013, New Zealand passed a new Patents Act that codif‌ied the ability of the Commissioner to refuse to grant

patents for inventions which are: (1) derived from M

aori TK or indigenous plants or animals; and (2) the commercial

exploitation of which is likely to be contrary to M

aori values. As discussed in this article, for many reasons patents are

seldom of interest to indigenous peoples as a means to protect their traditional knowledge (TK). On the contrary, the

patent system has predominantly been viewed by indigenous peoples as a means for third parties to propertise their

TK. The new mechanism in the 2013 Act may not make patents more attractive for M

aori TK, but addresses concerns

regarding third-party patenting of inventions related to M

aori TK and indigenous species. This article examines this

new mechanism and compares it to the situation under the prior 1953 Act. It concludes that, while many questions

remain open regarding the exact application of the 2013 Act, together with the Trade Marks Act 2002 (which contains

similar provisions preventing the registration of marks offensive to the M

aori), New Zealand has shown that it is

willing to be innovative with its intellectual property laws in order to address the concerns of its indigenous peoples.

Keywords traditional knowledge; patent law; New Zealand; exclusions from patentability

Introduction

The indigenous movement to have greater recognition and rights over their traditional knowledge (TK)

has been rising around the world in recent years, but few states have been as pro-active and creative in

addressing these issues in core intellectual property (IP) legislation as New Zealand. This was f‌irst

observed when New Zealand introduced a provision in the Trade Marks Act 2002 that the Commissioner

must refuse to register a trade mark “the use or registration of which would, in the opinion of the

Commissioner, be likely to offend a signif‌icant section of the community, including M

aori” (s. 17(1)(c)).

The Trade Marks M

aori Advisory Committees was established by the 2002 Act,

1

and is forwarded any

sign that “is, or appears to be, derivative of a M

aori sign, including text and imagery,” to advise the

Commissioner on whether it “is, or is likely to be, offensive to M

aori” (s. 178).

2

Furthermore, offence or

likelihood thereof is also a ground for opposition to and revocation of registration (ss. 47 and 73(1)).

For many years, New Zealand patent law has been regulated under the Patents Act 1953. Though on

occasion amended, a complete revision has been long in the waiting. As part of the process for an over-

haul, many concerns were raised about patents relating to M

aori TK and fauna and f‌lora sacred to the

M

aori. In New Zealand, the relationship between TK and patents possibly lies on more volatile ground

than in other territories because of the Treaty of Waitangi, signed between the British Crown and M

aori.

The modern English translation of article 2 of the M

aori text guarantees “unqualif‌ied exercise of their

chieftainship [tino rang

atiratanga] over their lands, villages, and all their treasures [taonga].”

3

The Treaty

of Waitangi is interpreted chief‌ly through the Treaty of Waitangi Act 1975, through the therein established

Tribunal.

4

The Waitangi Tribunal has made it clear that taonga includes all dimensions of a tribal group’s

estate, material and non-material heirlooms and wahi tapu (sacred places), ancestral lore and whakapapa

(genealogies).

5

Though the Treaty does not mention IP or cultural heritage, it is certain that these can be

34 ©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2014) Vol. 17, no. 1–2, pp. 34–46

doi: 10.1002/jwip.12017