For many people, one of New Zealand's most iconic images
is the performance of the Ka Mate haka by the All Blacks before a
A haka is a complex dance and an important social custom of
Māori (New Zealand's indigenous people), for conveying
a tribe's reputation.
The Ka Mate haka was written by Te Rauparaha, a famous chief of
the Ngāti Toa tribe, and surrounds an allegorical story of
a man called Maui who snared the sun in order to enable "long
sunny days" (representing peace). Since 1905 the All Blacks
have performed this haka in front of their opponents as a reminder
that they can also overcome overwhelming odds such as those faced
But the wide reputation of the Ka Mate haka has made it an
attractive marketing tool, leading to mis-use by a number of
traders including use in a Fiat car promotion which depicted women
performing the haka. This was highly offensive to all
Māori, not only due to the commercial context in which the
haka was used, but because this haka must only be performed by men
and never in such a slap-dash manner.
Under traditional IP law the use of the haka in the
advertisement could not be stopped, as any copyright had long since
expired and no other protection was available to the tribe.
However, Ngāti Toa are hoping that things may soon
change due to a Settlement Agreement signed on 11 February 2009
with the New Zealand government, which (amongst other things)
recognised the cultural significance of the Ka Mate haka and the
authorship by Ngāti Toa's chief.
The Agreement was the culmination of many years of negotiations
following the signing of the Treaty of Waitangi in 1840 on which
basis England claimed sovereignty over New Zealand. Settlement
Legislation will be drafted within the next year pursuant to the
Agreement. The primary objective of Ngāti Toa is said to
be the prevention of misappropriation and culturally inappropriate
use, rather than the payment of royalties or the right of veto over
performance by individuals.
A spokesman for the tribe, Mr Rei, noted that defending a trade
mark was too expensive and it was therefore necessary to
investigate the possibility of enforcing moral obligations that
were currently outside the law. Indeed, applications for
registration of the Ka Mate haka as a trade mark were filed a
decade ago, but were refused registration by IPONZ. This decision
is still under appeal.
Although no other Waitangi Treaty settlement has dealt with
intellectual property issues before, it was noted by Mr Rei that
the issue of the haka is part of a wider debate surrounding
treatment of intellectual property. This wider issue is the subject
of a Treaty claim known as WAI262 (a claim to indigenous flora and
fauna and cultural intellectual property) on which a decision has
been pending since 2007.
New Zealand has made some attempts to address cultural
sensitivities in its legislation already. For example, the Trade
Marks Act 2002 requires applications for trade marks that include
Māori words or imagery to be referred to a Māori
Advisory Committee for a determination as to whether the mark is
likely to offend Māori. Similarly, the Patents Bill,
currently being reviewed, introduces the use of a Committee to
review whether commercial exploitation of inventions involving
traditional knowledge or indigenous plants and animals would be
contrary to Māori values.
It will be interesting to see how the Settlement Legislation
proposes to protect the Ka Mate haka against "inappropriate
use". Snaring the sun might have been an easier task...
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