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 rugby game.
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 by Maui.
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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