Jessica C. Lai

Indigenous cultural heritage and Fairtrade: voluntary certification standards in the light of WIPO and WTO law and policymaking

Private initiatives for voluntary certification standards appear to be an attractive alternative to top-down approaches in the field of indigenous cultural heritage and development. Over the last 50 years, many different indigenous communities have attempted to use certification trademarks to promote their authentic cultural products. These schemes have had varying success, but arguably none has been as visually unsuccessful as the government-funded Australian system, which collapsed within two years of its inception. On the other side of the scale, the Fairtrade label is considered to be an international triumphant success. This paper assesses why the Australian authenticity label system failed, while the Fairtrade label succeeded, and how these conclusions can be used for existing and future endeavours. It further discusses whether such a voluntary certification system would be compliant with World Intellectual Property Organisation and World Trade Organisation law and policy. It concludes by looking towards the future and the possibility of the Fairtrade label being extended to meet the interests of indigenous communities.

The Protection of Māori Cultural Heritage: Post-Endorsement of the UN Declaration on the Rights of Indigenous Peoples

In April 2010, New Zealand gave its approval to the UN Declaration on the Rights of Indigenous Peoples (considered to be the most comprehensive text on the rights of Indigenous peoples), after having failed to do so with the UN General Assembly in 2007. The initial reasons given by New Zealand for its negative vote are assessed herein. Following this, the paper addresses the role that the Declaration will play at the national and international level, despite that it is not legally binding. It surmises that it is an important political tool at the national level, able to be used in direct negotiations between the Māori and governments. It could further be used as an interpretive tool by the courts and government agencies. The proliferation of Declaration-consistent norms at the national level could result in either the formation of international law or the placement of such norms in bi- or multilateral agreements. The final part of this paper discusses particular Articles within the Declaration that may be used to protect Māori cultural identity and cultural heritage and their legal applicability.

Chapter 4 Guardianship and the Wai 262 Report

The analysis in the previous chapter made clear that, though existing intellectual property (IP) and related law could be used to protect some Māori interests in their cultural heritage, it cannot do so in an all-encompassing or satisfying way. This is in large part due to the disparities between how IP and its related laws function and the means by which Māori knowledge systems operate, much of which hinges on the idea of “ownership”. As discussed above (Sect. 3.1), indigenous peoples, including Māori, do not view their relationship with their tangible and intangible cultural heritage as one of “ownership”. In other words, their relationship usually does not equate to the bundle of rights usually associated with “property” of title, possession, exclusivity and alienability. Though in many situations, the relationship may be equivalent to “ownership”, or may be “ownership-like”, it is often better construed as a relationship of guardianship or stewardship (kaitiakitanga). Many indigenous communities care for their cultural heritage as a duty to their ancestors and to future generations. Indigenous peoples, thus, do not own their cultural heritage, so much as have duties and responsibilities over it. The disconnect between ownership and responsibilities also means that indigenous peoples may have duties over that which they do not own. Furthermore, though Western property is individual in nature, indigenous peoples seldom “own” their tangible and intangible property and lands individually, but as a collective. This is true even if one (or several identifiable) individual(s) has (or have) the responsibility over it. The duty is undertaken on behalf of the community.

Exclusive rights of patent owners versus rights of chattel owners: the implied licence approach

ABSTRACT Everybody who owns a smartphone is the chattel owner of an artefact embodying patented inventions. The extent to which one may use the smartphone depends on the scope of patent rights and the implied licences granted by the patent owners. Little attention has been given to this in New Zealand. This article seeks to address this gap by exploring patentees’ exclusive rights and implied licences and how these play out domestically and internationally. It examines the convoluted case law that traverses the interface between patent exclusive rights and chattel owner rights. The article focuses on New Zealand, but borrows case law from the United Kingdom, Australia and Canada to fill gaps. It surmises that the current law in New Zealand is complicated and fact-dependent, and relatively pro-patentee as opposed to pro-chattel owner. The article concludes by analysing whether an exhaustion model would be simpler and more balanced than the implied licence approach.

Introduction: the relationship between intellectual property and its physical embodiments

Intellectual property is typically considered to be exclusively incorporeal property since its products (particularly works and inventions) emanate from the mental labour of a creator. What is often forgotten is that even immaterial objects are usually (or arguably have to be) protected and used through a certain materiality, such as on canvas or as a pharmaceutical or trade-marked product. It is nevertheless the case that copyright protects “works” and not their materialisations, patent law protects ideas/inventions and not the physical good embodying them and trade marks protect marks used in trade and not the goods/services on which they are placed. However, despite being intangible in nature, intellectual property has hindered or controlled the access and use of the embodiments of intellectual products. We see this in many ways, such as the resale royalty right (for original art works), which does not attach to the intangible work, but to the physical embodiment.1 Moral rights are a further illustration, as they are about the reputation of the author, and also the integrity of the work in many civil-law jurisdictions,2 and thereby allow artists to prevent certain uses of the physical embodiments of their

Recognised and Appropriate Grounds for Compulsory Licences: Reclaiming Patent Law’s Social Contract

This chapter discusses the existing framework of compulsory licensing at the international level and the grounds upon which licences can be granted. The chapter uses that background to analyse whether patent law’s social contract is a reason in favour of compulsory licensing. The chapter finds that compulsory licensing is worthy of thorough consideration in order to promote competition. However, whether competition is promoted will be fact specific, technology specific, market specific, and timing specific. The chapter concludes that just as the social contract of patent law requires balance, so too does the use of compulsory licensing. Consequently, compulsory licensing deserves greater attention as a means to contribute to rebalancing patent law’s social contract.

Chapter 2 Māori Culture in the Contemporary World

There are many reasons why Māori should be given more control over, and more opportunities to be the ones to benefit from, their cultural heritage. The first reason discussed elaborates on the link between cultural identity and well-being, and the relationship between culture and socio-economic development. The second ground relates to the Treaty of Waitangi rights and obligations.

Chapter 3 Intellectual Property and Other Intangibles

There are many arguments that Western property and intellectual property (IP) constructs—as they are—are not appropriate for the protection of indigenous cultural heritage. This is because there is a divergence between the fundamental reasons why classical IP exists, on one side, and the knowledge and social systems and needs of Māori and other indigenous peoples, on the other. Indeed, neither “intellectual property” nor any equivalent term exists in Māori. Erica-Irene Daes stated that Western IP is “inherently unsuitable”, as “[s]ubjecting indigenous peoples to such a legal scheme would have the same effect on their identities, as the individualization of land ownership, in many countries, has had on their territories – that is, fragmentation into pieces, and the sale of the pieces, until nothing remains.” From a western property perspective, intellectual property and real property are not comparable in this manner because intellectual property is non-rivalrous. For example, within copyright, if person B makes a copy of person A’s work, this does not prevent person A from enjoying the original. However, this is not necessarily the case under indigenous knowledge systems. As noted in Chap. 2, outsider use of indigenous cultural heritage can affect the integrity of that aspect of cultural heritage, so much so that the community may decide to no longer use it. This is particularly because indigenous peoples tend not to have a holistic worldview. Whereas Western societies tend to have stark system differentiation (for example, art, science, religion, law and politics are different systems), indigenous communities tend not to and different systems are closely interrelated.

Chapter 5 Bringing It All Together: An Overall Reflection

As the previous chapters have shown, there is a need for Māori (shared with other indigenous peoples) to gain more control over the use of their cultural heritage. Yet, the concepts of “property” and “ownership”, such as enshrined in intellectual property rights (IPRs), are an ill-fit to the worldviews and specific concerns of indigenous peoples as guardians and not as “owners”. States with Western legal systems—marred by their preconceptions of “property” as “ownership”—have, so far, been unable to conceive of how to meet the interest of stewardship. Moreover, their understanding of what “property” is has prevented them from adapting IP laws to suit the idea of guardianship, arguing that it would be contrary to the theoretical underpinnings of IPRs. This has resulted in most states falling short of addressing the guardianship role of indigenous peoples over their cultural heritage. In most cases, indigenous peoples end up on the “nothing” side of the “property” scale.