Susy Frankel

The Mismatch of Geographical Indications and Innovative Traditional Knowledge

This article is about how geographical indications (GIs) cannot deliver the protection for traditional knowledge that indigenous peoples seek. There are three broad ways in which the protection of geographical indications appears to offer the possibility of providing legal mechanisms to protect traditional knowledge. These are the collective nature of the protection, the indefinite availability of the GI and the connection that GI owners perceive between their products and their land. Those seeking protection of traditional knowledge also seek a collective and an indefinite interest and frequently the relationship between their knowledge and the land is important for indigenous peoples. Yet, these similarities are superficial. GIs protect names and are used by Western farmers and sometimes rural communities to promote their products. This article concludes that GIs cannot deliver the protection that indigenous peoples seek in order to benefit from their traditional knowledge.

Attempts to Protect Indigenous Culture Through Free Trade Agreements

The fundamental purpose of Free Trade Agreements (FTAs) is to extend the commitments that members of the World Trade Organization (WTO) have made in that multilateral forum. FTAs also frequently include commitments in areas that are outside the WTO obligations. Protection of traditional knowledge is not specifically part of the WTO framework, in particular is not part of the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement). Some FTAs are used to ensure that the parties, or at least one of the parties, retain the ability to protect certain aspects of cultural heritage, including the protection of traditional knowledge. On the other hand, other FTAs limit the possibilities for protecting traditional knowledge. This paper discusses how FTAs affect, or might affect, the aspirations of indigenous peoples, in particular, to protect their traditional knowledge.

Digital Copyright and Culture

For many years, New Zealand has struggled with how to develop its economy into a knowledge-based economy. Other small market economies have faced similar issues. Intellectual property is an important aspect of such an economy, as are the copyright and other laws that protect intellectual property. In recent years, cultural producers have debated with copyright users on the proper scope of legal protection for intellectual property. Both sides of this debate have utilized concepts of promoting and creating culture as justifications for their stance. Copyright lawmakers have the task of finding a balance between the competing views. This article focuses on the way in which New Zealand copyright law developed and that laws relationship with culture during the years in which Helen Clark was Prime Minister. In particular, this article discusses the copyright law reform undertaken to address the impact of digital technologies.

Geographical Indications and Mega-Regional Trade Agreements and Negotiations

In the presentation of this chapter in draft form, I asked the following question, ‘how do you spot a dodgy international intellectual property claim?’ One possible answer to that question is that those who own intellectual property (IP) rights in one jurisdiction, where those rights have developed from local or regional policies, want those locally grounded rights exported to other legal systems in order to protect IP-related products exported to those jurisdictions. That proposition alone cannot be the only way to spot a ‘dodgy IP claim’ because that is a description ofmany international IP negotiations where there are attempts to gain at least some international agreement on minimum standards of protection. The ‘dodgy’ aspect arises when incumbents want more protection (without convincing evidence that more protection is needed), and in seeking that greater protection, those incumbents suggest that newcomers will gain immeasurable bounty. This is exactly how the European Union presents its geographical indications (GIs) policy to its trading partners. The argument usually involves three steps. First, multiple GIs have worked in Europe. Second, there are one or two instances of GIs working for developing countries. The following statement from the European Commission illustrates these first two steps:

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.

'Ka Mate Ka Mate' and the Protection of Traditional Knowledge

“Ka Mate Ka Mate” is an iconic haka. Haka is performance art, particularly originating from the Māori, the indigenous people of New Zealand. A haka can be ceremonial and it can be a challenge or even a welcome. Ka Mate Ka Mate is the opening line of the ngeri (chant) that is performed as part of the haka. Many New Zealanders refer to Ka Mate Ka Mate as the haka. Its fame has travelled beyond New Zealand. This is most probably because New Zealand’s national rugby team has performed it around the world. Use of the haka is not, however, confined to that rugby team. Aspects of it have been used to parody the same rugby team, to sell products around the world, including Fiat cars in Italy. The descendants of the warrior who created Ka Mate Ka Mate have, in a variety of legal fora, sought to gain some rights over its use. Ka Mate is old, it is a work of culture and it carries with it the knowledge of the descendants of the Ngāti Toa people. If it was ever protected by copyright such a right would have long since expired. Trade mark registration has mostly not been successful. Yet, the haka is commercially valuable. The government of New Zealand has acknowledged the importance of the haka to Ngāti Toa and has agreed to pass a law which will require attribution of the haka, in certain circumstances including commercial uses, to Ngāti Toa and Te Rauparaha. This chapter discusses the boundaries of the protection of traditional knowledge using the story of the haka.

Branding Indigenous Peoples' Traditional Knowledge

This chapter discusses the limited ways in which branding strategies involving trade marks and geographical indications can be used to protect traditional knowledge. The chapter concludes that these intellectual property mechanisms cannot, on their own, achieve the goals of indigenous peoples in protectiong traditional knowledge and in utilising that knowledge for development.

The Applicability of GATT Jurisprudence to the Interpretation of the TRIPS Agreement

This concise and detailed Handbook addresses some of the most complex issues raised by the implementation of the TRIPS Agreement globally. Among other themes, the Handbook explores the applicability of GATT jurisprudence for the interpretation of the Agreement’s provisions. It also considers key issues relating to the enforcement of intellectual property rights, such as border measures and injunctive relief. Teamed with the first volume – Research Handbook on the Protection of Intellectual Property under WTO Rules – this analysis is supplemented by a thorough review of the most important cases on TRIPS decided under the WTO dispute settlement mechanism.