Indigenous intellectual property needs better protections, say advocates
CBC
Amid concerns that businesses are profiting from Indigenous culture without always gaining the consent of the nation from which it originated, it raises the question of how to protect Indigenous intellectual property.
Advocates say although there are modest safeguards to protect it around the globe, they often place the burden of proof on the Indigenous nation and they say more could be done.
Lynell Tuffery Huria, the first Māori patent attorney and an expert on Indigenous intellectual property rights in New Zealand, says Māori culture is entrenched in that country ― in the national anthem, signage, and even their national rugby team performs a haka, a ceremonial Māori dance, before every match.
Tuffery Huria said this “has enabled Māori to be able to assert more control over their traditional knowledge because it's being seen and people can see that it's a valuable resource.”
Tuffery Huria said use of te reo Māori (Māori language), Māori images, or geographical names like a mountain or a river associated with a particular tribe are considered offensive and require permission from that tribe to register that trademark.
However, “if the committee refuses a trademark, that doesn't stop the use,” she said.
“They can still use the trademark whether they have approval or not. And that's where the system breaks down, right? It deals with the registration process of a trademark but it doesn't deal with the use process of a trademark,” said Tuffery Huria.
These gaps in legislation leave grey areas like a sneaker company founded in France using the word "hoka" which is te reo Māori for "to fly or to soar," for its name.
While not an offensive use of the word, Tuffery Huria said, “When they set up the company, they originally recognized that it was from our language and so they used that story 'to soar, to fly' to help sell the product.”
“And then all of a sudden they've just ignored that … and have stopped using that or referring to that association.”
Tuffery Huria said the word is also mispronounced and that the lack of acknowledgment of its origin by the company has since made its use offensive. She said people could argue that legal provision, although it’s never been tried.
“That's quite a novel argument, not something that's been explored here yet in Aotearoa/New Zealand,” she said.
Hoka did not respond to a request for comment by time of publishing.
The World Intellectual Property Organization (WIPO), a United Nations agency that serves as the global forum for intellectual property policy, came up with a Property, Genetic Resources and Associated Traditional Knowledge Treaty in 2024, following 25 years of negotiations.
