10 Mar 2005

The Intangible Cultural Heritage Convention is on track to enter into force next year following a number of ratifications. Sadly New Zealand misses out on it being expressly applicable for our judiciary. This treaty is designed to protect the world's oral traditions and expressions, performing arts, social practices, rituals and festive events, traditional craftsmanship, and knowledge and practices concerning nature and the universe: Press Release.

New Zealand supports the work of UNESCO. However it abstained from voting on the Convention despite the fact that all culturally related heritage, whether it is traditional or modern, connected to the indigenous population of New Zealand would be protected at a higher level if ratified. The traditional knowledge systems of Maori relied on the oral transmission of ideas and information. The rights to use intangible heritage rights are entrenched in appropriation, which is recognised at New Zealand common law, for example there was a recent attempt by Ngati Toa to gain the trademark to the All Black haka, Ka Mate

This Convention would be an important influence in the Court's as it will provide a higher standard of protection of the Maori point of difference. This is important in respect to areas where the point of different can be monopolised on, such as the creative sector and events such as kapa haka competitions and Matariki.

Some theorists point to the 18th Century as the era where intellectual property doctrines grew steadily in Britain. This was the era New Zealand was colonised and therefore we cannot expect our common law doctrines on intellectual property to have been developed in the context of protecting communally owned intellectual property, especially that which is intangible. Such reality has created inflexibility in respect to decision-makers being asked to determine the rights of cultural groups with shared rights to original creations.

Judges in New Zealand and Australia have had to apply western doctrines to indigenous rights. Indigenous groups who protest against unauthorised use of their cultural creation must prove rights in a paradigm that is spiritless and ignorant of cultural practice and taboo. They must also have the resources that are recognised in the particular market to support their claim to the rights associated with the creative manifestation.

Indigenous group's intellectual property such as folklore, song and dance has been created for the benefit of the communal group, which was traditionally subject to the guardianship of tribal custodians who licensed its use to other members of the tribe through oral teaching and passing of knowledge. Ownership of tribal intellectual property in New Zealand is owned communally rather than privately. Because intellectual property doctrines recognise only private ownership, they have failed to protect cultural rights inherent in Maori cultural property. The Intangible Cultural Heritage Convention would address these issues in the future development of intellectual property doctrines in New Zealand.

Intangible cultural heritage encompasses the most fundamental aspects of living culture and tradition and is very applicable to the indigenous population of New Zealand. It is a dynamic and constantly evolving phenomenon with broad manifestations, related to oral traditions, traditional knowledge, the creation of material culture, and the values of the performing arts. Many people who are not culturally connected to a group can still have rights to use the heritage of that group.