New perspectives for the protection of traditional cultural expressions in New Zealand

Over the past few years, an increasing number of companies, in New Zealand and overseas, have started using Maori imagery and text in order to increase the commercial value of their products. In addition, a growing quantity of imitation products, mass-produced offshore or by non-Maori artists, have appeared on the New Zealand market, mainly in the field of tourism, to the detriment of local authentic works. In response to growing Maori concerns about the inappropriateness of existing intellectual property laws to protect their traditional knowledge and traditional cultural expressions, and in an attempt to take into account Maori needs and perspectives, the New Zealand government has entered into a process of re-consideration of its intellectual property laws. In this perspective, it has taken the unprecedented step to amend its trade marks law of 1953 to incorporate a mechanism by which the interests of sections of the community, particularly Maori, can be taken into account during the trade mark registration process. Similarly, in other intellectual property fields, specifically patents and plant varieties rights, the Ministry of Economic Development has recently published two discussion papers in which it respectively considers the possibility to amend the Patent Act of 1953 to ensure that consultation with Maori occurred when patent applications were made for inventions based on traditional knowledge or indigenous genetic material(1) and to amend the Plant Varieties Act of 1987 in a similar way.(2) This article will first set out the New Zealand intellectual property context and the relationship between Maoris and the intellectual property system. It will give specific examples of what could be interpreted as misappropriation of Maori traditional cultural expressions and it will then move on to analyse how the New Zealand Trade Marks Act 2002 has attempted to provide protection for a particular aspect of Maori traditional cultural expressions, namely, Maori imagery and text. Finally, it will examine the efforts of Maori to retain ownership and control of their taonga, Maori knowledge, imagery and design, through the creation of a label of cultural authenticity: the toi iho(TM) certification mark.