A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Matthew Rimmer
Chapter 11: Protection of traditional cultural expressions within the New Zealand intellectual property framework: a case study of the Ka Mate haka
There is an inherent difficulty in trying to protect Indigenous knowledge within the protection mechanisms provided by traditional intellectual property systems. This issue stems from the contrasting worldviews underpinning each system of knowledge. Indigenous people, on the one hand, take a holistic approach to knowledge, viewing it as inherently related to the natural world and their ancestors before them. Such knowledge is passed down and reinterpreted through oral tradition and held collectively by communities. However, intellectual property views knowledge as a commodity for trade and as such prescribes exclusive individual rights in new, definable intellectual creations to creators for a limited period of time, before it is released into the ‘public domain’ to inspire further creativity. To protect the former concept of knowledge within a framework of protection based upon the latter is therefore not ideal. While in some cases Indigenous property will fall within the criteria required for traditional modes of protection, any confluence is coincidental, and the majority of Indigenous knowledge is left unprotected, free to be expropriated, misappropriated and commercialized by third parties. These issues will be discussed in greater depth in Section 2. In recent decades, these threats to Indigenous knowledge have become a greater concern and various initiatives have been established at both the supranational and national levels in attempts to provide adequate protections. Developments and impediments to establishing suitable protections shall be assessed in Section 3 with particular regard to the New Zealand legal context, and the protection of Maori traditional cultural expressions.
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