POSTED BY:
Rachel Dawson*
ON:
18 Feb 2009For many people, one of New Zealand’s most iconic images is the performance of the Ka Mate haka by the All Blacks before a rugby game.
A haka is a complex dance and an
important social custom of Māori (New Zealand's indigenous people),
for conveying a tribe's reputation.
The Ka Mate haka was written by Te
Rauparaha, a famous chief of the Ngāti Toa tribe, and surrounds an
allegorical story of a man called Maui who snared the sun in order
to enable "long sunny days" (representing peace). Since 1905 the
All Blacks have performed this haka in front of their opponents as
a reminder that they can also overcome overwhelming odds such as
those faced by Maui.
But the wide reputation of the Ka Mate
haka has made it an attractive marketing tool, leading to mis-use
by a number of traders including use in a Fiat car promotion which
depicted women performing the haka. This was highly offensive to
all Māori, not only due to the commercial context in which the haka
was used, but because this haka must only be performed by men and
never in such a slap-dash manner.
Under traditional IP law the use of the
haka in the advertisement could not be stopped, as any copyright
had long since expired and no other protection was available to the
tribe.
However, Ngāti Toa are hoping that
things may soon change due to a Settlement Agreement signed on 11
February 2009 with the New Zealand government, which (amongst other
things) recognised the cultural significance of the Ka Mate haka
and the authorship by Ngāti Toa's chief.
The Agreement was the culmination of
many years of negotiations following the signing of the Treaty of
Waitangi in 1840 on which basis England claimed sovereignty over
New Zealand. Settlement Legislation will be drafted within the next
year pursuant to the Agreement. The primary objective of Ngāti Toa
is said to be the prevention of misappropriation and culturally
inappropriate use, rather than the payment of royalties or the
right of veto over performance by individuals.
A spokesman for the tribe, Mr Rei,
noted that defending a trade mark was too expensive and it was
therefore necessary to investigate the possibility of enforcing
moral obligations that were currently outside the law. Indeed,
applications for registration of the Ka Mate haka as a trade mark
were filed a decade ago, but were refused registration by IPONZ.
This decision is still under appeal.
Although no other Waitangi Treaty
settlement has dealt with intellectual property issues before, it
was noted by Mr Rei that the issue of the haka is part of a wider
debate surrounding treatment of intellectual property. This wider
issue is the subject of a Treaty claim known as WAI262 (a claim to
indigenous flora and fauna and cultural intellectual property) on
which a decision has been pending since 2007.
New Zealand has made some attempts to
address cultural sensitivities in its legislation already. For
example, the Trade Marks Act 2002 requires applications for trade
marks that include Māori words or imagery to be referred to a Māori
Advisory Committee for a determination as to whether the mark is
likely to offend Māori. Similarly, the Patents Bill, currently
being reviewed, introduces the use of a Committee to review whether
commercial exploitation of inventions involving traditional
knowledge or indigenous plants and animals would be contrary to
Māori values.
It will be interesting to see how the
Settlement Legislation proposes to protect the Ka Mate haka against
"inappropriate use". Snaring the sun might have been an easier
task…
By Rachel Dawson, Senior
Solicitor