Victoria University of Wellington Law Review https://ojs.victoria.ac.nz/vuwlr <p>Founded in 1953 by Professor Robert McGechan, the Victoria University of Wellington Law Review is the oldest university Law Review in New Zealand. It has a proud history of being a major publisher of significant legal articles of relevance not only to New Zealand, or our Pacific region, but also internationally.</p> <p>The VUWLR publishes four issues a year, a total of some 800 pages of quality research by international scholars, members of this faculty and our colleagues elsewhere in New Zealand, distinguished visitors and the Faculty's own students.</p> Victoria University of Wellington Library en-US Victoria University of Wellington Law Review 1171-042X <p>Authors retain copyright in their work published in the Victoria University of Wellington Law Review.</p> Introduction https://ojs.victoria.ac.nz/vuwlr/article/view/6697 <p>No abstract available.</p> Susy Frankel Copyright (c) 0 2020-12-17 2020-12-17 51 4 519 522 10.26686/vuwlr.v51i4.6697 The Misappropriation of the Haka: Are the Current Legal Protections around Mātauranga Māori in Aotearoa New Zealand Sufficient? https://ojs.victoria.ac.nz/vuwlr/article/view/6698 <p>This article analyses the protections the New Zealand intellectual property framework provides for the haka and mātauranga Māori. Part II of this article defines the key terms of "misappropriation", "traditional knowledge" and "mātauranga Māori" in order for the reader to fully understand these concepts in an indigenous, and specifically Māori, context. Part III of this article discusses the importance and significance of haka in Māori culture, particularly looking at the history and significance of Ka Mate, the most well-known haka in New Zealand and the world. Examples of different companies, both New Zealand and internationally-owned, using the haka for commercial benefit are analysed to establish whether or not their use of the haka is misappropriation, and if so, the harm this misappropriation has caused Māori. Part IV discusses the current legal protections New Zealand provides for mātauranga Māori and whether they sufficiently protect the haka and mātauranga Māori generally. It will assess the Haka Ka Mate Attribution Act 2014 as a case study. Part V outlines the limitations of the intellectual framework. Part VI of this article looks to what legal protections would be sufficient to protect against the misappropriation of the haka and mātauranga Māori generally.</p> Isabella Tekaumārua Wilson Copyright (c) 0 2020-12-17 2020-12-17 51 4 523 558 10.26686/vuwlr.v51i4.6698 Protecting Traditional Knowledge: An Analysis of the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture https://ojs.victoria.ac.nz/vuwlr/article/view/6699 <p>This article will primarily focus on the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (the Model Law), analysing each clause and examining how it has been implemented in Pacific countries so far. While it is a model law, there are many factors that must be considered by enacting countries, such as consulting and engaging with communities at the beginning of the process, the role of the state as a facilitator rather than the primary regulator and more generally, adopting a "bottom-up" approach. This article will also briefly examine the Melanesian Spearhead Group Framework Treaty on the Protection of Traditional Knowledge and Expressions of Culture (the MSG Treaty). Although the MSG Treaty has not been ratified by any of the signatories, it nevertheless addresses some of the omissions seen in the Model Law. Recommendations are discussed at the end of the article, which should be considered if any country decides to adopt the Model Law or any legal instrument that protects traditional knowledge and expressions of culture.</p> Purcell Filipo Siaki Salī Copyright (c) 0 2020-12-17 2020-12-17 51 4 559 596 10.26686/vuwlr.v51i4.6699 Indigenous Customary Law and International Intellectual Property: Ascertaining an Effective Indigenous Definition for Misappropriation of Traditional Knowledge https://ojs.victoria.ac.nz/vuwlr/article/view/6700 <p>The effective protection of indigenous traditional knowledge from misappropriation is a fundamental challenge faced by the intellectual property system. A substantial aspect of this challenge is how the intellectual property regime can practically utilise or incorporate indigenous customary law as a means of protection against misappropriation, when there is an inherent tension between the former and the latter. Any international legal instrument intended to protect against misappropriation of indigenous traditional knowledge will have to contend with this tension: a definition of misappropriation ought to encourage use of local indigenous customary law, but it also must be practically applicable within the confines of the intellectual property system. Consequently, this article considers the challenge in two parts. The first part requires ascertainment of a potential international legal definition of misappropriation that will uphold and maintain indigenous customary law, in the context of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) draft articles. To ensure the definition effectively affirms indigenous customary law, it will be based on three key "approaches" to indigenous custom. The second part entails application of the definition to the domestic context, namely through the case studies of New Zealand and Australia, and a subsequent critique of the difficulties of application, to illustrate the challenge of incorporating indigenous customary law within the intellectual property system. This article concludes that the risks inherent in an aspirational definition of misappropriation which may have some challenges in application are outweighed by the potential of normalising and encouraging indigenous customary law as the foundational basis for truly effective protection of traditional knowledge against misappropriation.</p> Nopera Dennis-McCarthy Copyright (c) 0 2020-12-17 2020-12-17 51 4 597 642 10.26686/vuwlr.v51i4.6700 Kia Tāwharautia Te Mātauranga Māori: Decolonising the Intellectual Property Regime in Aotearoa New Zealand https://ojs.victoria.ac.nz/vuwlr/article/view/6701 <p>This article explores ways to decolonise aspects of the intellectual property system in Aotearoa New Zealand, primarily in respect of trade marks. It considers the seminal Wai 262 report of the Waitangi Tribunal and builds upon its findings and recommendations, while also offering new ideas of legal reform for protecting mātauranga Māori (Māori knowledge and expertise) from undue exploitation. This article also measures those ideas against the objectives and principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), as well as other internationally recognised rights. Essentially, this article maintains that for any mechanism to be effective in recognising and upholding the tino rangatiratanga (unqualified self-determination) of Māori over their own mātauranga, that mechanism must be founded upon the principles of tikanga Māori (Māori laws and customs), which is a notion crystallised within the Treaty of Waitangi/Te Tiriti o Waitangi. It must also find its own meaningful place in the law of New Zealand that surrounds us today. It is only in this way that the extractive and thereby oppressive binds of the western intellectual property regime can be unpicked and put aside and the tapu (high status and associated sanctity) of mātauranga can be upheld. These words are also an honouring of those who spent countless hours on the Wai 262 report. It is hoped this article gives new and much needed life to the issue of protecting mātauranga Māori, which is still as relevant today as it was then. Kei aku rangatira, kei aku tapaeru, kei aku whakaruakākā, tēnei e ngākau whakaiti nei (an acknowledgement of all those who took part in Wai 262).</p> Eru Kapa-Kingi Copyright (c) 0 2020-12-17 2020-12-17 51 4 643 672 10.26686/vuwlr.v51i4.6701 Disclosure of Origin in the Patents Regime: A Call to Shift towards Meaningful Engagement on Māori Terms https://ojs.victoria.ac.nz/vuwlr/article/view/6702 <p>In September 2018, the Ministry of Business, Innovation and Employment (MBIE) recommended that New Zealand introduce a "disclosure of origin" requirement for patent applicants. Disclosure of origin was also recommended by the Waitangi Tribunal in 2011. If applicants were required to disclose the origin of genetic resources or traditional knowledge used, interested iwi and hapū groups would more easily be able to monitor the use of their resources and oppose patents being granted, and decide whether to challenge or oppose the grant. It would also allow more patent applications to be identified as relating to Māori interests and subsequently be referred to the Patents Māori Advisory Committee (PMAC) in the examination process. This article examines the potential for a disclosure of origin requirement in New Zealand, assessing appropriate design elements and objectives.</p> Brooke Marriner Copyright (c) 0 2020-12-17 2020-12-17 51 4 715 720 10.26686/vuwlr.v51i4.6702