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December 2000
Prepared by: Susan Forbes, Murray Hemi, Greg Ford, Joan Ropiha for Te Kete Mö Te Taiao project.
Financial support for this project has been received from the Minister for the Environment's Sustainable Management Fund, which is administered by the Ministry for the Environment.
© The Crown (acting through the Minister for the Environment), 2001.*
This report examines Cultural and Intellectual Property Issues as they affect the proposed kaitiaki web site. The web site is intended to "provide information and a forum for dialogue, which assists iwi/Mäori to undertake their responsibilities as kaitiaki".1
...Open Source" software is suggested as a model for sharing and developing the site software. It is also proposed as a model for facilitating sharing of information and documents on the site.
The project team concludes that one of the essential roles of the site will be as a resource to assist in advocacy protecting indigenous cultural and intellectual property.
The project team for Te Kete mö te Taiao project is positive that a web site for kaitiaki will increase the opportunities for networking and access to information for kaitiaki. We also believe that much of the most valuable content of the site will come from the informal discussions amongst the kaitiaki participants. We are sure that as kaitiaki become comfortable with the site, they will contribute larger, more significant works (such as papers, sample submissions and other documents). Our concern is to ensure that kaitiaki can be comfortable with the site.
Our view is that kaitiaki will only feel comfortable with the site if the cultural and intellectual property issues are dealt with effectively. This paper identifies some of the major cultural and intellectual property issues and how the project team intends addressing them.
This document is in three sections. Section one discusses the copyright on the web site itself and introduces the "open source" licence selected for the site and associated software. The second section looks at how to protect the cultural and intellectual property in the content of the site. This includes the copyright on works submitted to the site by kaitiaki and the cultural property inherent in those works. The final section attempts a short history of international issues in indigenous cultural and intellectual property. The goal of the section is to identify the main issues and provide pointers to resources helping kaitiaki to make informed decisions and supporting kaitiaki advocacy on indigenous cultural and intellectual property issues.
Although this document includes discussion of intellectual property law, it is focused on the issues, and not intended as legal advice.
This section discusses the intellectual property issues related to the site software. In particular it discusses the decision to use the GNU (open source software) licence for the software developed for the site.
The site is being built under a Sustainable Management Fund contract, from the Ministry for the Environment. During the inception of this project it became clear that as the funding was largely for setting up the web site and not necessarily on-going there would need to be special efforts to reduce the ongoing management costs for the site. One of the proposed approaches for reducing running costs was to provide web-based software that enables members of the site to manage the site themselves. Kaitiaki involved in site management will form an "on-line kaitiaki community". The kaitiaki web site project team proposes modelling the site management on marae organisation, with local community, visitors and a marae committee.
The Ministry envisages a sponsor organisation taking overall responsibility for the site. In addition, a "service provider" will be contracted to "host" the site providing a permanent Internet connection and the technicians necessary to look after a busy web server. The project team sees the kaitiaki community as having its own management role (which includes having control over the software used on the site) independently of these other organisations.
To achieve the "on-line kaitiaki community" model, the project team will be developing some custom software. This software will allow existing members to manage the tikanga and kawa for joining and participating in the community. It will be designed to ensure participatory decision-making by kaitiaki on a marae model in the running of the web site.
Some of the features proposed include:
Copyright will automatically apply to the custom software developed for the site. This software will be built on a base of ready-made software, which will already be protected by existing copyrights. As the new software is being supported by the Sustainable Management Fund it will be placed under Crown copyright.
To ensure the kaitiaki community has flexibility in managing and developing the site the project team decided to use only "free" software both for the ready-made and for the custom software. By "free" we mean software released under the GNU Public Licence (GPL) or similar licence agreements. The GPL keeps the copyright ownership on the work, but ensures that you may share the software freely with others. The GPL was developed by the Free Software Foundation,2 and is discussed in more detail later in this document.
The Free Software Foundation defines free software as:3
"Free software" refers to the users freedom to run, copy, distribute, study, change and improve the software. More precisely, it refers to four kinds of freedom, for the users of the software:
The freedom to run the program, for any purpose (freedom 0).
The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
The freedom to redistribute copies so you can help your neighbor (freedom 2).
The freedom to improve the program, and release your improvements to the public, so that the whole community benefits. (freedom 3). Access to the source code is a precondition for this.
Importantly, the GPL does not prevent the sale of software, but effectively prevents exploitative marketing by giving the right to redistribute copies freely. The Free Software Foundation describes this concept as: "Free speech", not "free beer." Recently the term "Open Source" has been used to describe this kind of software licence (see for example http://www.opensource.org/). It is now generally accepted that free or open source software can match or exceed the quality of commercial software, and many major web sites rely heavily or entirely on open source software.
The considerations discussed above led to the following approach to choosing and developing software for the kaitiaki web site project:
Some software techniques are eligible for patent applications, but as the software is to be shared under a GNU licence, it is not the intention of the project team to apply for patents for software used on the site.
Not all of the site is software the site also contains graphics such as logos and background images. Intellectual property law also protects these items. The project team intends to release all images used on the site under a GNU style of licence.
New original images will be created for the site graphics to ensure that no existing copyright or moral rights are infringed.
This section examines the intellectual property protection provided for the site content. Copyright with appropriate licence agreements is suggested as a means of facilitating sharing of information under the copyright system.
In the first phase of this project a survey was undertaken to determine kaitiaki preferences for the web site (as well as other potential media for providing and sharing information).4 The responses to questions about cultural and intellectual property indicated both an awareness of the issues and distrust of the Internet as a medium for sharing certain kinds of information.
Responses to questions relating to cultural and intellectual property issues included:
A related question was whether there are any potential aspects of a web site that should be private or limited to password access only?
Overall there was an acknowledgement of the huge potential economic value of the knowledge that will be kept on the web site and the concern that others will exploit the knowledge without returning any benefits to those who generated it.
Project Developers, Crown Resource Agencies and Academics are just some of the groups who stand to benefit by easy access to kaitiaki information. Many kaitiaki were aware of how easy it is to obtain information over the web, and how quickly it can be retrieved. Nevertheless, it is clear that many kaitiaki are prepared to share information over the web, but will be selective about what information is shared. It is also clear that the design of the site can play a major role in facilitating information sharing among kaitiaki by providing differing levels of access and clear protocols for the use of information.
One key concern is respect for the information source. This has two main aspects a responsibility to acknowledge the source of the information, and its appropriate use. For recent works, the author has moral and legal right to be acknowledged. In the case of traditional knowledge the iwi or hapü who developed the knowledge also have a moral right to be acknowledged. The authors rights are protected in copyright legislation, but unfortunately the traditional rights of iwi and hapü are not protected in law.
Appropriate use is a major issue for indigenous groups. Material which is iwi/hapü based was identified as requiring protection particularly whakapapa. Once material is placed on the web, it becomes difficult to protect the mana and tapu. As Alistair Smith notes5 "many Mäori have strong feelings about eating in the presence of cultural objects". He also notes that in a case of inappropriate use of cultural items on the web the "offensiveness was magnified by the increase in its availability".6 Nevertheless, it is clear that Mäori are increasingly interested in the Internet, and as Robert Sullivan notes "traditionally tapu areas such a karakia (incantations or prayer) and whakapapa, now have their own excellently researched and presented websites".7
Another issue related to cultural appropriateness is the issue of privacy. Members of a web site need to be confident that their personal details do not become public or commercial property. For example, if a membership directory is placed on the web site, unscrupulous people could use that directory to send unsolicited mail (or spam) to all the members of the site. Spam is becoming an increasingly unpleasant feature of Internet use.
It is common practice to place privacy statements on web sites. The Kaitiaki project team intends to place a clear and simple privacy statement on the site. An example of such a statement used on the indigenous web site, NativeWeb includes the following:
"Any personal information (email address, home address etc) we obtain from visitors/clients will not be sold or shared with any third party. ... The client may choose to allow this information to be seen by others on our site".8
One respondent to the survey raised the topic of "collective privacy" the right of groups such as iwi and hapü to control how information about the group is stored or used.9 Unlike individual information, which is protected by the Privacy Act, collective privacy has no legal protection.
The absence of adequate protection mechanisms is particularly relevant for Te Kete mö te Taiao which will also be dealing with material that is intergenerational, intangible (spiritual) and collective in nature.
Free exchange of ideas and information between kaitiaki is crucial to the success of the web site. We intend to offer several options for kaitiaki to share information while maintaining control of their works.
Many of the kaitiaki survey respondents suggested using e-mail in order to share sensitive information, this helps ensure the author is able to choose exactly who has access to a document.
Controlled access to certain levels of content using a members only approach is likely to be the most effective method to provide some form of protection over the contributions of kaitiaki. In this way information is shared only within the (on-line) community of kaitiaki. Much in the way of more traditional times, information will become accessible only to those able to demonstrate and maintain a level of trust and competency within the community. Those that are not able to demonstrate this ability will not then be able to access the more valuable or sensitive levels of information. While such an approach introduces a certain level of patrimony and exclusivity, in the face of potential uncontrolled exploitation and misappropriation, these drawbacks are considered to the lesser of two evils.
The Kaitiaki web site project team suggests using a discussions group management system based on "Trust Metrics" to decide what can and cannot be done on the site. For example, only people with the highest trust level can modify the home page of a site. Levels of trust are allocated for other users by the on-line community members collectively. The proposed metric is believed to maintain the trust levels of bona fide members if a group of new-comers attempt a take over by force of numbers - even where the new-comers convince some of the existing community to trust them.
While there are some potential social and cultural issues that may need to be addressed, particularly the rating system that rates people on a trust levels of 1 to 4 (e.g. waewae tapu, manuhiri, tangata whenua, ahi kä), trust metrics have the potential to solve the problems of controlling access while preventing gate-keeping or "capture" of the web site by outsiders.
Several current group discussion sites use a version of trust metrics based on the "mod_virgule" software.10 This software controls the posting of data onto the site, but does not control access to information of the site (i.e. there is still access for everyone to browse the whole site). The project expects to modify mod_virgule to use an appropriate range of trust levels and to provide access control to the site based on trust level.
The third method is to provide a mechanism for placing appropriate copyright statements on posted documents automatically. The Kaitiaki project team suggests offering two optional copyright statements.
1. a traditional copyright statement reserving all rights to the author.
2. a "copyleft" statement referring to the GNU Free Documentation License
The GNU Free Documentation License is intended to facilitate sharing of documentation; in a similar fashion to the way the GNU Public licence facilitates sharing of software. It is an agreement where the author (or copyright holder) allows others to copy or modify copyrighted works provided they agree to the conditions of the licence. The preamble to the licence states:
"The purpose of this License is to make a manual, textbook, or other written document "free" in the sense of freedom: to assure everyone the effective freedom to copy and redistribute it, with or without modifying it, either commercially or noncommercially. Secondarily, this License preserves for the author and publisher a way to get credit for their work, while not being considered responsible for modifications made by others".11
The Internet has its own set of rules for polite behaviour, this is known as "netiquette". A basic set of rules has been widely accepted for some time now. Some of these rules are quite practical, (like the request that e-mails do not have more than 78 characters on a line), while others echo the legal requirements that may apply in some countries (like the ban on unsolicited mail). The Kaitiaki web site project team proposes the following statement of netiquette:
The last few years have seen an increasing focus on western style intellectual property rights. National and international law has been extended to cover new technologies such as computer software and genetic engineering. Intellectual property (largely in patents and copyright) is also forming a growing portion of international trade.13 The balance of this trade strongly favours the industrialised nations, who have become strong advocates for stronger intellectual property rights on their products.
Unfortunately, the extension of intellectual property laws appears to have detracted from traditional and indigenous rights. Traditional and communal knowledge is not protected, and in fact is rejected as unsuitable for protection. For example, in a 1996 meeting on the TRIPS14 agreement it was reported that Canada and the US progressed the view that "From a legal standpoint, traditional and indigenous knowledge was not an intellectual property".15 By contrast Prof. Dr. Erica-Irene A. Daes, Special Rapporteur to the United Nations Working Group on Indigenous Populations states:
"In my opinion, nothing prevents States from adopting special measures to protect indigenous knowledge which does not fall within the current definition of "industrial property".16
So it is clear that defending indigenous cultural and intellectual property rights will require collective action by indigenous peoples at an international level, as well as local advocacy for Mäori cultural and intellectual property rights. The Kaitiaki project team hopes the web site will be a suitable forum for discussion and advocacy to this end. This section provides an introduction to the issues as well as numerous links to documents that discuss the issues in greater depth. A key web resource on international intellectual property issues for indigenous communities is the web site of the Programme for Traditional Resource Rights which can be found at http://users.ox.ac.uk/~wgtrr
These definitions are intended to clarify the meaning of "cultural and intellectual property" and its relationship to the emerging field of "traditional resource rights" prior to discussing the history and international issues in the following sections.
"Indigenous Peoples rights to their heritage. Heritage comprises all objects, sites and knowledge, the nature of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular Indigenous group or its territory".17
Moana Jackson has suggested that for Mäori, cultural and intellectual property can best be defined as "Taonga tuku iho".18
"The term Traditional Resource Rights (TRR) has emerged to define the many "bundles of rights" that can be used for protection, compensation, and conservation. The change in terminology from Intellectual Property Rights (IPR) to Traditional Resource Rights reflects an attempt to build on the concept of IPR protection and compensation, while recognising that traditional resources - both tangible and intangible - are also covered under a significant number of international agreements that can be used to form the basis for a sui generis system. "Traditional resources" include plants, animals, and other material objects that may have sacred, ceremonial, heritage, or aesthetic qualities. "Property" for indigenous peoples and local communities frequently has intangible, spiritual manifestations, and, although worthy of protection, can belong to no human being. Indigenous and traditional communities are increasingly involved in market economies, and are seeing an ever-growing number of their resources traded in those markets. Even so, for many, privatisation or commoditisation of their resources is not only foreign, but incomprehensible or even unthinkable".19
International conventions have allowed intellectual property rights systems to be applied across borders. Two of the earliest of these agreements were the Berne Convention (covering copyright)20 and the Paris Convention (covering patents, industrial designs and trademarks)21. These international agreements for copyright and trademarks are administered by the World Intellectual Property Organisation.22
Some of the legal devices in western style intellectual property protection are:23
Copyright, as specified by the Berne Convention, provides two elements of protection for "literary works". The first element is the property right of economic control of the work. The second element is the "moral right"24 of the author to be acknowledged and for the work to be used appropriately.
Not absolutely everything is eligible for copyright. Copyright protects the expression of an idea rather than the idea itself. Some items that by their very nature are not eligible for copyright protection are:
Copyright applies automatically to new works (it is not possible to "register" an item for copyright under New Zealand law). Copyright has a limited duration, normally 50 to 75 years after the life of the author (depending on the country). After that time, anyone is free to copy the work. This means a great many of the works by and about Mäori that have been written in the 19th and early 20th century are no longer protected by copyright.
The Berne Convention places an obligation of reciprocity on its signatories, so copyright laws need to apply across borders. Nevertheless, many countries have weak protection for moral rights in comparison to the requirements of the Berne Convention. For example, the USA, which acceded to the Convention in 1988, has been reluctant to extend their copyright laws to provide better protection for moral rights.
It has been suggested that stronger moral rights "to allow Indigenous communities with the rights of cultural integrity and attribution"25 might be workable within the context of the Berne Convention. The Berne Convention was also suggested by one of the Kaitiaki Survey respondents for all submissions to the web site.
Patents are designed to give monopoly rights over "inventions" and new techniques. If a process already exists as part of normal practice, or is "obvious" (not requiring inventiveness) then a patent may not be granted. Patents are issued for a period of 15-20 years (depending on the country). Recent developments in patenting, including patenting of life forms which is discussed below.
Unlike copyrights and patents, trademarks have unlimited duration (but must be actively used, and renewed every few years). Trademarks give monopoly rights over names and logos, they are intended to protect the reputation of the producer. Trademarks must be distinctive, and they cannot be simply descriptive of the product, nor can they be a generic or "foreign" name for the product.
A recent application to trademark the famous haka "Ka mate. Ka mate." by Te Rauparaha will test applicability of trademarks to protecting Mäori cultural property.
Industrial design pertains to the appearance of an object and derives from the textile industry. To be protected, industrial designs must be registered, and the protection is only for a limited period.
Trade secrets are trade, production or manufacturing methods developed by an individual or company that are protected simply by the withholding or concealing specific and/or vital aspects of information. It is the secrecy that affords the protection, for example Colonel Saunders "herbs and spices" in KFC chicken. If a person suffers a loss because of a breach of confidence by someone with whom they shared confidential information, the person who suffered the loss may be able to bring an action for "breach of confidence". Trade secrets can be kept indefinitely.
Plant breeders rights have traditionally been protected by patenting of new varieties. As patent law was originally intended for industrial inventions, it does not apply well to plant breeding. The General Agreement on Tariffs and Trade (GATT), which New Zealand is a party to, required all signatory states to adopt new laws covering intellectual property in plants and micro-organisms within a few years of signing. This led to the Plant Varieties Act 1987.
Recently another property right, known as "geographical indications" has become accepted at an international level. The new provisions:
"establish[es] a system for protecting national and international geographical indications (that is, place names indicating the origin of goods, such as champagne)".26
Intellectual property laws and recent extensions to them are rationalised on the basis that they encourage innovation. It is suggested that people are more likely to invest time and effort into research and development if they are guaranteed the economic rights and benefits generated from the new knowledge.
During the 1990s, the cultural and intellectual property rights of indigenous peoples began to receive attention at an international level. At the 1st International Conference on Cultural and Intellectual Property Rights of Indigenous Peoples, in June 1993, indigenous representatives from around the world released the "Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples".27 The preamble to the declaration states:
"Declare that Indigenous Peoples of the world have the right to self determination and in exercising that right must be recognised as the exclusive owners of their cultural and intellectual property"
The Mataatua conference has been followed by regional UN conferences on indigenous peoples knowledge and intellectual property held in South America (1994), Sabah (1995) and Suva (1995).28 The statements on cultural and intellectual property from these conferences give essential background for understanding the international indigenous issues in cultural and intellectual property.
International agreements are significant as they place moral or legal obligations on those countries that sign them. The United Nations (UN), the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO) all have agreements or declarations related to intellectual property rights. Some of those agreements that directly affect indigenous peoples are discussed below.
The Draft Declaration was formally adopted by the UN Working Group on Indigenous Populations in July 1994. Article 29 which deals with cultural and intellectual property states:
"Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts."
The Convention on Biological Diversity was negotiated under the auspices of the United Nations Environment Programme (UNEP)30 and was ratified by New Zealand on 16 September 1993. The convention recognises the role of indigenous peoples in preserving biological diversity. In article 8. (j) signatories promise to "respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities" with respect to biological diversity.
The General Agreement on Tariffs and Trade Trade Related Aspects of Intellectual Property Rights (GATT-TRIPS) is now administered by the World Trade Organisation (and now called WTO-TRIPS).31 The goal of the agreement is to facilitate free trade by ensuring that intellectual property rights are protected throughout the world. Unfortunately, the agreement has no reference to indigenous peoples. In fact one observer notes:
"if GATT-TRIPS were adopted, the only IP in the world that would not be protected would be that of indigenous communities".32
Concern has also been expressed about the interaction of the TRIPS agreement and the Convention on Biological Diversity.33 This concern has led to a recent resolution by the UN Sub-commission on the Promotion and Protection of Human Rights:
"...charging that implementation of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization did not adequately respect human rights, including the right of everyone to enjoy the benefits of scientific progress, the right to health, the right to food, and the right to self-determination".34
Indigenous and traditional communities have been acknowledged as caretakers of much of the worlds biological diversity. Indigenous knowledge is based on traditions quite different from those of western science, but these traditions have effectively developed extensive knowledge of the food, medicinal and other values of biological resources in their territories. As the innovation takes place communally rather than individually, holistically rather than "scientifically" and sometimes over generations, western style intellectual property law does not recognise the rights of these communities to their knowledge. But western industry is beginning to realise the value of this knowledge and now some companies are actively seeking out indigenous and traditional knowledge in order to develop new products. This activity is sometimes called "bio-prospecting".
It has been estimated that the annual value of the industrial development of raw indigenous species for pharmaceutical use "could be as high as $47,000 million by the year 2000"35. While western companies benefit immensely from the knowledge and raw materials and often obtain intellectual property rights over the products developed, those traditional communities that provide the source information may receive very little in return.
Recent developments in genetic science have introduced new concerns. Genetically engineered organisms are made from the combination of genetic material from different organisms. As Aroha Mead stated in a recent seminar on the issue:
"My cultural framework simply does not enable me to regard as a good thing the manipulation of Ranginui and Papatuanukus offspring, my ancestors, to such a degree that the outcome bears little resemblance to the richness of their original form and purpose".36
Two alarming trends in genetic research are the collection of human genetic material and the patenting of life forms. In one recent case US researchers had collected genetic material from the Hagahai people whose first contact with the outside world was as recent as 1984. The researchers took out a US patent on one Hagahai individual. In this case, a global outcry led to the abandonment of this patent claim, but many patents have been taken out on animals, plants and people. For example US and German companies recently attempted to assert rights over a species of Kava.37
There is some belief that the Treaty of Waitangi goes some way towards ensuring the that the Crown protects Mäori cultural and intellectual property. Since the Te Reo Mäori Claim in 1995, it has been widely acknowledged that Mäori language is at least one of our cultural properties the Crown has a responsibility to protect. To what extent then does the Crown have a responsibility to protect other sources of cultural and intellectual property?
The Wai 262 claim concerning indigenous flora and fauna examines this very question. It objects to the exploitation of plant genotypes, sale and export of native species, extinction of rare and endangered species, sale of plant extracts and patenting of plant varieties. Among other things, the claim states:
The claim has been greatly extended to include aspects of cultural and intellectual property
Hearings on this claim commenced in September 1997.
It is increasingly clear that the commodification of intellectual property rights and the protection of such knowledge in accordance with western mores is not fully compatible with more traditional or indigenous stores of knowledge. Documents such as the Mataatua Declaration, the UN Draft Declaration on the Rights of Indigenous People and the Convention on Bio-diversity have all identified the necessity of protecting indigenous knowledge.
As yet, there is no single international convention or recognised legal proviso that satisfactorily protects and prevents the misappropriation of indigenous cultural and intellectual property. While there are a number of protection mechanisms available, (e.g. copyright, patent) none adequately cater for the corpus of indigenous knowledge that is often intergenerational, intangible (spiritual) and collective in nature.
Other ways to obtain protection for traditional and community based knowledge is through legislation (sui generis). Model provisions for new laws on the protection of folklore and community intellectual rights in respect of plant varieties are available on the Internet39 and could be used as a basis for development and networking at the international level. Law reform, while it is beyond the current brief of this project, may in time provide better definition and surety to the protection or Mäori Cultural and Intellectual Property Rights.
Attention will be paid to any significant developments that might arise from within New Zealands legislative or judicial arena. With the site adopting any positive directions from either arena should they arise.
It is clear that much of the work undertaken in developing Te Kete mö te Taiao is groundbreaking. This is particularly so in our work in finding and developing adequate protection methods for the cultural and intellectual property of kaitiaki users.
Two vital outcomes are apparent:
While there are no established models to follow, we have identified particular mechanisms by which kaitiaki Mäori may be able to protect their cultural and intellectual property. It is clear that mechanisms such as the GNU Public Licence, Trust Metrics and copyright statements will have direct applicability to the web site. The mechanisms, however, will need some modification and development.
Intellectual property rights laws as we know them today are comparatively new and still developing. It is considered, over time, a more effective regime for the protection of indigenous cultural and intellectual property may evolve through New Zealands law courts and through the development of the Internet. Such developments will, no doubt, contribute to Te Kete mö te Taiao and allow it to establish a more effective protection regime over the cultural and intellectual property belonging to its on-line community.
The project team for Te Kete mö te Taiao believes that (in the words of the http://users.ox.ac.uk/~wgtrr/RIO-DECL.htm)
"Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices".40
As such, it remains important that while the site itself provides the tools, it is the on-line community that determines their use, application and development.
Noho ora mai i roto i ö koutou käinga,
ko tätou nei te urupä o rätou mä kua wehe ki tua o te ärai.
This document received some carefully considered and often thought provoking comments from our peer reviewers. Overall, the response to the document was positive, so the main document has been left largely unmodified, while this appendix has been added to present some of their suggestions.
Robyn Kamira noted that her paper "An Ethical Framework for Cultural Issues" has since been superseded by The kidZnet Project: Guiding Cultural and Ethical Issues for Iwi. [Kamira 1999] This paper includes additional information after consultation with Te Arawa as well as the original concepts from Tainui consultation including:
Robyn suggests including a statement of copyright and intellectual property not only on the document but also on the website itself e.g.
The kidZnet Project: Guiding Cultural and Ethical Issues for Iwi
© 1999 Intellectual and cultural property rights apply to this document.
She suggests that the more you say it (i.e. this is my/our intellectual property etc even though it does not have full legal protection), then the more mainstream and accepted it becomes.
Ross Himona discussed the issues at some length noting that gate keeping of information by Maori has been a major barrier to Maori development. An essential prerequisite to Maori or Iwi development is that as much information as possible be made available to as many of the people as possible. Ross favours using technology to protect, rather than legal protection.
We need to be pragmatic and accept that perhaps full or even limited protection may never be achieved.
On the other hand techprotect is available now, and is also, in the case of the Internet, the subject of continual high-level development.
Ross suggests the report should move beyond mere "passwording" (of files, pages and directories) into the area of encryption, both weak and strong.
Ross agreed that a successful site is a busy site, needing regularly updated content, and interactivity with both visitors and contributors.
My experience is that this is only achieved by active long-term moderation and facilitation by committed people. Ross noted that the document did not make clear reference to how the site would use e-mail lists (which are intended to be part of the site). He suggests that at the very least there needs to be a monthly email newsletter, however brief, to an opt-in email list.
Alison Caves was also positive about the document particularly the approach to the copyright on the software (GNU Licence). She was about the potential for someone to change the website contents in a bad way or make the site inconsistent in format/layout etc. These issues are actually discussed in another document the Kaitiaki Web Site Design Document.
Alison also suggested adding a glossary of Maori terms, which is given in Appendix II.
| Mäori term | English Translation |
|---|---|
| ahi kä | occupation rights (literal translation: fires burning) |
| Kaitiaki | guardian |
| kawa | Protocol |
| manuhiri | Visitors |
| marae | meeting area of Mäori settlement (courtyard of meeting house) |
| Ranginui, Papatuanuku | Sky-father, Earth-mother spiritual ancestors of Mäori |
| tangata whenua | people of the land |
| taonga tuku iho | (bequeathed) treasures |
| tikanga | customs or traditions |
* © Copyright exists in this work in accordance with the Copyright Act 1994. However, the Crown authorises and grants a licence for the copying, adaptation and issuing of this work for any non-profit purpose. All applications for reproduction of this work for any other purpose should be made to the Ministry for the Environment.
1 The purpose of the project as identified in the Sustainable Management Fund contract brief (1999 - project 1017)
3 http://www.fsf.org/philosophy/free-sw.html
4 Te Kete mö te Taiao Research Report, unpublished report produced for the Ministry for the Environment by the Kaitiaki Web Site Project Team September 2000.
5 Smith, A 1997, Fishing with New Nets: Mäori Internet Information Resources and Implications of the Internet for Indigenous Peoples http://www.isoc.org/isoc/whatis/conferences/inet/97/proceedings/E1/E1_1.HTM
6 ibid 1997
7 Sullivan, R, New Developments in Mäori Resources and Intellectual Property Issues
8 NativeWeb Privacy Statement http://bbs.nativeweb.org/public/privacy.html
9 See for example: Kamira, R., An Ethical Framework for Cultural Issues http://www.know.govt.nz/integrated/files/kidznetc.pdf
10 mod_virgule is a software package by Raph Levian released under the GNU Public Licence. See: http://www.advogato.com
11 GNU Free Documentation Licence Version 1.1, March 2000, http://www.gnu.org/copyleft/
12 Guidelines based on http://dusd.k12.ca.us/email.html, for a comprehensive guide, try http://www.darkmountain.com/netiquette/index.shtml
13 Royal Advancement Foundation International Conserving Indigenous Knowledge Integrating Two Systems of Innovation p9.
14 Agreement on Trade-Related Aspects of Intellectual Property Rights - administered by the World Trade Organisation.
15 WTO Trade and Environment Committee Report, PRESS/TE010, 8 July 1996 Quoted in Mead, A. T. P. 1996, Cultural and Indigenous Property Rights of Indigenous Peoples of the Pacific
16 Opening address: WIPO Roundtable on Intellectual Property and Indigenous Peoples
17 Australian Institute of Aboriginal and Torres Strait Islander Studies, "Our Culture Our Future Proposals to Recognition and Protection of Indigenous Cultural and Intellectual Property" 1997 p25. Available at http://icip.lawnet.com.au/frontpage.html
18 Jackson, Moana, "Defining Intellectual Property: A Paper prepared for the World Indigenous Conference on Intellectual Property, Mataatua, Aotearoa/New Zealand", March 1992 quoted in: Soloman, Maui "Intellectual Property Speech Notes for Institute for International Research Conference Auckland, 24-25 February 1997"
19 What are Traditional Resource Rights http://users.ox.ac.uk/~wgtrr/trr.htm
20 The Berne Convention for the Protection of Literary and Artistic Works was originally made in 1886, then revised seven times before the most recent amendment in 1979. As at 1997 it has 121 member states, including New Zealand. See http://www.wipo.org/eng/general/copyright/bern.htm for the Convention text. According to this Convention intellectual property covers every production in the literary, scientific and artistic domain whatever the mode or form of expression, including databases and computer programmes.
21 The Paris Convention on the Protection of Industrial Property was orignally made in 1883 and has been revised several times since then.
22 http://www.wipo.org/eng/main.htm
23 See for example: Canadian Journal of Communication 21 (2) Intellectual Property, Moral Rights, and Trading Regimes: A Publishing Perspective http://cjc_online.ca/title.php3?page=9&journal_id=24&document=1
24 The term "moral right" is the description used in the Berne Convention on copyright for the right of authors to be acknowledged.
25 Australian Institute of Aboriginal and Torres Strait Islander Studies, "Our Culture Our Future Proposals to Recognition and Protection of Indigenous Cultural and Intellectual Property" 1997 p62. Available at http://icip.lawnet.com.au/frontpage.html
26 "Intellectual Property Law Reform Bill - Mäori Consultation Paper" ISBN 0-478-00138-0 Ministry of Commerce 1994 p 27
27 http://aotearoa.wellington.net.nz/imp/mata.htm
28 See: Declarations and Statements on Implementing TRR http://users.ox.ac.uk/~wgtrr/decin.htm for a detailed list.
32 Crucible Group 1994, People, Plants and Patents p65
33 See: The Nairobi Statement http://users.ox.ac.uk/~wgtrr/nair.htm
34 United Nations Press Release 18 August 2000 http://www.unhchr.ch/Huricane/Huricane.nsf/b4aec4dec540ceb680256601005b87bd/f2520871213486f8c1256942002d824c?OpenDocument
35 United Nations Development Project, Conserving Indigenous Knowledge Integrating Two Systems of Innovation
36 Mead, A. T. P., Cultural Heritage & Indigenous Issues (final draft text for inclusion in) Global Biodiversity Assessment: Cultural and Spiritual Values of Biodiversity. United Nations Environment Programme (UNEP)
37 See for example: Mead A. T. P., Resisting the Gene Raiders http://www.oneworld.org/ni/issue293/resisting.htm
38 Ministry Discussion Paper, 1994, p. 9; (as quoted on http://strategis.ic.gc.ca/SSG/ip00020e.html)
39 See for example: Unesco & WIPO 1985, Model Provisions For National Laws On The Protection Of Expressions Of Folklore Against Illicit Exploitation And Other Prejudicial Actions. http://users.ox.ac.uk/~wgtrr/modprovs.htm and, Third World Network 1994 Community and Intellectual Rights Act http://users.ox.ac.uk/~wgtrr/cira.htm
40 Rio Declaration on Environment and Development 1992, http://users.ox.ac.uk/~wgtrr/RIO-DECL.htm