Thursday, 9th August, 2018

Navigating the conflict between intellectual property, copyright, and mātauranga Māori

Mātauranga Māori can be defined as ‘the knowledge, comprehension, or understanding of everything visible and invisible existing in the universe’, and is often used synonymously with wisdom.

Mātauranga Māori, and a framework for protecting mātauranga Māori, existed long before colonisation, yet since colonisation, intellectual property and copyright frameworks are the recognised regime under which we protect these important taonga (treasures).

With the burgeoning Māori economy, Māori have implemented and continue to introduce practical ways to address the ongoing conflict between our intellectual property regime, copyright, and the desire by Māori to ensure that our mātauranga Māori is preserved.

Below we provide some steps that you can take to assist in preserving mātauranga Māori.

Recognising that mātauranga Māori exists

In most instances, recognising mātauranga Māori is the first step.

We have seen many examples where the user has not recognised that a word, story, image, picture, etc. forms part of mātauranga Māori.

One recent well-known example is a New Zealand brewery selecting the names HINEMOA and TUTANEKAI as brand names for a range of beers. These names were selected because they were the names of streets in the area where the brewery was based.

However, the origins of these names were not researched. And if a little research had been done, then the New Zealand brewery would have found that these names are in fact the names of two well-known ancestors from a hapū (clan or descent group) based on the shores of Lake Rotorua, and those ancestors are closely associated with that hapū through a story that tells of the beginning of their courtship.

It was no surprise that when the range of beers was launched, the hapū objected to the use of their ancestors’ names in association with alcohol.

If some research had been done, and the New Zealand brewery had recognised that mātauranga Māori existed in those names, then steps may have been taken to avoid the objection from hapū.

Identify the kaitiaki of that mātauranga Māori

Once you recognise that mātauranga Māori exists, identify the kaitiaki (guardian) of the mātauranga Māori.

This is an important second step as different people will claim that they have the authority when they do not.

In the example given above, a quick Google search would have identified the true origins of the names HINEMOA and TUTANEKAI and kaitiaki of those names.

In some instances, identifying kaitiaki will be a little more difficult. But this does not mean that you should give up the search, or proceed anyway.

If you identify that mātauranga Māori exists, it is important to continue that search for kaitiaki until identified.

Claiming that your search was extensive and you could not identify kaitiaki is not a defence to an objection from kaitiaki.

Seek consent from kaitiaki

Once kaitiaki are identified, it is important to seek their consent, which may require a series of negotiations over a period of time.

There may also be many aspects that require approval and involvement of kaitiaki. For example, not only the story must be accurate, but the images too. Has approval been obtained for all aspects?

Commencing use of any mātauranga Māori without consent to each aspect of mātauranga Māori from kaitiaki is fraught with risk.

Recognise that kaitiaki rights are ongoing

If, at any point, you change the format of your use of mātauranga Māori, then it is important to update the consent from kaitiaki to any revisions or changes you make.

You should also be aware that consent can be withdrawn, and so seeking consent as changes are made will only enhance your relationship with kaitiaki.

Preserving mātauranga Māori

Until our intellectual property laws are updated to recognise and protect mātauranga Māori, the above steps will go a long way to preserving mātauranga Māori by ensuring that our stories are told accurately, in consultation with and with approval from kaitiaki.