Copyright (New Technologies and Performers rights) Amendment Bill; First Reading

Dr Pita Sharples; Co-leader, Maori Party

Wednesday 13 December 2006

The people of Te Atihaunui a Paparangi were left the words of their tupuna, Tinirau; Toi te kupu, toi te mana, toi te whenua.

The proverb stresses that these three taonga – language, prestige and land – are the main means of preserving Maoritanga. Without the Maori language, without prestige or mana, and without land, Maori culture will be a thing of the past.

In much the same way, the comprehensive protection of matauranga Maori is intimately linked to the notion of copyright.

We, the Maori Party, welcome the opportunity for Copyright reform to ensure that the critical issues associated with Maori traditional knowledge and intellectual property right are debated.

Thirteen years ago, Mataatua iwi and the National Maori Congress organised an international hui from which emerged the Mataatua Declaration on the Cultural and Intellectual Property rights of indigenous peoples.

The resultant declaration was tabled at the 1993 session of the UN Working Groups on Indigenous Populations – and has since been acknowledged in a key number of international documents produced by UNESCO, CBD and the World Intellectual Property Organisation (WIPO).

There were three key ideas included in the Mataatua Declaration:

indigenous cultural heritage is site and community specific;

2. the first and primary beneficiaries of indigenous cultural heritage are the direct descendants of that heritage;

3. indigenous peoples are willing to share with humanity their traditional knowledge, provided ethical processes, such as free and prior informed consent are protected; alongside their fundamental rights to define and control this knowledge.

Madam Speaker, the Mataatua Declaration also calls on states to develop in full co-operation with indigenous peoples, a sui generis system to protect cultural and intellectual property.

This concept of sui generis systems is a key principle that we will be looking keenly to our expert advisors, the people in the know, to bring their learning to bear at the select committee stage of this Bill.

The concept of literally being one of a kind is of course very familiar to tangata whenua when we consider it alongside our value of Whakapapa: genealogical descent, heredity, and lineage.

We understand the unique qualities of genealogy emerging from complexities of relationships and lineage, from the universe, through atua, to land, air, water, and people. The creativity, the creation of newness, of these networks sits well with how the concept of sui generis is used - to describe new ways of doing things.

Informed by this knowledge, we look with interest at the development in other nations of sui generis systems which have drawn on copyright principles to provide protection for traditional knowledge and cultural expression.

The Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture 2002, developed by the Secretariat of the Pacific Community, is an intellectual property-based sui generis system designed to provide new forms of protection not currently catered for within existing intellectual property laws.

And the exciting thing, Madam Speaker, is that this innovation, the introduction of a sui generis system within the Copyright reform, has actually already happened in other arenas.

Aotearoa has already introduced a sui generis measure in its Trade Marks Act 2002.

In addition to the standard components of trade mark law, there is a provision that enables the Commissioner of Trade Marks to refuse to register a trade mark if it is considered to be offensive to Maori.

This is considered to be a sui generis measure, a new and unique addition to the existing framework.

So it can be done, and wouldn’t it be a great thing if during the process of this Bill, we were able to follow this lead, and ensure that a new way of doing something could be followed up.

Madam Speaker, this Bill amends the Copyright Act 1994 to account for the opportunities and risks that digital technology presents for creators, owners and users of copyright materials.

These new technologies can be both a blessing and a burden. The burden of course accompanies the risks associated with commercial dealing of material which acts against owners rights.

At its very essence, copyright is about creators being recognised for their efforts.

I come to this Bill from a basis of over thirty years in leading, composing and orchestrating choreography for Te Roopu Manutaki Maori cultural group.

My passionate belief has always been that I want to share our works of art, to ensure our taonga tuku iho continue to thrive, and to revitalise our culture.

But I am constantly reminded, particularly in the context of Te Matatini, our national kapa haka competitions, of the significance of providing for intellectual and cultural property rights to ensure the long-term development of Maori Performance Arts is protected.

And so I think of the world of kapa haka - festivals, events, exhibitions, wananga, workshops, master classes, Maori performance arts in schools, the South Pacific Arts Festival, and international festivals and events – and how indigenous knowledge is protected across all these arenas.

There is an ongoing debate about who owns the copyright in all these areas – is it Te Matatini – or is it the artist? I know myself, that it has sometimes taken all of our efforts to get our compositions out of archives – after all who are we, only the author?

And this brings me to another point that I hope will be taken up at the select committee stage.

We seriously need to know the views of those at the coal face – or more appropriately – at the easel, on the floorboards – about their views on the context of copyright in relation to new technologies and performers rights.

The issue of performers’ rights gives us every reason to urge that tangata whenua be specifically invited to make their presence felt in this new legislation. Some in this House will recall that in 2003, Toi Mäori Aotearoa, at an annual hui for Mäori performers, raised issues about the performers rights review before cabinet.

Mäori performers described their concerns about collective ownership of performances and protection for the underlying cultural heritage that provides source material for a variety of performances. This is particularly so in relation to respecting the cultural integrity of works once they enter the public domain.

And so we can do no better than to turn to Maori Performers to assist the Parliament in clarifying the application of existing rights and exceptions for tangata whenua in the digital environment.

Finally, I recall the korero that came out of the National Digital Forum of November 2004 at Te Papa Tongarewa.

Dr Paul Reynolds raised the concept of a creative commons; a communal creative webspace – in which the protection of intellectual property maintains the copyright holders’ ability to grant certain rights to the public, while reserving others. I quite like this idea and would be interested in seeing how this applied in our digital future.

There was also specific reference to the exhibition, Ka Moe Ka Puta, which show-cased Ngati Kahungunu photographic archives. Unlike the temporary inhabitation of a physical space, an online exhibition has the advantage of creating an archive for the future.

But there were also problems associated with this type of exhibition being made available online - relating to intellectual property protections, in particular. Suggestions were made that a type of subscription or password entry, perhaps by whakapapa, could be included.

Other issues raised included the probability of precluding human interpretation in the de-contextualised atmosphere. In effect what this means, is that it prevents my kuia and kaumatua from walking alongside me, describing the wealth of whakapapa connections that link to an image.

These are all issues which we hope might be brought to the table when the Bill comes to the select committee.

Madam Speaker, the Maori Party will support this Bill and we look forward to a fertile discussion, in which we are all better informed about the means of protecting and preserving the mana and integrity of our language, our words, our world.

I leave with a final inspiration from the oriori of Tuteremoana which reminds us of the importance of protecting Maori knowledge.

Kotahi tonu te hiringa, i kake ai Tane ki Tikitiki o rangi ko te hiringa i te mahara

There was but one great power which enabled Tane to reach Tikitiki o rangi, it was the power of the mind.

ends

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