Copyright (New Technologies and Performers’ Rights) Amendment Bill; 23 October 2007; Second Reading
Dr Pita Sharples, Co-leader of the Maori Party

I was looking over a review, written in 1973, of the classic recording of the Ma Wai Hakona Maori Association, Songs of Maori heroes.

The review, written by Alan Armstrong, was effusive in its praise of this album, describing it as one of the most important recordings of Maori music to be issued for some years.

But the reviewer was far less pleased with the fact that all the original items were labelled, ‘copyright’. As he said, and I quote:

“Such a move would be unprecedented amongst Maori groups and would certainly have tarnished Ma-wai in the minds of many. The free circulation, use and even adaptation of the works of others has always been a feature of most Maori music and composition”.

These are strong words indeed – and provide a dramatic contrast to our current performance climate in which Maori performers are passionate about the need to protect the cultural heritage which provides a source of material for performance.

That 1973 album is also interesting in laying the foundation for developments we see reflected in this Bill, the Copyright (New Technologies and Performers’ Rights) Bill.

One of the track on the album was a canoe poi, Hoea Ra, penned by Hera Dovey Katene-Horvath. Ngati Toa kuia, Aunty Dovey, was a stalwart member of Ngati Poneke, resident composer for the Ma Wai Hakona Club, and the Patron of the the Maori Chorale.

That poi has an honourable history of its own. Aunty Dovey wrote the poi in the times of mass outrage over the loss of Maori land. The poi was performed en masse at Waitangi in 1974, and appealed to everyone to keep paddling through the turbulent waters of injustice, in order to one day achieve peace.

But Hoea Ra was also known for becoming the source for a 1975 Rolf Harris hit, We’re the Maoris – in his ‘She’ll be Right’ album.

And in that hit, the copyright was attributed to Ma Wai Hakona – ensuring that the club earned due recognition and monetary return for the use – or misuse – that the Australian entertainer made from the original composition, Hoea ra.

Trust Copyright? Sure Can.

Mr Speaker, I have chosen to bring this story to the House, because I believe it indicates the history that Maori performers have, of respecting the cultural integrity of works once they enter the public domain.

Just as Ma Wai Hakona stood up for collective cultural rights over thirty years ago, Toi Maori Aotearoa has consistently promoted the concerns that Maori performers have about retaining collective ownership of Maori cultural knowledge and intellectual property.

Toi Maori Aotearoa represents ten national artform committees and argues for the need for widespread discussion about the rights provided to performers in legislation.

These rights stand to be threatened by the ongoing risk of piracy and unauthorised digital downloading.

The International Federation of phonographic Industries reports that twenty billion tracks were downloaded in 2005 alone. It is an attack on cultural integrity which jeopardises the security of the recording industry, musicians and songwriters alike.

This Bill is intended to address the risks that come with digital technology, by clarifying how copyright exists in a digital environment.

The New Zealand Society of Authors submission outlined that it is imperative that the move to digitisation must not exacerbate an already complex situation. They remind us all that an author’s copyright material may be all that he or she has to earn an income from, and there must be sufficient protection in place to protect the material from unauthorised copying.

The environment in which new technologies sit, is a completely different world to the one of 1973 - and only adds to the intensity of the fight that Māori publishers, performers, artists, creators, owners, users have in seeking protection of mātauranga Māori.

But there is one key point of commonality between the 1973 fight and the 2007 legislation - this is the call for collective rights to be preserved and protected as the cultural property rights that have been created over generations.

Te Rōpū Whakahau, the professional association of Māori who work in libraries, archives and information services explain this view, and I quote:

“We contend that there is a need to develop a category of collective ongoing and enduring rights that will ensure that Māori retain the right to control the appropriate expression and transmission of our cultural heritage.

This control is one that can’t be invested in an individual and protected by conventional intellectual property mechanisms such as copyright”.

What Te Rōpū Whakahau are saying, and indeed, many Māori performers, is that comprehensive protection of Mātauranga Māori requires unique measures, measures which could well result from the WAI 262 rulings.

It is widely hoped that the Tribunal’s conclusions on WAI 262 will advocate for a package of measures such as sui generic systems, customary law, intellectual property laws, preservation initiatives - in effect new systems to protect Māori knowledge.

WAI 262 seeks recognition of the rights of indigenous peoples to their own control and decision making over taonga. The goal is to ensure the integrity of Māori culture is retained and treasured.

We in the Māori Party commend the intention of the Bill in balancing protection with access for users to cultural property, including indigenous knowledge and culture.

But alongside our disappointment with the omission of any mention of collective cultural property rights, we are also concerned that the Bill does not appear to comply with international law and practice in three clear forms.

We note the concerns of the Recording Industry Association of New Zealand and Independent Music NZ that this Bill is out of step with copyright developments in other territories, particularly Australia, the United Kingdom, United States and the European Union.

Their concerns are that the 1996 World Intellectual Property Organisation Treaties established specific measures too give legal protection against circumvention - procedures which they suggest this Bill falls well short on.

It is their considered opinion that the failure to exclude circumvention devices clearly covered by the laws of other nations, could, in effect, make New Zealand a haven for the manufacture and sale of circumvention devices that are prohibited in other countries.

They also draw attention to the creation of a whole new category of work - a communication work - which sets up a new status for any person who communicates a work - such as in a sound recording or a film. A new category is dreamt up with rights that clearly conflict with the rights of the creators of works - as well as clashing with international treaty obligations.

The third limitation in relation to the protection of cultural and intellectual property is particularly relevant toindigenous knowledge. There is no reference in the Bill to the international context of cultural restoration and the nurturing and protection of traditional knowledge.

A strong comparative could be found in looking at the experiences of the Saami of Norway, Sweden, Finland and Russia. These states have established a reproduction rights organisation which is set up and governed by indigenous peoples, to represent the interests of Saami culture. It is a model we could have emulated.

Another example could be found in the Pacific Model Law for the Protection of Traditional knowledge and Expressions of Culture or indeed as I mentioned at the first reading of this Bill, the Mataatua Declaration which sets in place a framework for protecting, controlling and valuing indigenous cultural heritage.

Mr Speaker, Māori concerns around the treatment of cultural objects in the electronic environment are basically focused around the fear of the loss of control of information when it is digitized.

In the days that Aunty Dovey’s lyrics were transformed into a Rolf Harris song, the ownership of the original poi was firmly retained with the writer, Dovey Katene. But in an electronic environment, the risks of retaining any cultural property right is greatly threatened by the increase in availability. Once an item is digitized and placed on the net access is no longer controlled, cultural safety is no longer guaranteed.

Mr Speaker, there are too many risks and dangers inherent in this legislation for us to do anything but vote against it.

ENDS

© Scoop Media