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Katene: Trade Marks Amendment Bill

Trade Marks (International Treaties and Enforcement) Amendment Bill - Third Reading
Rahui Katene, MP for Te Tai Tonga

Thursday 8 September 2011

The Maori Party is happy to support this Bill.

The consultation we have been able to do with those who have expertise and experience of the field of intellectual and cultural property suggest that there is low risk to this Bill, and worthy of our support.

The Bill establishes a mechanism to reduce the likelihood of New Zealand being used as a ‘go-between’ to avoid another State's privacy laws.

There are also provisions to ensure that personal data originating overseas and sent to New Zealand is subject to our privacy protection.

We believe that the commitment to the protection of personal data, not only domestically, but internationally would highlight to other governments that we take the protection of privacy seriously.

It has also been very positive that suggestions that came up through the select committee that have been taken into account. It reminds us and reinforces the view that good law, is law which is shaped by and responsive to the views of the public.

In this Bill for example, the Public Law committee of the New Zealand Law Society recommended adding a reference in the Bill to international agreements, guidelines or principals that are relevant to trans-border data flows. This would include incorporating the OECD guidelines directly into the Bill.

The recommendation was agreed to by the committee and the necessary amendments proposed. This is exactly how the legislative process should work and it reminds us of the importance of our parliament being seen to be a democracy.

The key issue for our discussion in reference to this Bill is around the importance of international relationships.

The aim of the Bill to accede to the Madrid Protocol relating to the Madrid Agreement means that basically we are establishing a context for considering a global trademark.

The opportunity to also accede to the Nice Agreement concerning the international classification of goods and services as well as to ratify the Singapore Treaty on the Law of Trademarks is one that we fully support.

We do so, because we see a global language, a relationship with other nations as an essential opportunity to build respect and understanding across the globe. And I have to say it is particularly timely on International Literacy Day that we are acting in a way which is consistent with our global counterparts.

It is extremely positive that this Parliament will be giving effect to commitments that are consistent with international practice.

It is from such a basis that we hope to establish trade relationships with other first nations peoples. The Bill may provide benefits to Māori business owners wanting to apply for trademarks, particularly if they are wanting to trade internationally.

We also see support for this Bill as totally consistent with acceptance of the United Nations Declaration on the Rights of Indigenous Peoples which we see as one of the hallmark successes of the Maori Party relationship with the Government in this term of Parliament.

Again, the timing is interesting. It was almost four years to the day, on 13th September 2007, that the Labour Government created such outrage amongst tangata whenua, in their opposition to the Declaration of the rights of indigenous people.

That one act – along with the infamous raids undertaken under the auspices of Operation 18 – the raids on Ruatoki – were certainly part of the context leading to Maori deserting the rank and file membership of the Labour Party.

It is a history that was brought home to us vividly yesterday, with the not surprising revelations that charges would be dropped due to evidence being inadmissible.

We must not allow these events to be forgotten.

Although we are of course pleased that in this term of Parliament, the Maori Party was able to convince the Government of the value of overturning the decision around the Declaration on the Rights of Indigenous Peoples, we must continue to be vigilant in ensuring that the strong and independent voice of Maori is carried across every piece of legislation.

We are disappointed therefore that the Mātaatua Declaration was overlooked in the evolution of the Bill.

We want to see Māori-specific indigenous knowledge and intellectual property protection legislation that gives due regard to the unique value of the indigenous brand.

What we are now calling for is a pro-active approach in supporting Māori intellectual property protections.

We want to support indigenous declarations on cultural and intellectual property, including the Mataatua Declaration, and their expression in domestic and international law.

Finally, I have to place on record how this House must acknowledge the inevitable refinement of policy that will occur following the Government’s response to Ko Aotearoa Tenei: Report of the Waitangi Tribunal into claims concerning law and policy affecting Māori culture and identity (Wai 262).

This report has been uppermost on all of our minds this week with the sad passing of the kuia who was one of the original claimants, Saana Murray.
The WAI 262 report described two categories of taonga related to cultural and intellectual property which trademarks reflect.

A taonga work is a creation of a pre-existing and distinctive body of knowledge, values and insights, known as mātauranga Māori.

A taonga-derived work is something that is inspired by mātauranga Māori but is not a taonga in itself. It does not reflect traditional narratives and has no spiritual significance. It may look like it contains elements of Māori design but has no connection to the ancestors. Examples of a taonga-derived work could be the koru on the tail of the Air New Zealand plane, similar commercial logo and motifs, purpose-written waiata for schools and workplaces.

WAI 262 called for new standards governing the use of taonga works and mātauranga Māori, with a mechanism that allows kaitiaki to object to offensive or derogatory use or commercial exploitation without consent.

They have also recommended the establishment of an expert commission established with specialists in Intellectual property law, commerce, science and stewardship, consisting of both Māori and Crown members.

They hear complaints and make decisions. People will come to the commission to apply to be a kaitiaki or to apply for a taonga work to be used. Taonga which are registered with this board are deemed out in the public, though artists do not have to register their taonga if they do not wish, their taonga can remain private.

Mr Speaker, I touch on some of these issues canvassed in WAI 262 – Ko Aotearoa Tenei – as I believe they will be highly relevant to the further implementation of this bill. At the every least there should be a qualifier which will enable legislators and policy makers with a reminder, to keep alert to the consequential changes that will be required to address the WAI 262 findings.

With these few comments in mind, we will support this Bill.


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