Indigenous Knowledge June 2011 Update on WIPO and SA

Indigenous Knowledge - recap Traditional Knowledge (TK) and Genetic Resources ◦ Patents Traditional Cultural Expressions (TCEs) ◦ Trademarks, Copyright and Designs Issues: ◦ Definitions ◦ Ownership/Beneficiaries ◦ Basis of copyright

WIPO – recent developments Final draft treaty stage – working doc Intergovernmental Committee - last meeting in May 2011 Next meeting – July Followed by WIPO Assembly – Sept 2011 ◦ To decide if there’re grounds for an international instrument. If so: diplomatic Assembly will be called thereafter

WIPO - Issues Ownership Definitions of terms Issue of beneficiaries – State (as called for by India and Barbados) versus local communities ◦ Iran – calling for families and individuals to be added to list of beneficiaries

South Africa – recent developments Recap: Bill: seeks to protect Traditional Cultural Expressions by amending existing Copyright Act Bill issued (4 yrs ago)  NEDLAC (2008/9)  parl hearings (Oct 2010)  response by DTI to hearings (May 2011)

South Africa - Issues ◦ Removal of regulation clause...BUT launch of Copyright Review Commission ◦ Creation of traditional works by way of recognition (uncertainty for publishers and authors) ◦ Definitions still unclear ◦ Sui generis approach (as is being used in WIPO and as called for by stakeholders in the parl. hearings) has been disregarded

Example M ā ori Ka Mate haka Te Rauparaha, alleged composer of Ka Mate. Between 1998 and 2006, the Ngati Toa iwi attempted to protect the Ka Mate haka and to forbid its use by commercial organisations without their permission. The Intellectual Property Office of New Zealand turned their claim down in 2006, since Ka Mate had achieved wide recognition in New Zealand and abroad as representing New Zealand as a whole and not a particular trader. In 2009, as a part of a wider settlement of grievances, the New Zealand government agreed to: "...record the authorship and significance of the haka Ka Mate to Ng ā ti Toa and... work with Ng ā ti Toa to address their concerns with the haka... [but] does not expect that redress will result in royalties for the use of Ka Mate or provide Ng ā ti Toa with a veto on the performance of Ka Mate...". However a survey of nineteenth century New Zealand newspapers found Ka Mate was used by communities from other parts of New Zealand, and was generally described by them as being an ancient peacekeeping song, from eras long before its appropriation by the Ngati Toa chief Te Rauparaha. When Ngati Toa authorities were asked for evidence that Ka Mate was of Ngati Toa authorship, they were unable to provide any.