This paper discusses the inception of intellectual property (IP) and its associated features. The concept of Intellectual property emerged after the foundation of the “World Intellectual Property Organization” (WIPO) in 1967. There is increase use of this term by diverse groups seeking to safeguard their intellectual knowledge and cultural heritage.
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This paper also examines the recent “Wai 262 claim before the Waitangi tribunal” in order to identify the issues at stake (Waitangi Tribunal 2011). Furthermore, it presents the advantages and shortcomings of using Intellectual property model in protecting local people’s traditions and knowledge. Additionally, it presents the possible alternatives to the language of intellectual property. These discussions focus on New Zealand and the citizen’s relation with Maori people due to their cultural distinctiveness.
The Wai 262 claim before the Emergence of Waitangi Tribunal
The Waitangi Tribunal recorded the claims on 262 occasions. This gave rise to the name Wai 262 claim. The preliminary recording took place on 9 October 1991 and the petitioners included six people. This is in addition to the iwi who were complaining against the New Zealand Crown (Waitangi Tribunal 2011).
The claim was referred to as the living things claim because of the underlying issues. Furthermore, it had extensive coverage of additional issues regarding civilizing and intellectual property. The claimants recognized the existence of the New Zealand decrees and the government rules but questioned the place of Maori people’s customs, distinctiveness, and customary knowledge within the setting (Waitangi Tribunal 2011).
Furthermore, the claimants wanted to know the entities that would manage Maori cultural art and the unique surrounding that created Maori identity. The claim was also concerned with questioning the place of Maori cultural importance in New Zealand, especially the responsibility of the natives towards guarding their culture (Waitangi Tribunal 2011).
Further, claimants wanted to know the responsibility of the natives in caring for the valuable cultural materials that determined their identity, including artwork, historic sites, vegetation, and animals.
Issues at Stake in the Wai 262 Claim
The petitioners argued that certain legislations enacted by the government contravened the Waitangi Treaty. This diminished chances for Maori to implement their political right basing on indigenous knowledge and environment. Further, it also limits their rights regarding traditional knowledge and intellectual property (Zogfaros 2010, pg. 66).
They argued that foreign powers affected the Maori through legal guidelines, which were contrary to the Waitangi Treaty provisions. These issues were evident in the decision-making process that influenced commercialization, management, and conservation of diverse ecological resources.
Issues entailing the integration of the Maori people in the determination of cultural rights in the application of the original environmental endowments were evident (Zogfaros 2010, pg. 67). Further, the Maori required opportunities to conserve, improve, and transmit the indigenous knowledge systems (IKS) basing on environmental materials (WIPO 2011, pg. 8).
There was an issue concerning the right to ecological sustainability that was possible through sustainable use of customary resources. The Maori also needed to participate and achieve benefits basing on contributing opinions on the application, improvement, and trade of indigenous environmental endowments (Zogfaros 2010, pg. 67).
There were also concerns about the associations that existed between Maori and the Crown. Furthermore, the significance of improving the relations in the presence of emerging regulations was at stake. Discrimination basing on racial relations also existed between the Crown and Maori because of the native’s cultural identity (Waitangi Tribunal 2011).
This necessitated the search for ways of resolving historical conflicts that emerged because of the way that the New Zealanders handled the Maori. This resulted in relationships that awarded governance rights to the Crown over Maori cultural pieces while the natives held their power (Waitangi Tribunal 2011).
The Maori also noted that enacted decrees marginalized them against exercising full management rights over their primary resources. There was also an ongoing unlawful exploitation of Maori intellectual property and related resources.
The emergence of Intellectual Property (IP) coincided with the founding of WIPO in 1967. IP concept gained escalated application over the recent years in protecting people from losing their original creations. According to the “New Zealand Ministry of Economic Development”, IP means a nonspecific term for the variety of property privileges that safeguard knowledge (MED 2008).
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WIPO argues that IP entails original creations that emerge from people’s minds including “inventions, literary and artistic works, symbols, names, images, and designs”, which are used in trade (WIPO 2011). Furthermore, IP differs in two classes, including industrialized property together with copyright.
The industrial property includes “patents, trademarks, and industrial designs” (WIPO 2011). Copyright property includes literary, creative materials and drawings. The cultural expressions that fall under fictional and creative works include novels, poems, plays, films, musical works, and artistic works that entail drawings, paintings, photographs, monuments, among others.
Intellectual property rights (IPRs) include the privileges that people who invent or create new things enjoy because of the protection they receive. These rights offer control over diverse processes that may be used by other entities (MED 2008). However, such privileges last for a short period.
The privileges and rights are defended by the idea that creators and inventors of ought to profit from their activities. Further, the owners of such property receive incentives for generating ideas or property that would have not taken off (MED 2008). The benefits that emerge because of inventions compensate for the costs incurred by societies.
Intellectual property is linked to the affairs of the indigenous people. This is because of their cultural, knowledge and environmental resource endowments, which generate specific intellectual property characteristics. WIPO differentiates these aspects of IP regarding indigenous people according to traditional cultural expressions (TCEs) and TK (WIPO 2007, pg. 7).
These are differentiated according to their relations with IP among native communities. It is noteworthy that indigenous people have diverse TCEs that are protected as their IP. These TCEs includes productions that contain characteristic essentials of the cultural inventions developed and preserved by indigenous communities (WIPO 2007, pg. 8).
The cultural expressions occur in diverse forms, including verbal, musical, and activities, among others. The inventive heritage of indigenous people has substantial social, belief, and cultural functions. Furthermore, they are also exploitable for commercial functions.
Native people also have diverse knowledge systems collectively named TK. These include knowledge regarding customary methodological know-how, conventional environmental resources, scientific or health understanding (WIPO 2007, pg. 6). These knowledge systems can also be linked with TCEs.
This is because some conventional pieces that symbolize TK can also refer to inventive expressions. This uniqueness makes different groups of indigenous people argue that TK and TCEs are indivisible (WIPO 2007, pg. 7).
Furthermore, IP advocates require rule-makers to recognize the inseparability of TK and TCEs basing on their significance to different aspects of indigenous peoples livelihoods and cultural identity. The economic importance of indigenous people awareness and TCEs cause their exploitation by third parties. In some scenarios, these exploitations occur unlawfully, thereby necessitating their protection as IP.
IP in Relation to Indigenous Peoples using the Waitangi 262 Claim
Maori who is indigenous people of the New Zealand advanced the Wai 262 claim. It contained concerns regarding IP of their green resources, including living things. Furthermore, it also concerned seeking responsibility for the management of Maori TK that entails arts, sculpture, history, verbal expressions, music, and traditional healing systems and surroundings management.
Collectively, these were named taonga because their continuation and improvement signified continued Maori uniqueness and well-being. According to Waitangi Tribunal (2011), Maori IP included their TK and aspects of culture that signified their identity. The continued undermining of Maori by the New Zealand Crown necessitated their claim actions that were necessary for safeguarding and maintaining their IP.
The inappropriateness of the IPRs that protected Maori conventional knowledge and cultural wealth marginalised the natives from their indigenous property. Furthermore, the idea that IP offers owners privileges to determine the use of their materials and Maori was not available in this provision (Waitangi Tribunal 2011).
They had complications in gaining IPRs that would facilitate their interest in preserving or economically exploiting their conventional knowledge. This is because the existing rights had inconsistencies with the native’s property (WIPO 2007, pg. 7).
The native’s interest included preserving their property against third-party exploitations while rights limited the period and provisions for public disclosure (Zogfaros 2010, pg. 67). The requirements that include originality and recognition of certain individuals or companies as inventors limit Maori’s protection since it culminates in marginalization.
The claimants noted that the rights are unfavorable to indigenous people’s traditional information, cultural materials, and green endowments. This means that third parties can obtain rights regarding certain inventions. This means they can apply them commercialisation processes (Zogfaros 2010, pg. 67).
Furthermore, certain rights eventually result into successful trade activities, but the claimants recognised that they might not benefit because of inadequate sharing. The claim called for the patenting of diverse fauna and petitioning unlawful registering of brands using Maori pictures or writings. Intellectual property is a form of legislation and the New Zealand’s enactments together with other global requirements affected Maori rights (Zogfaros 2010, pg. 67).
Advantages of using the Language of IP for the Protection of Indigenous Knowledge and Culture
The recognition that indigenous people’s customary and cultural wealth is significant for their livelihoods and identity necessitates protection of these aspects (WIPO 2007, pg. 13). This is because the protection avoids their erosion and ensures that indigenous people continuously enjoy their endowments (Waitangi Tribunal 2011).
Furthermore, it enables owners of inventions to benefit economically and preserve native’s cultural materials and ideas. The monetary benefits occur when owners apply their inventions in generating commercial outcomes or through sharing gains (WIPO 2007, pg. 8). Cultural resources and ecological materials generate financial development through enterprises creations, skills development, and tourism expansion.
Safeguarding IP also facilitates continuity of cultural wealth and environmental endowments. This leads to escalated information access and safety. Further, IP protection ensures that future generations appreciate aspects of their preserved culture (Zogfaros, 2010, pg. 69). It enables native people to utilize their knowledge systems in encouraging sustainable exploitation of their cultural expressions and ecological endowments.
Disadvantages of using the Language of IP for the Protection of Indigenous Knowledge and Culture
Using intellectual property for the conservation gives rise to inconsistencies regarding ownership and exploitation tactics for such endowments. Additionally, it does not offer genuine solutions to the predicaments faced by indigenous people in protecting their wealth (Zogfaros 2010, pg. 67).
Further, the related concepts also affect the preservation and improvement of cultural and environmental materials among some native groups. It rarely facilitates maintenance of indigenous people’s valuable materials under conflicting legislation and customary awareness systems.
Furthermore, inadequacy of distributing benefits poses disadvantages to inventors of original materials or indigenous groups. The idea of collectively referring to aspects of native and ecological materials as intellectual property interferes with their safety. This is evident in the holistic nature of this group. Evidently, within such collections, certain beneficial aspect is not preserved (Waitangi Tribunal 2011). The ineffectiveness of enforcing legislation is disadvantageous to minor individuals or indigenous groups.
Incorrectness of IP
Joining diverse aspects of culture that are related and referring to them as intellectual property is erroneous. Instead, single cultural and ecological aspects ought to be labeled as distinct issues. Lumping “trademark, copyright, and patent” laws and referring to them as IP also displays incorrectness (Stallman 2011). This is because these laws emerged disjointedly, advanced differently, possess diverse provisions, and are concerned with separate public policy matters.
The use of intellectual property generates different meaning in separate situations (Stallman 2011). This is because specialists in these knowledge areas understand the varied dynamics.
The use of intellectual property also lies about key issues regarding inventions. Furthermore, the concept instills distorted thinking’s among people making them focus on harmony other than specific guidelines (Stallman 2011). IP also causes issues generated according to understanding of different laws to disappear. This is because people tend to disregard issues that are fundamental to different laws.
Alternatives of IP
The notable alternative to Intellectual property is evident when indigenous people initiate new property models and reject the current provisions and designs (Stallman 2011). The efficiency likely to arise from this tactic is evident in diminishing bio-colonization by civilized societies.
The inconsistencies regarding intellectual property, culture and related aspects make it difficult for indigenous people to preserve their resources (Zogfaros 2010, p67). The alternative to this situation would entail endorsing parallel worldviews that facilitate continuation, improvement, and transfer of these knowledge systems to emerging generations.
Furthermore, achieving political independence can also free indigenous people from disguised protection through intellectual property (Stallman 2011). The exploitative intellectual property should embrace processes that enable them to protect native people from abuse.
In summary, intellectual property is use in protecting inventive people from third parties interested in exploiting their creations. The concept also protects indigenous community’s cultural identity through preserving their values, customary expressions, and ecological endowments. Maori marginalization by New Zealand Crown in the control of environmental resources, customary knowledge, and cultural expressions contributed to claims.
The Wai 262 claim focused on resolving these issues basing on the IP legislation that New Zealand had enacted. Application of IP in the preservation of the traditional understanding and cultural aspects exude different advantages and shortcomings. Furthermore, intellectual property is an incorrect term because it lumps diverse society’s innovations and refers to them as IP. This presents challenges in the protecting communities’ traditional understanding and cultural identity materials.
List of References
MED 2008, What is Intellectual Property. Web.
Stallman, R. 2011, Did you say ‘intellectual property”? It is a seductive mirage. Web.
Waitangi Tribunal 2011, Time to Move beyond Grievance in Treaty Relationship Tribunal Says, Web.
WIPO 2007, Intellectual Property and Traditional Cultural Expressions/Folklore, Web.
WIPO 2007, Intellectual Property and TK. Web.
WIPO 2011, What is Intellectual Property. Web.
Zogfaros, D. 2010, Intellectual property, and traditional cultural expression, Cheltenham:Edward Elgar Publishing.