Paper short abstract:

IPRs should be consigned to a subsidiary role in protecting the interests of Māori. Sui generis legislation can be developed by identifying cultural elements that Māori wish to protect; drafting sui generis legislation from a Māori perspective; allowing IPR’s to co-exist with the new regime to provide parallel protection for Māori

Paper long abstract:

The intellectual property regime provides a problematic form of protection for indigenous peoples. Intellectual property rights (IPRs) are a Eurocentric construct increasingly important in protecting the European and United States entertainment and information technology industries. Even the primary justification for IPRs - the economic incentive theory - has little relevance for indigenous people. IPRs, which are essentially commercially oriented and protective of individual interests, are not well suited to protect the interests of peoples who may a non-commercial and community orientation.

In New Zealand, the debate has involved discussion of how IPRs can be used to satisfy Māori demands. Some progress has been made, as witness the safeguards under the Trade Marks Act. However, this paper proposes an alternative solution that would consign IPRs to a subsidiary role. It does, however, recognise the primacy of the rule of law.

(i) Identify elements in Māori culture that Māori wish to protect. This paper will report on the outcome of preliminary focus groups.

(ii) Develop sui generis legislation drafted from the perspective of Māori.

(iii) Allow IPR's to co-exist with the new sui generis regime to provide parallel protection for Māori.

The proposal mimics the protection recently given, with the overwhelming support of the Parliament, to the economic interests of overseas owners of events such as the Rugby World Cup. Such legislation is a model for similar sui generis legislation that could easily be enacted to protect Māori.