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Author: Jessica C Lai, Professor of Commercial Law, Te Herenga Waka — Victoria University of Wellington
Original article: https://theconversation.com/a-new-treaty-could-prevent-some-misappropriation-of-maori-and-indigenous-design-and-shouldnt-be-ignored-245025
From patents relating to mānuka, fake Māori souvenirs being sold in Aotearoa New Zealand, or the use of Māori designs on bedspreads sold online, the misappropriation and commercialisation of indigenous knowledge and culture has long been a problem.
But two new treaties, adopted in 2024 by member states of the World Intellectual Property Organization (WIPO), include provisions to address some interests of Indigenous peoples.
The Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRT) relates to patents and received widespread coverage in the media when it was adopted in May.
The Riyadh Design Law Treaty (DLT), which relates to design rights, was adopted in November.
Patents versus design rights
Compared to the fanfare that followed the adoption of the GRT, the DLT has flown largely under the radar.
This is possibly because patents generally get more attention than design rights. Patents protect things like pharmaceuticals and vaccines, and directly affect people’s access to them.
Design rights usually only protect the way something looks, but not the thing itself.
Furthermore, the purpose of the DLT is to create consistency in processes and procedures around applying for design rights in different jurisdictions. This is not “sexy”.
In fact, the GRT is also purely procedural. Both treaties are about disclosures that applicants must make, which will then be used to determine if an invention is novel or inventive, or a design is new or original.
What do the treaties do?
Hailed as “protecting” Indigenous peoples’ rights, the GRT introduces a “disclosure of origin” requirement to patent law.
Contracting parties are to require patent applicants to disclose the country of origin or source of genetic resources and related traditional knowledge that their invention is based on.
This is supposed to deal with “biopiracy” – when researchers or research organisations take and use biological resources from less wealthy countries or marginalised peoples, without the free and prior informed consent of the source community. Biopiracy has become an issue both globally and in Aotearoa New Zealand.
Despite how it has been framed, the GRT does not actively protect Indigenous peoples’ rights.
Instead, it defensively prevents others from patenting Indigenous peoples’ genetic resources and associated knowledge – but this shouldn’t be happening anyway.
The GRT represents a watered-down agreement that was “palatable” to developed nations with strong patent interests. Member states such as the United States, United Kingdom and Switzerland, opposed stronger disclosure of origin requirements on the basis it would hinder innovation.
Similarly, compromise was also made to achieve a comparable provision in the DLT.
The DLT states that contracting parties may require that applicants for design rights disclose “information on traditional cultural expressions and traditional knowledge, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design”.
If implemented, this could potentially prevent the registration of designs that are not new or original in relation to mātauranga Māori (Māori knowledge), or of designs considered to be contrary to morality due to te ao Māori (Māori worldview).
The two disclosure requirements are similar, though the GRT mandates a disclosure requirement, whereas the DLT permits it.
But while the official record shows there were six New Zealand delegates registered for the final negotiations of the GRT, New Zealand did not register anyone for the final negotiations of the DLT.
Missed opportunities?
A further likely explanation for the tense negotiations of the GRT (compared to the adoption of the DLT) is that patents are considered to be the most powerful and valuable form of intellectual property.
Patents are seen as being about invention, innovation and industry. Patents contribute to GDP and economies, and are seen as “must haves”.
Designs are seen differently, as evidenced by WIPO’s announcement of the adoption of the DLT. WIPO Director General Daren Tang described the treaty as being about
designs and designers and the gift they have in using color, form, shape, beauty and aesthetics to delight our senses, enrich our lives, promote our heritage and transform our culture.
Designs are considered to be only about appearance. Designs are associated with luxury. They are viewed as being about the “nice to haves”.
Perhaps this differentiation sounds convincing. But the vast majority of patents are never commercialised. At the same time, it is not difficult to think of commercially valuable designs, from Eames chairs to Crocs.
In some jurisdictions, design rights can protect digital designs, including graphical user interfaces.
So, while the GRT was widely lauded as a way forward, a disclosure requirement in design law could also prevent aspects of cultural misappropriation. As design rights are increasing in importance, they should not be ignored.
Many thanks to Sarah Barclay for her thoughts on an earlier version of this piece.