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Brief Counsel

Can you own the haka?

19 November 2010

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Perhaps nothing speaks to our national identity more than the sight and sound of the All Blacks performing Ka Mate before pasting the Boks or the French. 

But can a single person or organisation own the haka to the exclusion of others?  The question pitches intellectual property law against the cultural rights and expectations of all New Zealanders. 

This Brief Counsel puts the legal issues in context. 

Background

From 1998 to 2006, the mandated authority for Ngāti Toa, Te Runānga O Toa Rangatira Inc, ran an unsuccessful bid to win trade mark registration for the entire words of the Ka Mate haka.  That application failed because the New Zealand Intellectual Property Office (IPONZ) held that the words were in the public domain and could not be monopolised as no one particular organisation could be identified as the trade source of goods or services promoted in conjunction with this haka.  And that’s the legal test. 
If you want to trade mark words, colours, images, sounds or smells, you have to demonstrate to IPONZ that what you say is a “brand” is capable of distinguishing your activities from those of others.  IPONZ draws the line at things that should be free for everyone to use in the course of their business. 
But back to Ka Mate.  While knocked over at first, the Runanga tried again this year and has now won acceptance from IPONZ for “KA MATE” and a logo featuring those iconic words.  We understand that the New Zealand Rugby Football Union and another trading company have opposed the IPONZ decision in proceedings pending before the Commissioner of Trade Marks.

What do we think?  We’re torn. 

Te Rauparaha’s Ka Mate haka celebrates life over death; this haka is fundamentally important to Ngāti Toa who understandably believe it deserves protection.  For many people, though, Ka Mate forms part of New Zealand’s cultural identity and should not be locked away with its use policed by lawyers and their aggressive cease and desist letters.
For our part, we are surprised IPONZ accepted KA MATE for registration.  From a trade mark perspective it’s like the words “kiwi” or “Aotearoa”, or the shape of the New Zealand coast line: words and images which no one can own. 
We believe in a vibrant public domain where cultural experience and expression is built by New Zealanders for New Zealanders. 
On the other hand, we are proud that New Zealand law must protect Māori traditional custom in the spirit of partnership delineated by Te Tiriti o Waitangi which binds the Crown.  When it comes to that protection, the Trade Marks Act can help.  But the trade mark registration process is no use if words like “Ka Mate” have fallen into the public domain. 
Copyright can help too.  Copyright protects artistic work like tā moko and the words of new haka like Kapa o Pango.  Copyright also protects the performance and communication of dance and other work in and to the public.  But copyright has its limits.  While it lasts for the life of the author plus 50 years, a lot of cultural property is much older than that.  And copyright protection requires identification of a precise author: easy with a book; hard with a haka or story developed over generations.  

Do we need to change the law? 

In the end, the law finds it hard to fit the square peg of cultural rights in the round hole of intellectual property protection. 

That difficulty makes it important to ask whether or not New Zealand needs a specific regime for the protection of Māori cultural property; a “cultural property register”?  We could do that, but it would be risky. 

Whenever the law creates new forms of property, there are winners and losers.  We would worry that cultural property rights would unacceptably foreclose the public domain.  While the status quo isn’t perfect, it strikes a manageable balance.  With the right advice, distinctive cultural property should be protectable under New Zealand law but there will be grey areas where IPONZ and the Courts will have to make judgement calls about what belongs to individuals and what belongs to us all.

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