Does the haka Bill go too far?

by Mackenzie McCarty19 Mar 2014
A Bill providing legal recognition and protection for the haka Ka Mate is ready for its final reading, with provisions likely to affect anyone who uses Ka Mate for commercial purposes and does not have an agreement with Ngāti Toa.

Baldwins Intellectual Property lawyer, Thomas Huthwaite, says the The Haka Ka Mate Attribution Bill is about providing due recognition to haka Ka Mate composer, Te Rauparaha, as well as ensuring that the haka is utilised appropriately.

“It’s simply [about] recognition,” says Huthwaite. “Under the law, there’s no requirement for financial payment. That said, anyone’s open to some sort of commercial agreement or negotiation with Ngāti Toa. That was always, I understand, the preferred stance. If someone wants to use it, they negotiate and they reach some sort of agreement about the form of use, because what they’re mostly concerned about from my perspective is that it’s used appropriately and that there’s appropriate cultural acknowledgement.”

Between 1998 and 2006, Ngāti Toa attempted to trademark Ka Mate to prevent its use by commercial organisations without their permission – a case Baldwins was involved in – but in 2006 the Intellectual Property Office turned down their claim on the grounds that Ka Mate had achieved wide recognition in New Zealand and abroad as representing New Zealand as a whole and not a particular trader.

Yet, Huthwaite believes the new Bill, which he says is the first legislation of its kind in New Zealand, raises a series of questions surrounding copyright laws and indigenous performance art.

“Typically in IP, what we’d look to is copyright law and we’d [ask] whether it was it an original creation by someone within the last 50 years of their death…But when it comes to indigenous people’s songs and forms of performance, most of those things have been around for centuries, so they’re likely out of copyright – but does that then mean they shouldn’t be subject to some form of protection?”

New Zealand isn’t the only country whose indigenous people have taken legal action over the use, or misuse, of cultural artefacts and art forms. In 1994, for example, the Hopi and Apache tribes in North America ordered a number of US museums to close their intellectual property – including a number of images, ceremonies, songs, stories and feature films – to the public, saying they would allow the display of their property only after permission was requested directly to them.

The World Intellectual Property Organisation (WIPO), as part of a more general United Nations push, is currently working towards the development of an international legal instrument for the protection of traditional cultural expressions and traditional knowledge – which includes songs and other performance arts – and to address the intellectual property aspects of access to and benefit-sharing in genetic resources.

However, Huthwaite stresses that non-commercial performers, such as kapa haka groups and school sports teams, will not likely come under fire from Ngāti Toa should they fail to attribute the Ka Mate to Te Rauparaha.

“You don’t require an attribution for any sort of non-commercial use, such as a performance by a kapa haka group and I presume that a performance by, for example, a school rugby team, would fall into that same category,” says Huthwaite.

Key aspects of the The Haka Ka Mate Attribution Bill include:

The Crown’s express acknowledgement of the significance of the haka Ka Mate, Te Rauparaha as the composer of Ka Mate, and the role of Ngāti Toa as the kaitiaki (guardian) of Ka Mate

Ngāti Toa will be afforded a right of attribution for Ka Mate. This will require a clear and reasonably prominent statement of attribution to accompany:
  • any publication of Ka Mate for commercial purposes;
  • any communication of Ka Mate to the public; and
  • any film that includes Ka Mate that is communicated to the public.

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