New Zealand Law Society - Everything is not ka pai

Everything is not ka pai

By Lida Ayoubi

New Zealand universities are ill-equipped to protect Māori IP

Mātauranga Māori (Māori knowledge) has been shown to inform and enrich various areas of university research in New Zealand, from unlocking the benefits of mānuka honey, to building resilience against natural hazards and potentially finding a solution to the kauri dieback crisis.

In New Zealand, universities account for around 28% of the country’s research and development (R&D) expenditure. University R&D may result in commercially valuable innovations. In fact, commercialisation of universities’ R&D generates more than $500 million annually–about 15% of this country’s total university income.

Part of that income comes from the commercialisation of intellectual property rights that arise out of university-driven research. Intellectual property (IP) rights in patents, copyrights, designs or plant varieties are becoming increasingly important commercial assets for universities. University research that generates IP may involve the use of Māori knowledge in many different ways.

In its comprehensive Wai262 report, the Waitangi Tribunal stipulated that kaitiaki (guardians or custodians) have the right to be acknowledged as the source of mātauranga Māori where appropriate and to have their commercial interests in such mātauranga recognised and protected.

The Government is changing New Zealand’s intellectual property law to partly address the misappropriation of mātauranga Māori in the IP regime. Amendments to the patents system focusing on a “disclosure of origin” requirement as well as to the copyright, plant variety rights and geographical indications legislation are all on the Government’s agenda.

In light of these legislative reforms, a question remains: How are universities, as one of the main New Zealand public entities engaging in R&D and commercialisation of related IP rights, fulfilling their Treaty obligations? This question was the focus of a New Zealand Law Foundation-funded research project in which the performance of universities was assessed.

How are universities doing?

The research was conducted in collaboration with the commercialisation teams of eight New Zealand universities surveying both the policies and practices of universities. A summary report of the findings is now available online on the Law Foundation’s website. (Dr Lida Ayoubi, “Intellectual property commercialisation and protection of mātauranga Māori in New Zealand universities”, November 2019). The research shows that recognition of and protection for mātauranga Māori at universities appears rather inconsistent, siloed and ad-hoc.

For instance, in many cases, the intellectual property or commercialisation policies of universities make no reference to mātauranga Māori. If mentioned at all, it is often unclear how the policy provisions should be implemented. The same appears to apply to the implementation of the government’s “Vision Mātauranga” policy which is viewed by the commercialisation experts interviewed as mainly relating to funding of university research only and not necessarily its commercialisation.

Most commercialisation experts interviewed for the research expressed an understanding of the need to respect the Treaty principles. However, in many cases they were unsure of how to identify or address Māori interests in the commercialisation of research intellectual property.

Some universities have created a specific role for an expert to consult on Māori interests in research generally, and in fewer cases in relation to intellectual property commercialisation more specifically. However, such guidance is not available across all universities and in some cases is limited to the funding stage of a research project and is not carried out through to the commercialisation stage. Furthermore, the current impact of such roles on the universities’ processes is not clear.

How can the protection of mātauranga be improved?

Recognition of the potential role of mātauranga Māori in university research is arguably the most important step in protecting Māori interests in the context of intellectual property commercialisation. As such, it is recommended that universities explicitly recognise potential mātauranga Māori interests in their intellectual property or commercialisation policies.

The next step would be the introduction, clarification or strengthening of identification and assessment practices. Such guidelines would help address the rights of kaitiaki in mātauranga that is utilised in university research being commercialised. This is essential for commercialisation teams who may not know how to identify potential misappropriation risks.

To recognise and successfully address Māori interests in research commercialisation, continuous and effective Māori input is critical. Universities can ensure that such engagement is a part of decision-making by introducing or maintaining a role for an individual or team with the necessary expertise to provide guidance to the universities’ commercialisation experts.

Where certain policies, processes, or positions are already in place to address mātauranga Māori interests, research shows that streamlining and linking those existing measures is of significant value.

Finally, because much of university research is collaborative and cross-institutional, universities are encouraged to synchronise their policies and practices when it comes to protection of mātauranga interests in the complex yet crucial commercialisation context. Some universities are currently reviewing their IP and commercialisation policies. Consistency between universities should arguably be considered as part of any such reforms.

Once more robust and process-driven systems are in place, universities would be better equipped to fulfil their Treaty obligations and contribute to and support the advancement of Māori science and innovation capabilities. In doing so, universities can work in collaboration with the wider public sector in developing best practice models for protection of mātauranga Māori when commercialising intellectual property.

Lida Ayoubi is a Senior Lecturer at AUT’s Law School, where she specialises in the relationship between human rights and intellectual property.

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