Sunday, February 27, 2005

A little bit more complicated than that

The New Zealand Herald has finally noticed the Wai262 claim for intellectual property rights over New Zealand's native flora and fauna. So has DPF - but while I'm inclined to agree with his dismissive attitude (intellectual property rights after all should require some novelty, rather than simply trying to privatise something extant in nature, because that is the very purpose of the beast), it's a little bit more complicated than that. In particular, if Maori commonly practised any sort of system whereby (say) the discoverer of a new plant or animal species (or a new use for one) enjoyed any sort of right to restrict future usages by others, then (legally speaking) those rights exist as a matter of common law under Tikanga Maori until extinguished by the Crown. I would expect, however, that the enactment of comprehensive intellectual property rights in this country would have legally extinguished any such system (and altered the rights enforceable), but this may have constituted a violation of the Treaty. (To those outraged by the proposition, I suggest they a) look at the precedents on territorial acquisition, property rights, and legal systems; and b) note the "if". I don't know enough about Tikanga Maori even to speculate whether that was the case, but I'm not quite ready to dismiss it out of hand...)

Secondly, this claim - and the entire "indigenous intellectual property" movement in general - is partly (mostly?) a reaction against appropriation by others. Some jurisdictions don't require much in the way of novelty to claim intellectual property, or don't examine claims very carefully (because they can be challenged through the courts), and so there is now an entire industry of "biopiracy": mining the common knowledge of indegenious peoples and then claiming property rights over it. The most egregious example of this was an attempt by a US company to patent Basmati rice - a variety which has been grown in Northern India for thousands of years - but it is also particularly common with folk remedies and medicinal plants. This is "property as theft" in its purest form - the biopirates are stealing from the commons, not to mention pillaging people's cultural heritage. And when some nations are claiming perpetual collective ownership rights over food varieties that constitute their cultural heritage (such as Champagne, Camembert, or Parma ham), the idea of a collective and perpetual ownership right over other things that can be claimed as part of your cultural heritage doesn't seem so strange. But the answer here is not to propagate perpetual ownership, but to reject it, and instead defend the commons against those who would appropriate it for themselves.