New UniServices intellectual property policy protects Māori knowledge and data

Working closely with Māori experts, UniServices has put together a new Māori intellectual property policy for the company to reflect its responsibilites regarding the way it treats Indigenous intellectual property and data.

Kawakawa leaves, mortar and pestle and Maori carving

The traditional Western way of looking at intellectual property (IP) can be summed as: I created it, so it’s mine. Similarly, when it comes to data: I collected it, so it’s mine.

This approach, however, has significant limitations, particularly when it comes to the traditions, knowledge and data of Māori and other Indigenous peoples. Who owns and therefore has the right to use, adapt and profit from the haka? From Kawakawa? From data about Māori genetics?

Working closely with Māori experts, UniServices has put together a new policy for the company to reflect its responsibilites regarding the way it treats Indigenous intellectual property and data. The UniServices Board approved the Māori IP policy recently and it is now in effect.

“In general, we are the stewards of the research-informed intellectual property of the University of Auckland,” says UniServices CEO Andy Shenk. “However, up to now, policies have been largely silent about any special requirements or duty of care for Māori IP. As a treaty partner organisation, it’s incumbent on us to do better. I see this policy as a significant step forward in our path to being a more authentic partner for Māori in the way we conduct all our business.”

“Under Andy’s leadership, work has been going on for a few years to fill the gap that existed with regards to protecting Mātauranga Māori and upholding Māori data sovereignty,” says Tui Kaumoana (Ngāti Maniapoto, Waikato), UniServices’ Kaiārahi, who led consultation about the policy with Māori leaders and experts. “This policy fills that gap and demonstrates our integrity as an organisation and as a Te Tiriti O Waitangi partner.” 

What is intellectual property?

In the Western world, people often understand intellectual property in a limited way, says Nicola Johnstone, UniServices’ head of intellectual property. 

“People think about patents, trademark and copyright as being intellectual property, but really, intellectual property can be defined more broadly as products of the mind,” says Johnstone. “Over the last couple of decades, there has been increasing recognition that there’s a whole body of intellectual property that isn’t protected by law in New Zealand but that deserves protection and recognition.”

The new policy makes it clear that intellectual property includes Mātauranga Māori – a term that loosely translates as Māori knowledge but is generally considered to encompass not only knowledge but also the Māori worldview; Māori scientific methodologies; traditional culture and expression including language, astronomy, navigation, arts and crafts; rongoā Māori, which is traditional use of plants and animals in medicine; and use of traditional materials for purposes such as building. It includes newly developed Māori knowledge and creativity that builds on traditional knowledge.

What is data sovereignty?

Broadly, data sovereignty is the concept that data must be subject to the laws and governance structures of the nation where it is collected. As it applies to Indigenous peoples, data sovereignty means Indigenous nations must be able to govern how data about their people, lands and resources are collected, stored, used, owned and potentially commercialised.

The principles of data sovereignty apply to a wide range of data, including census data; tech data ranging from emails to satellite images; health, biometric and genetic data; and qualitative and quantitative research data of all sorts.

UniServices’ new policy builds upon work by Te Mana Raraunga | Māori Data Sovereignty Network to define and affirm Māori data sovereignty.

Principles of the new policy

The new policy is, in brief, designed to protect taonga – what is treasured – from deliberate or accidental misappropriation. 

“It’s partly about educating people to recognise that they can’t necessarily just own all research or research results,” says Tim Stirrup, UniServices’ former IP advisor, who laid much of the groundwork for the policy as a registered patent attorney and trained plant scientist.

“They have to recognise that there may be an element of Mātauranga Māori that’s owned by the kaitiaki – the Māori guardians – in that situation. If there’s a commercial outcome – for example, you want to sell a skin treatment using a native plant – you have to ask who gives you the right to do that? If you do manage to secure those rights, who benefits?”

The policy not only formalises respect for Indigenous knowledge, culture, resources and data, it sets out rules about who gets to decide on the uses of these taonga and who gets to benefit. A major principle is consultation – speaking to the right people and getting their input before a project starts.

“The best way is partnership,” says Kaumoana. “If you have Māori on the research team, that’s a great foot in the door to build trust and relationships, because they understand the necessary tikanga, kawa and cultural principles such as reciprocity and benefit sharing that go along with research.”

The next step is gaining free, prior and informed consent – a principle protected by international human rights standards. 

“Free means consent isn’t coerced. Prior means you give consent before anything happens. Informed means the people involved have to have a clear understanding of what’s going to happen to their data, their samples, their land or whatever else is concerned in the short term and long term,” says Stirrup.

Another important principle is sharing. This includes sharing information about the research process and any knowledge gained; sharing decision making about the direction of the project and any applications; sharing financial and other benefits; and sharing credit for the work. 

The policy is also international. While it draws heavily from Māori tikanga, it also aligns with international best practices to ensure the respect and protection of traditional knowledge, cultural expression and data from other Indigenous cultures, says Shenk.

“Globally, there is growing recognition of Indigenous forms of knowledge and expressions of intellectual property. We want to be part of the international movement to make sure there’s a legal framework so people can’t come along and exploit Indigenous knowledge for their own use.”

Applying the policy

Researchers embarking upon a project that may make use of Mātauranga Māori, Māori data, taonga species or creative works should first contact their faculty Kaiārahi or a respected kaumātua or Māori advisor to connect them with the Māori community, says Kaumoana. The Kaiārahi or Mātauranga Māori expert can help facilitate the next step – discussing the project with the appropriate iwi or hapu – as well as further steps.

As more research teams work with Māori, guided by the policy, UniServices expects positive effects not only for UniServices but on Aotearoa New Zealand in the longer term.

“I’d like to think the policy will make people think, consult and consider alternative viewpoints,” says Will Charles, UniServices’ executive director of commercialisation. “I don’t think that in the past, people have intended to offend or exploit, but through lack of understanding, that has sometimes been the result. I think this policy will help build trust and understanding so projects can move forward in mutually beneficial ways.”

“I think this policy will not only protect Mātauranga Māori, it will help non-Māori researchers understand there are boundaries and restrictions,” says Kaumoana, adding that the policy may be updated in the future as necessary. “When there are no clear policies, a lot of the time researchers won’t touch things concerning Māori because they put it in the ‘too hard’ pile. When there are guidelines on how to effectively partner with Māori, researchers are able to view a pathway forward without so many limitations.”

“It hasn’t been easy to craft this policy,” says Shenk. “It has required people with strong and deeply held but differing views to come to understanding. Still, we’ve decided not to shirk the responsibility of making things better, despite the challenge and occasional discomfort of having these tough discussions, because we expect to see major benefits, economically and in terms of building positive relationships.”