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Ka ora!

datePosted on 23:27, February 18th, 2009 by Lew

Ka ora! (I live!) – the triumphant second part of the famous challenge in Te Rauparaha’s haka Ka Mate, composed after his narrow escape from seemingly-certain death. Ka mate is itself a symbol of life and vigour and indomitable spirit, a rowdy celebration of vitality, and one of the most vivid and tangible symbols of New Zealand culture, both for Māori and for Tau Iwi, and much-loved and admired by people the world over, so ubiquitous that many simply know it as the haka, as if there were none other.

Now the rights to this famous tāonga are to be vested in Te Rauparaha’s descendants, Ngāti Toa Rangatira. This is a sore spot for many people, who for the reasons above feel as if they have a stake in Ka Mate as well. Much of this hearkens back to the old `iwi/kiwi’ rhetoric of the 2005 election campaign, and in particular I’d like to point to one small exchange which I think illustrates that that rhetorical line no longer has quite the currency it did; then I’d like to engage with the actual matter of the issue: the meeting of intellectual property, identity and mātauranga Māori.

Backdown

haka13The Rod Emmerson cartoon at right appeared on the front page of the New Zealand Herald on 11 February 2009, the day the Letter of Agreement between Ngāti Toa Rangatira and the Crown was signed, and is the most direct reference to the old iwi/kiwi debate. The image was also attached to the online story. However, that day during Question Time, Minister for Treaty Negotiations Chris Finlayson harshly criticised the cartoon, saying it was “puerile and inaccurate […] highly offensive to Ngāti Toa. We are not talking about that kind of redress”. This position was reiterated by John Key, and was the subject of another article the following day. They’re absolutely right: as I will demonstrate below there is no merit whatsoever to the argument.

After Finlayson’s statement in Parliament, the cartoon was detached from the article – but it remains on the NZ Herald’s server, and that it was attached to the article is proven by google images. Tangentially, the cartoon appears to be one of a batch by Emmerson, including this one, very similarly composed. At least two other cartoons emphasised the financial issue – Mike Moreu’s and Tom Scott’s.

The importance of this very minor editorial backdown by the NZ Herald is huge. I’m not arguing that Finlayson’s statement in the House caused the Herald to take it down, but it was undoubtedly an influence: perhaps the Herald saw that the tide has turned. The very fact that a National Minister would so firmly repudiate such an allegation of graft among Māori business interests, against the editorial line of both our major press outlets, shows how far they have come since the bad old days of Don Brash’s populist point-scoring. It also shows that they’re in government and mean to stay there.

Rights

People talk about `intellectual property’ as if it’s unified by a central legal idea, or created from whole cloth. In fact the whole realm is a minefield of social, legal, technical, customary and common-law complexity from several intellectual traditions, dating back to the enlightenment, and very poorly updated to encompass things which have happened since. The S92 protests currently underway are an example of its deep and thorough dysfunction. It’s vastly more ugly and complicated than you might think: for an excellent critique of the whole system, I can recommend none better than Drahos and Braithwaite, Information Feudalism. Incidentally, like Richard Stallman, I abhor the term `intellectual property’ for this reason; though unlike him I don’t eschew its use when talking about the whole awful mess together.

When people talk about `intellectual property’, usually they mean `copyright’ but want to sound knowledgeable. Even when people talk about `copyright’ they are usually, in fact, mixing up two quite distinct parallel traditions: economic rights of copyright, and moral rights of the author. Simply; economic rights allow the copyright holder to extract a rent from a work, while moral rights afford other sorts of protection, such as the requirement of attribution. The two sets of rights can exist independently or apart; they need not necessarily go together, but can coexist happily if need be. The discourse inherent in the cartoons above, and in much of the news copy, is rooted in the supposition that economic rights are the only rights, and that Ngāti Toa Rangatira must therefore be looking to extract a rent from Ka Mate (even if only a piffling, `dollar dollar’ for the single most famous piece of Māori art in existence). This is also the foundation of Whale Oil’s rather smug argument that, since NZ copyright allows for a term of 50 years after the death of the author, copyright on Ka Mate lapsed in 1899 and it’s now in the public domain.

As is so often the case, the reality is quite different. The Letter of Agreement mentions nothing of the sort – no discussion of economic or moral rights, or of copyright, or even of that broadest of terms, `intellectual property’. No, the complete text in the LoA relating to Ka Mate is as follows:

– Ka Mate haka

The settlement legislation will also record the authorship and significance of the haka Ka Mate to Ngāti Toa and the Crown will work with Ngāti Toa to address their concerns with the haka in a way that balances their rights with those of the wider public.

The Crown does not expect that redress will result in royalties for the use of Ka Mate or provide Ngāti Toa with a veto on the performance of Ka Mate. Ngāti Toa’s primary objective is to prevent the misappropriation and culturally inappropriate use of the Ka Mate haka.

This stops well short of even the weakest copyright protection. It implies a subset of moral rights, and explicitly enjoins exercise of economic rights. The entire line of argument is therefore completely discredited, and if anything, Ngāti Toa Rangatira are faced with a hard task of staking a claim in any way other than the symbolic. If they choose – and there’s the big question nobody is asking.

Colonising Mātauranga Māori

Suppose Ngāti Toa Rangatira had been offered exclusive, authorial economic and moral rights to Ka Mate. Should they accept? Ultimately, of course, this is a matter of utility for that iwi, and them alone – but let me sketch a few of the issues in play. First, and most obviously, the adoption of Tau Iwi systems of knowledge ownership for mātauranga Māori (Māori knowledge) is a dangerous business. Those who have legitimate entitlement to the mātauranga might be prevented from exercising it by colonial IP laws; more importantly, the nature of the mātauranga itself is impacted upon by its presence within a framework, and the degree of codification and specification that requires. As M A Hemi said regarding the use of Māori terms in the Resource Management Act,

Māori concepts when treated in isolation are incapable of proper function and development. In fact, any concept when divorced from its cultural base is subject to dysfunction and cultural reinterpretation or hi-jack. (Quoted in Mason Durie, Te Mana, Te Kāwanatanga, p33.)

Nevertheless, there can be great utility in protecting these things by colonial means, in order to prevent their exploitation by colonial systems. This is the foundation for the WAI 262 claim, to my knowledge the longest-running and most complex claim ever brought to the Waitangi Tribunal, with enormous precedent value. And why shouldn’t they see any tangible economic benefits from their mātauranga now, given that for generations it has been exploited and co-opted and adapted without their consent or input, and to great commercial gain?

The question is a live one – ka ora.

L

14 Responses to “Ka ora!”

  1. Pascal's bookie on February 19th, 2009 at 07:31

    Awesome post Lew. Thanks.

  2. Rich on February 19th, 2009 at 13:48

    I guess that in terms of colonial systems of property ownership, Ka Mate would have gone out of copyright in 1899.

  3. Lew on February 19th, 2009 at 15:06

    Rich,

    I guess that in terms of colonial systems of property ownership, Ka Mate would have gone out of copyright in 1899.

    Counterfactual, since there was no Copyright Act 1994 at that time. Nor a Berne Convention (1928), nor any system other than the common law of England (most of which we inherited by default). I’m not sure how copyright law tended to treat past works, and even so, there’s the matter of whether the `work’ is the words, the actions, the combination, a given performance, or what. That’s also quite a hegemonic question.

    L

  4. Rich on February 19th, 2009 at 15:32

    Not really.

    There was the Statute of Anne in 1709, which established a 14 year copyright term, albeit on printed works only. This was followed by the 1842 Copyright Act which extended the term to 42 years after the authors death.

  5. Lew on February 19th, 2009 at 15:42

    Rich,

    There was the Statute of Anne in 1709, which established a 14 year copyright term, albeit on printed works only. This was followed by the 1842 Copyright Act which extended the term to 42 years after the authors death.

    Ka Mate was composed in 1821, and since it wasn’t a printed work, neither of these would strictly apply. Aside from which, while we inherited English common law, I’m quite sure we didn’t inherit all English law, particularly Acts of Parliament passed after NZ became a colony with its own (nominal) government.

    This all goes to my main point, that trying to wedge such a work, given its context, into a western copyright framework is very fraught, and ultimately moot – since that’s not what the LoA intends, and (presumably) not what Ngāti Toa Rangatira have requested.

    L

  6. Paul Williams on February 19th, 2009 at 17:14

    Lew, I like to simply add my thanks for this excellent essay on the agreement, the links with broader notions of IP and nationhood and I agree it is also a significant pointer to a shift in National’s thinking.

    The very fact that a National Minister would so firmly repudiate such an allegation of graft among Māori business interests, against the editorial line of both our major press outlets, shows how far they have come since the bad old days of Don Brash’s populist point-scoring.

    Agreed. But then Findlayson clearly far more progressive, and legalistic, in his thinking. I can’t help but wonder if he’s not a bit like Doug Graham (who was capable of remarkable acts of idiocy as well as wisdom)?

    I didn’t note that in at least one interview, Key said it’ll not stop people doing Ka Mate at the pub… wow, he can really see the big picture hey!

  7. Rich on February 20th, 2009 at 09:32

    Um, there was a law passed in 1854 called the English Laws Application Act which applied all English statutes in NZ. It was finally removed in 1988.

    But yes, I agree mostly with your point that it’s difficult to apply things like western copyright to Maori things.

    I guess it’s really an exhortation to respect the authorship of the Haka more than anything else – I can’t see any way that we could prevent an Italian company using it to advertise cars. (Just as they can’t prevent NZ industrial food makers characterising Italians as mafioso in their advertising for nasty tinned pasta).

  8. Neil on February 20th, 2009 at 12:17

    One minor point –

    This is a sore spot for many people, who for the reasons above feel as if they have a stake in Ka Mate as well. Much of this hearkens back to the old `iwi/kiwi’ rhetoric of the 2005 election campaign…

    I think this is a little unfair. Most Pakeha who have an attachment to the haka do so via rugby. Not all negative reaction should automatically be considered racist.

  9. […] the rhetorical backlash against the vesting of Ka Mate in Ngāti Toa Rangatira, about which I wrote recently. It grasps things of value, and then refuses to return them, or share them, or relinquish any […]

  10. Hone Kaikopere on March 16th, 2009 at 11:24

    I have been studying the origins of Ka Mate for many years. Evidence points to its origins back near the time when kumara was brought to NZ. But by 1900 it was almost forgotten. There are many newspaper reports of how, when Maori from all over NZ gathered at Rotorua during the 1901 Royal Tour, it was not Ngati Toa who performed this “ancient and universal ngeri,” but Ngati Kahungunu. Their performance made it famous, and consequently it was used with great honour by Maori soldiers in both World Wars.

    In the 1950s the name “Te Rauparaha’s haka” was given to the very explicit pre-European era wedding night haka Kikiki Kakaka. This chant finished by parodying the words of Ka Mate in a bawdy way. This old chant was applied to Te Rauparaha after he had to hide in a small pit with his head in intimate contact with the nether regions of a chief’s wife. At some stage Kikiki Kakaka went from being a chant about Te Rauparaha to a chant by him, with the first dozen lines being left untranslated and said to be karakia chanted by Te Rauparaha. But these lines of “Te Rauparaha’s Haka” are an embarrassment when translated.

    Did the Tribunal declare the full haka beginning with Kikiki to be composed by Te Rauparaha? Is the Tribunal’s decision just a legal fiction to protect Ka Mate, or are they asserting it was a historical fact? If the latter, then the scholarship of their research must be questioned, for it is in conflict with the words of Governor George Grey, Sir James Carroll, James Cowan and Sir John Grace.

    Ngati Kahungunu and the Maori Battalion, by their efforts to honour this national cultural treasure, have a much greater claim to ownership of Ka Mate than Ngati Toa.

  11. Richard Stallman on March 26th, 2009 at 06:26

    I was delighted to read this article, which thoroughly debunks the
    misassociation from protection of a cultural icon from commercial
    disrespect to the concept of copyright.

    I was pleased that the article recognized that the term “IP” is a
    confusion. I think the decision to use the term to refer to that
    confusion is a mistake, however: readers will generally not remember,
    when they see “IP” several paragraphs later, the point that “This
    refers to a confused concept that other people misguidedly base their
    thinking on.” The reliable way to communcate that message is to make
    it explicit wherever it pertains. Besides, in this case just
    “copyright” is better, since it is more specific. (Every “IP” issue
    is really about some specific law, and it is always better to describe
    it by that law’s name.)

    I disagree firmly with the the statement that Maori ought to decide
    “based on utility for the iwi” whether to accept a copyright on Ka
    Mate. To decide on that basis would conflict with their stated values
    as well as with others’ rights.

    Anyone whose goal is respectful treatment for Ka Mate is ethically
    obliged to reject some of the powers that a copyright would confer.
    For instance, to sell licenses for its commercial use would be as
    disrespectful as whatever use businesses might make of it. Thus,
    Maori concerned about respect for this work must think long and hard
    before accepting a copyright that might tempt them later into
    violating their own principles.

    Perhaps they could reconcile the copyright with their principles by
    stating a public license. That is how I reconciled the use of
    copyright on software with my belief that software must be free
    (freedom-respecting). However, I did this from necessity: software
    could already be copyrighted, as well as made proprietary using
    contracts or by withholding source code, while I had no political
    influence and no prospects of altering that state of affairs. To work
    with the laws as they existed was my only option. The Maori today
    have enough political influence to push for a more appropriate legal
    approach, and they are doing so.

  12. Lew on April 2nd, 2009 at 10:31

    Hone, that’s very interesting, thank you – if true it’s a clear example of how cultural expropriation is not the exclusive domain of settlers.

    L

  13. Lew on April 2nd, 2009 at 11:48

    Richard,

    Thank you for a thought-provoking comment.

    The reliable way to communcate that message is to make it explicit wherever it pertains. Besides, in this case just “copyright” is better, since it is more specific. (Every “IP” issue is really about some specific law, and it is always better to describe it by that law’s name.)

    This case isn’t just about copyright – it’s not even about copyright, since no such rights are granted or even firmly alluded to in the LoA. It’s not clear what legal mechanism will or could be used to enforce rights vested in Ngāti Toa Rangatira – copyright is the most likely and best-known mechanism, but others could also be used. (Indeed some have argued that rights to Ka Mate should not be vested in Ngāti Toa Rangatira because they have not adequately endeavoured to prevent its use – an argument which appeals to the principle of trademark dilution but has no validity in copyright.) My purpose in using the term `intellectual property’ was to disengage from the argument about which of the possible mechanisms might be used. It is an interesting question, but not one upon which I’m really qualified to comment.

    I disagree firmly with the the statement that Maori ought to decide “based on utility for the iwi” whether to accept a copyright on Ka Mate. To decide on that basis would conflict with their stated values as well as with others’ rights.

    I think this takes too narrow a definition of `utility’ – I don’t just mean the ability to extract a rent. There’s (huge) utility in the prestige which accrues to Ngāti Toa Rangatira from the All Blacks’ use of Ka Mate, for instance. Not all uses are so mana-enhancing, however – the Fiat case is an example – and the rights transferred seem to be keyed to the purpose of granting Ngāti Toa Rangatira legal standing to object to inappropriate usage.

    Anyone whose goal is respectful treatment for Ka Mate is ethically obliged to reject some of the powers that a copyright would confer. For instance, to sell licenses for its commercial use would be as disrespectful as whatever use businesses might make of it. Thus, Maori concerned about respect for this work must think long and hard before accepting a copyright that might tempt them later into violating their own principles.

    I agree that Ngāti Toa Rangatira ought not adopt colonial means of protecting their tāonga – but I won’t appeal to their own values and customs for support of this, since the matter of interpreting values and customs is for them to do. Māori have for too long been told by well-meaning but paternalistic outsiders what is appropriate and what would be best for them, rather than being allowed to determine utility for themselves. Richard, I don’t think you or I are properly qualified to say what usage of Ka Mate is appropriate (based on tikanga Māori) and what is not, outside some clear cases such as the above. It’s certainly not the case that tāonga like this are somehow too sacred for commercial exploitation – this notion applied to natural resources is one of the major points of disagreement between Māori and the environmental movement, for instance. This is not to say that the Māori approach to exploitation of a product is the same as the Western approach – it’s clearly not – just that the differences are less-clearly defined than they seem, and at bottom are a matter for individual iwi to determine for themselves. So I think we may rightly object to copyright’s application to Ka Mate, but only on our own grounds – the usual arguments to do with the morality of extracting a rent by copyright.

    The Maori today have enough political influence to push for a more appropriate legal approach, and they are doing so.

    This seems to be the subtext of the wording in the LoA – because the rights to be transferred don’t seem to neatly fit the existing frameworks, it might be that an alternate framework is being devised for this case. Watch this space.

    L

  14. Hone Kaikopere on April 2nd, 2009 at 21:58

    Lew writes

    I agree that Ngāti Toa Rangatira ought not adopt colonial means of protecting their tāonga.

    I think the crux of the matter is that many authorities have pointed out that Ka Mate is not Ngati Toa’s tāonga dating from the 1820s, but an ancient chant that belongs to all the tribes of this country. I am working on a paper where I have collected every old reference I can find that refers to Ka Mate. These old sources support this ancient universalist view.

    If you wish to decide whether the statements I made above are true, then you can download my draft version of my paper here, and check the references for yourself.
    http://folksong.org.nz/ka_mate/Ka_Mate.pdf

    There are two lines of research I’m still trying to untangle. Te Rauparaha and his followers were mass murderers who tortured, enslaved and ate thousands of people belonging to other tribes. For those tribes to regain respect, they would normally have sought utu against Ngati Toa. These inter-tribal feuds could still be taking place today. But somehow the chanting of Ka Mate, and its association with Te Rauparaha, led to a peace process. There is mention of this in Grace’s “Tuwharetoa” (1959)

    And then there are the thought processes of pre-European Maori. Legal thinking today is “left-brain,” painstakingly logical. But Ka Mate is a piece of poetry, metaphorical and elliptical. Every line in it has connections to several other pieces of Maori literature. Which connections were made, depended on the context Ka Mate was chanted in. I think old Maori could understand its legal connotations when chanted in a particular context because they were practised in this “right-brain” intuitive thinking. They could make the correct connections.

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