I was not going to post on the Witi Ihimaera plagarism scandal, having commented under my own name on another blog that covered the matter. But as I compare my summary dismissal for writing a rude email to an unqualified and underperforming student with the lack of even a cursory reprimand for his theft of intellectual property, and then find out that apparently it is not the first time that Mr. Ihimaera has appropriated someone else’s work as his own, I find myself wondering if indeed there is a double standard at play when it comes to our respective treatment by my former employer. Let me explain why, but first point to the one consistency in the handling of both cases.

The University has, as part of its collective contract with the union representing academic staff, a series of procedures and regulations that have to be followed before an academic staff member can be dismissed for serious misconduct. This includes receiving a formal complaint detailing the misconduct, attempting to mediate the matter using the offices of the Ombudsman, handling the matter within the department, issuing two formal written warnings before dismissal is sought…the requirements are pretty detailed and in fact were made even more so after my dismissal precisely because of the controversy surrounding it. Perhaps Mr. Ihimaera is not a member of the union so other procedures were followed, but that usually mitigates against favorable resolution for the employee.

In my case none of the internal procedures were honoured other than as a facade. No formal written complaint was ever made against me, but without getting my side of the story the Ombuds(person) immediately brought the issue to the attention of my department HOD, who without saying a word to me passed it on to the Dean, who after consulting with the student as to what should be done held a series of brief meetings with me and a union rep in which he shrugged off my apologies and assurances, ignored the fact I had no prior formal warnings, and sent me packing. In fact, he and his HR advisors attempted to use a couple of unrelated events from the past (an argument with a former HOD about managerial practices and an email disagreement with a colleague about a grad student who failed to attend a class) to argue that prior warnings had been given. Those were later found to be irrelevant by the ERA.

In Mr. Ihimaera’s case it appears that, upon hearing that news of the plagarism was about to go public, the University rapidly pushed through an “investigation” of the matter apparently involving his HOD, the new Dean of Arts (who was not the Dean the fired me) and Mr. Ihimaera. No disciplinary board with colleagues outside of the HoD and Dean was apparently convened. Mr. Itimaera  gave apologies and assurances, and the case was closed.

What is consistent in both cases is that the lengthy rules and procedures for handling discipline cases involving academics were circumvented, in his case favourably to him and in my case not. This galls me not because I think that Mr. Ihimaera should be fired–I do not, and think that both of us should have received a final written reprimand about our respective transgressions–but because the University argued that I was fired because of the damage I did to its reputation. This line of argument continued after the dismissal was found to be unjustified, then into the settlement agreement by which formal reinstatement meant no actual reinstatement. But what about my reputation? Not only did the leaked email wind up on the front page of the national newspaper and then went global, but the University did nothing to prevent its release or demand its withdrawal when a student newspaper under its authority first published it (even though leaking the email was a violation of the email policy under which I was ostensibly fired). Moreover, the University knew well what the impact of the dismissal would be. As the Dean who fired me said to the ERA, “in a reputation-based business like academia, summary dismissal essentially means the end of a career.” In my case that seems to be proving true, and perhaps it was that knowledge that made for lighter treatment for Mr. Ihimaera–but I suspect not, simply because his association with academia was one of mutual convenience rather than professional necessity.

My major question is, if what I did was so injurious to the University reputation, what about Mr. Ihimaera’s plagarism? Plagarism is the single worst thing that an academic can do. Working in a genre such as historical fiction does not excuse the lifting of other’s words. Plus, being housed within an academic institution means adhering to its requirements on original work, so he was, in fact, more duty bound than independent writers in that regard. Students get failed and often expelled for plagarism. Academic staff get demoted or fired for plagarism. And Mr Ihimaera did not even merit a reprimand? Now, it seems that the case gets worse, as others have come forth to claim that Mr. Ihimaera has plagarised in his previous work. If so, and if the University knew about those previous incidents, then its absolution of the latest episode is even more alarming.

The University and Mr. Ihimaera say that his plagarism was “inadvertent” and thus excusable. Even if that were true–and it stretches credulity to think that a famous author would not know the difference between his own words and sentence structure and those of others– standard guidelines on plagarism, including those specifically used and distributed by the University to students and staff, state that inadvertent or unknowing plagarism is no excuse for it. It is the author’s responsibility to ensure his/her work is original and properly cited, and the crosses all academic fields and intellectual genres.

Some have claimed that because Mr. Ihimaera is Maori, famous and gay, he got off lightly. I initially thought that was ludicrous and that there were other mitigating circumstances at play. But the more I learn about the case and think about the differences in our treatment, the more I wonder as to why those differences. Certainly universal institutional standards need to be upheld over and above the specific identity and interests of any individual. That is what the University claimed in my case. Yet, was what I did worse than plagarism? Did my email to an individual student cause more damage to the University than the discovery by a book reviewer in a national magazine of the as of then unattributed passages in Mr. Ihimaera’s latest book? How can he not even receive a reprimand, and how can the University claim that in both cases its standard rules and procedures were followed to the letter?

The real shame is that it is not my actions or Mr. Ihimaera’s that have tainted the reputation of the University. Instead, it is playing loose with the rules and attempts to “spin” both stories in a way that gives the illusion of procedures being properly followed that sullies the brand. That has a negative impact not only on the managerial cadre that are the perpetrators of the double standard but also the staff, alumni, current and prospective students who share association with the University name. Yet, instead of being ashamed and contrite, University managers continue to obfuscate and bluster, refusing to reveal how their “investigation” of the Ihimaera case was conducted citing privacy concerns (concerns they were not so concerned about when my email went public).  It appears that management are blissfully unaware that the ship is sinking beneath them or else are confident that no matter what they do, they will not be held to account by anyone other than themselves. Since the taxpayers ultimately pay the salaries of all involved, that should be a matter of public interest.

This morning’s Insight documentary on NatRad is an example of what happens when journalists who know almost nothing about a given topic are tasked with putting together an in-depth, large-scale piece of investigative journalism on that topic. is based on the misleading assertion that copyright grants its owner an inherent right to an income.

Kim Griggs’ journalistic technique is fine – she’s talked to the major stakeholders, given both sides of the story and generally done very well at covering the issues. But she’s labouring under a delusion about what copyright grants. Specifically, she says:

Put simply, copyright is a bundle of rights which exist once an idea is given concrete form. That form can be a song, a film, a book, a cartoon, a map, or even an email, and the copyright owner has the right to decide how it’s used and to get paid for it.

My emphasis. But there is no copyright law anywhere which grants creators a right to get paid – all they have is the right to control the exploitation of their work, and if they can turn that into payment, then good on them. In the documentary John Key also makes this error, conflating “compensation and recognition” into the right to get paid.

It’s this false idea – that copyright owners have an inherent right to be paid regardless of how broken their business model might be – which prevents the development of better business models which mean they don’t need to treat their customers like the enemy in order to make money. Even the copyright lobby accepts this; they’re just so far behind the curve that their old models have failed before their new models are even off the drawing board. Of course, if they want to keep applying the stick, rather than employing the carrot, that’s their right.

The content owners have pulled a snowjob on Kim Griggs, which It is unfortunate, because there’s already too much uncertainty and misinformation on this matter, without more confusion being added by people who should be clarifying the issues.

Edit: Kim Griggs has emailed me to outline her extensive experience and expertise in the copyright industry in NZ, and Pippa makes many of the same points in a comment. On that basis I have apologised to Kim for the statement above about her expertise, and for suggestion she was fooled by the copyright lobby.

Nevertheless, my broader criticism stands: the statement I highlighted is wrong in fact and is unhelpful to the cause of reasoned debate because it blurs issues around economic rights, moral rights, contract law and industry practice into a blank statement that copyright == money.

I’ve offered Kim an opportunity to put her case here, if she chooses.

L

Swedish company Global Gaming Factory X claims to have bought The Pirate Bay, in a press release declaring the acquisition. At the same time, they purchased Peerialism, which has developed “peerialistic” content-sharing models; new models which keep content-owners as happy as consumers. Or so they reckon. The purpose of the acquisition appears to be a move away from a content distribution model of questionable legality and toward a “third way” model of sorts.

We would like to introduce models which entail that content providers and copyright owners get paid for content that is downloaded via the site, ” said Hans Pandeya, CEO GGF. The Pirate Bay is a site that is among the top 100 most visited Internet sites in the world. However, in order to live on, The Pirate Bay requires a new business model, which satisfies the requirements and needs of all parties, content providers, broadband operators, end users, and the judiciary. Content creators and providers need to control their content and get paid for it. File sharers ‘need faster downloads and better quality, ” continues Hans Pandeya.

I don’t know how credible this all is; there’s no indication on the site that anything has changed. But if the news is legit, it is a major blow to the free content movement and the agenda which opposes rampant corporate control of information (about which I have written before). It could show that the fiercest ideological outlaws, people who have laughed in the face of legal and financial threats for years, are motivated by money after all. It also shows, perhaps, that losing a major lawsuit isn’t always a bad thing: it’s hard to see TPB, which has virtually no staff, assets or anything other than brand recognition being sold for SEK60m (NZ$12m) before the lawsuit and its Streisand Effect.

Edit: It’s now official, though they use the word “might” in a way the above-linked press release doesn’t.

Despite the price tag, that’s apparently not the point:

TPB is being sold for a great bit underneath it’s value if the money would be the interesting part. It’s not. The interesting thing is that the right people with the right attitude and possibilities keep running the site.

They also roll out a good lick of market-libertarian rhetoric in their favour:

On the internets, stuff dies if it doesn’t evolve. We don’t want that to happen. We’ve been working on this project for many years. It’s time to invite more people into the project, in a way that is secure and safe for everybody. We need that, or the site will die. And letting TPB die is the last thing that is allowed to happen! If the new owners will screw around with the site, nobody will keep using it. That’s the biggest insurance one can have that the site will be run in the way that we all want to. And – you can now not only share files but shares with people. Everybody can indeed be the owner of The Pirate Bay now. That’s awesome and will take the heat of us.

Just a bit too pat. My skepticism about their motives stands.

L

Although I never got around to doing the follow-up post on the political-symbolic aspects of the Pirate Bay case (for which you can all blame my baby daughter), one of the consequences of the guilty verdict I considered has come to pass: the Swedish Piratpartiet has won a seat in the European parliament, gaining more than 7% of the vote in Sweden.

How much change they can make in that bureaucratic behemoth is another matter but their election as a Streisand effect-like result of the Pirate Bay verdict which gave them an immense boost in public profile, shows that this is a political issue with teeth.

L

Background
The Pirate Bay is a BitTorrent tracker – one of the world’s largest, most popular and best-known. Four of its co-founders were yesterday convicted of “assisting in making copyright content available”, sentenced to 12 months’ jail each and required to pay 30 million Kronor (about NZ$6.3m) between them. The offence was not the same as actually distributing the copyright material – the torrent files hosted on TPB are not themselves subject to copyright, but they enable a user to easily access material which is. For a quick backgrounder, see The Guardian’s FAQ, and for exhaustive coverage, see Threat Level’s archive.

I’m very interested indeed in the roles which intellectual property mechanisms play in the world. This verdict has complex and possibly profound political, social, technological and economic implications. I won’t argue its legal merits, but, despite their claims, I don’t think this case or verdict is in the content owners’ best long-term interests, because it perpetuates a business model which has been proven unfit for its purpose.

Social and political implications
The social and political implications of this verdict seem likely to result in a sort of Streisand effect where by winning a battle, copyright owners may galvanise opposition to their business model and enforcement practices. This verdict was never going to be the end; as defendant Peter Sunde said it was to decide nothing other than which side would file an appeal. [Video in two parts here and here. The first five minutes or so is in Swedish; the rest is in English.] So as much bad-will as there is against the content owners, there’s plenty more time for it to build.

Online media consumption (sanctioned and otherwise) is largely the domain of the two generations born since the baby boom – quite distinct from those in control of the legal, business and political systems which produce that media and constrain its usage, who are middle-aged and older. There exists a significant disconnect between these generations, and the Pirate Bay verdict seems like it could crystallise that disconnect into an outright generational divide along political and philosophical lines. Those in their thirties and forties have been heavily involved in shaping the internet into the phenomenon it is, nurturing fledgling technologies (including filesharing) to meet their own needs and building cultures and identities around different types of participation. It’s theirs; they created it. The generation now in their teens and twenties have known nothing else, and they are the driving force behind its constant recreation, and are if anything even more strongly engaged. The content industry is currently trying the ’stick’ approach – trying to dictate terms to two generations who’re used to having things their way and are more than capable of making it so. As those generations displace their pre-internet elders, and as the developing world begins to participate more strongly in traditionally-Western information communities, content owners will find themselves less able to dictate terms, not more so. Those in charge of intellectual property realise this and have been busy over the past few decades establishing and extending copyright, patent and trademark systems, conditional trade treaties, anti-circumvention legislation, privacy infringements under the guise of cyber-terrorism prevention, and other such measures under the auspices of TRIPS, the DMCA, the PATRIOT Act, IPRED and plenty of lawsuits, including this one – all in order to retain their existing, inferior business models rather than be forced to compete on the open market of ideas in order to develop better ones.

There are political implications for all of this, as well – the Pirate Party of Sweden, formed to reform copyright law, abolish the patent system and strengthen privacy rights, claims to have gained 3,000 new members in the seven hours following the verdict, giving it a larger membership than four out of seven current parties in the Swedish parliament (and if their online membership graph can be believed, it looks like they were up above 5,000 new members within 12 hours). Candidate Christian Engström said:

“The ruling is our ticket to the European Parliament,” concluded Engström, who expects a populist backlash against the ruling to help his party’s chances of gaining a seat in the EU’s primary legislative body. [source]

Now, single-issue parties have a particularly hard row to hoe (even TPB’s Peter Sunde doesn’t vote for the Pirate Party), and in terms of realpolitik few countries can afford to deviate from the intellectual property line established by TRIPS. Nevertheless there are big philosophical issues at stake here. Politicians ignore those two generations at their peril.

Technological and economic implications
Technological and economic implications are linked because technology dictates the means by which content may be distributed, and without distribution there is no revenue. The Streisand effect mentioned above will likely manifest initially in the market for media as a short-term (and possibly short-lived) , but its long-term implications are much broader. Many of the content owners’ arguments against groups like TPB rest on the flawed premise that demand for content is static and copyright infringement is zero-sum (that is: every copy downloaded represents one less copy bought). The fall in revenue, they claim, is because of copyright infringement, so reducing copyright infringement will necessarily cause revenue to pick up again. There are two problems here: first, the genie is already out of the bottle, and two generations are now accustomed to consuming media on their own terms. They will not be forced to consume media in only the ways which content owners want them to, and whoever applies the stick in an attempt to make them do so will suffer as a consequence, because the content industries depend upon their consumers for survival, not the other way around. Second, and this is critical: by engaging in an aggressive game of whack-a-mole to safeguard a broken business model, the content industry has hastened the destruction of that business model by ensuring that only the fittest filesharing systems survive. Cory Doctorow makes both points better than I:

If The Pirate Bay shuts down, it’s certain that something else will spring up in its wake, of course — just as The Pirate Bay appeared in the wake of the closure of other, more “moderate” services.
With each successive takedown, the entertainment industry forces these services into architectures that are harder to police and harder to shut down. And with each takedown, the industry creates martyrs who inspire their users into an ideological opposition to the entertainment industry, turning them into people who actively dislike these companies and wish them ill (as opposed to opportunists who supplemented their legal acquisition of copyrighted materials with infringing downloads).
It’s a race to turn a relatively benign symbiote (the original Napster, which offered to pay for its downloads if it could get a license) into vicious, antibiotic resistant bacteria that’s dedicated to their destruction.

Content owners, by enforcing the discipline required to survive in a hostile environment, are granting clandestine distribution systems an enormous advantage: those systems evolve and improve while their own system stagnates. There are a few exceptions: Radiohead and Trent Reznor are at the forefront.

Of much more grave seriousness, however, is the chilling effect this verdict could have on the internet – search engines, ISPs and end users. Roger Wallis, Emeritus Professor of Media at Sweden’s Royal Institute of Technology (and an expert witness for the defence) warned:

This will cause a flood of court cases. Against all the ISPs. Because if these guys assisted in copyright infringements, then the ISPs also did. This will have huge consequences. The entire development of broadband may be stalled.

His point is that TPB’s technology meant their servers never hosted copyright files – those were hosted on its users’ home computers, and TPB simply provides a search engine to find content and a service which tells one user’s computer where to find files hosted on another user’s computer. If that makes one criminally liable, then those who are doing the actual distribution (te end users) and a whole lot of other people and organisations whose computers provide similar assistance including search engines and ISPs, are also criminally liable – and could even be more culpable than TPB were, since those computers actually host and distribute the copyright files themselves. Due to the highly robust, distributed, fault-tolerant nature of modern content-distribution systems made fit by nearly a decade’s worth of fine-tuning, there is simply no way to beat filesharing without targeting end-users and ISPs on a case-by-case basis. Any reluctance to roll out or use broadband internet services will have catastrophic flow-on economic effects, and given that media consumption is a major driver of broadband, content owners are in a catch-22 situation: either they aggressively prosecute ISPs and end-users or they fail to beat filesharing. In the former case, they get to keep their business model, at the cost of making criminals of their consumer base and ensuring that yet more complex, robust and powerful distribution mechanisms are developed – and possibly at the cost of the internet as we know it. In the latter case, they have to develop systems which are fit enough to survive on their own. The longer they delay, the harder it will be.

An upcoming post will look at the battle for hearts and minds which will fundamentally determine the winner in this contest.

L

This morning’s blackout was quite widely observed. My impressions (and ratings) of some of the usual suspects’ efforts are presented below. Overall – I’m a bit underwhelmed.

The point of the action was not about colouring your site black – it was about withholding content. To black your site out and to obliterate all the content on it, demonstrating what might happen in a s92-safe world. Many did, many didn’t.

So, according to my totally unscientific rating scheme, if you didn’t remove the content the best you got is a bare pass. Other than that, it was points on or off for clarity of message, design, and general commitment to the cause. Don’t take this as me being uncharitable – I figure everyone benefits if actions like this are as well-produced as possible.

Public Address – clear, punchy, doesn’t get bogged down in detail, links through to information. A.

Kiwiblog – One post blacked out, ads off, comments off. Given that KB is one of the banner sponsors and organisers of this action, you’d think it was important enough to do properly. Bloody weak. But then some time around 0945, the site redirected to http://creativefreedom.org.nz/blackout-homepage.html, thankfully. B overall.

The Standard [shot] – Nuked the colour scheme and all content, but didn’t make it black! C+.

The Hand Mirror [shot] – Changed the colour scheme, but didn’t make it black. Page looks like it’s been haxx0red. Content still there too. D+.

Scoop [shot] – `404 Page Censored’. Mixed messages, but 404 is the http error meaning `file not found’, and this is what we’re looking at under s92. Requires people to engage (which they might not), but `page censored’ is a strong statement. A.

Not PC [shot] – Weak. Clearly not an important issue. D.

No Right Turn [shot] – Stock CFF page, nothing else. B.

No Minister – Partisan hackery plus no blackout and all the content still there – only the animated gif. Minor points for leaving up a full explanatory message. Not quite worse than useless, but almost. D-.

Homepaddock [shot] – Customised blog post and theme, which gets the full point across well. Content remains, however. C.

Macdoctor Moments [shot]- Properly blacked out, but busy and complicated design obscures the message somewhat. B-.

Capitalism Bad, Tree Pretty – Properly blacked out, Dylan Horrocks cartoon instead of s92 message is a nice touch. B+.

Kiwipolitico [shot] – Stock CFF page, nothing else. B.

TVHE [shot] – Blacked out, but content remains. C.

Frogblog – Nice work on the theme, but content remains and the advertised cartoon isn’t actually showing. C-.

BK Drinkwater [shot] – Yeah, it looks like a plain black page, but that’s just because I took the screenshot while the animated GIF was all black. No other content. A-.

Monkeys With Typewriters [shot] – Animated gif and all the rest of the site as usual. D-.

Tumeke! [shot] – Just the banner; the rest of the page links through to CFNZ. Vivid, but not obvious. B-.

The Dim Post [shot] – Stock CFF page. B.

Micro Party Watch – Technical fail, but at least done with some humour. D.

I haven’t rated those who didn’t participate – they all just get `F’ for `Fail’. Also, these are just the sites I got around to checking – add others below, if they’re notable.

I can confirm claims by Trevor Mallard and Clare Curran on The Standard that Curran attempted to prevent the guilt by accusation copyright law from taking effect by today seeking leave to introduce a bill, but was prevented from doing so by National members. Audio is here.

Scoop also confirms it.

L

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

The 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