Icon on Ngati Toa’s cake

Now that Ngati Toa have been given some sort of right to the Ka Mate haka as part of a treaty settlement, and say they want to protect it from “inappropriate use”, here’s hoping they deliver the goods.

Inappropriate use should be any use of the haka by anyone anywhere except on a Ngati Toa marae, preferably in a sound-proofed room.

If that means Alf never sees one again, or hears the intimidating whoops and grunts that go with it, he will breath a sigh of enormous relief.

But an important public policy question has been raised by the special provision in the treaty settlement regarding authorship of this haka.

That question has been addressed on two blogsites visited by Alf today during a break from discussing the Government’s infrastructural spending plans with constituents (who complain not enough of it is coming their way).

Whale Oil is typically trenchant
with his demand –

Why is the Ka Mate haka even in this settlement? Te Rauparaha died in 1849 and as the alleged author of Ka Mate was also the owner of the copyright of same.

Whale Oil has looked at the Berne Convention and notes that as soon as a work is “fixed”, that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.

In most of the world, he further points out, the default length of copyright is the life of the author plus either 50 or 70 years.

Whale Oil has dipped into s. 22(1) of New Zealand’s Copyright Act 1994 and found that copyright exists for all literary, dramatic, musical, or artistic work for the life of the copyright owner + 50 years until year end.

In other words any legal rights to this work expired in 1899, fifty years after the death fo Te Rauparaha. Further when the copyright expires, the work enters the public domain. Essentially it is not owned or controlled by anyone. In this instance Ka Mate is therefore “public property”, and available for anyone to use for any purpose.

The government neither has the right or the legal ability to give away Ka Mate or to essentially re-copyright it by putting it under the control of Ngati Toa. This clause should be stricken from the settlement forthwith.

No Minister acknowledges the airing of the question by Whale Oil and similarly asks

But why is government involved in this primitive war dance?

As Whale Oil notes the chant is not covered by copyright and is now part of the public domain.

So why is a maori song treated differently to a pakeha song?

And don’t other Kiwi cultural icons need similar government protection too?

You know, Kiwis, sheep and pavlova!

Some contrary opinions inevitably have been lodged in comments on those posts, including the claim that copyright has nothing to do with what’s going on here.

Maybe it doesn’t.

Furthermore, how the matter is handled in the final treaty settlement – as the PM said – is still a matter of discussion.

But Alf is bothered that a raft of so-called intellectual property claims are being lined up by Maori, and he fears whatever precedent might be set here will become bloody awkward for negotiators before long.

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