THE SENATE

S.C.R. NO.

204

THIRTIETH LEGISLATURE, 2019

H.D. 1

STATE OF HAWAII

 

 

 

 

 

SENATE CONCURRENT

RESOLUTION

 

 

URGING THE ESTABLISHMENT OF A NATIVE HAWAIIAN INTELLECTUAL PROPERTY TASK FORCE TO DEVELOP A SUI GENERIS LEGAL SYSTEM TO RECOGNIZE AND PROTECT NATIVE HAWAIIAN CULTURAL INTELLECTUAL PROPERTY, TRADITIONAL CULTURAL EXPRESSIONS, AND GENETIC RESOURCES.

 

 

 


WHEREAS, the Native Hawaiian people's collective intellectual property rights are based upon the traditional, cultural knowledge developed over thousands of years and passed down from generation to generation; and

 

WHEREAS, the value of Native Hawaiian cultural expressions and art forms are exhibited in many forms, including the use of ka ōlelo Hawaii, hula, mele, moolelo, lei making, kapa making, kākau, weaving, feather work, carving, and wayfinding; and

 

WHEREAS, the western intellectual property system was developed to protect the rights of creators and inventors against plagiarism and to reward and encourage new inventions and was not developed to protect the rights of indigenous peoples to their collective, traditional knowledge, cultural expressions, and art forms; and

 

WHEREAS, existing western intellectual property laws recognizing patents, registered trademarks, designs, and copyright often facilitate the theft, misuse, and misappropriation of indigenous knowledge by researchers, authors, scientists, biotechnology corporations, universities, the fashion industry, and others; and

 

WHEREAS, disputes between indigenous peoples and third-party users of indigenous knowledge resources over ownership and control have steadily increased in the last five years; and

WHEREAS, a non-Hawaiian food chain that originated in Chicago, Aloha Poke Co., issued cease-and-desist letters threatening small poke food businesses in Hawaii and across the nation from using the words "Aloha" and "Poke", in essence claiming ownership of these cultural expressions; and

 

WHEREAS, issues relating to indigenous intellectual property rights have been addressed in many international forums, including the World Intellectual Property Organization's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore; the United Nations Commission on Human Rights; the United Nations Declaration on Rights of Indigenous Peoples; in relation to the environment in Agenda 21 of the Rio de Janeiro Earth Summit; and the Convention on Biological Diversity; and

 

WHEREAS, other indigenous people have developed strategies and sui generis legal frameworks or systems to protect their collective intellectual property rights and knowledge, including the Indian Arts and Crafts Board federally funded through the United States Department of the Interior, the Toi Iho registered trademark for the Maori art and artists funded through a charitable trust, and the Alaska State Council on the Arts Silver Hand Program for Alaska Native artists funded through the state; and

 

WHEREAS, the Association of Hawaiian Civic Clubs previously adopted Resolution Nos. 02-08, 03-13, and 17-57 to protect Native Hawaiian cultural intellectual property and resources and urge the Legislature to enact legislation, in consultation with Native Hawaiians, that recognizes and protects the Native Hawaiian people's collective intellectual property rights; and

 

WHEREAS, the laws of the State of Hawaii recognize the traditional customary rights of Native Hawaiians but do not expressly recognize and protect the collective intellectual property rights of the Native Hawaiian peoples; now, therefore,

 

BE IT RESOLVED by the Senate of the Thirtieth Legislature of the State of Hawaii, Regular Session of 2019, the House of Representatives concurring, that the Department of Business, Economic Development, and Tourism, State Foundation on Culture and the Arts, Department of Commerce and Consumer Affairs, Department of Land and Natural Resources, Aha Moku Advisory Committee, University of Hawaii System, and any other relevant state agency is urged, in collaboration with each other and with the Association of Hawaiian Civic Clubs, Office of Hawaiian Affairs, Council for Native Hawaiian Advancement, PAI Foundation, Hawaii Arts Alliance, Maui Arts & Cultural Center, Nā Mea Hawaii, Native Hawaiian Chamber of Commerce, Native Hawaiian intellectual property lawyers, and other relevant legal scholars, to establish the Native Hawaiian intellectual property task force; and

 

BE IT FURTHER RESOLVED that the task force is requested to develop a sui generis legal system to recognize and protect Native Hawaiian cultural intellectual property, traditional cultural expressions, and genetic resources; and

 

BE IT FURTHER RESOLVED that the task force is requested to consult with indigenous communities, as appropriate; and

 

BE IT FURTHER RESOLVED that the task force is requested to submit its recommendations, including any proposed legislation, to the Legislature no later than twenty days prior to the convening of the Regular Session of 2022; and

 

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the members of Hawaii's congressional delegation; the Governor; Chairperson of the Board of Trustees of the Office of Hawaiian Affairs; Director of Business, Economic Development, and Tourism; Director of Commerce and Consumer Affairs; Chairperson of the Board of Land and Natural Resources; Chair of the Aha Moku Advisory Committee; President of the University of Hawaii System; Executive Director of the State Foundation on Culture and the Arts; Mayors of the Counties of Maui, Kauai, and Hawaii and the City and County of Honolulu; Executive Director of PAI Foundation; Chief Executive Officer of the Hawaii Arts Alliance; President and Chief Executive Officer of the Maui Arts & Cultural Center; Chief Executive Officer of the Council for Native Hawaiian Advancement; Founder of Nā Mea Hawaii; and Presidents of the Native Hawaiian Chambers of Commerce of Oahu, Maui, Kauai, and Hawaii Island.

Report Title:

Native Hawaiian Intellectual Property Task Force.