HOUSE OF REPRESENTATIVES

H.C.R. NO.

108

THIRTY-SECOND LEGISLATURE, 2023

H.D. 1

STATE OF HAWAII

S.D. 1

 

 

 

 

HOUSE CONCURRENT

RESOLUTION

 

 

URGING THE ESTABLISHMENT OF A NATIVE HAWAIIAN INTELLECTUAL PROPERTY WORKING GROUP TO DISCUSS POLICIES AND LEGISLATION WITH RESPECT TO NATIVE HAWAIIAN INTELLECTUAL PROPERTY.

 

 


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 ten 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, on October 3-5, 2003, the Paoakalani Declaration was compiled at the Native Hawaiian Intellectual Property Rights Conference to express Native Hawaiians' "collective right of self-determination to perpetuate our culture under threat of theft and commercialization of the traditional knowledge of Kanaka Maoli, our wahi pana and nā mea Hawaii."; and

 

WHEREAS, on August 21-22, 2021, the international coalition of kumu hula, Huamakahikina, convened to form and ratify the Huamakahikina Declaration on the Integrity, Stewardship, and Protection of Hula which states "There is insufficient protection for Kanaka Maoli culture and knowledge maintained, and embodied by, Hula. This includes infringement of the intellectual property rights to which Kumu Hula are entitled with respect to the Hula resources they steward and create."; and

 

WHEREAS, the laws of the State 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 House of Representatives of the Thirty-second Legislature of the State of Hawaii, Regular Session of 2023, the Senate concurring, that this body urges the establishment of a Native Hawaiian Intellectual Property Working Group to discuss policies and legislation with respect to Native Hawaiian intellectual property; and

 

BE IT FURTHER RESOLVED that it is requested that the Native Hawaiian Intellectual Property Working Group consist of nine members who are experts in Native Hawaiian law, indigenous intellectual property, or Native Hawaiian cultural customs and art or are Native Hawaiian cultural practitioners; provided that the Governor, Speaker of the House of Representatives, and Senate President each appoint three members to the working group, as nominated by the following organizations and entities:

 

(1) The Office of Hawaiian Affairs;

 

(2) The Hawaii State Foundation on Culture and the Arts;

 

(3) The Native Hawaiian Legal Corporation;

 

(4) The Ka Huli Ao Center for Excellence in Native Hawaiian Law;

 

(5) Kāhuli Leo Lea;

 

(6) The Ihikapalaumaewa Foundation;

 

(7) The Kawaihuelani Center for Hawaiian Language; and

 

(8) The Association of Hawaiian Civics Clubs; and

 

BE IT FURTHER RESOLVED that it is requested that the members of the Native Hawaiian Intellectual Property Working Group select a chairperson from among its members; and

 

BE IT FURTHER RESOLVED that it is requested that the members of the Native Hawaiian Intellectual Property Working Group and the named organizations and entities will have the authority to include additional Native Hawaiian organizations by a majority of the members; and

 

BE IT FURTHER RESOLVED that the Native Hawaiian Intellectual Property Working Group is requested to create and develop solutions to prevent Native Hawaiian intellectual property from being incorrectly appropriated; and

 

BE IT FURTHER RESOLVED that the Native Hawaiian Intellectual Property Working Group is requested to meet at least once a month; and

 

BE IT FURTHER RESOLVED that the Native Hawaiian Intellectual Property Working Group is requested to submit its recommendations, including any proposed legislation, to the Legislature no later than forty days prior to the convening of the Regular Session of 2025; and

 

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, Chief Executive Officer of the Office of Hawaiian Affairs, Dean of the University of Hawaii at Mānoa William S. Richardson School of Law, Director of the Ka Huli Ao Center for Excellence in Native Hawaiian Law, Dean of the Kawaihuelani Center for Hawaiian Language, Interim Executive Director of the Hawaii State Foundation on Culture and the Arts, Executive Director of the Native Hawaiian Legal Corporation, Board of Directors of Kāhuli Leo Lea, President of the Ihikapalaumaewa Foundation, and President of the Association of Hawaiian Civic Clubs.

Report Title:

Native Hawaiian Intellectual Property Working Group; Intellectual Property; Policies and Legislation