A Tort of Misappropriation of Culture

Abstract

Cultures are regularly misappropriated without legal recourse. Whilst the World Intellectual Property Organization is developing an international framework to protect culture, its progress is slow. This article proposes a tort of misappropriation of culture, using the tort of misappropriation of personality, which has been recognised in the United States, and judicially considered but not yet recognised in New Zealand, as a template for the tort. First, it identifies the legal gap by explaining how New Zealand’s recognised torts and relevant statutes fail to protect culture from misappropriation. Secondly, it explains the tort of misappropriation of personality. Thirdly, it outlines elements, defences and remedies for a tort of misappropriation of culture. Finally, it applies the tort in two case studies. The article will be of particular interest to scholars and lawmakers in common law countries where Indigenous peoples are calling for enhanced protections for their knowledges and cultures.

Keywords: Tort, Misappropriation, Treaty of Waitangi, Tikanga Maori, Traditional Knowledge, Traditional Culture

JEL Classification: K10, K13