In brief 3 min read
IP Australia has released a report summarising stakeholder feedback on how Australia's IP system can be improved to protect and promote the integrity of Indigenous Knowledge (IK). Although legal reform is not yet in sight, businesses sensitive to the protection of IK are encouraged to be proactive in establishing fair terms of negotiation and engagement with Indigenous communities.
In August, IP Australia released its Consultation Report on Protection of Indigenous Knowledge in the Intellectual Property System (Report). The Report, which follows roughly six months of consultation with Indigenous communities and institutions, summarises feedback on the control, protection, recognition of, and respect for, Indigenous Knowledge. 'Indigenous Knowledge' is a broad term that includes language, stories, art, practices, techniques, innovations and knowledge about genetic resources, and its ownership is considered integral to the right of Indigenous peoples to self-determination.
This awareness has driven developments in international law in the Convention on Biological Diversity and the Nagoya Protocol (which Australia signed in 2012, but has not ratified), which introduced frameworks to empower Indigenous communities to protect their IK from exploitation by ensuring they share in the financial benefits of its use. More recently, WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore renewed its commitment to settle the text of international instruments that will protect traditional knowledge, cultural expressions and genetic resources. It was against that background that IP Australia launched its investigation into IK in 2016.
The latest consultations, set out in the Report, focussed thematically on three issues:
- misuse of Indigenous languages, words and clan names;
- misappropriation and misuse of traditional knowledge, including know-how, practices, techniques and skills; and
- use of Indigenous genetic resources.
The Report reveals that stakeholders agreed, with some exceptions, to the following proposals:
In the patent space, stakeholders were concerned that publicly registering IK may expose it to, rather than protect it from, exploitation.
- developing template agreements and enforceable, standardised research protocols for businesses, to re-balance bargaining power and ensure Indigenous communities are enabled to provide free, prior and informed consent to the use of their IK;
- requiring patent applications to disclose their sources and declare IK as part of the application where relevant;
- a consent requirement for trade mark applications that use Indigenous words and images;
- establishing an Indigenous Advisory Panel to provide input on applications that use IK, so long as such a body is representative and has formal authority; and
- greater education and awareness initiatives, as well as legal training and support of Indigenous communities in relation to the IP regime, consent and negotiation.
Other proposals had mixed support, including use of existing IP systems for IK. For example, using Certification Trade Marks to protect Indigenous arts and crafts, or registering IK on national databases, raised concerns with placing the burden of registration on Indigenous people, rather than those seeking to use their IK. In the patent space, stakeholders were concerned that publicly registering IK may expose it to, rather than protect it from, exploitation.
Stakeholders also reiterated Australia's need to ratify the Nagoya Protocol and suggested exploring further how the Australian Consumer Law can more effectively prevent misappropriation of IK.
IP Australia has begun developing materials to raise awareness, and intends to draft further proposals for stakeholders and government bodies.