SQUARE PEGS, ROUND HOLES
Australia’s first move towards creating a new intellectual property right
Image Credit: When Black Holes Collide by Terran Last Gun
Principal, Davies Collison Cave
It has been 15 years since the adoption by the General Assembly of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), and 13 years since its endorsement by Australia. Despite public statements of commitment to implement the declaration and its standards, progress in a country which belongs to the world’s oldest continuous living culture remains ad hoc and seriously lacking. So much so that significant breaches of human rights across a multiple of areas have been identified by the Law Council of Australia (the “Law Council”) in its June 24, 2022 submission to the Government’s Senate Inquiry into UNDRIP. In particular, the Law Council identified cultural heritage protection (or lack thereof) as having a significant historical and contemporary impacts on the “dispossession, discrimination and marginalisation” of Indigenous communities. A new report released for consultation on October 5, 2022 by IP Australia, the Government’s administrative body for the protection of intellectual property right, has the potential to help readdress this balance.
The Need for a “New” Framework
The development of a framework that enhances and enables Indigenous people’s perspectives and participation into IP protection modalities is long overdue. The right of Indigenous peoples to “maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions” (Article 31, UNDRIP) remains consistently absent from most national intellectual property regimes notwithstanding the Declaration’s ratification by more than 140 countries.
At the international level, efforts to formalize an agreed approach within the World Intellectual Property Organisation (WIPO) via the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore(IGC) continues to stall in discussions as to the extent to which conventional IP systems could and/or should be utilized to protect Indigenous peoples knowledge and cultural practices. The current mandate of the IGC is to look to “finalizing an agreement on an international legal instrument(s), without prejudging the nature of outcome(s), relating to intellectual property (IP) which will ensure the balanced and effective protection of” genetic resources, traditional knowledge, and traditional cultural expressions. The announcement of the convening of a diplomatic conference or dedicated negotiation rounds no later than 2024 on genetic resourcing and associated traditional knowledge disclosures in patent applications may provide the basis to progress discussions on broader Indigenous intellectual and cultural property protection (see WIPO Member States Approve Diplomatic Conferences for Two Proposed Accords).
While proponents for an international legal instrument cite the harmonization of diverse national systems as a motivator, as well as acting as an exemplar of multilateral negotiation, the slowness of progress continues to undermine Indigenous cultural and intellectual property whose very nature means standard intellectual property systems do not suit its’ protection. Individualism, alienability, and reduction to material form in return for time-based economic rights is the focus of most IP systems. In contrast, Indigenous intellectual property and cultural practices focus on preservation of culture through the knowledge phase, for which there is custodianship and collective passing, and for which there is a timeless connection between practice, language, and land.
Implicit in the failure to protect the know-how, practices, skills, and innovations embedded in cultural practices and their expression is the opportunity for appropriation and misuse. This extends the mantle of colonialism and erodes opportunities for livelihood, self-determination, dignity, and identity, as well as inflict significant cultural harm. In response to the increased recognition of the harm thus caused, and recognizing that waiting for international consensus should not be the only ideal, IP Australia has been progressively accelerating work to explore options for creating a culturally acceptable system focused on four key themes that provides Indigenous people with the entitlement to control the decision on whether their Indigenous intellectual and cultural property can be used in a commercial sense, be provided protection by giving an opportunity to impose constraints, ensuring recognition of the ownership that indigenous people have either their culture, and to afford respect over their knowledge and cultural protocol ownership.
Action in Australia
In seeking to achieve these ideals, between 2018 and 2021 IP Australia engaged in an extensive consultation process, notably including Indigenous communities, to consider various measures to preserve the integrity of cultural knowledge and its form of expression. The recently released announcement of scoping study consultations to explore the potential elements of standalone legislation that would support the protection of Indigenous knowledge (seen to encompass traditional knowledge such as and traditional cultural expressions including visual imagery, performance, design, words and names know-how, practices techniques and skills) reflects what the WIPO/IGC debates demonstrate, and what Indigenous peoples always knew, that the existing intellectual property system is not sufficient for their purposes.
The call for the creation of a new IP right in the current report is the cornerstone for a proposed system which, together with another 3 elements, comprises the base for a new legal framework. To redress the limitations of current intellectual property protection the first element envisages a new legal right which recognizes communal ownership as necessary. Not dissimilar to the Indian Arts and Crafts Act (USA), element 2 is directed at stopping trade in inauthentic products while making provision for authenticity claims, possibly with the support of an authenticity labelling system. Element 3 looks to create a national Indigenous knowledge authority with a range of responsibilities accessible to all Aboriginal and Torres Strait Islanders. An Indigenous decision-making body to assist in the protection of Indigenous IP has been successively proposed in previous recommendations and continues to be seen as a key element to ensure the success of, and assistance in, the implementation of any new rights creation system and ensuring engagement with it. Finally, element 4 is directed to growing Indigenous businesses and looks at measures to support competitiveness and build capacity.
Initial input, primarily from Aboriginal and Torres Strait Islander people, is being sought and will comprise the basis of a final report directed to options for standalone legislation, as well as providing key next steps. The outcome of this initial consultation into the creation of a new intellectual property rights aimed at protecting and commercializing Indigenous knowledge forms the backbone of IP Australia’s Indigenous Knowledge work plan for 2022 – 2023. The exploration of potential sui generis legislation models sits in support of the current Government’s commitment. In the meantime, IP Australia continues to develop a specialist group of examiners whose focus is on trademark and design applications that contain identified Indigenous elements.
The Advantage of Stand-Alone Legislation
The development of a framework that enhances and enables Indigenous people’s perspective and participation is long overdue. By adapting the current IP system, while also developing sui generis systems, Indigenous cultural and intellectual property is preserved for its own intrinsic benefit, but also provides rare opportunities for knowledge use with the potential to contribute socially, environmentally, and economically as long as such use is seen to align with the respective Indigenous communities defined values and needs. By taking a lead and challenging conventional IP paradigms of protection, the commitment to explore standalone legislation for Indigenous intellectual and cultural property, IP Australia is in a unique position to reposition engagement and relationships with Indigenous knowledge holders. By working with Indigenous communities to develop a purpose-built protection system, culture is given visibility. This is significant in a national history which had tried so hard to eliminate it. While this cannot redress actions from the past, it can firmly establish the value of culture within a recognized legal framework and provide a precedent for its protection, maintenance, ongoing recognition, and evolution, thus ensuring it and its people have a future, an outcome from which we all benefit.
THE BRAND PROTECTION PROFESSIONAL | DECEMBER 2022 | VOLUME 7 NUMBER 4
2022 COPYRIGHT MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES