Indigenous people and communities have unique needs in relation to intellectual property, which can be sensitive given their social, historical, political, and cultural complexities.
IP Australia uses Indigenous Knowledge (IK) as a term to cover a range of knowledge held and continually developed by Australia’s First Nations (Aboriginal and/or Torres Strait Islander) people. It includes:
• Traditional Knowledge (TK) – know-how, practices, techniques and skills; and
• Traditional Cultural Expressions (TCEs) – visual imagery, performance, design, words and names.
There are many initiatives underway around the world to document TK and TCEs. In most cases the main purpose is preservation or safeguarding (e.g. preventing misappropriation) rather than legal protection. While this blog post focuses on Australia, more broadly speaking the World Intellectual Property Organization (WIPO) outlines how TK relating to indigenous communities around the world may be considered as:
- knowledge, know-how, skills, innovations or practices;
- that are passed between generations;
- in a traditional context; and
- that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian.
Are you looking to work respectfully with IK?
If you are seeking intellectual property (IP) rights in Australia and your application uses something from an Aboriginal and/or Torres Strait Islander community or nation such as words, images or knowledge, you may be drawing on IK.
If you are developing IP that uses or might draw on IK, cultural protocols associated with it should be respected and observed while in use.
It should be noted that some IK is regarded as secret and sacred and should not be used commercially at all, while other knowledge may potentially be used commercially, but consent from the Traditional Owners should be sought.
‘Free, prior and informed consent’ (FPIC), is a principle established under international human rights law by the United Nations (UN). Article 31 refers to conditions where First Nations people can negotiate the terms of an action or policy which will directly impact their interests and they have the option to give or withhold their consent. Obtaining consent before proceeding to use IK is good practice that can help ensure you avoid causing cultural harm or offence.
If you are seeking protection relating to TK in other jurisdictions, you can find more information here: https://www.wipo.int/tk/en/databases/tklaws/
Consultation and request for consent from the Traditional Owners is recommended if, for example:
- a trade mark uses an Indigenous word or image
- a design incorporates Indigenous-style art or icons
- an invention draws on TK or native plants and their properties.
If you already own an Indigenous business, or are thinking about starting an Indigenous business, Yarnline is IP Australia’s new specialist support service for Aboriginal and Torres Strait Islander businesses. Its creation is a step towards changing the Australian IP system to help support the cultural integrity and economic potential of First Nations peoples.
You may also find contacts and resources available via this page Queensland government website.
If you would like to speak with an attorney about protecting IP that may relate to Indigenous Knowledge, please do not hesitate to contact us at firstname.lastname@example.org or 07 3369 2226.