What Are Examples Of Indigenous Knowledge?

Indigenous knowledge is a broad concept, and includes intellectual property covering traditional innovation, know-how, and skills in scientific, technical, medical, agricultural and biodiversity areas.

Indigenous knowledge also covers art and culture, such as visual symbols, architecture, languages, music, narratives and other forms of artistic expression.

Importantly, indigenous knowledge applies to past, current and developing knowledge.

How Is Indigenous Knowledge Protected?

Indigenous intellectual property has been, and often continues to be, inappropriately used without consent of the owner. 

Unfortunately, in Australia, there are no domestic laws specifically to counteract this. International law does have a principle of ‘free, prior and informed consent’ regarding indigenous knowledge from traditional owners. In reality, though, this is difficult to enforce.

It has been argued there are many shortcomings with the intellectual property rights system’s ability to protect indigenous knowledge. These problems include:

  • The method of protecting rights is too short term. For instance, a patent in Australia can last for 8, 20 or 25 years, depending on the type of patent.
  • Individual ownership is overly emphasised, while indigenous knowledge can be owned by communities. 
  • The focus is on commercial transactions rather than protecting cultural expressions.
  • Informal innovation is threatened.

You can read more about these shortcomings in this research paper.

When Might A Business Use Indigenous Knowledge?

Businesses might use indigenous knowledge without even realising it, or use knowledge without knowing that they should ask permission first.  Using indigenous knowledge without consent from the owners of this knowledge can result in some harmful consequences.

Like any owner of intellectual property, recognition and permission is key. Recent indigenous consultation with IP Australia found control, protection, recognition and respect of indigenous knowledge to be the top concerns of holders of this knowledge.

Here are some examples where businesses might use indigenous knowledge:

·  A Sydney soft drink business develops an icon for a trade mark that uses the Darug symbol/artistic motif for water.

·  A baker is inspired from going on a Gamilaroi guided tour of agricultural uses of wild wheat where the tour guide describes how to make a unique and tasty cake from a wild grain. The baker then sells and markets the cakes using the techniques the guide described.

·  A naturopath business wants to use traditional herbs known for their calming properties in Wilcannia country. The naturopath harvests these herbs and markets them for the same purpose they’ve been used for thousands of years.

·  A director running a dance company sees a Ylongu performance with a distinct and graceful pattern of movement he replicates in his theatre’s upcoming performances.

What Should You Do If You Want To Use Indigenous Knowledge In Your Business?

As well as respecting the owner’s invention and international law, your business will benefit from a positive reputation if you seek advice, permission and partnership with the owners of the intellectual property you wish to benefit from.

So, what practical steps can you take if you want to use indigenous knowledge in your business?

Many businesses are not aware that protocols exist in many industries to specifically seek permission to use indigenous knowledge. You should check what protocols apply in your industry.

Using the examples above, the soft drink business and dance company using indigenous art should start by following the protocol, “Australia Council for the Arts – Protocols for Visual Arts, Music, Writing, Performance and Media Arts”.

In Summary

There are no specific intellectual property laws for indigenous knowledge in Australia in 2020, but this is likely set to change. Even so, you should still seek consent before profiting from indigenous knowledge or using it in your business. If you want to have a chat with an intellectual property lawyer, feel free to get in contact with us on 1800 730 617 or team@sprintlaw.com.au.

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