Last updated: 
27 May 2020

Insight #2
Tools to help support the protection of IK and its value

This is the second of a series of Insights to share the key findings of the Report into Estimating the Market Value of Indigenous Knowledge done by CAEPR for IP Australia. The first of these insights is available on the IP Australia website.

Why protect Indigenous Knowledge?

Indigenous Knowledge or ‘IK’ refers to the knowledge held and developed by Australian Aboriginal and Torres Strait Islander peoples. It includes Traditional Knowledge (such as methods, skills and know-how) and Traditional Cultural Expressions (such as language, art, craft and dance). 

The cultural significance of IK is a key reason to protect it and ensure that it is used with consent. Also, IK can create economic value for Aboriginal and Torres Strait Islander peoples across a range of sectors. Protecting IK is important to consider from both perspectives. The first of this Insight series provides further information about the economic value of IK identified in the CAEPR Report. 

Understanding possible IK protections

In looking at how to estimate the market value of IK, the CAEPR Report identifies various mechanisms that can protect it. This work by CAEPR provides a useful overview of how IK can be protected. Two broad categories of tools that can help in protecting IK were identified in the CAEPR Report:
 

Enforceable instruments Voluntary protocols, standards and guides
  • Recognition as Intellectual Property (IP), including Certification Trade Marks (CTM) 
  • Private contracts and agreements
  • Topic-specific legislation in certain contexts (e.g. heritage laws)  
  • Actions against IK misuse under Australian Consumer Law, tort law or equity
  • Government-supported protocols
  • Non-government protocols
  • Accountancy Standards (i.e. through reporting requirements triggered when IK is considered an intangible asset)

 

These categories divide the possible mechanisms for protecting IK into those that can be enforced through the legal system (for example, by a court) and those that may not. The ability to enforce rights can help in cases of misuse but there are often costs associated with obtaining, maintaining or enforcing these instruments. 

Some other laws can also apply to IK in particular contexts. Examples include cultural heritage laws and biodiversity laws, enforceable private agreements, and actions against the misuse of IK under the Australian Consumer Law, or under the general law (e.g. torts or equity). These may provide protection to IK, but this will depend on the circumstances.

Voluntary protocols or guides can help people to do the right thing if they are working with IK. They can also help in raising awareness and setting standards about what is appropriate and respectful of Aboriginal and Torres Strait Islander peoples and their knowledge. Although they are in a separate category, it is important to note that a protocol or standard incorporated into a private contract or agreement can also become enforceable. 

The CAEPR Report includes a list of some the protocols and guides which have been published. This may be a useful starting point if you are looking to find an example relevant to your sector.

IK and Intellectual Property Laws

The CAEPR Report identified IP as one type of instrument that could protect IK. However, IP rights were not designed with IK in mind and can only provide protection in specific circumstances. Many IP rights often require individual ownership, have time limitations, and are focussed on protecting new knowledge or inventions. This can make them unsuitable for protecting IK that is communally owned and passed down through generations.

This does not mean IP does not have a role to play in protecting IK. For example, innovations and new inventions in fields such as natural and genetic resources, healthcare, medicine and bush foods may be protectable by patents (see case study) or plant breeder’s rights. 

Businesses that offer products or services which use IK could also consider a trade mark to help consumers identify their goods. A CTM is one option discussed in the CAEPR Report. A CTM is owned by a central organisation but allows for multiple producers to use the trade mark if they meet certain rules or standards. 

IP Australia is currently looking at ways the IP system can help better protect IK. More information about this work is available on the IP Australia website.

Case study – IK and patents

One example of how patent protection and IK intersect is the Mudjala Plant which grows in the wetlands of northern Australia. The Jarlmadangah community and Griffith University lodged a patent in 2003 for novel analgesic compounds derived from the plant. The Mudjala Plant was commercialised at the direction of the Jarlmadangah community, based on its knowledge of the plant’s medicinal properties and the community is a joint holder of the patent. The CAEPR report estimated a 50 per cent value attribution for IK in this example, demonstrating the economic value of IK in this kind of scenario.  Read more in the Report.

 

What’s protection got to do with value?

Looking at the instruments that can apply to IK is not only useful for considering how to protect IK, but also for understanding its economic value. 

The cost or price involved in obtaining, enforcing or trading enforceable instruments could be used to estimate market value. The CAEPR Report noted that further information about transactions using IK, such as licensing agreements relating to IP rights, would help in future work to estimate the value of IK.

Voluntary instruments such as protocols may sometimes have compensation or payments associated with them that can imply a ‘market’ value. A producer that can demonstrate it is following protocols may find customers are willing to pay a higher price for its goods and services. Data on the benefits from adhering to protocols are limited at the moment, but this is the kind of information that would provide further insights into the market value of IK.

Take-away thoughts for businesses or individuals working with IK

  • There are a range of instruments that relate to the protection and use of IK. These instruments also provide an insight into the economic value of IK.  
  • Options include those IK instruments which can be enforceable, such as contracts or IP rights, or those that may be non-enforceable, such as guidelines or standards.
  • Considering the different instruments and how they can protect different IK is important and can form part of discussions regarding consent to use IK.
  • Protocols, standards and guides can be a good starting place to get a better sense of how to work with IK. However, this can’t replace speaking to the relevant communities.