If your IP application uses something from an Aboriginal or Torres Strait Islander person, community or nation such as words, images or knowledge, you may be drawing on Indigenous Knowledge (IK). If so, there are a number of things to consider.
IP Australia's Indigenous Knowledge Project is looking at ways the IP system can better support Aboriginal and Torres Strait Islander people to benefit from and protect their Indigenous Knowledge. IP Australia is currently consulting on our Indigenous Knowledge work.
What is Indigenous Knowledge?
We use 'Indigenous Knowledge' or ‘IK’ as a term to cover a range of knowledge held and continually developed by Aboriginal and Torres Strait Islander people. It includes:
- Traditional Cultural Expressions – or ‘TCEs’ are sometimes referred to as 'folklore' and include languages, music, performances, songlines, stories, dance, symbols, designs, visual art, crafts and architecture.
- Traditional Knowledge – or ‘TK’, refers to knowledge resulting from intellectual activity in a traditional context and includes know-how, practices, skills and innovations. This can be in a range of contexts such as agricultural, scientific, technical, ecological, medicinal and biodiversity-related knowledge. It includes knowledge about genetic resources.
- A ‘genetic resource’ can be any biological material, including plants, fungi and animals. In some areas within Australia, the informed consent of the local Indigenous community is a precondition for permission to collect a genetic resource for commercial purposes, which may include research.
Even though the word ‘traditional’ is used to describe these concepts, it is important to remember that they are not static; they are continually used and built upon.
Working Respectfully with Indigenous Knowledge
Indigenous Knowledge is an important asset belonging to Aboriginal and Torres Strait Islander people, their communities and their organisations or businesses. Indigenous Knowledge can reflect and identify a community’s history, cultural and social identity and its values. If you are working with Indigenous Knowledge, treating it appropriately ensures you are being respectful and this can be part of building a brand that consumers view positively.
During our Indigenous Knowledge consultations in 2018-19, the following high-level themes about using Indigenous Knowledge emerged:
- Control: Indigenous people want to be able to control who uses Indigenous Knowledge and how it is used.
- Protection: Indigenous people are seeking measures that can prevent unauthorised use of their knowledge and impose sanctions against misappropriation.
- Recognition: Indigenous people want to be recognised as the owners of their Indigenous knowledge.
- Respect: Indigenous people want their ownership of Indigenous Knowledge and the cultural protocols associated with it to be respected.
Some examples of when these themes might be relevant are if:
- a trade mark uses an Indigenous word or image
- a design incorporates Indigenous-style art or icons
- an invention draws on Traditional Knowledge or native plants and their properties.
If you are developing IP that uses or might draw on Indigenous Knowledge, you may want to consider the four themes mentioned above. Addressing these themes before you file your application may be important to consider. The misuse of Indigenous Knowledge can be disrespectful and offensive to Indigenous people. It can undermine cultural practices and may also affect the economic opportunities available to Indigenous communities.
Some Indigenous Knowledge is regarded as secret and sacred and should not be used commercially at all. Some other knowledge could be used commercially, but consent from the Traditional Owners should be sought and protocols attaching to its use should be observed.
Many issues concerning the use of Indigenous Knowledge can be addressed by obtaining consent from the Traditional Owners. ‘Free, prior and informed consent’, or FPIC, is a principle established under international human rights law. It refers to conditions where people can negotiate the terms of an action or policy which will directly affect their interests and they have the option to give or withhold their consent. The key elements of FPIC, as set out by the United Nations, are:
- Free: consent given voluntarily and without coercion, intimidation or manipulation.
- Prior: consent is sought in advance of any authorisation or commencement of activities.
- Informed: the nature and impacts of the activity are understood by the people whose consent is being sought.
- Consent: collective decision made by Traditional Owners and reached through customary decision-making processes of the communities. Consultation and participation are important components of a consent process.
Obtaining consent before proceeding to use Indigenous Knowledge is good practice that can help ensure you avoid causing cultural harm or offence.
There are materials available online such as protocols that can provide guidance on how to engage with Aboriginal and Torres Strait Islander people in relation to sharing Indigenous Knowledge. Some examples of these protocols are listed below but there are other examples available online and you should look out for those most applicable to your industry or sector.
|Traditional Cultural Expressions||Arts Sectors||Australia Council for the Arts – Protocols for Visual Arts, Music, Writing, Performance and Media Arts|
|Traditional Knowledge||Research Sectors||AIATSIS – Code of Ethics for Aboriginal and Torres Strait Islander Research|