Indigenous Knowledge And Intellectual Property Rights

Are you thinking about applying to register a trade mark, a patent or a design that involves the use of an Australian Indigenous word, ingredient or image? If so, make sure you are aware of how to proceed with respect. People have criticised Australian intellectual property laws for not adequately protecting Indigenous culture and lacking awareness of differing knowledge systems. This article discusses: 

• what Indigenous knowledge is;
• the circumstances in which you may be able to borrow from the wealth of Indigenous knowledge; and 
• how to be respectful of the history, culture and social identity of the Indigenous community.  

What is Indigenous Knowledge?

Due to its ever-evolving nature, Indigenous knowledge is not easy to define. Broadly, however, Indigenous knowledge refers to two main areas. These are traditional knowledge and traditional cultural expressions. 

Traditional Knowledge

Traditional knowledge refers to skills, practices and techniques within a traditional context. This includes innovations in agricultural, biodiversity and health settings. It can also include genetic resources. This is biological material found in plants, micro-organisms and animals, formulated or used for inventive purposes. 

Traditional Cultural Expressions

Traditional cultural expressions refer to artistic, musical or performative expressions of Indigenous culture. This is often referred to as ‘folklore’. For example, it can include stories, dances, symbols, designs, architecture, music and languages. 

How To Use Indigenous Knowledge Respectfully

Indigenous knowledge, in its entirety, does not readily fit within the Western system of intellectual property protection. You may be intending to use some form of Indigenous knowledge as part of your brand or for a commercially beneficial purpose. In this case, you should take certain measures to ensure you are being respectful to Indigenous cultural heritage. 

As part of Indigenous Australia’s Indigenous Knowledge Project, consultations were held with Australian Indigenous people across 2018 and 2019. A number of consistent key concerns were apparent. Use the acronym ‘CPRR’ to help you understand how to keep these themes in mind. CPRR will help you to proceed with respect and informed consideration at all times. CPRR stands for:

• Control: understand and respect that Indigenous people want to feel that they have control over who can exploit Indigenous knowledge, to ensure that it is being used in appropriate ways. 
• Protection: be mindful of the protective measures Indigenous people wish to see implemented against the misuse or misappropriation of Indigenous knowledge. 
• Recognition: recognise that Indigenous people are the rightful owners of Indigenous knowledge. 
• Respect: offer respect to Indigenous people when borrowing from, or referring to, Indigenous knowledge, and respect the protocols associated with Indigenous knowledge. 

Intersection Between Indigenous Knowledge and IP Rights

At times, Indigenous knowledge can be at odds with traditional Intellectual Property protection. Often, incompatibilities emerge. 

Relatively recent progression has been made to:

• recognise Indigenous knowledge; and
• prevent the granting of patents in relation to traditional knowledge.

In India, the US Patent and Trademark Office revoked a patent for the use of turmeric in treating wounds. This decision followed evidence coming to light that traditional Indigenous Indian communities had used turmeric in this way for many years. A database of traditional medicine now exists in India, forming part of the ‘prior art’ during the examination of a patent application. Therefore, if you try to patent the use of a particular form of medicine in India, you will now have your application assessed against this database. 

Sacred Indigenous Knowledge

There are some types of Indigenous knowledge that are considered sacred. You should never use this knowledge commercially. In limited circumstances involving secret knowledge, you may continue to use this knowledge if you obtain free, prior and informed consent from traditional owners. Under intentional human rights law, this means you will need to ensure any consent you receive is: 

• not obtained under pressure;
• given before you use it; and 
• given in circumstances where traditional owners know the purpose for which you will use it.  

Key Takeaways

Before applying for a trade mark, design registration or patent that may utilise a component of Indigenous knowledge, you should make sure that you are doing so respectfully and responsibly. Indigenous knowledge can include traditional knowledge and traditional cultural expressions. If you would like to discuss how you can still obtain intellectual property rights in an appropriate way, contact LegalVision’s intellectual property lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions