Traditional knowledge spans thousands of years and has been passed down through generations of Aboriginal and Torres Strait Islander peoples. If you are an Indigenous person or a business wanting to use Indigenous Traditional Knowledge ethically, certain provisions protect the rights within this area. This article will discuss the protections provided under Australian law and the future of Indigenous Traditional Knowledge protection.
What is Indigenous Traditional Knowledge?
Indigenous Traditional Knowledge (ITK) in Australia is the cultural heritage of Aboriginal and Torres Strait Islander peoples. Cultural heritage includes objects, artwork and other tangible items. Additionally, it includes intangible knowledge, such as storytelling and techniques. Indigenous Cultural and Intellectual Property (ICIP) are the rights of Aboriginal and Torres Strait Islander peoples to their cultural heritage. ICIP also extends to:
- secret and sacred material;
- films;
- photographs;
- books;
- reports;
- records taken by others;
- sound recordings; and
- digital databases.
Aspects of current law provide some protection for ITK through ICIP mechanisms. However, this is dependent on what is being protected. Below, we provide examples of laws that offer protection for various aspects of ITK.
Copyright
Copyright is a form of protection for original works of authorship, including literary, dramatic, musical and artistic works. Songs, written stories, and artworks constitute tangible expressions of ITK. However, copyright protection excludes storytelling, knowledge, ideas, and information.
Continue reading this article below the formTrade Marks
Trade mark registration protects words, phrases, symbols and designs that are used to identify goods or services. This provides you with exclusive use of the registered mark. If you use ITK as your brand or mark, such as incorporating an Indigenous word or image, you can register this as a trade mark.
It is important to note that non-Indigenous people can currently register trademarks associated with Indigenous culture and heritage. This could prevent the traditional owner from using their own ITK, and there is currently no provision under the law to prevent this.
If you are looking to register a trade mark that incorporates ITK, the United Nations global standard is to obtain free, prior informed consent (FPIC). This provision is outlined in international human rights law. FPIC is a mechanism for Indigenous communities to voluntarily give consent that is not the result of coercion or intimidation. Before commencing your trademark application, you must receive FPIC. It is based on the nature of your activity and its likely impacts.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Patents
If you have an invention, you can work with a patent attorney to secure a patent. A patent protects for a period of 20 years. However, once this period expires, anyone can copy your invention as it will be in the public domain.
Plant Breeder’s Rights
If you have developed a plant through a selective breeding process, plant breeder’s rights (PBR) give you exclusive commercial use over the new plant. New plants may be a:
- tree;
- flower;
- shrub;
- vine;
- algae; or
- fungi.
Indigenous knowledge can be instrumental in breeding new varieties of native Australian plants. Similar to patents, PBR’s last for 20 years, or 25 years for trees and vines.
Geographical Indication
Geographical Indication (GI) is a form of IP protection that safeguards the names of places that are associated with certain goods or services. Traditional food or medicine from a particular region can be protected through registration as a GI.
Native Title
The Native Title Act 1993 is the legislative mechanism to recognise that Aboriginal and Torres Strait Islander people have rights and interests in lands and waters according to their traditional laws and culture. Native title may include rights and interests to:
- visiting and protecting places of significance, including to gather food and traditional resources like bush medicine, water, ochre and wood;
- teach law and custom and freedom to engage in cultural activities; and
- live on an area, including erecting shelters and structures.
Heritage Protection
The Aboriginal and Torres Strait Islander Heritage Protection Act 1994 (Cth) protects areas and objects that are of particular importance to Aboriginal and Torres Strait Islander people. This particularly applies to such that are under threat of injury or desecration.
There are also state-level provisions to protect Aboriginal and Torres Strait Islander heritage:
- WA: Aboriginal Cultural Heritage Act 2021;
- NSW: Heritage Act 1977;
- VIC: Aboriginal Heritage Act 2006;
- SA: Aboriginal Heritage Act 1988;
- QLD: Aboriginal Cultural Heritage Act 2003;
- NT: Heritage Act 2011; and
- ACT: Heritage Act 2004.
Document, Register and Enforce
Navigating the documentation and registration processes within the protections above can be challenging. The World Intellectual Property Office (WIPO) offers additional resources on Traditional Knowledge documentation. A lawyer can also assist you in navigating the enforcement procedure for each specific mechanism of law applicable to your particular situation.
Future ITK Protection in Australia
Despite the legal mechanisms available to protect ITK, cultural heritage is still vulnerable to appropriation and misuse. The Australian Government has committed to introduce standalone legislation to protect First Nations cultural expressions and knowledge. This is known as the National Cultural Policy Revive. Revive seeks to change the trajectory of the creative sector, positioning culture and heritage as central to Australia’s future. Watch this space!
Key Takeaways
There are various options for protecting some types of ITK under Australian law, but it can be hard to know which is the best method for you to safeguard ITK. The Australian Government is currently crafting legislation to provide better protection for Aboriginal and Torres Strait Islander Traditional Knowledge. We can expect to see this developed within the next five years.
If you would like advice and more information about navigating ITK, LegalVision’s experienced intellectual property team can assist as part of our membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
What is Indigenous Traditional Knowledge?
This is culture and heritage passed down through generations of Aboriginal and Torres Strait Islander peoples in Australia, including:
- artwork;
- literature;
- song;
- story;
- dance; and
- other cultural expression.
What is the best way to protect Indigenous Traditional Knowledge?
Some protections are provided under Australian law through:
- trademarks;
- copyright;
- patents; and
- The Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
For the best protection, an assessment of your ITK must be made by an intellectual property specialist to determine which option suits you best.
How can we ethically incorporate Indigenous Traditional Knowledge into our business?
International Human Rights law provisions include free, prior and informed consent (FPIC). This is consent that Indigenous communities voluntarily give without intimidation or coercion. FPIC must be provided on the basis that they are fully informed of the kind of activity you are engaged in and its potential outcomes. Consent must be given prior to your use or incorporation of ITK.
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