October was Indigenous Business Month in Australia. This year’s theme of “Powering the Indigenous Economy” highlights the significant contribution that the Indigenous business community has made to Australia’s economy, providing a platform to showcase the ‘power’ generated from Indigenous entrepreneurial and innovative activities. Indigenous Knowledge has been core to much business ingenuity in Australia.
Indigenous Knowledge (IK) comprises know how, practices, skills and innovations embedded in cultural practices, language and connections to land. It is expressed in a multitude of ways and is intrinsic to Indigenous identity. While an intellectual property (IP) right can help protect IK as a business asset, there remain gaps in protection that expose IK to appropriation, inappropriate exploitation and significant potential cultural harm. In response to increased recognition of the harm caused by inappropriate commercialisation of IK, IP Australia is introducing a number of measures to improve understanding of IK and the IP system, and to preserve the integrity of cultural knowledge and its forms of expression.
A discussion paper, prepared on commission from IP Australia and the Department of Industry, Innovation and Science and released in 2018, highlighted issues faced in Australia regarding protection and management of IK. This paper spawned further research papers, consultations and engagement opportunities, led by IP Australia, with a view to implementing a culturally acceptable system that provides Indigenous people with control, protection, recognition and respect over their Indigenous Knowledge. Included in the proposals were the creation of an Indigenous Advisory Panel and consultation and consent requirements.
The implementation of an Indigenous Advisory Panel (IAP) is intended to assist IP Australia in recognising the unique cultural, economic and social significance of Indigenous Knowledge and providing needed guidance on cultural issues, as well as leading policy and procedure reform. The IAP is envisaged to comprise members selected based on knowledge, skills, Indigenous connections and standing in relevant industries, with at least 75% of the members being Indigenous and including a gender balance. The IAP would work closely with IP Australia’s Indigenous connections officer, whose role is to understand consultations and identify relevant communities, organisations and experts with whom to engage as needed.
Other potential measures under consideration to try and prevent rights being granted over IK that is inappropriate, unfair or offensive include:
- Asking for evidence of consent: If consent is provided, an assessment on the appropriateness of this consent, for example, whether obtained from the right community, may be conducted by the IAP.
- Assessing if cultural offense to a community or communities is caused: This may not only involve the IAP, but also engagement with the relevant community, Traditional Owners or Custodians.
- Looking at whether use of Indigenous Knowledge is deceptive: This includes considering whether the application creates a false suggestion that there is a connection with an Indigenous community. An Applicant may need to show they are either part of the relevant community, or have some arrangement with the community in place.
When these measures are implemented, trade mark applicants may be required to demonstrate that they appropriately consulted or obtained consent to the use and registration of a word or image that includes IK. In addition, and to assist in recognising and adequately processing trade mark applications that include IK, a new question may be added to the application form, allowing Applicants to self-identify the inclusion of IK. Establishing a consultation requirement to successfully register a trade mark will assist Australia in meeting the international standard of prior, free and informed consent, integral to the self-determination of Indigenous communities.
The public consultation on the various proposals and potential measures ended in May 2021 and a consultation update and the release of a proposed plan from IP Australia is currently awaited. In the meantime, IP Australia has established a specialist group of examiners whose focus is on trade mark and design applications that contain identified IK. As part of Indigenous Business Month, IP Australia launched Yarnline, a call-back service offering to help and support Indigenous businesses, and those working with Indigenous businesses, to better understand IP.
A wide collection of resources has also now been made available on the new IP Australia Indigenous Knowledge IP Hub. These have been compiled to assist in understanding IK and the important role it plays within Indigenous communities both culturally and as a beneficial asset. In relation to such assets Indigenous communities should be entitled to control the decision on whether their IK can be used in a commercial setting, be provided protection by giving an opportunity to impose constraints, ensure recognition of the ownership that Indigenous people have over their culture to afford respect over their IK and cultural protocol ownership. In achieving these ideals, the Indigenous economy will be both more ‘powered’ and empowered. We look forward to IP Australia’s consultation update.