THE INEFFECTIVENESS OF THE CURRENT INTELLECTUAL PROPERTY SYSTEM (‘IPS’) IN PROTECTING INDIGENOUS RIGHTS
ALEXANDER QIN AND MARIAM KAYANI
May 22nd, 2020
I. Why ineffective?
Western intellectual property rights (‘IPRs’) create individual property rights that can be subject to transactions. They are designed to foster commercial and industrial growth. Such rights are conceptually limited in their ability to afford the recognition and protection to Indigenous intellectual property rights [1].
Indigenous peoples’ IPRs extend beyond what is recognised within the existing intellectual property protection system. Those rights are linked to land, cultural traditions and the environment. Furthermore, Indigenous communities possess unique features of their “knowledge, creative expressions and innovation that emphasises communal rights” [2]. In this blog, we suggests that such features are at odds with the notions of western intellectual property and the current system fails to provide any adequate protection.
To the Indigenous community, artistic designs embody language, dance, song, sacred sites and objects. These are maintained according to a set of rights and responsibilities that are determined by customary rules and codes of the Indigenous community. Such rights and responsibilities are informed by a knowledge system. The western IPRs refer to copyright, trademark, patent, trade secret and breach of confidence but to the Aboriginal and Torres Strait Islander peoples, protection is sought for more than just the material form. They seek protection for intangible property that is not within the scope of the related IP laws.
There are overarching problems within the current system, the result of which means that Indigenous IPRs are overlooked and are exploited or have the potential to be so treated. In 2017, IP Australia and the Department of Industry, Innovation and Science commissioned a discussion paper, Indigenous Knowledge: Issues for protection and management, [3] from Terri Janke and Company. The paper identified the following six key issues as affecting the protection of Indigenous knowledge:
misappropriation of Indigenous arts and crafts;
misuse of Indigenous languages, words and clan names;
recording and digitisation of Indigenous Knowledge;
the Traditional Knowledge of Indigenous people is being commercially exploited;
without benefits flowing to communities
5. use of Indigenous Knowledge relating to genetic resources; and
6. misuse of particularly sensitive sacred secret knowledge
II. Is there International Protection?
Dating back to the 19th Century, when the European States started colonisation movements, some Indigenous groups once travelled to the settlers’ countries attempting to have their voices heard [5]. In early 20th century, Indigenous people also sought to fight for justice under some newly evolved international law – for instance, the ‘right to self-determination’ under Article 1.1 of the International Covenant on Civil and Political Rights [6]. However, these attempts generally ended in failure, due to the lack of a well-established Intellectual Property protection system at the global level. It was not until recently that the creations of an international convention appeared to take protection and recognition of indigenous rights in IP to a new standard.
The Convention on Biological Diversity 1993 (‘CBD’), recognises the ownership of traditional knowledge by indigenous communities and thus the right to protection of their cultural and intellectual property [7]. Article 8 (j) of the CBD states that:[8]
‘Each contracting Party shall, as far as possible and as appropriate:
Subject to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge innovations and practices.’
As a result, Indigenous and local community representatives are encouraged to attend meetings held under CBD. Such attendees will be financially and logistically supported to attend the meeting so as to communicate their views to the Convention Secretariat, who is responsible for servicing meetings and drafting documents for assuring the operation of the convention [9]. Along with that, many governments have adopted policies and administrative arrangements for protecting traditional knowledge, which is an important part of the indigenous intellectual property [10].
However, notwithstanding the introduction of the CBD, the protection of the indigenous intellectual property still faces two great challenges – the potential threats imposed by other conventions and the enforceability of CBD at an international level.
a. The potential threats imposed by the other conventions
Not all international conventions tend to offer protections for the intellectual property of indigenous people. One notable convention is the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (‘TRIPS’), which is an international legal agreement between all member nations of the World Trade Organisation (‘WTO’).
As pointed out by Megan Davis, some Articles of TRIPS can be manipulated to the detriment of the development of sui generis indigenous intellectual property system. For instance, Article 8 allows the ‘members [to] adopt necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development’ as long as such measures consistent of the provisions of the agreement [11]. This indicates that in certain circumstances, the protection of indigenous intellectual property are subject to the socio- economic/technological development or the generally social welfare.
Some critics have also argued that the criteria imposed by the TRIPS on claiming an intellectual property right imposes unnecessary burden on indigenous people.[8] Article 29 explicitly requires the applicants to disclose an identifiable inventor for a patent application [12]. It then appears impossible for indigenous people to claim intellectual property via the patent avenue, considering many indigenous culture and knowledge were developed over long period, and the original inventors are unlikely to be identified.
b. The enforceability of the international law
Another challenge faced by Indigenous communities is that international laws are ‘soft laws’. As was stated by Michael Davis, ‘how rigorously countries fulfil such ‘obligations through legislative enactments or policy measures are in doubt’ [13]. Though the majority of countries in which indigenous people currently reside are member parties of conventions such as CBD, the governments can still selectively localise clauses in the treaties and therefore cause difficulties for the intellectual protections.
[2] Ibid.
[3] https://www.ipaustralia.gov.au/sites/default/files/ipaust_ikdiscussionpaper_28march2018.pdf
[4] https://books.google.com.au/books?id=zrCPK4XOadoC&pg=PA6&lpg=PA6&dq=Indigenous+people+persisted+ with+the+strategy+of+globalising+their+fight+for+justice.&source=bl&ots=g8UHr-EO-D&sig=ACfU3U3HUBBa q8wraoHofIw1tS761ec92Q&hl=en&sa=X&ved=2ahUKEwirxOuOzLXpAhWS4nMBHVy4BSsQ6AEwCXoECAg QAQ#v=onepage&q=Indigenous%20people%20persisted%20with%20the%20strategy%20of%20globalising%20th eir%20fight%20for%20justice.&f=false, page 5.
[5] Ibid.
[6] Ibid page 52.
[7] Convention on Biological Diversity, article 8(J).
[8] https://www.cbd.int/traditional/intro.shtml.
[9] Ibid.
[10]http://classic.austlii.edu.au/au/journals/IndigLawB/2006/38.html.
[12] the Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 29 (1).