“Just as Indigenous territories were declared as Terra Nullius in the colonization process, so too has [traditional knowledge] been treated as Gnaritas Nullius (Nobody’s Knowledge) by the [Intellectual Property Rights] system and consequently flowed into the public domain …”.
In Part 1 of this article, I explored the meaning of Indigenous cultural and intellectual property (ICIP) in Australia, the current gaps in protection in the context of visual art and design, why protection is so important, and developments in Australian legislative reform. In addition to the developing sui generis legislation, I suggested expanding the purview and powers of the Australian Competition and Consumer Commission (ACCC) for consumer protection of ICIP to prosecute and investigate fake art; developing a legislated Traditional Knowledge symbol to authenticate tangible materials and create awareness in consumers; and establishing a national ICIP governing body, with a registration system, and enforcement and investigation powers.
In Part 2, I offer a preliminary review of ICIP regimes across New Zealand (NZ), South Africa (SA), the United States (US) and Canada, and the limitations of each. I also highlight the protective mechanisms that could be imported into Australia.
Recognition and enforcement of ICIP rights differ significantly across jurisdictions, reflecting the fundamentally different ideologies of ownership and responsibility underpinning Indigenous knowledge and Western intellectual property (IP) systems. While international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provide a global (though often aspirational) standard for protecting and promoting Indigenous rights, including ICIP, no jurisdiction has yet achieved comprehensive protection of ICIP. Nevertheless, Australia can draw on the frameworks developed elsewhere to strengthen its own approach.
New Zealand (Aotearoa): legislative recognition
New Zealand has made a noteworthy attempt at ICIP acknowledgement and implementation. The IP system in New Zealand is a continuation of the Westminster British system and otherwise complies with New Zealand’s obligations under the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights.
New Zealand has incorporated ICIP protection into IP legislation. The WAI 262 Waitangi Tribunal claim addressed the lack of protection of ownership and use of Māori knowledge. In 2011, the New Zealand government recommended vast policy and legislative reforms in response relating to ICIP. Some recommendations were implemented, including legislative recognition of Mātauranga Māori (the body of knowledge, experience, values and philosophy of Māori), but the enforcement of ICIP protection has limitations.
New Zealand’s approach to protecting the ICIP of Māori peoples is in part informed by the Te Tiriti o Waitangi (Treaty of Waitangi), which recognizes Māori sovereignty (Tino rangatiratanga) and emphasises Māori control over Mātauranga Māori and Tikanga Māori (customary practices embedded in that knowledge). Under New Zealand’s Trade Marks Act 2002 (NZ), ICIP protection includes registration considerations, an advisory body and recognition of collective ownership, as set out below:
- Pursuant to section 17(1)(c) of the Trade Marks Act 2002 (NZ), the Trade Marks Commissioner must not register a trade mark which would be likely to offend a significant proportion of the community, expressly including the Māori community.
- Sections 117-118 of the Trade Marks Act 2002 (NZ) establish a Māori Advisory Committee to prevent culturally inappropriate trade mark registrations. The Māori Advisory Committee (MAC) provide advice on the registration of trade marks and the granting of patents that have a Māori cultural element, including Māori words or images. However, decisions of the MAC are not binding.
- A trade mark in New Zealand can be owned by one or more individuals, including a Runanga (the governing council or administrative group of a Māori iwi or hapū which has been established as a legal entity). Collective ownership is an important aspect of ICIP. It is the nature of Indigenous groups to create, share and own intellectual property. The current lack of this recognition is one of the limitations in the current Australian legal framework discussed in Part 1 of this article.
According to the Intellectual Property Office of New Zealand, in practice the MAC’s advice is followed in relation to trade marks because of the prohibition on offensive marks (the Commissioner should not derogate from a recommendation unless there is counterevidence from other Māori peoples).However, the lack of binding decision-making and mandatory consultation limits the effectiveness and certainty of this mechanism.
Patent legislation contains similar provisions. Sections 225-228 of the Patents Act 2013 (NZ) establishes a Māori Advisory Committee. Its function is to assess a patent application that contains an invention derived from Māori Traditional Knowledge or Indigenous plants or animals.The Patent Commissioner must consider the Committee’s decision, but it is not binding.
The Copyright Act 1994 (NZ), which is currently under review by the New Zealand government, provides little protection for ICIP. There is no specific provision for Māori interests. Copyright registration can protect the specific physical expression of some forms of Mātauranga Māori, however the underlying ideas, content or style – which is crucial to protect – cannot be copyrighted. A further limitation of New Zealand’s framework is that ICIP protection is only enlivened upon a person attempting to register their own intellectual property rights, such as a trade mark or patent.
South Africa: legislative change
South Africa is a notable example of jurisdiction enacting substantive legislative change for the purpose of protecting ICIP. However, the change does not necessarily translate to adequate protection since Indigenous people must meet the requirements of a Western framework. Two key Acts form the basis of the revised framework.
First, the Intellectual Property Laws Amendment Act of 2013 (SA)(Amendment Act), which ‘provide[s] for the recognition and protection of certain manifestations of [I]ndigenous knowledge as a species of intellectual property’. The Amendment Act modified various IP laws to provide for the recognition and protection of Indigenous knowledge, including amendments to the Performers’ Protection Act 1967 (SA), the Copyright Act 1978 (SA), the Trade Marks Act 1993 (SA), and the Designs Act 1993 (SA). Notable amendments include the establishment of a National Council in respect of Indigenous Knowledge, a National Database for the recording of Indigenous Knowledge, and a National Trust and Trust Fund for the purpose of Indigenous Knowledge under the Copyright Act 1978 (SA).
Second, the Promotion, Development and Management of Indigenous Knowledge Act of 2019 (SA) (PDMIK Act) provides for the protection, promotion, development, and management of Indigenous Knowledge. It establishes a National Indigenous Knowledge Systems Office (to provide for the management of ICIP rights communities), and an Advisory Panel on Indigenous Knowledge. The PDMIK Act provides for the recognition of prior learning and mechanisms that facilitate and coordinate Indigenous knowledge-based innovation.
Whilst these developments in ICIP protection are significant, critics within South Africa (including practitioners) have consistently argued that ICIP cannot always meet the requirements set by existing Western IP legislation, and therefore the proper form of protection is sui generis legislation.[xx]
United States: Tribal law
Indigenous peoples in the US are subject to Federal, State and Tribal law. As in Australia, the existing federal and state frameworks do not provide adequate protection for ICIP.
One such law is the Indian Arts and Crafts Act 1990 (US) (IAC Act) which prevents fraudulent claims about Indigenous-made goods and establishes an advisory board. The sanctions are significant: for a first-time violation, an individual can face civil or criminal penalties including fines of up to $250,000 USD or a five-year prison term, or both; a business can face fines of up to $1,000,000 USD. However, in practice the lack of sanctioning under and enforcement of the IAC Act limit its effectiveness. Protection of ICIP is also limited to the scope of the IAC Act (arts and crafts only, as opposed ICIP generally).
Arguably the most beneficial insight to be gained from the US in ICIP is found in Tribal laws. The US recognizes over 574 Native American tribes as sovereign nations, with the ability to create their own constitutions and laws. Tribes are increasingly creating their own ICIP statutes, an act of sovereign power. Various tribes have enacted trade mark legislation (Ho-Chunk Nation, Pascua Yaqui, Colorado River Indian Tribes); however, few have addressed ICIP protection in a broader sense.
One of the few instruments that does so is the Cultural Resource Protection Act 2005 of the Sisseton-Wahpeton Oyate people of the Lake Traverse Reservation in South Dakota (CRP Act). The purpose of the CRP Act is to ‘protect, preserve and promote the Sisseton-Wahpeton Oyate’s cultural resources’.
The CRP Act comprehensively defines ICIP as it relates to the Sisseton-Wahpeton Oyate people. It establishes a Cultural Preservation Office, a Preservation Officer and a Register which records all cultural resources, archaeological resources, sacred items, spiritual sites and burial items within the Reservation (all of which are interlinked with the tribe’s IP).
The CRP Act also establishes a Cultural Preservation Board to maintain and enforce the CRP Act. Importantly, the CRP Act vests the Board with the ability to enforce the CRP Act and impose penalties for any violations thereof, including civil fines of up to $5,000 per violation. The Board also has the power to issue orders and make binding decisions. The Board can recommend rules, regulations and standards which, if accepted, have the force and effect of Tribal law. These powers are an important mechanism for ensuring ICIP rights are meaningfully protected, providing real consequences for breaches.
Canada: limited protection
Canada is a jurisdiction with strong recognition of its First Nations peoples. The rights of Indigenous peoples in Canada are enshrined in section 35 of Canada’s Constitution Act 1982. Obligations under the UNDRIP have been implemented in Canada through the United Nations Declaration on the Rights of Indigenous Peoples Act 2021. However, ICIP-specific protection is limited. Existing trade mark and copyright laws are utilised to protect ICIP but these laws have the same limitations as the Australian framework. In 2018, Canada implemented an Intellectual Property Strategy to complement the implementation of the UNDRIP (Articles 31 and 11) and support the promotion and protection of Indigenous peoples’ knowledge. However, this is not a legally binding tool that communities can rely upon to protect and enforce ICIP rights. Canada currently has no sui generis ICIP legislation.
Lessons for ICIP reform in Australia
Based on the models discussed, Australia could enhance development of ICIP protections as follows:
- Sui generis legislation that recognises Indigenous systems of knowledge, such as collective ownership as in New Zealand. This is currently in development in Australia, as discussed in Part 1.
- Establishing an ICIP advisory committee, like the MAC in New Zealand, but with stronger legislated powers similar to the Cultural Preservation Board of the Sisseton-Wahpeton Oyate. For example, mandatory consultation for IP registrations, and the power to making binding decisions (subject to an appeals process). This would create meaningful protection. A national advisory body would need representation from the different language groups in Australia to appropriately advise on the rights of each group.
- Establishing an office and officer dedicated to preserving ICIP to work in conjunction with an advisory board. Since the framework established by the CRP Act protects the ICIP of one Indigenous group only (Sisseton-Wahpeton Oyate), regional ICIP offices, officers and registers would be appropriate in Australia.
- Establishing an Indigenous-led regulatory body such as a First Nations ICIP Authority, with enforcement and decision-making powers (like the Sisseton-Wahpeton Oyate Cultural Preservation Board). The body could advise on appropriation and misuse in the public domain to protect ICIP at large (not just upon registration). The body could work in conjunction with the ACCC, as suggested in Part 1 (the ACCC has the powers to deal with misleading and deceptive use of Indigenous cultural iconography, but lacks resources to deal with ICIP generally). It could also work alongside existing initiatives like the Indigenous Act Code.
- Establishing an ICIP registration system, like the Sisseton-Wahpeton Oyate people in the US, and the National Database of Indigenous Knowledge in South Africa, to record what must be protected. Since Australia has over 250 Indigenous language groups, a database would need to account for this and differentiate what knowledge belongs to which group and what is shared amongst multiple groups. Accessibility to the data recorded requires data sovereignty and confidentiality protocols. In Part 1, I suggested an online register, however in-person and online registers would be most appropriate to ensure accessibility.
- Use of a Traditional Knowledge symbol with perpetual certification/recognition to authenticate tangible materials, as noted in Part 1 of this article.A regulatory body (suggested above) should govern use of a mark, with the power to enforce penalties (since misuse of marks of authenticity has led to harmful appropriation in the past).
- Establishing a fund for ICIP protection like in South Africa, to support the functions of an advisory and regulatory body, and the registration system.
Conclusion
Australia is advanced in its efforts to develop and implement sui generis legislation, which critics from other jurisdictions contend is essential for the proper protection of ICIP. However, a holistic approach is required. To enhance its emerging framework, Australia should adapt concepts from global jurisdictions, as outlined above, whilst prioritising an Indigenous-led approach that necessarily maintains and respects cultural sovereignty.
With thanks to Dave Stewart of Bennett for his proof-reading and comments.
