Enhance and Enable – Indigenous Knowledge Consultations 2021
10 June 2021
The Law Council was pleased to make a submission to IP Australia in response to its Indigenous Knowledge Consultation Paper last week. The Law Council strongly supports IP Australia’s intention to contribute to the development of an intellectual property (IP) system that aims to help manage, support and protect Indigenous Knowledge (IK).
In its submission, the Law Council emphasised the importance of ensuring that the perspectives of Aboriginal and Torres Strait Islander peoples with the authority to speak for country – First Nations, Traditional Owners and Knowledge Holders – are captured and prioritised within IP Australia’s processes, as well as the processes of any newly created Indigenous Advisory Panel. It recommended embedding ‘two-way learning’ processes within the reformed IP system, noting that management and protection of IP over IK will require robust dialogue between the agency and traditional custodians, as well as education of applicants and the wider public.
One of the issues canvassed in the consultation paper was which of three options – consent, cultural offensiveness or deceptiveness – was preferable as a basis for considering applications where someone seeks to use IK in a trade mark or design. The Law Council strongly supported a consent model, with an applicant to provide evidence they had obtained free, prior and informed consent through provision of a statutory declaration(s) as well as a letter(s) of consent from the custodian(s) of the IK.
It noted that the benefit of pursuing the consent option as the primary mechanism is that it would, in most cases, address both the issues of cultural offensiveness and deceptiveness, because it would require an applicant to engage and consult with the custodians. This would provide ample opportunity for the custodians to raise concerns over cultural offensiveness or deceptiveness or to ultimately refuse consent on the basis that these concerns have not been adequately addressed.
The Law Council thanks the Intellectual Property Committee of its Business Law Section, its Indigenous Legal Issues Committee, the Law Society of South Australia, and the Queensland Law Society, for the high quality of input provided to this submission.