Intangible assets are difficult to value, but IP Australia has commissioned research which confirms Indigenous Knowledge (IK) in Australia is valuable with both economic and cultural value in Australia.[1]

This is anecdotally reflected in commerce with a valuable and established Indigenous art market and increased use of Indigenous cultural heritage as a unique marketing tool and sign of Australian national identity.

IP Australia has developed and Indigenous Knowledge Work Plan 2020-21 as part of its strategy to better support the cultural integrity and economic potential of Indigenous Knowledge (IK) held by Aboriginal and Torres Strait Islander people, which includes:

• ‍Traditional Knowledge (TK) – know-how, practices, techniques and skills; and
• ‍Traditional Cultural Expressions (TCEs) – visual imagery, performance,design, words and names.

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For those working on the registered protection of trade marks and patents, some specific trade mark and patent related proposals include the following:

Proposal - Measures to prevent registration of trade marks or designs using IK offensively or without consent

1. ‍Objective - Provide means to prevent the registration of a trade mark or design bearing a TCE without the consent of Traditional Owners, or where its use would be offensive.
2. ‍Next Steps - Development of options to prevent registration, including possible legislative changes.

Proposal- Dictionary database for trade mark and design examiners

1. ‍Objective - To mitigate the risk of misappropriation of IK through the trade marks system by providing examiners with greater access to available and existing IK information resources
2. ‍Next Steps:

• Investigation into better resources for examiners to search against existing databases for Indigenous words.
• Arrangements for appropriate access to databases.
• Additional training for examiners as required.

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Proposal - Disclosure requirement for traditional knowledge and genetic resource in patent and plant breeders’ rights applications

1. ‍‍‍Objective - Support Indigenous communities to prevent misuse of their IK through the patents and plant breeder’s rights systems
2. ‍Next Steps - Development of options for implementation of disclosure requirement

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Proposal- Explore links between patents data and the Atlas of Living Australia, a National Collaborative Research Infrastructure Strategy (NCRIS) facility hosted by Commonwealth Scientific and Industrial Research Organisation (CSIRO)

1. ‍‍‍‍‍‍Objective-Increase transparency in the use of Australian native genetic resources and IK in claimed inventions
2. ‍Next Steps -Investigation into whether data can be linked in an appropriate manner which provides useful results

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Proposal- Certification Trade Mark (CTM) for authentic Indigenous goods

1. ‍Objective-Consult stakeholders on the key elements and concerns relating to establishing a CTM for authentic products.
2. ‍Next Steps- Development of consultation plan and engagement with stakeholders.

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Trans-Tasman approach - Australian and New Zealand

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Despite the geographical proximity of Australia and New Zealand and close economic and cultural similarities, both countries are currently operate quite different intellectual property regimes in relation to the protection of IK.

The current Australian regime has significant limitations with no specific provisions relating to IK.  For example, there is no provision in the Australian Trade Marks Act 1995 (Cth) that explicitly protects indigenous words, symbols, images or designs from becoming registered trade marks, nor is there anything requiring the Registrar of Trade Marks to reject an application on the grounds that it incorporates an indigenous word, symbol,image or design. There is no consultation process with indigenous communities and words can be registered without the prior informed consent or knowledge of traditional owners.  Concerned parties must oppose registration under opposition grounds that the mark is Scandalous, Contrary to Law or that use of the mark is likely to Deceive or Cause Confusion.  These opposition grounds are available for all trade marks and do not obviously address IK.

New Zealand’s patent and trade mark laws include specific provisions for the protection of mātauranga Māori (commonly translated as Māori knowledge) encompasses the body of knowledge originating from Māori ancestors. It includes the Māori world view and perspectives, as well as Māori creativity and cultural practices including Te Reo, the Māori language.

Notable New Zealand government initiatives include:

• 2002-  Commissioner of Trade Marks was empowered to refuse to register a trade mark if its registration or use would be likely to offend a significant section of the community, including Māori.  A Māori Advisory Committee was established to advise the Commissioner of Trade Marks on whether the registration or proposed use of a trade mark would be likely to be offensive to Māori.
• 2013- A Māori Advisory Committee for patents was set up by the Commissioner of Patents under the Patents Act 2013 to advise the Commissioner on whether an invention claimed in a patent application is derived from Māori traditional knowledge or from indigenous plants or animals, and if so, whether commercial exploitation of that invention is likely to be contrary to Māori values.
• 2014- Haka Ka Mate Attribution Act 2014 provides a right of attribution to the tribe (iwi) Ngāti Toa in respect of the haka (ceremonial Māori dance or challenge) ‛Ka Mate’.  Any person who publishes, broadcasts or shows a film in public featuring ‛Ka Mate’ must attribute it to chief (rangatira) Te Rauparaha and Ngāti Toa Rangatira.  In copyright law, the right of attribution is unusual given that Ka Mate’was composed circa 1820.
• 2015- Geographical Indications (Wine and Spirits) Registration Amendment Bill empowers the Registrar of Geographical Indications to refuse to register a geographical indication if its registration or use would be likely to offend a significant section of the community, including Māori.  This effectively aligns the government’s approach on geographical indications with the approach it has already taken on trade marks and patents.

Australia’s IK Work Plan will likely result in reforms which reflect some of the best practices developed and which are now well established in New Zealand.

For more information on Australia's IK Work Plan contact Lance Scott

 [1] Blackwell, B.D. Bodle, K. Hunt, J. Hunter, B. Stratton, J.and Woods, K. (2019).
Methods for Estimating the Market Value of Indigenous Knowledge, reportcommissioned by IP Australia, Canberra.