This article discusses some of the issues surrounding interactions between Indigenous Knowledge and Intellectual Property systems.
What happened with Dior
In the late 1990s, Dior conducted investigations into the properties of native plants found in the forests of New Caledonia. Their search within the French Pacific territory lead to patents on six extracts, each from plants that had long been used by the Indigenous Kanak people for various medical purposes. The patents, filed in 1998, have since expired.
During research on patents involving Indigenous communities, Thomas Burelli, a scholar in environmental law from the University of Ottawa, approached the Kanak leaders about what he had discovered regarding the Dior patents and became a consultant in the negotiations. Indigenous leaders presented arguments that their traditional knowledge had been exploited for Dior’s commercial benefit and sought compensation.
A confidential agreement was reached in late 2019 between Dior and New Caledonia’s Customary Senate. The details surrounding any compensation or other financial arrangements have not been disclosed. In a joint statement with the Senate, Dior said that it “reaffirms its support of Kanak communities” for their “traditional knowledge”. Reports have noted that Dior never used the plant extracts in their products.
The term ‘Indigenous Knowledge’ can mean traditional knowledge or expression of Indigenous peoples, which involves their knowledge and use of the environment along with traditional art, stories and dance. Indigenous intellectual knowledge is often closely linked to the environment or cultural heritage and may be viewed as communal rights rather than those linked to an individual. Indigenous groups may feel an ongoing responsibility to protect this knowledge as custodians, tasked with passing it on through the generations. These rights are also hard to quantify, sometimes contain intangible expressions, and are integrally weaved into other cultural aspects. This leads to a distinctive disconnect between the way these rights are recognised and the way that IP systems are structured.
The potential for exploitation of indigenous communities under the rules of IP systems can be a sensitive topic to navigate, especially within the context of colonisation. One example is the use of time limits in intellectual property – trading off the sharing of knowledge with the wider world for the right to exploit the invention, therefore retaining an incentive to innovate.
This has also been an ongoing issue in New Zealand, where misappropriation and protection of the Māori culture and heritage is often discussed and debated. Recent examples have included the protection of the haka Ka Mate ahead of the Rugby World Cup in Japan (as displayed in the ads for Heineken), the production of a range of beers with labels that depicting Māori ancestral legends and the debate surrounding the international use of “manuka”, a Māori term, by the honey industries of Australia and New Zealand (as we have previously discussed here, here and here).
The position in Australia
The last few years have seen IP Australia seek a comprehensive review to understand the nature and issues surrounding Indigenous Knowledge and recently released their work plan.
The review found that there was limited understanding on the economic value of Indigenous Knowledge, and that the implementation of legislation would need to address the issues of informed consent and participation of these communities in decisions that would affect them and their cultural heritage.
In August 2019, IP Australia released its Consultation Report on Protection of Indigenous Knowledge in the Intellectual Property System. The report focused on the misuse of Indigenous languages (including clan names), the misappropriation and misuse of traditional knowledge and the use of Indigenous genetic resources.
There was a significant argument that these populations should be allowed to receive the economic benefit for their traditional knowledge if that knowledge would yield commercial benefit to others who use it. There is also an economic and innovative cost to blocking all use of knowledge if it can be claimed by those in an Indigenous community. However, a key issue raised was that allowing patents to be filed relating to this collective knowledge could expose these communities and their knowledge to exploitation, rather than protecting them through more regulation.
Addressing the imbalance
The review found that key concerns focused on respect and recognition of knowledge ownership and the associated rights; and protection and control of this knowledge (controlling how it is used, preventing unauthorised use outside of these boundaries and providing avenues for sanctions when those controls are breached).
IP Australia presented a work plan which aims to address these issues and improve understanding in the use and misappropriation of Indigenous Knowledge. Their measures include:
- A requirement that patent applications disclose their sources, and include a declaration when Indigenous Knowledge is part of the application;
- A consent requirement for trade mark applications that include or use Indigenous words and images;
- The development of template agreements and research protocols for businesses, focusing on informed consent from communities and balancing the bargaining power between parties;
- Providing an Indigenous Advisory Panel to provide input on applications that will use Indigenous Knowledge;
- The provision of education, as well as legal support and training, where appropriate, of Indigenous communities in the areas of consent of information, negotiation and intellectual property; and
- The development of communication materials to educate Australians and other parties about the rights of Indigenous people.
Potential changes to how IP Australia examines IP applications involving Indigenous Knowledge will be the subject of further consultation during 2020. We will watch with interest and update you on any further developments.