Indigenous Approaches To Knowledge And The Rights On Intellectual Property

This essay will be discussing Indigenous approaches to knowledge and the rights that exist in intellectual property. (World Intellectual Property Organisation 1967).

Intellectual property was formed during the age of industrialisation (World Intellectual Property Organisation 1967). It was developed as the needs of technology advanced in society but in developing countries mainly, Indigenous people, local communities and governments have demanded more protection for traditional knowledge (World Intellectual Property Organisation 1967). Intellectual property is a reference to inventions, literature, art, symbols, images and names that are created by the mind. This is divided into three main categories of industrial property, copyright and patents (World Intellectual Property Organisation 1967). There are debates whether intellectual property rights of Indigenous people’s knowledge should be protected, and this is raised from communities such as human rights, conservation and biological diversity (Moran 2000). One of the main discussions is that the notion of intellectual property rights is a western concept that is being applied to non-western societies (Moran 2000). Protocols have played also an important role in establishing relationships between communities, non-Indigenous people, Indigenous people and/ or organisations (Anderson 2015). The development of intellectual property is important to help establish and protect Indigenous peoples’ claims and solutions. Increasing the control of this over traditional knowledge sometimes can raise questions for some communities. Intellectual property is a topic that is not very well known in Australia. Due to this, it is important to promote the issue and make sure more people are aware of this happening around Australia and internationally. The World Intellectual Property Organisation is an example of an organisation that has made a big impact in the United Nations as an intellectual property services, policy, information and cooperation which allows people to develop an understanding of the difficult topic (World Intellectual Property Organisation 1967).

Industrial property, copyright and patents are three main aspects of intellectual property. Industrial property includes inventions, trademarks, designs and geographical designs (World Intellectual Property Organisation 1967). Copyright covers work such as poems, novels, plays, films, music as well as drawings, paintings, photographs and sculptures. These rights that are related to copyright also include who are involved such as the artist, performances, producers, recordings, broadcasters and radio and television programs (World Intellectual Property Organisation 1967). Patents are exclusive rights that can be granted for an invention which allows them to stop others from exploiting their invention. This means that patent protection allows the invention to not be made, used, distributed or sold to someone else without consent (World Intellectual Property Organisation 1967). As well as this, there are two types of intellectual property protection, defensive and positive. Defensive protection aims to stop people outside of communities from taking intellectual property rights over traditional knowledge (World Intellectual Property Organisation 1967). Positive protection is the right that authorize communities to promote their traditional knowledge and control and benefit from it. They can be protected by the legislation, but this could be different for a range of countries with different laws and restrictions (World Intellectual Property Organisation 1967). Intellectual rights allow owners of trademarks or copyrighted work to benefit from their own work (World Intellectual Property Organisation 1967). Debates on whether Indigenous people’s knowledge should be protected is raised by different communities such as human rights and conservation. Human rights communities as are self-determined and urge for territorial rights (Moran 2000). Conservation however has an increasing loss of cultural heritage diversity. The legal framework for the protection of this knowledge remains vague because intellectual property is sometimes owned by an individual (Moran 2000). Protocols offer indigenous people a range of options especially in situations where Indigenous people might not want to engage with formal law (Anderson 2015). Protocols provide conditions for Indigenous people so that they can follow already existing practices rather than create new ones (Anderson 2015). This is the main reason why they have been increasingly used across all areas involving indigenous knowledge use (Anderson 2015). Protocols are beneficial as they can directly deal with the problem of researches within indigenous communities (Anderson 2015).

For most Indigenous groups, generations of knowledge have been passed down through communities. This past knowledge is normally performed orally and is not always protected by intellectual property systems (World Intellectual Property Organisation 1967). Passing down knowledge within the community is a key aspect for generations to develop their own skills, practices and innovations. These practices being passed down can become their identity and economic, cultural and spiritual traditions (World Intellectual Property Organisation 1967). These circumstances are the same for any industrial property which can include inventions, trademarks, designs, work, poems, novels, plays, films, music as well as drawings, paintings, photographs and sculptures. For example, in Darwin Aboriginal art fair showcases that work with 66 art centres across Australia, buyers are told to purchase ethically and to look out for companies that may create identical pieces of Indigenous designs and try to produce them in other countries before selling them through Australian tourist shops (Vanovac 2017). Gabrielle Sullivan who is an indigenous art code CEO said that “the sale of fake indigenous artwork may not be illegal but, is immoral”. She also says that “Indigenous art is defined by the way it represents a cultural connection and it’s a massive issue that the intellectual property has no legal protection as it violates culture and is taking away the economic opportunity from the person who designed or created it” (Vanovac 2017). Indigenous people tell a story with their art, it can be their identity and their living culture (Vanovac 2017). As they can be spiritually connected to their story, taking these patterns and colours and creating something fake out of it for profit can be very heartbreaking for the artist as they have no say in the product and are not benefitting from it themselves (Vanovac 2017). Places such as Sydney, Melbourne, Cairns and Darwin are main locations of tourism that sell copied products of Indigenous art. Some of the store owners who run these stores have admitted that the products are from Bali or Indonesia and that most of the products are not authentic (Vanovac 2017). This is an issue for consumers as they may not be able to tell the difference between a piece of authentic artwork and a fake one. In some cases, people believe that authentic pieces are more expensive than fake ones but this is not always the case if the seller wanted to make more money off the fake one (Vanovac 2017).

Even in more modern times, intellectual property is still an issue, even in movies. These days native art has been increasingly contributed into modernised aspects such as tattoos, on clothing even on surfboards with no historical meaning (Vanovac 2017). An example of this is in the movie The Hangover Part 2, Stu Price who is played by ED Helms, wakes up to find a tribal tattoo on his face (Gambino 2011). This tattoo was identical to the one Mike Tyson has which represents ‘Warrior status’. This tattoo is similar to ones that members of the Maori tribe have in New Zealand which they wore to scare people in battle (McGowan 2016). The artist of the tattoo for the movie filed a lawsuit against the Warner Bros entertainment for the copyright of the use of the design of the tattoo (Gambino 2011). The lawsuit was then dropped by the tattoo artist because of a large payment by the company. This shows that even in the movie industries intellectual property can still play a part where someone has copied a design or a piece of art from an Indigenous group and has used it for their own without respecting the original artiest or maker of that design. This also shows how easy it is to bypass the law of intellectual property.

People within Australia don’t know about this concept and need to be more aware of intellectual property and what it contains. This is a large issue within Australia that needs to be promoted so that Indigenous Australians can have a say in their own rights. The World Intellectual Property Organisation is an organisation that was formed to provide information services as well as policies to the United Nations (World Intellectual Property Organisation 1967). Their mission was to develop an international intellectual property system that allows people to benefit from their creativity and innovation (World Intellectual Property Organisation 1967). This organisation has created guides, websites a learning course as well as a short film that has recognised the key aspects of intellectual properties and what the issue are. For example, this organisation has created an engaging short film that is raising awareness about the discussion of the topic. This film is about a fictional Indigenous group called the Yakuanoi people (World Intellectual Property Organisation 1967). They are a group of people who have created their own set of skills and innovations which are then passed down from generation to generation. Once a year this group collects a very rare plant which after being looked after it turns into a paste that can be used to heal skin conditions, burns or even be used as a moisturizer (World Intellectual Property Organisation 1967). As this paste becomes more economically beneficial throughout the community, word of the product travels. A skincare company then gets a hold of the beneficial ingredients of this product. The company then create their own product with similar ingredients and sell it worldwide with the trademark of the name Yakuanoi (World Intellectual Property Organisation 1967). The rest of the short film addresses how intellectual property can be used to protect and promote people’s knowledge and how the community of Yakuanoi people then confronted the company of its impression of its authenticity (World Intellectual Property Organisation 1967). The Yakuanoi people then become co-owners with the company and therefore benefit from their own recipe and allows more employment for the community. This is a clear example of an organisation that is trying to make a difference and make people more aware. Australia should be a country where we have and organisation like this created with similar aspects so that Indigenous Australians can fight back on this topic and can benefit from their products that may have been copied or duplicated.

In conclusion, the more our communities know about intellectual property, the better our country can protect and promote Indigenous Australians unique culture. Intellectual property refers to inventions, art, symbols, images and even names that are created by people. The three main categories of industrial property, copyright and patents allow exclusive rights that can be granted to stop others from exploiting their inventions or creations. Protocols are also there to establish and protect Indigenous peoples’ claims (World Intellectual Property Organisation 1967). Knowledge has been passed down from generation to generation in many communities. In Australia there are circumstances where companies have been taking traditional artwork and creating copies for their own benefit. Sadly, in more modern times intellectual property is still being ignored as even movie industries are making the mistake of not respecting the traditional owners of specific art which can be the case for any reference of intellectual property. This topic is not very known in Australia and internationally. Due to this, its important to make people aware of the situation. The World Intellectual Property Organisation is doing their part in making this awareness in the United States. This Awareness need to be brought into Australia so that more people can develop an understanding and help fight for Indigenous Australian rights.