It is easy to find examples of international fora in which actors engage with the issues raised by the confluence of indigenous knowledge and intellectual property. A list would include the Convention on Biological Diversity (CBD), the Food and Agriculture Organization (FAO), the International Union for the Protection of New Varieties of Plants, the United Nations Educational Scientific and Cultural Organization (UNESCO), various UN human rights bodies, the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO).¹

Intellectual property and indigenous knowledge are concepts that for a long time travelled separate historical pathways. Intellectual property (IP) is a...

Since European arrival, indigenous peoples of Australia have suffered from the effects of chronic social, political and economic disadvantage. The statistics on health outcomes and life expectancy remain tragic and unacceptable. Data published in 2008 indicates that indigenous Australians have a life expectancy some 17 years lower than the national average, are hospitalised at twice the rate of non-indigenous Australians, and are twice as likely to report high or very high levels of psychological distress.¹ The social disadvantage of indigenous peoples is reflected in low rates of literacy and school completion, and high rates of unemployment, violence, suicide, drug abuse...

Wild or ‘bush’¹ harvest of native desert species for consumption and customary trade has been actively pursued by Aboriginal peoples in central Australia for thousands of years.² Bush harvest for financial return has, by contrast, been occurring in central Australia for at least thirty to forty years³ and is primarily undertaken by Aboriginal women in remote settlements.⁴ However, to date, financial returns for these industry participants have been marginal. Harvesters have relied on the activities of non-Aboriginal traders (as they are known)⁵ making buying trips to their communities, and this occurs in an ad hoc fashion, with little planning or...

Biopiracy is a divisive term, and deliberately so. The original proponent of the term, Pat Roy Mooney of the NGO Action Group on Erosion Technology and Concentration (ETC), has previously stated that ‘[w]hatever the will and wishes of those involved, there is no “bioprospecting”. There is only biopiracy.”¹ He explains that without adequate international laws, standards, norms and monitoring mechanisms, the theft of indigenous and local knowledge will accelerate in the years to come.

Although exaggerated for emphasis, Mooney’s statement reflects a strong discontentment that was particularly prevalent in the 1990s and early 2000s amongst sections of the NGO community,...

For a long time, the issue of trading indigenous cultural heritage (ICH)¹ was discussed with a defensive attitude. The question was generally how indigenous peoples could be protected against third parties misappropriating their knowledge assets in national or international trade. Academic writings adopting this approach seconded indigenous peoples fighting against old injustices stemming from unresolved problems of colonisation and a subjugation of their culture under Western law. Only very recently has a new wave of scholarship started to challenge this type of defensive thinking and tackle the issue of trading ICH from the development perspective.² The question now is how...

Michel Foucault commented that the modern concept of author ‘constitutes a privileged moment of individualism in the history of ideas’.¹ Indeed, the authors who pushed for the adoption of international copyright rules were basking in the sun of the Enlightenment, stroked by the rays of individualism.² The underlying Hegelian framework — a transfer of the author’s personality in literary (or artistic) expression — led to an insistence on the right of attribution, a component of the moral right enshrined in the Berne Convention.³

For inventions, a similar insistence on individual self-actualisation and responsibility for scientific advances is evident. Isn’t the history of...

This chapter is concerned with the legal issues surrounding the branding of traditional cultural expressions (TCEs). Over the past few decades, ethnicity trends combined with today’s digital culture have prompted a significant increase in both the commercial and non-commercial branding of TCEs by indigenous communities as well as by third parties. Branding is a process that involves the creation of a unique name and image for a product in the consumers’ mind through advertising campaigns or merchandising with a consistent theme. Branding aims to establish a significant and differentiated presence in the marketplace that attracts and retains loyal customers. It...

This chapter describes the activities of the European Union (EU) in providing technical assistance to Pacific Island countries in relation to traditional knowledge (TK), and the implications for Australian and New Zealand development cooperation activities in what was hitherto regarded as their ‘lake’. Agriculture is the issue which has dominated Australia’s and New Zealand’s trade agenda, and intellectual property rights (IPRs), whether trade related or otherwise, are very much a subordinate issue. Both nations were foundation members of the Cairns Group of nineteen agricultural exporting countries which was formed in 1986, at the time of the Uruguay Round of the...

The importance of customary law and customary institutions in the context of protecting the traditional knowledge (TK)¹ of indigenous people is gradually being more widely recognised.² However, translating this recognition into practice still seems a long way off, as very few countries have developed a protection framework that provides a role for customary institutions.³ The Pacific Island countries are currently in the process of moving forward with such an initiative, and their experiences offer important insights into the challenges associated with it. This chapter begins by discussing the TK agenda as it has been pursued in the region for the...