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Traditional knowledge and Indigenous cultural expression

What is meant by the terms 'traditional knowledge' and 'Indigenous cultural expression'?

What is meant by 'traditional knowledge'?

Traditional knowledge refers to:

  • knowledge or practices passed down from generation to generation that form part of the traditions or heritage of Indigenous communities
  • knowledge or practice for which Indigenous communities act as the guardians or custodians.

The type of knowledge that is considered within this scope includes:

  • knowledge about the medicinal properties or effects of flora and fauna
  • knowledge about hunting or fishing techniques.

What is meant by 'Indigenous cultural expression'?

Indigenous cultural expression refers to:

  • ways in which Indigenous communities express their traditional culture
  • ways that are part of their heritage or identity
  • ways that are passed down from generation to generation.

Indigenous cultural expression might, for example, take the form of song, stories, dances, art, designs, crafts, etc.

Who owns traditional knowledge and Indigenous cultural expression?

Indigenous communities regard themselves as the guardians and owners of traditional knowledge and Indigenous cultural expression on behalf of their communities.

What are the issues with traditional knowledge and cultural expressions?

The intellectual property framework does not easily protect traditional knowledge and Indigenous cultural expression.

Sometimes, the opposite is the case, where the intellectual property framework might operate to allow traditional knowledge and Indigenous cultural expression to be commercially exploited, for great profit, without any economic benefits accruing to the Indigenous communities that made it available in the first place.

For example:

  • An Indigenous community might have knowledge that a particular plant has a medicinal effect. Scientists, with the benefit of that knowledge, undertake research on the plant. They identify the compounds that have the medicinal effect and develop a drug. The pharmaceutical company that produces and markets the drug realises significant profits, and its shareholders benefit financially. However, there are no economic benefits for the Indigenous community that made this possible.
  • The music of an Indigenous folk song might be adapted so that the adaptation is subject to copyright. The copyright holder earns royalties and income from the recording, as well as its performance. However, no royalties or income are shared with the Indigenous community that 'owned' the music before its adaptation.

How does the intellectual property system work with traditional knowledge and Indigenous cultural expression?

There is some protection of traditional knowledge and Indigenous cultural expression by the intellectual property system, for example:

Traditional knowledge and Indigenous cultural expressionIntellectual property system
Knowledge of the medicinal properties of a plant Confidential information
Song Possibly copyright
Music Possibly copyright
Dance Possibly copyright
Crafts Possibly registered designs

However, intellectual property laws offer protection for traditional knowledge and Indigenous cultural expression in only a modest way.

For example, maintaining the knowledge of the medicinal properties of a plant as confidential information might be effective. However, it is only by disclosing that information that economic benefits and other benefits can be realised, by research, and patents.

Protecting works as copyright might be only a modest protection, if any at all, given that most works, having been passed down from generation to generation, might not so easily be protected by copyright.

What efforts are being made to protect traditional knowledge and Indigenous cultural expression?

Efforts are being made to provide some protection for traditional knowledge and Indigenous cultural expression.

For example, under Queensland's Biodiscovery Act 2004 (the Act), a biodiscovery entity (an entity that uses the state's native biological material for commercial purposes) is required to enter into a Benefit Sharing Agreement with the State of Queensland. This ensures the State, for the benefit of all persons in the State, obtains a fair and equitable share in the benefits of biodiscovery. The Queensland Government is exploring options for changes to the Act.

The Benefit Sharing Agreement includes a requirement for the biodiscovery entity to comply with the Queensland Biotechnology Code of Ethics, which provides guidelines in relation to the use of indigenous knowledge for biodiscovery.

However, the protection of traditional knowledge and Indigenous cultural expression remains an objective that is only modestly achieved by the existing intellectual property framework.

Internationally, efforts are being made to formulate a treaty where traditional knowledge and indigenous cultural expression can have the benefit of its own intellectual property law, which blends with the existing intellectual property law framework.