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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.