A growing recognition of the cultural economic value of indigenous knowledge and a determination on the part of indigenous peoples and developing countries to secure their rights is putting the spotlight on intellectual property (IP) law.
A new publication draws on examples from Australia, New Zealand and the Pacific Islands, to analyse the possibilities and limits of IP law when it comes to supporting innovation by indigenous peoples.
Professor of Law Susy Frankel, who co-edited Indigenous Peoples’ Innovation—Intellectual Property Pathways to Development with Professor Peter Drahos of Australian National University, says traditional or indigenous knowledge has often been expropriated because it is useful, but not treated as legally protectable innovation.
“There can be a situation, for instance, where an indigenous group has a special relationship with, and knowledge about, a plant and its properties. Along comes a company that wants to exploit those properties. They work with the indigenous people to access the traditional knowledge and perhaps even strike an agreement about using it.
“But once they have isolated the active ingredient they can apply for a patent to protect the intellectual property, an option which is often not available to the indigenous people. That’s because our IP laws are based on the premise that you protect uses of knowledge, rather than the knowledge itself.”
Susy says many indigenous peoples now demand a fair and equitable IP system as an essential part of international negotiations, and New Zealand needs to ensure that its IP law can support Māori to protect and utilise their intellectual property (matauranga Māori).
“We need to make sure that these goals are part of our international trade strategy, which includes developing a sound policy about local innovation and creativity that addresses all local needs for legal protection and economic support.”