Traditional Knowledge and Intellectual Property Rights in Australia and Southeast Asia

Abstract

This paper will present a short survey of various approaches to traditional knowledge and folklore protection in Australia and Southeast Asia. It seems that both the terminology used in the debate about traditional knowledge and folklore and the legal solutions envisaged are very diverse. Over the last decade there has been an explosion of international declarations and organisations advocating internationally harmonised notions of rights to culture, often on behalf of indigenous minorities or other local communities. This often leads to what Cowan, Dembour and Wilson have called “strategic essentialism”. The term refers to the attempts by activists from or working on behalf of communities to define unanimous or seemingly unanimous demands with regard to culture and rights and to make them fit into the categories of national or international legal regimes. The authors assume that “we need to be more cognisant of the role played by law in essentialising categories and fixing identities, as a concomitant of its task of developing general principles to include, ideally, all possible cases.” In other words, litigants in cases involving indigenous rights legislation might be forced to adopt a notion of culture as static and inflexible and “as a pre-existing given . . . rather than as something creatively reworked during struggles to actualise rights.” As a result, the international concepts of community rights to culture and heritage in the form of traditional knowledge or folklore protection begin to look more unified than they actually are.