Indigenous Intellectual Property Research Articles

The Regional Comprehensive Economic Partnership: intellectual property and trade in the Asia-Pacific

ABSTRACT This article considers the evolution of the Regional Comprehensive Economic Partnership (RCEP) – with a particular focus on intellectual property, trade, and sustainable development. This narrative concentrates on the position of Australia – while also discussing the interests of other participating nations. This article charts the aims and objectives of the intellectual property chapter of RCEP. It explores the copyright provisions of RCEP – considering the implications for access to knowledge, innovation, and competition. This article examines the treatment of trade mark law, Internet Domain Names, and geographical indications. It evaluates the regime for patent law and related rights such as data protection, trade secrets, and biologics – with a particular concern for access to medicines and the COVID-19 crisis. It also explores sui generis regimes of intellectual property – such as plant breeder's rights, access to genetic resources, and Indigenous intellectual property. The conclusion considers the future of RCEP – especially given competing mega agreements such as the Trans-Pacific Partnership (TPP); the Belt Road Initiative; and the Indo-Pacific Economic Framework for Prosperity.

Exploring indigenous intellectual property rights and e-governance: a legal analysis of customary aboriginal knowhow in Arunachal Pradesh, India

The research study examines the legal protection of clan-based aboriginal healing processes, handicrafts, and unique creative works, which have been undermined from the ab initio. The government should shield the interests of their customary know-how under the IPR approach and community-based legal shields and documentation in the e-database. The research aims to investigate conventional aboriginal know-how practices of the Galo clan and e-governance meadow relating to the CAK issue and recommend lawful aspects. The researchers surveyed and collected information from 46 houses in Aalo town, Darka village, and Kabu village in West Siang District and Basar District in Arunachal Pradesh, the primary sources. The paper reports on findings from a study conducted in Arunachal Pradesh, India, to assess attitudes towards customary Aboriginal know-how (CAK) and its conservation. The survey demonstrates multiple views regarding the significance of safeguarding CAK through intellectual property rights (IPR) laws, traditional knowledge's role in socio-economic development, and whether e-governance can effectively help preserve CAK. In conclusion, a delicate balance must be between preserving traditional Galo practices and embracing modernity. A structured survey questionnaire collects quantitative data on attitudes, perceptions, and practices related to customary aboriginal know-how (CAK) conservation and legal protection. The questionnaire includes closed-ended questions to elicit specific responses from the informants regarding their views on safeguarding CAK, the role of intellectual property rights (IPR) laws, and the potential of e-governance in preserving CAK.

Better Ways to Protect Indigenous Knowledge and Cultures Through Intellectual Property

Indigenous knowledge can be understood as a network of knowledge, beliefs and traditions that can be preserved and have some commercial value over time. Along with the increasing visibility of indigenous cultures in the global marketplace, there are also significant challenges. These challenges are often related to the physical destruction and utilization of indigenous lands and knowledge. The historical context and uniqueness of indigenous cultures suggest that they require greater attention and special protection under the law. From the current provisions and judgments, some individual authors have been compensated while the rights of the broader indigenous community have not been adequately protected. From an international perspective, the focus of the work of international organizations has expanded to include indigenous peoples' land claims and cultural rights. In addition to various international organizations and related instruments, a number of countries and regions are working to protect the intellectual property rights of indigenous cultures. Australia is a country that is typically faced with the protection of indigenous intellectual property. For Australia, the effective protection of indigenous knowledge remains an issue that needs to be addressed and managed through the legal realm. The positioning of indigenous knowledge in the law is complex and incomplete. Australia has played an important role at the international level, but the actual response within Australia to the international level has been minimal. Australia should therefore recognize and respond to these developments in legislation as soon as possible.

Garihma (to Care for)

Garihma (to Care for)

Land acknowledgements and knowledge rematriation: Considerations of place, and respecting Indigenous intellectual property in podcasts

Land acknowledgements and knowledge rematriation: Considerations of place, and respecting Indigenous intellectual property in podcasts

Land acknowledgements and knowledge rematriation: Considerations of place, and respecting Indigenous intellectual property in podcasts

Since its third season, the Canadian Mountain Podcast has strived to share perspectives of both Ancestral Indigenous Knowledge Holders and settler-science research conducted through the Canadian Mountain Network. This podcast episode stories the journey a team of undergraduate researchers undertook to prepare a land acknowledgement, and the reflexive steps they maintained throughout. Around the land acknowledgement discussion, both producers for the podcast discuss the roles of intellectual property and copyright as it applies to Indigenous intellectual property in audio production, and discuss their goals for the show’s fifth and final season.

A critical evaluation of the interface between intellectual property rights and human rights with special emphasis on indigenous intellectual property

AbstractThe rendezvous between intellectual property rights and human rights has awakened slumbering legal spirits. Miscellaneous legal phenomena are now nestled in the intersection between intellectual property rights and human rights. However, the interplay between human rights and intellectual property rights is bizarrely characterized by amity and hostility. Naturally, therefore, situating indigenous intellectual property at the intersection of intellectual property and human rights becomes a daunting task. However, the dilemma is often overstated especially from the point of view of conventional intellectual property rights. At the outset of this Article, I shall be exploring the history and the development of the relationship between human rights and intellectual property rights. In the followng section, I shall be examining the extent to which intellectual property rights are entrenched in the international human rights instruments. The last section shall be devoted to exploring the phenomenon of locating indigenous peoples' rights at the interface between intellectual property rights and human rights and reflecting on the ensuing issues—an aspect which has seldom been considered in the existing literature.

The Torres Strait Eight: Climate Litigation, Biodiversity, Human Rights, and Indigenous Intellectual Property

The Torres Strait Eight: Climate Litigation, Biodiversity, Human Rights, and Indigenous Intellectual Property

Protecting Indigenous heritage objects, places, and values: challenges, responses, and responsibilities

ABSTRACT This paper examines ongoing challenges facing Indigenous peoples and their heritage, the consequences of inadequate heritage protection, and new initiatives that counter this. Indigenous scholars, tribal leaders, and others have done much to educate outsiders as to their heritage values and ways of life. My goal is to identify areas where governments, industry, the public, and even academic researchers have failed to understand this. I first examine seven significant challenges: 1) heritage site destruction and disturbance; 2) repatriation of ancestral remains; 3) unauthorised study of ancestral remains; 4) restrictions on access to or protection of sacred places; 5) dismissal of oral histories and traditional knowledge; 6) cultural appropriation and commodification; and 7) limited consultation or participation in heritage management. I then review six areas where informed and innovative actions are providing effective, respectful, and responsible heritage protection therein: 1) Indigenous participation, decision making and benefits flow; 2) Indigenous intellectual property; 3) research ethics; 4) new applications of archaeological methods; 5) policy development and implementation; and 6) corporate responsibility, public outreach and education.

Documenting the Dreaming: Designs and Songs of the Present, in the Past, for the Future

This paper is based on fieldwork carried out in 1981–82 with the Warlpiri women in Willowra, Northern Territory. The basis of discussion is the documentation of women's ceremonies and the return of the data many years later to this community. My role as an ethnographer in the past, and the potential outcomes of the reintroduction of ethnographic data, indicates there is much of value in the documentation of Indigenous cultural and intellectual heritage. Documenting religious ceremonies reveals a variety of values: that of the ethnographer in the documentation of Indigenous cultural and intellectual property; the intrinsic value of these material renditions to the tradition-bearers themselves; and the value of these contributions in applied community contexts. In regard to the community benefits of research and documentation, the paper addresses archival documentation for revitalisation of culture.

Connecting Top-Down and Bottom-Up Approaches in Environmental Observing.

Effective responses to rapid environmental change rely on observations to inform planning and decision-making. Reviewing literature from 124 programs across the globe and analyzing survey data for 30 Arctic community-based monitoring programs, we compare top-down, large-scale program driven approaches with bottom-up approaches initiated and steered at the community level. Connecting these two approaches and linking to Indigenous and local knowledge yields benefits including improved information products and enhanced observing program efficiency and sustainability. We identify core principles central to such improved links: matching observing program aims, scales, and ability to act on information; matching observing program and community priorities; fostering compatibility in observing methodology and data management; respect of Indigenous intellectual property rights and the implementation of free, prior, and informed consent; creating sufficient organizational support structures; and ensuring sustained community members’ commitment. Interventions to overcome challenges in adhering to these principles are discussed.

Restructuring (in)tangible cultural heritage of rural Zimbabweans: Sustaining and fulfilling livelihoods

The documentation and promotion of African experiences grew out of the need to mitigate the weaknesses of the oral tradition through which the history of the presumed complex indigenous African creative undertaking was defined. The paucity of written records was further accentuated by the 2003 UNESCO Convention for Safeguarding Intangible Cultural Heritage. The methodical essential tools of accurate collection and critical analysis were deemed to be the better organized forms of freezing experiences. Skewed towards the sciences, research on both pre and post-independent Zimbabwean indigenous intellectual property has not yielded much benefit to the researched practitioners. To this end, Higher Education has failed to fulfil society’s expectations for pace-setting development and sustainability. In the stir of the world-wide decline of industries owing to trade liberalization and the development of free market as well as the adoption of the European Union ‘high-road competitiveness’ policy (Aiginger 2014), this chapter intends to reground creative and cultural industries by embracing a potential symbiotic relationship between informal transmission of authentic (in)tangible cultural heritage and the formal living archiving and commodification of the indigenous knowledge systems of ethnic groups of people in Zimbabwe. The case study for this paper, which commenced in 2015, is the Dzimbadzamabge Cultural Heritage Enterprise Institute located in Nemamwa Rural District.

Technology Teachers’ Understanding of and Attempt to Integrate Indigenous Technology in Their Lessons

The South African Curriculum and Assessment Policy Statement (CAPS) technology Grades R–9 includes indigenous technology under its third aim, to appreciate the interaction between people's values, technology, society, and the environment, and the sub-aim emphasises that students learn how indigenous cultures use specific materials and processes to satisfy needs and become aware of indigenous intellectual property rights. This implies the need to integrate indigenous technology into the teaching of technology, which technology teachers are not doing in their lessons. Hence, this qualitative interpretive study explored technology teachers’ understanding of and attempt to integrate indigenous technology into their lessons. The integration of indigenous technology into technology lessons could make the teaching of technology more relevant in the South African school context. Twelve Grade 7 technology teachers from Mpumalanga were conveniently selected to participate in the study. The findings reveal that technology teachers understand indigenous technology but struggle to integrate it into their lessons.

Repackaging Tradition in Tahiti?: Mono'i and Labels of Origin in French Polynesia

In 1992, Monoi de Tahiti (coconut oil scented with tiare flowers) was granted an appellation d'origine by the French government. It was (and remains) the only cosmetic product to receive such certification, as well as the only appellation in French Polynesia. This article examines mono'i as cultural heritage and as an industrial product in the territory, and the transformations wrought through gaining the appellation. The appellation d'origine formally recognized and protected the unique environmental and cultural heritage embodied by the oil, which has long been made with Polynesian communities and which has been commercialized since World War II. The production methods enshrined in the appellation laws, however, emphasize industrial manufacturing processes, in tension with both the imagined Pacific heritage marketed to tourists and foreign consumers and the place of mono'i within Polynesian communities. In navigating between tradition and modernity, this contemporary commodity raises questions of authenticity and invented tradition, as well as questions of who benefits from the repackaging of cultural tradition in French Polynesia. Given that appellations d'origine and geographical indications have recently been touted as tools for indigenous intellectual property, this case study demonstrates both the potential and limits of such legislation for the Pacific more broadly.

Data Management Plan: Empowering Indigenous Peoples and Knowledge Systems Related to Climate Change and Intellectual Property Rights

The 'Empowering Indigenous Peoples and Knowledge Systems Related to Climate Change and Intellectual Property Rights' project examines processes of open and collaborative science related to indigenous peoples knowledge, climate change and intellectual property rights. It assumes and challenges practices of open science as a process, one that should involve modes of being both open and closed. The project takes history into account when considering how indigenous peoples' are producing knowledge related to climate change and how such knowledge maybe characterized as indigenous peoples' intellectual property and/or impacted by dominant intellectual property regimes. The central questions the research is addressing are: (i) How is climate change impacting indigenous Nama and Griqua communities? (ii) How are these communities producing indigenous knowledge related to addressing climate change and offering alternative strategies? (iii)How do indigenous Nama and Griqua characterize their knowledge as indigenous intellectual property (or not) and decide to openly share their knowledge (or not) internally or with the outside public? (iv) How and what types of laws and policies (including intellectual property rights) promote and/or hinder these indigenous strategies and open collaboration with the public? The data are being collected and created to answer these main questions. Furthermore, the researchers are critically tracking the research process itself and this data will be scrutinized to provide information on the open and collaborative science process and dilemmas and tensions around openness issues.

Patenting nature or protecting culture? Ethnopharmacology and indigenous intellectual property rights.

Ethnopharmacologists are scientists and anthropologists that study indigenous medicines and healing practices, and who often develop new therapies and medicines for wider use. Ethnopharmacologists do fieldwork with indigenous peoples in traditional societies, where they encounter a wide range of cultural values and varying ideas about the nature of property relations. This poses difficulties for protecting indigenous intellectual property and for making just trade agreements. This Note reviews the legal issues relevant to the protection of indigenous resources in ethnopharmacology trade agreements, and suggests that recent developments in anthropology and the social study of science could be instructive in furthering the legal discourse and in providing policy directions. Specifically, the Note introduces the concepts of ‘ontological pluralism’ and ‘epistemic subsidiarity’, which could help lawmakers write sui generis trade agreements to better protect indigenous knowledge and resources.

Legitimacy of Indigenous Intellectual Property Rights’ claims

The notions of indigenous peoples, indigenous knowledge, and heritage and culture have acquired wide usage in international debates on sustainable development and intellectual property protection since the turn of the 20th century. This paper, through an examination of the concept of intellectual property and its intersection with culture and heritage, elucidates the nature and scope of indigenous intellectual property rights as represented by traditional knowledge, traditional cultural expressions and genetic resources. This paper, through a review of the interface between indigenous knowledge systems and the intellectual property law regime, illustrates the limitations of conventional intellectual property rights systems i.e.: copyright, patent, trade secrets and trademark in providing adequate recognition and protection for indigenous intellectual property rights. It also posits that the establishment of a sui generis system of protection offers a plausible solution to the inadequacy of the existing regimes of protection. This paper ultimately seeks to illustrate indigenous people’s legitimate rights to control, access and utilize in any way, including restricting others’ access to, knowledge or information that derives from their unique cultural histories, expressions, practices and contexts, towards the creation of a better society.

Indigenous knowledge for school science : insights into the issue of intellectual property rights from three South African studies

Some research studies in South Africa have shown that existing intellectual property laws have managed to protect Indigenous Knowledge held by indigenous people. However, more needs to be done, particularly regarding the recognition of indigenous laws when protecting Indigenous Knowledge in research publications. In this article, we explore how intellectual property rights are being handled in studies involving Indigenous Knowledge and the teaching and learning of school science in South Africa. Three sample case studies and interviews with Indigenous Knowledge researchers were used to generate data. This analysis, guided by the Indigenous Knowledge Intellectual Property rights, and Indigenous Knowledge Systems content analysis conceptual frameworks, focused on the Indigenous Knowledge and its source, rationale for its protection, and methods used to protect it. We complemented case study data with ten interviews of Indigenous Knowledge group members at the University of the Witwatersrand, South Africa, on their understanding of the intersection of intellectual property with innovation in Indigenous Knowledge research. Data shows that the rights of Indigenous Knowledge holders have not received ‘full’ recognition. We recommend that in research publications there should be a ‘connection’ between intellectual property laws and indigenous laws for knowledge holders to receive the recognition that they deserve.

Indigenous Intellectual Property Rights

The principles of Intellectual Property (IP) law are substantially the same in all countries with variations to suit the national requirements of each country. Under IP law, owners are granted certain exclusive rights to a variety of intangible assets, such as literary, artistic, and musical works; ideas, innovations and inventions; and words, phrases, symbols, colour combinations and designs etc. Common types of intellectual property include copyrights, trademarks, patents, industrial designs and trade secrets in some jurisdictions. The majority of intellectual property rights provide creators of original works a form of temporary monopoly with the aim of creating an economic incentive to disclose, develop and share their ideas. However, most of the current national and international IP laws do not protect or recognize intellectual property of the Indigenous Peoples. In most of the cases, IP laws maintain the dominance of developed nations over the underdeveloped world neglecting the Indigenous practices. This paper analyses indigenous IP rights in the context of dominant intellectual property laws.

Spinning Yarn with Borrowed Cotton: Lessons for Fandom from Sampling

Spinning Yarn with Borrowed Cotton:Lessons for Fandom from Sampling Mel Stanfill (bio) Fan work is laborious, but fans are rarely seen as laboring. Partially, fan activity is considered unproductive because it’s considered illegitimate. The value of the fan product is seen as coming from the media source, not the work of transformation. Fan production is classified as derivative, and therefore derived, lesser, taking from the source; the value is understood as in the original and borrowed by the fan. However, under the labor theory of value, producing new value (in this case new semantic value) is, by definition, labor. Transformation is work. The new product contains the accumulated labor of both the corporate maker and the fan remaker, much as the labor value in cotton becomes part of the labor value in yarn in Karl Marx’s [End Page 131] famous example.1 To think that all of the value derives from the cotton and that the yarn-making process adds nothing is another manifestation of commodity fetishism: acting as if the thing itself has value independent of the human processes that put it there. Instead, “fan creations are joint productions even if copyright law would not recognize them as jointly authored works.”2 In thinking about fan creative production, then, we need to talk about spinning yarn—an aptly gendered metaphor for deeply feminized forms of labor. Scholarship on fan creative production has distinguished it as a tradition, a move as productive to legitimize studying fan culture in what Jonathan Gray, Cornel Sandvoss, and C. Lee Harrington call the first wave of fan studies, or the “fandom is beautiful” phase, as it is to keep fan creativity from being lumped in with user-generated content today.3 However, juxtaposition to other modes of transformative reuse illuminates aspects of fan work that otherwise tend to be obscured. Here I use musical reuse, as in the blues or sampling, as a lens to examine fan transformative reuse, which both shows how reuse functions as intertextuality that layers meaning and illuminates how social inequalities play out with respect to labor, copyright, and authorship. Spinning Yarn: Seeing Additive Labor One major difficulty in conceptualizing fan creative production as labor is that contemporary US culture and copyright law do not recognize this as additive, let alone as valid or compensable. As Casey Fiesler notes, the term derivative work “applies to anything from the slightest modification to something so transformed that the original is hardly recognizable.”4 Either something is derivative or it is not. Though the four-factor test of fair use in US copyright law assesses “the amount and substantiality of the portion used,” this framing operates from a logic of subtraction.5 In contrast, asking what portion of the resulting work comprises the source text would grapple with addition. This conceptualization haunts transformation with the specter of stealing someone else’s work rather than doing one’s own.6 However, there are other extant ways of interpreting reuse. Sampling and the blues, rooted in African-origin notions of creativity and repetition with difference, do not share the notion of the individual genius creating ex nihilo—the model on which [End Page 132] US copyright law relies.7 Indigenous intellectual property has a similarly alternative set of values, tending to rest on creative works having both community authorship and ownership.8 If we take such alternative conceptualizations as valid rather than allowing them to be marginalized by the currently hegemonic Western notion of the Romantic author, reuse looks very different. The scholarship on music identifies intertextuality in reuse. To use a musical sample, Anne Barron says, isn’t to take a “shortcut” but to reference the sample’s “cultural references and resonances, its status as a kind of aural icon that gathers together a network of associations and experiences.”9 Sampling has been understood as a way to indicate membership in a sonic community.10 More specifically, reuse can be understood as potentially invoking the Benjaminian aura of the reused text, making that text in some sense present in the new one.11 This could simply give a feeling of familiarity—the sort of shortcut industry claims it is—or add...