IP Australia have released the final report of the Scoping Study on Stand-Alone Legislation for Indigenous Knowledge; to which Arts Law, Copyright Agency and Indigenous Art Code wrote a submission late last year. We would like to thank Olivia Henderson for putting together this summary as well as the team at Allens for providing pro bono legal support in putting this submission together.
The final report highlights concerns raised by stakeholders, which includes the following.
- The importance of Indigenous Knowledge being accessed or used with proper free, prior, and informed consent, and recognition of the appropriate custodians.
- Current remedies in legislation don’t go far enough, or are not fit for the purpose for fully protecting Aboriginal and Torres Strait Islander peoples’ Indigenous Knowledge.
- Aboriginal and Torres Strait Islander peoples should receive benefits or renumeration when their Indigenous Knowledge is used.
The final report has 7 recommendations aimed at assisting Aboriginal and Torres Strait Islander people protect and commercialise Indigenous Knowledge.
- The Australian Government enact standalone legislation creating a new intellectual property right in respect of Traditional Cultural Expressions and Traditional Knowledge.
- The Australian Government undertake a co-design process for the development of such standalone legislation in partnership with First Nations peoples.
- Legislation to protect the rights of First Nations peoples in respect of the genetic resources of native flora and fauna continue to be implemented nationally through a coordinated framework of state and federal laws based on the rules for the fair and equitable sharing of the benefits of biodiscovery that are contained in the Nagoya Protocol.
- The Australian Government ratify the Nagoya Protocol.
- Consideration be given during the co-design process to the inclusion of the elements and features suggested in this report.
- The Australian Government enact legislation (as part of new standalone legislation or by amendment to the Australian Consumer Law) prohibiting the commercial supply of goods or services featuring or purporting to feature Traditional Cultural Expressions which are not produced by Aboriginal or Torres Strait Islander people or with the permission of rights holders, unless labelled as inauthentic.
- Implementation of new standalone legislation be undertaken in conjunction with the accompanying additional measures and policies identified in this report, to be developed in consultation with Indigenous stakeholders and through shared decision-making.
- In parallel with the co-design process, the Australian Government progress the development of a strategic business case that includes a more detailed cost–benefit analysis and a primary research project surveying Australians to estimate their willingness to pay for reform options and including reliable estimates of the total benefits (both non-market and market benefits).
The effectiveness of the proposed legislation will turn on the specific language used, particularly given the inauthentic labelling exception in recommendation 6. We look forward to seeing the exposure draft legislation and getting together with you to discuss things further at the appropriate time.
You can read the full report here.