Methods for Estimating the Market Value of Indigenous Knowledge

Final Report to IP Australia, 2019

This report provides guidance to IP Australia on the best approaches to estimating the market value of Indigenous Knowledge (IK) now and in the future, along with consideration for IK’s value in the context of patents, trade marks, designs and plant breeder’s rights.

2016

Indigenous Australians have lived in and off the Australian continent for at least 40,000 years meaning their knowledge of locally found plants and animals is unparalleled. This knowledge has ecological significance, with land and ‘bush’ management techniques employed historically and currently, having important effects for the stewardship and conservation of biodiversity. In the last 20 years, there has been an increasing commercial interest in exploring options for the use of native plants for food, food additives, botanical medicines, and related purposes. The ethical commercial use of these could have benefits for communities and conservation, whilst use without consent and benefit-sharing is likely to attract criticisms and claims of biopiracy. The paper reports on an analysis of the plant-based Indigenous Australian knowledge ‘patent landscape,’ including identification of several patents of potential new biopiracy concern. It highlights the way that private actors (individual...

2019

The Centre for Aboriginal Economic Policy Research (CAEPR) undertakes high-quality, independent research to further the social and economic development and empowerment of Indigenous people throughout Australia. For more than 25 years, CAEPR has aimed to combine academic and teaching excellence on Indigenous economic and social development and public policy with realism, objectivity and relevance. CAEPR maintains a substantial publications program, including Research Monographs, Discussion Papers, Working Papers and Topical Issues. The CAEPR Working Paper series exists to disseminate preliminary research findings, to share ideas about a topic, or to elicit discussion and feedback. All Working Papers are subject to internal peer review. All CAEPR publications are available in electronic format for free download from CAEPR's website: caepr.cass.anu.edu.au CAEPR is located within the Research School of Social Sciences in the College of Arts & Social Sciences at the Australian National University (ANU). The Centre is funded from a range of sources, including ANU, the Australian Research Council, industry and philanthropic partners, and Australian state and territory governments.

ii ing and emerging knowledge management approaches. Indigenous knowledge can no longer be considered a raw-resource from which others benefit. Indigenous people are asking for their cultural systems and ways of governing knowledge access and use to be recognized as legitimate, and to be respected as custodians/owners/nurturers of knowledge that is valuable within and beyond indigenous contexts.

The challenge of how to stop the unauthorized use of Indigenous knowledge has been firmly constituted as a problem to be solved by and managed through the legal domain. In this paper my questions are directed to the way Indigenous knowledge has been made into a category of intellectual property law and consequently how law has sought to define and manage the boundaries of Indigenous knowledge. It is clear that our laws and customs do not fit neatly into the preexisting categories of the western system. The legal system does not even know precisely what it is in our societies that is in need of protection. It is along way from being able to provide for such protection. The existing legal system cannot properly embrace what it cannot define and that is what lies at the heart of the problem. 1 The circulations of and networks through which discussions of Indigenous knowledge and intellectual property flow have generated a wealth of material describing the 'problems' of intellectual property, the global challenge of protecting Indigenous knowledge and heritage and what the utility of international legal instruments may or may not be. Given how diverse the contexts are in which conversations about intellectual property and Indigenous knowledge are occurring it is surprising that there has been limited attention directed to the emergence of this field. That it is now virtually impossible to consider expressions of Indigenous interests in knowledge control and protection outside a legal discourse raises fundamental questions about the emergence of this subject, and in particular, the specific effects of its location within legal frameworks of meaning. Indeed the discourse is so large, with so many participants, at so many levels of political engagement and with varying levels of agency, that the subject has become its own referent. My direct interest in this issue derives from work involving pragmatic negotiations with a range of stakeholders about the protection of Indigenous knowledge in an Australian context. The project in which I am currently involved with the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Intellectual Property Research Institute of Australia explores contested ownership and control of historical and contemporarily recorded Indigenous cultural knowledge. The project is focused on the significant amounts of copyright material (in particular ethnographic photographs, sound-recordings and films)

This Report looks at the role that intellectual property law and the associated legal frameworks that regulate the access and use of biological resources potentially play in building a vibrant and sustainable Native Food Industry in Australia. The Report proceeds on the basis that if not managed correctly, these laws have the potential to restrict the development of the industry. At the same time, if managed correctly there is also a possibility that these laws might be used to support the Native Food Industry to develop novel foods, diversify domestic and export markets, and to find appropriate ways to address the interests of Indigenous Peoples, among others. In this Report, we identify the different places along the native food chain where legal issues potentially arise for individuals, enterprises, networks, and cooperatives associated with the Native Food Industry, including nursery operators, cultivators, wild harvesters, commodity traders, value adders, marketers, and exporters. In so doing, we first provide a brief overview of the different areas of law of importance to the Australian Native Food Industry, and discuss some of the ways in which these different areas of law may impact on the nascent Food Industry. Finally, we identify key problems and opportunities for the Native Food Industry, and possible solutions for consideration by AgriFutures Australia, the Native Food Industry, and other relevant bodies and stakeholders.

2010

ii ing and emerging knowledge management approaches. Indigenous knowledge can no longer be considered a raw-resource from which others benefit. Indigenous people are asking for their cultural systems and ways of governing knowledge access and use to be recognized as legitimate, and to be respected as custodians/owners/nurturers of knowledge that is valuable within and beyond indigenous contexts.

1999

Written in English and French, this paper outlines current Canadian intellectual property legislation as it relates to Aboriginal people in Canada, and provides a general review of the implications and limitations of this legislation for protecting the traditional knowledge of Aboriginal people. An initial discussion of Aboriginal perspectives highlights the difference between sacred traditional knowledge, products, and services associated with traditional lifestyles of Aboriginal people, and innovations or new creations of an individual or an Aboriginal company. Not all traditional knowledge is considered to be intellectual property under Canadian law, therefore a web of strategies is suggested to better protect and control traditional Aboriginal knowledge. These strategies include community guidelines for researchers and businesses wanting access to traditional knowledge, codes of conduct, statutory options, and legal agreements and contracts. A section on intellectual property protection of Indigenous knowledge describes ownership, nature of rights, criteria for protection, scope of protection, duration, costs, enforcement, and international protection. A section on intellectual property rules applicable to Aboriginal contexts discusses copyrights, neighboring rights, industrial designs, trademarks, patents, trade secrets, plant breeders' rights, integrated circuit topographies, and licensing intellectual property. The conclusion points out the need for new techniques and laws that are more appropriate for protecting Aboriginal traditional knowledge and recommends educating non-Aboriginals to increase respect and understanding for Aboriginal traditional knowledge. Information sources presented include 17 federal, international, general, and Aboriginal Internet sources; 11 Table of Contents Neighbouring Rights 15 Preface

The Journal of World Intellectual Property, 2019

Since the early 1990s there has been considerable global discussion and debate surrounding biodiscovery activities and the utilisation of both genetic resources (including biochemical derivatives) and associated traditional/Indigenous knowledge (TK/IK). Concerns about misappropriations and biopiracy have often been raised; however it has been difficult to quantify the scale of this problem beyond some common examples and anecdotes. This paper contributes to emerging research in this area (e.g., see Oldham et al. 2013, PLOS One, 8, e78737; and Robinson and Raven, 2017, Aust Geogr, 48, 311) and seeks to quantify patent utilisation of specific GRs where there is documented TK. A patent landscaping approach was undertaken with a focus on plants with associated mātaraunga Māori (Māori knowledge) from Aotearoa New Zealand. We explain our methodology and highlight 77 patent families of interest identified through our search. Although the findings are not definitive about misappropriation without additional analysis of the patents' specifications and claims, and sources of mātauranga Māori, the data we outline may be useful for drawing out cases of misappropriation and biopiracy. These findings might also be useful for considering the potential implications of these for Māori claims under the Waitangi Tribunal Wai 262, potential access and benefit-sharing (ABS) systems, and intellectual property regulations or reforms.