The Making of Indigenous Knowledge in Intellectual Property Law in Australia

Abstract

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 a long 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

Indigenous Knowledge and Intellectual Property Rights

“…While it might not always be clear what exactly Indigenous knowledge is, there must be a strong resistance to the binary of 'Indigenous' versus 'scientific' knowledge, because it upholds very specific power relations (Agrawal, 2002;Anderson, 2009). The search for definitions is embedded in a classificatory logic that seeks clarity in the boundaries.…”

“…This was because of problems about what exactly the property was, how it could be identified, how it could be measured, how loss could be recognized and compensated, what labor the individual exerted to 'make' a work, and generally how a right to something that was intangible could be justified (Anderson, 2009). Nevertheless the early cases make clear that the challenges in determining this kind of property arise from its intangibility: that it constitutes a product of the mind and therefore cannot be easily demarcated and identified in the same ways as tangible forms of property like land and livestock.…”

Authorizing Yoga: The Pragmatics of Cultural Stewardship in the Digital Era

“…Whether or not one agrees that such decontextualization is possible, the promise of rendering knowledge into informational form so that it can accrue greater market value has accelerated the pace of efforts to contain or capture the value of the intangible through the use of intellectual property rights, cultural property claims, and regimes of heritage management (Anderson 2009;Coombe 2009;Sunder Rajan 2006). The recent expansion, in terms of both the reach and the types of claims possible, has fostered a broad sense of crisis among those who suggest that the very foundations of authorship, creativity, culture, and even humanity are increasingly subject to privatization (Boyle 2008;Brown 2004;Coombe 1998;Lessig 2004;Sunder 2012;Vaidhyanathan 2001).…”

The Politics of Global Information Sharing: Whose Cultural Agendas Are Being Advanced?

“…The development of an international legal infrastructure in the late 19th century allowed for the ongoing expansion and development of the law, through supplementation, and clearer demarcation of the rules for discrete territorial contexts. However, there was not even an Indigenous IP presence in intellectual property law until the late 20th century (Anderson, 2005a).…”