In September 2020, IP Australia published its work plan to make provision for the better protection of Indigenous Knowledge in Australia’s Intellectual Property System.
Now it has released a consultation paper on four topics from that work plan it wishes to advance.
As summarised in the Introduction, the consultation paper raises four topics:
- Establishing an Indigenous Advisory Panel – providing a formalised Indigenous voice to IP Australia.
- Measures for trade mark or designs using Indigenous Knowledge – changes to processes to ensure IK owners benefit from, or have consented to, the use of their IK as the basis for rights.
- New requirements to declare the source of Indigenous Knowledge used in new innovations – make it easier to determine if IK has been used in a patent or plant breeder’s right, and encourage conversations about access and benefit sharing.
- Labelling to promote authentic Indigenous Products – exploring interest in labelling schemes that distinguish authentic Aboriginal or Torres Strait Islander goods.
Topic 2, relating to trade marks and designs, notes that IP Australia may currently reject an application if the application uses “IK” which is secret or sacred; the name of a group or a nation where there is no connection to that group or nation or uses a an Aboriginal or Torres Strait Islander word which should be available for other business to use.
Noting the limitations in that range, the consultation paper seeks input on a range of issues including:
(a) whether people would have concerns providing a statutory declaration etc. as evidence to support an objection to an application;
(b) whether IP Australia should ask applicants whether they have consent to use the “IK”;
(c) the introduction of a check to assess whether an application would cause cultural offence to a community or communities;
(d) whether IP Australia should assess whether the the application involves a use of “IK” in a way which falsely suggests a connection to an Indigenous person, community or nation.
Other questions relate to tools for better identifying applications which involve the use of “IK”.
Topic 3 raises questions about whether patent applicants should be required to declare the source of (1) genetic resources and/or (2) traditional knowledge included in their applications or on which an application is based.
Additional questions relate to how such requirements would be implemented, enforced and, if not complied with, penalised.
The Overview page states that consultations close on 24 May 2021.