Abstract
Intellectual property rights (IPR) to traditional knowledge (TK) about Australian native plants could justifiably be described as a birthright of Australian Aboriginal people. However, as is generally the case throughout the world, this right is currently not protected under Australian law. A case study is presented describing the approach that was taken to protecting the plant knowledge rights of traditional knowledge (TK) holders who participated in research at Titjikala, central Australia. From a review of international efforts aimed at developing a legal regime for protection of traditional knowledge (TK) intellectual property rights (IPR), we found that protecting traditional knowledge (TK) of plants and their uses is most likely to be achieved through the development of effective protocols for preserving and recording traditional knowledge (TK) and the use of contract law in commercial applications of that knowledge. The process of negotiating a research agreement between the research organisations and the community is described. Relationship building and a partnership approach based on trust and mutual respect were found to be of fundamental importance. The negotiated agreement ensures that the community has an equal share to research partners in any benefits that might arise from commercialisation of research findings. The approach to benefit sharing developed in this project has application in other research projects in which the sharing of traditional knowledge (TK) is a fundamental and essential component of the research process.
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Notes
Traditional owners are those community members who are recognised as having customary authority for the land on which Titjikala is located.
An elected body of community representatives responsible for general administration of the community and charged with the authority to enter into legal arrangements with outside agencies.
This protocol was revised and updated in late 2007, after the agreement making process described in this paper (see DKCRC 2007).
Association of Canadian Universities for Northern Studies (1997 Ethical principles for the conduct of research in the north); the American Anthropological Association (Professional ethics; statements and procedures); the Australian Anthropological Association, the Society for Applied Anthropology and the Social Research Association (Ethical guidelines); the Aurora Research Institute Doing research in the Western Northwest Territories; the Nunavut Research Institute (Research licensing process for research projects in Nunavut Region).
The other 50% is the entitlement of the research agencies and, under the terms of the DKCRC Protocol for Aboriginal knowledge and intellectual property, that part of this 50% that becomes the Company’s Participating Share (ie after other equity partners of the DKCRC have been paid their share) will be allocated into a separate account (currently managed through Ninti One Ltd), which will be used to fund research of a priority to Desert Aboriginal interests within the general aims of the DKCRC. [DKCRC Centre Agreement Clause 28.5, see Desert Knowledge CRC 2003, 2007].
Affiliate partnerships enable smaller organisations or community groups who only have the resources to be involved in one or two research projects to still engage in a formal and ongoing way with the DKCRC: This partnership allows an organisation to be part of a particular piece or pieces of research, reduces bureaucratic processes and allows access to DKCRC’s network of partners and contacts.
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Acknowledgements
Our thanks go to all members of the Titjikala project team, in particular Andy Barr, who partnered with Mr. Briscoe in documenting much of the traditional knowledge recorded on the Tapatjatjaka Plants Data Base; Mary Barr, whose staunch support is gratefully acknowledged; David Callow, whose excellent photography has provided a lasting record of events and achievements; Patrick Ridley, who painstakingly populated the data base as well as acting as chauffeur for the witchetty grub gatherings; and Titjitkala community elders, Nora Campbell, Hazel Ungwanaka, Sarah Entata, Emily Shilling, Marie Shilling and Sammy Campbell, for their generosity, friendship and support. We are very sad to note that Mr. Briscoe passed away while this paper was being finalised. Finally, we would also like to thank Sarah Holcombe and Jocelyn Davies for their thorough and constructive editorial review of paper drafts. The project was initially funded through the Australian Government’s Partnerships against Domestic Violence (PADV), National Indigenous Family Violence Grants Programme and later with funding from the Australian Government Cooperative Research Centres Programme through the Desert Knowledge CRC; the views expressed herein do not necessarily represent the views of Desert Knowledge CRC or its Participants nor the PADV.
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Evans, L., Scott, H., Muir, K. et al. Effective intellectual property protection of traditional knowledge of plants and their uses: an example from Australia. GeoJournal 74, 391–401 (2009). https://doi.org/10.1007/s10708-008-9229-6
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DOI: https://doi.org/10.1007/s10708-008-9229-6