A crowd outside an open wooden structure with Garma Merchandise painted on a sign

People queue in line at the Garma Merchandise store during Garma Festival 2022 at Gulkula in East Arnhem, Australia (Tamati Smith/Getty Images)

First Nations IP protection risks going from “miracle to mirage”

A new international treaty strengthens Australia’s case for domestic reform – but only if major economies sign on too.

Mathew Kerwin

16 November 20264 min read

Global demand for authentic Indigenous products, art and knowledge has helped position First Nations culture and intellectual property as a growing element of Australia’s international engagement, complementing efforts to strengthen partnerships and expand economic ties across the region (Opens in new window). What remains missing is not goodwill towards First Nations cultural assets, but a functioning intellectual property regime (Opens in new window).

Internationally, Australia is progressing towards ratification (Opens in new window) of the World Intellectual Property Organisation’s Intellectual Property, Genetic Resources and Associated Traditional Knowledge Treaty (Opens in new window). It marks a milestone (Opens in new window) for Indigenous recognition in global intellectual property law as the first treaty to address the intersection of patents and traditional knowledge while including provisions specific to Indigenous peoples (Opens in new window). The treaty is focused on patent disclosure requirements relating to genetic resources and associated traditional knowledge.

But momentum remains slow, with only four countries, Malawi, Uganda, Peru and Albania, having ratified (Opens in new window). Without the major manufacturing economies participating in the treaty, there is a risk that Australian ratification concentrates new compliance and disclosure obligations on small and medium-sized enterprises while doing little to constrain those operating outside the treaty.

Domestically, Australia’s cultural policy “Revive (Opens in new window)” has focused on strengthening traditional knowledge protections through new legislation, bolstering the Indigenous Art Code, improving funding arrangements, increasing professional support and development opportunities and progressing work towards dedicated Indigenous Cultural and Intellectual Property legislation (Opens in new window). The reforms respond in part to a 2022 Productivity Commission report (Opens in new window), which found two-thirds of “Indigenous-style” souvenirs sold in Australia were inauthentic and recommended stronger protections for Indigenous Cultural and Intellectual Property (Opens in new window).

Yet past attempts at protection and certification schemes have introduced unforeseen burdens and costs on the very organisations they were designed to protect (Opens in new window). Fair trade certification (Opens in new window), for example, set out to protect producers who had been squeezed out of the value of their own goods (Opens in new window). In practice, the burden of proving compliance has fallen on producers themselves, who face intense scrutiny to maintain the scheme’s ethical standards (Opens in new window).

What remains missing is not goodwill towards First Nations cultural assets, but a functioning intellectual property regime.

Verifying where a product actually originated (Opens in new window), and meeting the technical standards a deal requires, can erode the competitiveness those deals are meant to create, particularly for smaller businesses least able to absorb the paperwork (Opens in new window). Recent analysis by Asia-Pacific Economic Cooperation (Opens in new window) similarly notes that restrictive rules of origin can challenge micro, small, and medium-sized enterprises with limited capacity to manage complex compliance requirements.

While the treaty is focused on genetic resources, patent disclosure and associated traditional knowledge, similar questions surrounding attribution, authenticity and benefit-sharing emerge across broader Indigenous cultural and intellectual property debates. Tensions are already visible in Indigenous cultural industries. Authentic Indigenous businesses may bear the costs of maintaining cultural authority, attribution and authenticity while competing against inauthentic Aboriginal-style products manufactured or sold outside of Australia. For example:

Yidaki (Didgeridoos) associated with Yolngu custodianship are known to be produced, taught and commercialised internationally by people with little or no connection to the communities (Opens in new window) from which the instrument originates, illustrating how cultural value can circulate independently of traditional authority (Opens in new window).
In 2019, the Federal Court ordered Queensland-based company Birubi Art Pty Ltd to pay $2.3 million in penalties after it was found to have misled consumers by selling products described as “Aboriginal Art” (Opens in new window) that were manufactured in Indonesia.
In 1991, the clothing manufacturer Dolina Fashion Group Pty Ltd supplied Grace Bros stores (Opens in new window) with an “exclusive” dress design for a major promotion through its network. It was alleged that Dolina’s stylists had requested an Aboriginal look from the Japanese fabric maker Sastani to present as the front line of their fashion range.
A decade ago, the misuse of the Wandjina spirit by a non-Indigenous artist demonstrated how customary restrictions (Opens in new window)may not be recognised under conventional intellectual property law.

Didgeridoo's are seen painted in indigenous art — The NRL became the first national sporting organisation to reach "Elevate" status in 2018 (Matt King/Getty Images)

The treaty may contain a blind spot, one that could turn a miracle into a mirage (Opens in new window). The treaty’s disclosure (Opens in new window) requirements address longstanding concerns about the use of genetic resources and associated traditional knowledge used in patent applications (Opens in new window). But genetic resources and traditional knowledge are progressively being digitised, shared and reused without anyone interacting with the communities from which they originated (Opens in new window).

For example, a pharmaceutical company may be required to disclose the origin of a genetic resource or associated traditional knowledge used in research, but once that information is sequenced, digitised and shared as data, questions emerge about how disclosure, attribution and benefit-sharing obligations should continue to apply (Opens in new window).

Emerging AI technologies further risk amplifying this dynamic (Opens in new window). AI systems can reproduce and commercialise Indigenous cultural expressions (Opens in new window) without engaging the communities from which they originate, raising questions of attribution, consent (Opens in new window) and benefit-sharing as cultural value becomes economic value (Opens in new window). More recently, Wandjina imagery has again appeared in social media posts identified as AI-generated (Opens in new window) and not created in Australia (Opens in new window), causing considerable distress to the Mowanjum community and underlining the continued challenge of protecting culturally significant material reproduction (Opens in new window) once it moves beyond traditional custodial control.

The challenge for policymakers is not necessarily the number of rules, but whether they can be enforced consistently and applied broadly enough to avoid creating incentives for free riding. Ratification of the traditional knowledge treaty strengthens the case for Australian domestic policy reforms by linking Australia’s domestic arrangements to emerging international obligations.

But getting major manufacturing economies to participate in the treaty will also be key.

About the author

Mathew Kerwin

Mathew Kerwin is a Lowy Institute First Nations Fellow. He is a proud Worimi Nation man of the Forster–Tuncurry region, New South Wales, and a descendant of the great Lester (Charlie) Leon, son of Dr Dale Kerwin.

Topics

Trade & investment Economy International law Australia First Nations