Indigenous Intellectual Property: A Handbook of Contemporary Research

Taking an interdisciplinary approach unmatched by any other book on this topic, this thoughtful Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property (IP). In light of the United Nations Declaration on the Rights of Indigenous Peoples 2007, expert contributors assess the legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. The overarching discussion examines national developments in Indigenous IP in the United States, Canada, South Africa, the European Union, Australia, New Zealand, and Indonesia. The Handbook provides a comprehensive overview of the historical origins of conflict over Indigenous knowledge, and examines new challenges to Indigenous IP from emerging developments in information technology, biotechnology, and climate change. Practitioners and scholars in the field of IP will learn a great deal from this Handbook about the issues and challenges that surround just protection of a variety of forms of IP for Indigenous communities. Preface The Legacy of David Unaipon Matthew Rimmer Introduction: Mapping Indigenous Intellectual Property Matthew Rimmer PART I INTERNATIONAL LAW 1. The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Indigenous Intellectual Property Mauro Barelli 2. The WTO, The TRIPS Agreement and Traditional Knowledge Tania Voon 3. The World Intellectual Property Organization and Traditional Knowledge Sara Bannerman 4. The World Indigenous Network: Rio+20, Intellectual Property, Indigenous Knowledge, and Sustainable Development Matthew Rimmer PART II COPYRIGHT LAW AND RELATED RIGHTS 5. Government Man, Government Painting? David Malangi and the 1966 One-Dollar Note Stephen Gray 6. What Wandjuk Wanted Martin Hardie 7. Avatar Dreaming: Indigenous Cultural Protocols and Making Films Using Indigenous Content Terri Janke 8. The Australian Resale Royalty for Visual Artists: Indigenous Art and Social Justice Robert Dearn and Matthew Rimmer PART III TRADE MARK LAW AND RELATED RIGHTS 9. Indigenous Cultural Expression and Registered Designs Maree Sainsbury 10. The Indian Arts and Crafts Act: The Limits of Trademark Analogies Rebecca Tushnet 11. Protection of Traditional Cultural Expressions within the New Zealand Intellectual Property Framework: A Case Study of the Ka Mate Haka Sarah Rosanowski 12 Geographical Indications and Indigenous Intellectual Property William van Caenegem PART IV PATENT LAW AND RELATED RIGHTS 13. Pressuring ‘Suspect Orthodoxy’: Traditional Knowledge and the Patent System Chidi Oguamanam, 14. The Nagoya Protocol: Unfinished Business Remains Unfinished Achmad Gusman Siswandi 15. Legislating on Biopiracy in Europe: Too Little, too Late? Angela Daly 16. Intellectual Property, Indigenous Knowledge, and Climate Change Matthew Rimmer PART V PRIVACY LAW AND IDENTITY RIGHTS 17. Confidential Information and Anthropology: Indigenous Knowledge and the Digital Economy Sarah Holcombe 18. Indigenous Cultural Heritage in Australia: The Control of Living Heritages Judith Bannister 19. Dignity, Trust and Identity: Private Spheres and Indigenous Intellectual Property Bruce Baer Arnold 20. Racial Discrimination Laws as a Means of Protecting Collective Reputation and Identity David Rolph PART VI INDIGENOUS INTELLECTUAL PROPERTY: REGIONAL PERSPECTIVES 21. Diluted Control: A Critical Analysis of the WAI262 Report on Maori Traditional Knowledge and Culture Fleur Adcock 22. Traditional Knowledge Governance Challenges in Canada Jeremy de Beer and Daniel Dylan 23. Intellectual Property protection of Traditional Knowledge and Access to Knowledge in South Africa Caroline Ncube 24. Traditional Knowledge Sovereignty: The Fundamental Role of Customary Law in Protection of Traditional Knowledge Brendan Tobin Index

NAPLAN, achievement gaps and embedding Indigenous perspectives in schooling: Disrupting the decolonial option

In 2004, the Queensland State Government rolled out the Embedding Aboriginal and Torres Strait Islander Perspectives in Schooling (EATSIPS) program. The policy was relaunched in 2009. This initiative aimed to improve Indigenous student learning outcomes, improve relationships between schools and Indigenous communities, and to develop a deeper understanding and respect for traditional and contemporary Aboriginal and Torres Strait Islander cultures amongst all students (EATSIPS 2011: 13). We are interested in the social justice possibilities of EATSIPS and its potential contribution to Reconciliation between Indigenous and non-Indigenous Australia. We are also interested in whether schooling practices informed by EAT-SIPS could reflect decolonising opportunities. This point is illustrated by the fact that, from 2009, it was mandatory for all state-school teachers to undergo professional development in EATSIPS, and all state schools underwent an EATSIPS audit of their policy, curriculum and pedagogical practices...

Drink driving among indigenous people in Far North Queensland and Northern New South Wales: A summary of qualitative findings

In response to the threat that drink drivers pose to themselves and others, drink driving programs form an important part of a suite of countermeasures used in Australia and internationally. Unlike New Zealand/Aotearoa, United States and Canada that have programs catering for their First Peoples, all Australian programs are designed for the general driver population. The aim of this study was to identify the factors that contribute to Indigenous drink driving in order to inform appropriate recommendations related to developing a community-based program for Indigenous communities. Broader drivers licensing policy recommendations are also discussed. A sample of 73 Indigenous people from Queensland and in New South Wales with one or more drink driving convictions completed a semi-structured interview regarding their drink driving behaviour. Participants were asked to disclose information regarding their drink driving history, and alcohol and drug use. If participants self-reported no longer drink driving, they were probed about what factors had assisted them to avoid further offending. Key themes which emerged to maintain drink driving include motivations to drink and drive, and belief in the ability to manage the associated risks. Factors that appeared to support others from avoiding further offending include re-connecting with culture and family support. A range of recommendations regarding delivery and content of a program for regional and remote communities as well as other policy implications are discussed.

Indigenous cultural landscapes: Equitably defining the 'authenticity' of the intangible

Over hundreds of generations, indigenous groups around the world have passed down their traditional landscape associations, a number of which are intangible and therefore unquantifiable. Yet, these associative relationships with nature have been, and continue to be, pivotal in cultural evolution. Determining the authenticity of intangible landscape associations has caused much controversy, and in recent decades, indigenous groups have begun seeking protection of their places of significance. In response, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) World Heritage Committee (WHC) developed a criterion that intended to assist in the identification and protection of cultural landscapes. The WHC has therefore become the global authority responsible for determining the authenticity of cultural landscapes, including those with intangible associations rather than material cultural evidence. However, even with the support of the United Nations, UNESCO and the WHC, it is unlikely that every tangible cultural landscape will be sufficiently recognised and protected. Therefore, this research paper explores the effectiveness of current approaches to gauging authenticity in instances where multiple landscapes are valued according to similar characteristics. Further, this work studies the inherent relationship between the indigenous Maori population of the South Island of New Zealand, in particular Kai Tahi peoples, and their significant landscape features, as a means of considering the breadth and depth of historic intangible associations. In light of these findings, this research challenges the appropriateness of the term 'authenticity' when analysing not only the subjective, but more pressingly, the intangible. It therefore questions the role of empirical data in demonstrating authenticity, while recognising that a prolific list of such intangible cultural landscapes has the potential to diminish integrity. This, this paper addresses an urgent need for increased social research in this area, namely in identifying cultural landscape protection methods that empower all local indigenous communities, not just those which are the most critically acclaimed.

Editorial of "International Journal of Critical Indigenous Studies Volume 2, Number 1, 2009"

Over the past two decades neo liberalism has shaped global economic activity. The international reach of the current economic crisis propelled by the subprime mortgage meltdown in the United States has affected Indigenous communities in different ways to those whose investments were depleted by the Wall Street activities of an unregulated corporate and banking sector. Throughout this roller coaster economic ride the low socio-economic position of Indigenous peoples continued in Canada, the United States of America, New Zealand, Hawaii and Australia. The logic, or illogic of capital, failed to extend the boom of the economic upturn to Indigenous peoples, but is poised to extend the repercussions of the current downturn deep into Indigenous lives. The consistency of the Indigenous socio-economic position across these countries, even where treaties exist, indicates that the phenomenon is based on a shared Indigenous reality. In this special edition, the commonality in the way in which Indigenous people are engaged in and positioned by market forces and regulation by their respective nation states is proposed as one of the foundation plates of that Indigenous positioning...

Editorial of "International Journal of Critical Indigenous Studies, Volume 7, Number 1, 2014"

This edition testifies to the broad international reach of the journal, with contributions variously concerned with Arctic Indigenous communities, the Métis of Canada, Native Hawaiians and Māori of Aotearoa (New Zealand). Two articles stress the need to work collaboratively and respectfully with Indigenous populations whilst conducting research. The first, by Gwen Healey, notes the increased interest in health research in the Arctic, particularly with Inuit populations. Healy seeks to add to the growing body of literature concerned with Indigenous ways of knowing by highlighting Inuit concepts that inform an effective Arctic research model. The second, by primary author Peter Hutchinson and a range of co-contributors, highlights the ways in which Métis collaborators working in health developed a participatory Indigenous research method that was unique in that it foregrounded Métis relationships and relationality. In so doing, the researchers were able to give substance to otherwise staid policy statements about the need for good ethical research conduct.

Editorial of "International Journal of Critical Indigenous Studies, Volume 8, Number 1, 2015"

This edition includes a diverse range of contributions that collectively illustrate two elevated concerns of critical Indigenous studies: First, an interest in establishing ways and means of conducting ethical research with Indigenous communities; and second, critically engaging with constructions of Indigeneity. The first article, by Craig Sinclair, Peter Keelan, Samuel Stokes, Annette Stokes and Christine Jefferies-Stokes, examines the increasingly popular use of participatory video (PV) as a means of engagement, in this case with children in remote Aboriginal communities as participants in health research. The authors note that, whilst not without methodological disadvantages, the PV method, with its flexibility to respond to community priorities is particularly well suited to research with remote Aboriginal communities.

Phylogenetic analysis of human Chlamydia pneumoniae strains reveals a distinct Australian indigenous clade that predates European exploration of the continent

Background The obligate intracellular bacterium Chlamydia pneumoniae is a common respiratory pathogen, which has been found in a range of hosts including humans, marsupials and amphibians. Whole genome comparisons of human C. pneumoniae have previously highlighted a highly conserved nucleotide sequence, with minor but key polymorphisms and additional coding capacity when human and animal strains are compared. Results In this study, we sequenced three Australian human C. pneumoniae strains, two of which were isolated from patients in remote indigenous communities, and compared them to all available C. pneumoniae genomes. Our study demonstrated a phylogenetically distinct human C. pneumoniae clade containing the two indigenous Australian strains, with estimates that the most recent common ancestor of these strains predates the arrival of European settlers to Australia. We describe several polymorphisms characteristic to these strains, some of which are similar in sequence to animal C. pneumoniae strains, as well as evidence to suggest that several recombination events have shaped these distinct strains. Conclusions Our study reveals a greater sequence diversity amongst both human and animal C. pneumoniae strains, and suggests that a wider range of strains may be circulating in the human population than current sampling indicates.

Expecting too much? Can Indigenous sport programs in Australia deliver development and social outcomes?

Sport holds a special place in the national psyche of many nations with claims for sport being far reaching. More recently sport has been identified as a development and an educational tool in the areas of health and behaviour modification. Against the backdrop of the Close the Gap blueprint for Indigenous Australians and within the context of competing claims for sport, this paper discusses whether sport can genuinely contribute to community development in Indigenous Australian communities. Drawing on cases from sports-based programmes that spanned a 5-year research programme and informed by a theoretical framework inspired by Sen’s notion of ‘Development as Freedom’, this paper makes the case that sport can be a robust developmental tool capable of delivering social outcomes to marginalized communities.

The impact of Indigenous Community sports programs: The case of surfing

The objective of this research project was to consider the social impact of sport and physical activity on the lives of Indigenous Australians and their communities. There has been strong research interest in the links between sport and recreation programs and various health and social outcomes and a well-established body of literature exists on the use of sport to address social issues in mainstream society (A Thomson, Darcy and Pearce 2010). The consensus is that physical activity is an important contributor to health for all people (Nelson, Abbott and Macdonald 2010). While there is strong research interest, what remains unclear is the value and impact of sport and physical activity on Indigenous communities (Cairnduff 2001). Nelson (2009) drawing on the work of Jonas and Langton (1994) indicates that an ‘Aboriginal person is a descendant of an Indigenous inhabitant of Australia, identifi es as an Aboriginal, and is recognised as Aboriginal by members of the community in which he or she lives’ (p. 97). Even this defi nition has the potential to be politically charged. At a general level, the collective terms ‘Indigenous’ (capitalised) and ‘Aboriginal and Torres Strait Islander’ people (title capitalised) appear to be broadly acceptable terms. Indigenous groups cannot be considered to be homogenous as there is much diversity between and within groups (Nelson et al. 2010; Parker et al. 2006). It is therefore important this report is not viewed as taking an essentialist view of who Indigenous people are and how they develop. Rather, this paper attempts to describe and discuss the experiences of some individuals and their communities in site-specifi c surfi ng programs.

Investigating opportunities to support indigenous aquaculture in Australia : Visit to Kimberley, Western Australia, May 2003

The STREAM Initiative has been working with issues relating to livelihoods, policy and institutional development and communications throughout Asia-Pacific. Recently this has included work in India with indigenous communities supporting people to have a voice in policy making processes. There appear to be some parallels between this work and the objectives of Kimberley Aquaculture Aboriginal Corporation (KAAC) and also the Agriculture Fisheries and Forestry Australia (AFFA) Indigenous Aquaculture Unit (IAU), National Aquaculture Development Strategy for Indigenous Communities in Australia. (PDF contains 13 pages)

Family agriculture for bottom-up rural development: a case study of the indigenous Mayan population in the Mexican Peninsula

Since pre-colonial times the indigenous communities of Mayan origin in the state of Quintana Roo, Mexico, widely practice home gardens on a sustainable basis as the principal form of family agriculture. This study analyzes the structural complexity, functional diversity and management strategy of these indigenous home gardens in order to attempt to propose recommendations for improved family farming. The Mayan home gardens are structured into three or more vertical layers of multiple plant species of herbs, shrubs and trees, and horizontally into well-defined zones for production of both domestic and wild animals. The home gardens provide multiple services apart from food and nutrition security. For sustainable bottom-up rural development, we recommend the continuation of multifunctional home gardens.

Can Andean medicine coexist with biomedical healthcare? A comparison of two rural communities in Peru and Bolivia

Background It is commonly assumed that indigenous medical systems remain strong in developing countries because biomedicine is physically inaccessible or financially not affordable. This paper compares the health-seeking behavior of households from rural Andean communities at a Peruvian and a Bolivian study site. The main research question was whether the increased presence of biomedicine led to a displacement of Andean indigenous medical practices or to coexistence of the two healing traditions. Methodology Open-ended interviews and free listing exercises were conducted between June 2006 and December 2008 with 18 households at each study site. Qualitative identification of households’ therapeutic strategies and use of remedies was carried out by means of content analysis of interview transcriptions and inductive interference. Furthermore, a quantitative assessment of the incidence of culture-bound illnesses in local ethnobiological inventories was performed. Results Our findings indicate that the health-seeking behavior of the Andean households in this study is independent of the degree of availability of biomedical facilities in terms of quality of services provided, physical accessibility, and financial affordability, except for specific practices such as childbirth. Preference for natural remedies over pharmaceuticals coexists with biomedical healthcare that is both accessible and affordable. Furthermore, our results show that greater access to biomedicine does not lead to less prevalence of Andean indigenous medical knowledge, as represented by the levels of knowledge about culture-bound illnesses. Conclusions The take-home lesson for health policy-makers from this study is that the main obstacle to use of biomedicine in resource-poor rural areas might not be infrastructural or economic alone. Rather, it may lie in lack of sufficient recognition by biomedical practitioners of the value and importance of indigenous medical systems. We propose that the implementation of health care in indigenous communities be designed as a process of joint development of complementary knowledge and practices from indigenous and biomedical health traditions.

Snoring and its association with asthma in Indigenous children living in the Torres Strait and Northern Peninsula Area

Objective: Respiratory health of Indigenous and minority ethnic groups in affluent countries is poorer than their non-minority counterparts and sleep disorders are no exception. In children, obstructive sleep apnoea has the potential to result in serious long-term consequences. In 1999, we studied 1650 children and adolescents living in the Torres Strait and the Northern Peninsula Area, Australia. Here we report prevalence of snoring in these communities and relate its association with asthma symptoms. Methods: A population-based cross-sectional study was conducted in the Torres Strait region. Five indigenous communities were randomly selected and information was collected using a structured face-to-face interview based on a standardized questionnaire. There was a 98% response rate, and 1650 children, 0-17 years of age, were included in the study. Results: Overall, the prevalence of snoring was 14.2% (95% CI 12.5-15.9); 3.6% (95% CI 2.7-4.6) reported snorting, and 6% (95% CI 4.9-7.2) reported restless sleep. The prevalence of snoring was significantly higher among males (17.1% for males and 10.8 for females, P = 0.005). Children were five times more likely to have experienced snoring and snorting if they reported wheezing in the last 12 months. Conclusion: We conclude that the prevalence of symptoms suggestive of obstructive sleep problems is relatively high in children of this region. This highlights the need for awareness among the community patients and physicians about the problem of obstructive sleep-disordered breathing, especially in children with asthma, and for the need for further studies to measure prevalence of sleep breathing disorders among Indigenous Australians.

Adapting the 'family wellbeing' empowerment program to the needs of remote indigenous school children

Objective: To adapt the Family Wellbeing empowerment program, which was initially designed to support adults to take greater control and responsibility for their decisions and lives, to the needs of Indigenous school children living in remote communities. Method. At the request of two schools in remote Indigenous communities in far north Queensland, a pilot personal development and empowerment program based on the adult Family Wellbeing principles was developed, conducted and evaluated in the schools. The main aims of the program were to build personal identity and to encourage students to recognise their future potential and be more aware of their place in the community and wider society. Results: Participation in the program resulted in significant social and emotional growth for the students. Outcomes described by participating students and teachers included increased analytical and reflective skills, greater ability to think for oneself and set goals, less teasing and bullying in the school environment, and an enhanced sense of identity, friendship and,social relatedness'. Conclusion: This pilot implementation of the Family Wellbeing Program adapted for schools demonstrated the program's potential to enhance Indigenous young people's personal growth and development. Challenges remain in increasing parental/ family involvement and ensuring the program's sustainability and transferability. The team has been working with relevant stakeholders to further develop and package the School-based Family Wellbeing program for Education Queensland's New Basics curriculum framework.