Sui Generis Laws for the Protection of Indigenous Expressions of Culture and Traditional Knowledge
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SUI GENERIS LAWS FOR THE PROTECTION OF
INDIGENOUS EXPRESSIONS OF CULTURE AND
TRADITIONAL KNOWLEDGE
SABINE SAND*
I. INTRODUCTION
'The struggle over these designs is nothing less than the struggle over cultural meaning...
Indigenous peoples see their identity as depending on the survival of their art.
There are a number of reasons attributable to the rising international concern of the pro-
tection of indigenous expressions of culture and traditional knowledge (ECTK). The envi-
ronmental movement has drawn attention to the importance of preserving traditional
knowledge as part of traditional cultural environments, while the international human
rights movement has also played a part in the preservation effort when the destruction of
indigenous cultural property is akin to a 'gradualist form of ethnocide'.2
II. WHAT IS INDIGENOUS INTELLECTUAL PROPERTY?
It is commonly acknowledged that terminology is an issue when defining the parameters
of indigenous ECTK.3 While it is not this article's intention to clarify terminology and
debate classification of ECTK, the article does proceed from the assumption that ECTK
includes all rights in relation to indigenous works under conventional intellectual property
laws such as copyright, designs, patent and trade mark laws, together with rights vested in
products arising from traditional knowledge. This category spans a broad range: it can
include all cultural expressions such as reproduction of traditional motifs in paintings,
biotechnology and traditional medicine knowledge. Authority generally accepts that
expressions of culture and traditional knowledge have an interwoven relationship.4
III. WHY DO INDIGENOUS GROUPS NEED Sui GENERIS PROTECTION
FOR ECTK?
Proof that indigenous ECTK deserves the full gamut of protection is the increasing
exploitation, inappropriate commercialisation and commodification of ECTK by non-
indigenous people. Due to the increase in worldwide demand for genuine indigenous arte-
facts, ECTK has become a commodity soaring in value, especially in areas of tourism,
advertising and marketing.5 Despite the high commercial value of sales, indigenous
peoples often derive little or no benefit from the market consumption of their traditions,
Sabine Sand is a solicitor with Phillips Fox Brisbane and a current LLM student at the University of Queensland
specialising in Intellectual Property Law.
Christine Farley, 'Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?' (1997) 30(1)
Connecticut Law Review 1, 11.
2 Tom Greaves (ed), Intellectual Property Rights for Indigenous Peoples -A Sourcebook (1994) 5.
3 World Intellectual Property Organisation, Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore - Final Report on National Experiences with the Legal Pro-
tection of Expressions of Folklore (hereafter Final Report) (2002) 91.
1 See further World Intellectual Property Organisation, above n 3, [92]-[961 for discussion of this point.
I Shelley Wright, 'Aboriginal Cultural Heritage in Australia' (1995) University of British Columbia Law Review
(Special Issue). In particular, Wright notes at 58 by way of example that the imagery used by the Northern Ter-
ritory Government Tourist Bureau in their tourism advertising incorporates pictures of the land and wildlife asso-
ciated with the indigenous groups of the area. One particularly famous landmark is Uluru. Although Uluru was](ViewImageLocal?handle=hein.journals/qland22&div=20&collection=&method=preview&ext=.png&size=3)
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Sui Generis Laws for the Protection of Indigenous Expressions of Culture and Traditional Knowledge
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