8 Indigenous Knowledge and Design

^{Cultural Notice: We wish to advise Indigenous people that this document refers to the names of deceased Indigenous people.}

This chapter examines the intersection of Indigenous Knowledge and Australia’s registered designs system. Its primary objective is to examine how Indigenous Knowledge, including Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE), interacts with and is protected by the current Designs Act 2003 (Cth). Intellectual Property Cultural Protocols will also be discussed in relation to registered designs. The chapter explores the challenges and opportunities in protecting and respecting Indigenous designs through conventional intellectual property mechanisms while considering the unique characteristics and requirements of Traditional Knowledge systems.

Introduction

Aboriginal and Torres Strait Islander visual arts and crafts express culture through traditional stories, symbols, and motifs, reflecting cultural practices. ^[1] These expressions help document histories and connections to Country.^[2] Such expressions include Indigenous designs that embody cultural expressions maintained and developed over thousands of years. These designs frequently carry deep cultural significance and are governed by customary laws regarding their use, reproduction, and transmission.^[3]

Unlike conventional intellectual property rights, which focus on individual creativity, innovation, and commercial exploitation, Indigenous designs are often communally owned and managed according to traditional law and custom.^[4] This fundamental difference in the conception and management of creative expressions creates significant challenges for the current intellectual property framework.

Protecting Indigenous designs has become increasingly important due to the growing commercial interest in Indigenous art and design. The demand for First Nations visual arts and designs is on the rise. The Productivity Commission found that between 2019 and 2020, the total market value of First Nations visual arts and crafts exceeded $250 million, with $122-$130 million spent by domestic households and $110-$137 million spent by international visitors.^[5] Although this predominantly represents visual art, more importantly for designs, the sales of products and merchandise totalled at least $80 million.^[6] The rise in popularity of these products has raised concerns about cultural appropriation and the need for appropriate legal frameworks to safeguard Indigenous cultural expressions while respecting traditional knowledge systems.

Indigenous Knowledge refers to the ‘living body of knowledge that is developed, sustained and passed on from generation to generation within a community [of Indigenous People], often forming part of its cultural or spiritual identity’.^[7] Aboriginal and Torres Strait Islander communities have upheld customary laws to protect their Indigenous Knowledge for thousands of years. These laws limit how it is used and establish processes for its use. For instance, some knowledge must remain secret or is accessible only to specific group members.^[8]

Increasingly, Indigenous Knowledge has been used without permission in visual arts and design.^[9] This often constitutes misappropriation and undermines customary laws, leading to economic and cultural harms.^[10] The use of Indigenous Knowledge in visual arts, crafts, and designs is not directly regulated under current Australian law. Some protection exists when Indigenous Knowledge is misappropriated (when false and misleading representations are made about its origins) or when copyright is infringed. The Productivity Commission outlines the existing legal mechanisms and instruments that address the misuse of Indigenous Knowledge in arts, crafts, and designs. A gap remains when aspects of culture are used without consent.

Indigenous Knowledge and the registered designs system represent a unique challenge for Australia’s intellectual property system. This intersection is significant because such cultural expressions can take the form of designs or include cultural expressions. For example, designs can feature Indigenous symbols and motifs.

Many inquiries and reports examining the protection of Indigenous visual arts and crafts identify copyright and trade mark protection as being more immediately relevant to Indigenous creators.^[11] However, a design registration system can also be relevant where there is unauthorised or inappropriate exploitation of Indigenous Knowledge embodied in a design.

Overall, the Act provides limited protection for Indigenous Knowledge. Protection lasts for a limited period, which contrasts with the perpetual traditional rights to designs.^[12] The system views pre-existing Indigenous designs as being in the public domain, thereby limiting design protection.^[13] Registered designs require novelty, distinctiveness, and ownership—criteria typically absent in Indigenous Knowledge developed communally over thousands of years. To the extent that the Act can protect a new design incorporating Indigenous Knowledge, it complicates communal group rights in an individual rights market.

Australia’s international obligations, including commitments under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), create imperatives for developing appropriate mechanisms to protect Indigenous cultural expressions, including designs. These obligations require Australia to consider how its domestic intellectual property framework can better accommodate and protect Indigenous interests in their cultural expressions.

Read

Under the UNDRIP:

Traditional Knowledge and Traditional Cultural Expressions

The intersection of Indigenous Knowledge and designs law involves several fundamental concepts. Indigenous Knowledge encompasses the traditions, innovations, and practices of Indigenous peoples around the world. In Australia, the Indigenous Knowledge is that of Aboriginal and Torres Strait Islander people that result from their deep connection to land, culture, and community.^[14] Indigenous knowledge has two distinct categories:

In the design context, this knowledge manifests through Traditional Cultural Expressions, including traditional and contemporary art forms that can be represented in a design.^[16] These expressions often embody complex systems of knowledge about the natural world, social relationships, and spiritual beliefs.^[17] The knowledge systems extend beyond mere visual appearance to include an understanding of materials, techniques, and the cultural contexts in which designs may be appropriately used.^[18]

Cultural expressions can take many forms, from two-dimensional designs and patterns to three-dimensional objects. Such designs can be created for aesthetic purposes but often carry ‘spiritual or religious meanings and have social, cultural and spiritual purposes.’.^[19] These expressions are not static, ‘Indigenous cultures evolve, Indigenous people and communities continue to express themselves in new and adaptive ways.’^[20]

Aboriginal customary law plays a crucial role in governing the creation, use, and transmission of designs. Customary law covers the rights and obligations of those who may hold knowledge, how it may be reproduced, and the contexts in which it may be used.^[21] Aboriginal cultures across Australia are diverse, each with unique customary laws.^[22] However, there are principles that govern Indigenous knowledge ownership and control:

• Knowledge is communally owned and attributed to groups of origin as a cultural right.^[23]
• The integrity of cultural heritage is ensured through rights and obligations to use knowledge with an individual or group acting as custodians.^[24]
• Consent through collective decision-making must lead to the use or sharing of knowledge.^[25]

This legal system, which often operates according to principles that differ significantly from Western intellectual property law, presents specific challenges for protecting Indigenous designs within the current intellectual property frameworks. Western intellectual property systems historically view traditional knowledge and cultural expressions as being in the public domain, free for anyone to use. ^[26]

Case studies and Examples

Successful instances of Indigenous Intellectual Property protection

Watch the following video on Alperstein Designs, who collaborated with Aboriginal Artists and Art Centres across Australia to create unique lifestyle gifts and homewares. Mick Harding, an artist from the Yowung-Illam-Baluk clan of the Taungurung people, discusses collaboration with Marc, including important details about ethical licensing.

The successful protection of Indigenous designs often involves creative combinations of legal mechanisms and cultural protocols. The Aboriginal Artists Agency Limited provides an example of how collective management organisations can effectively bridge traditional and contemporary protection systems. Established in 1976 by the Australian Government through the Australian Council for the Arts, the Agency is a non-profit organisation representing over 300 individual artists in visual and performing arts who administer the copyright in their work.^[27] The Agency plays a role in redressing copyright infringement and controlling reproductions on behalf of artists.^[28] It considers every situation where an artist’s work may be reproduced and sets fees for collection for channelling back to the artists or their communities.^[29] By carefully structuring licensing arrangements and engaging in ongoing consultation with Indigenous communities, the Agency has demonstrated that commercial exploitation of Indigenous designs can occur while maintaining cultural integrity and ensuring the protection of legal interests.

Unsuccessful instances of Indigenous Intellectual Property protection

The Productivity Commission reported that more than half of all purchased Aboriginal and Torres Strait Islander arts and crafts are inauthentic or non-Indigenous authored.^[30] Such misappropriation of Indigenous Knowledge causes harm to First Nations artists, communities, and culture while deceiving consumers who wish to purchase authentic items.^[31]

The unauthorised use of Indigenous designs in commercial products has repeatedly highlighted the inadequacy of conventional intellectual property frameworks for protecting cultural expressions. Moreover, continued misappropriation threatens the integrity of cultural heritage, traditions and the knowledge itself.^[32]

To illustrate the tensions between Indigenous Knowledge and intellectual property rights, read Yumbulul v Reserve Bank of Australia.^[33] Although this is a copyright and trade practices case, the Federal Court examined the sacred and communal nature of Indigenous designs.^[34]

This case centres on Terry Yumbulul’s ceremonial Morning Star Pole design, which was featured on the Reserve Bank of Australia’s specially released Bicentennial $10 banknote (See the bank note here). Morning Star Poles are made from feathers, wood, and string and are integral to significant funeral ceremonies, showcasing traditional designs. The construction of these poles adheres to Indigenous laws and religious customs. Mr. Yumbulul, a member of the Galpu clan, sold the pole to the Australian Museum for public exhibition. He granted reproduction rights to the Aboriginal Artists Agency, which then licensed the Reserve Bank to reproduce it on the note. The Court noted that ‘Mr. Yumbulul came under considerable criticism from within the Aboriginal community for permitting the reproduction of the pole by the Bank.’ The use exceeded the authority he had been given, and it was not considered culturally appropriate for such a sacred item to be reproduced on money.

Indigenous Knowledge and the Australian Registered Designs System

Current status of Indigenous Knowledge in the Designs Act 2003 (Cth)

The Designs Act 2003 (Cth) provides a framework primarily designed to protect the visual appearance of manufactured items. This focus should not be confused with ‘designs’ or ‘styles’ of Aboriginal art. ^[35]. Currently, the Act has little specific accommodation for Indigenous Knowledge systems. The Act’s approach to design protection emphasises individual rights, commercial exploitation, and time-limited protection. This framework presents significant challenges for protecting Indigenous designs, which often embody communal rights and cultural values that extend beyond commercial considerations.

Registration requirements under the Act create conflicts with Indigenous cultural practices. The formal application process necessitates public disclosure of the design, which may contradict Indigenous customary law. The Act’s scope of protection focuses exclusively on visual features and commercial exploitation rights. This focus fails to capture the holistic nature of Indigenous designs, which often incorporate spiritual, cultural, and historical elements that extend beyond mere visual appearance.^[36] In addition, the Act’s emphasis on individual or corporate ownership also does not accommodate traditional communal ownership structures.^[37]

IP Australia aimed to address the misappropriation of Indigenous Knowledge in the context of designs during roundtable consultations conducted in 2018 and 2019.^[38] Following community consultations, IP Australia clarified that design applications that ‘consist solely of or incorporate Indigenous Knowledge in a way that results in misuse and/or a deceptive Indigenous connection with a person or group are likely to cause offence and be considered scandalous’ and must be rejected under Section 43 of the Act.^[39] Indigenous designs registered by individuals without any ties to a traditional cultural expression can be seen as shocking or offensive to both Indigenous and non-Indigenous communities. Such designs may rightfully belong only to their traditional owners, or it might be deemed inappropriate for anyone to profit commercially from a design viewed as sacred.^[40]

As discussed in Chapter 4, Section 43 pertains to designs that the Registrar must refuse and is assessed during the formalities assessment and examination of a registered design. The scenarios where a design that includes Indigenous Knowledge must be rejected include: ^[41]

• Indigenous designs that no one should use
• Indigenous designs that should not be used by anyone other than the traditional owners or creators
• Anyone can use Indigenous designs, but only with appropriate permission or consent from traditional owners or creators.

Such an issue is not confined to non-Indigenous individuals inappropriately claiming ownership over a design. An Indigenous group may also take offence if another Indigenous group uses an Indigenous design.^[42]

To examine the application of the scandalous provision for Indigenous Knowledge, read Jabree Ltd v Gold Coast Commonwealth Games Corporation.^[43] A decision of the Australian Trade Mark Office, the case involved the Gold Coast 2018 Commonwealth Games Corporation application to register the work BOROBI as a trade mark across 14 classes of goods and services. The word ‘Borobi’ originates from the Indigenous Australians Yugambeh language and means ‘Koala’ in English. The evidence established that ‘the Applicant did seek consultation with Yugambeh people about the adoption and use of their word ‘Borobi’ as the name for the Games mascot in a respectful and inclusive manner albeit not in a way the Opponent recognises.’^[44] The Delegate held that the scandalous ground was not established saying:

The Trade Mark can be distinguished from other Aboriginal words that may contain some kind of religious meaning or connotation or those consisting of, or comprising racial slurs or epithets, or those which consist or comprise of a profanity. Here the Trade Mark is a Yugambeh word for ‘Koala’. In and of itself, it is difficult to see how such a word used as a trade mark in relation to the Applicant’s goods and services would be likely to offend or scandalise in the way contemplated under the Act.^[45]

Intellectual Property and Cultural Protocols

Indigenous Knowledge is communally owned, and cultural protocols regulate its use and communication to ensure its integrity.^[46] Cultural Protocols in Indigenous communities represent complex systems of rules, practices, and traditions that govern the creation, use, and transmission of cultural expressions, including designs. These protocols are not mere formalities; they are essential practices that maintain the integrity of cultural knowledge and ensure its safe transmission to future generations.^[47]

The intersection of Cultural Protocols with intellectual property rights focuses on the consent processes and protocols for culturally appropriate use of Indigenous Knowledge, particularly concerning the registration of designs.

Understanding Cultural Protocols in Indigenous Communities

Applying Cultural Protocols to designs involves obtaining permission and consent. Within Indigenous communities, the right to use or create certain designs may be restricted.^[48] These restrictions serve important social and cultural functions, maintaining the integrity of cultural knowledge and ensuring its appropriate transmission between generations.^[49] The methods of seeking consent can range from oral permission to written contracts, letters of support and emails.^[50] The permission may specify who can use designs and when and in what contexts.^[51]

Terri Janke sets out six considerations relevant to understanding the importance of consent:^[52]

1. language and design comes from land;
2. people are connected to language and design by birthright and are required to follow customary laws in the use of Indigenous Knowledge;
3. communal ownership of IK means communal obligations under customary law;
4. when IK is used in an offensive context, it compromises the integrity of that IK and causes cultural harm;
5. even when the proposed use is not directly offensive, use of IK without consent compromises cultural revitalisation processes. For example, loss of culture means many Indigenous peoples are still in a state of reclaiming words. This language revitalisation process takes a lot of time and resources. Language centres work hard to revitalise their languages. Use of language words without permission and out of context can dilute or generise the meaning of the word; and
6. respect for consultation and consent processes preserves the integrity of cultural knowledge and helps culture continue.

Intersection of Cultural Protocols with Intellectual Property Rights

When registering designs that include Indigenous Knowledge, it is crucial to consult and obtain consent from the relevant community, especially if the applicant is not a member and does not own that knowledge.^[53] Design examiners may assess applications containing Indigenous symbols or art and seek clarification on the source of any cultural expressions.^[54]

When registering a design incorporating Indigenous Knowledge, it is crucial to recognise that designs, patterns, and cultural expressions belong to specific places and communities. Using such designs without proper consent risks causing cultural harm to individuals, entire communities, and their cultural heritage.^[55]

The process for seeing consent should follow the principles of free, prior and informed consent.^[56]. This means that the processes should work through existing Indigenous governance structures and respect traditional decision-making processes.^[57] Free, prior, and informed consent is essential; this is not merely a formality but a fundamental requirement that acknowledges the rights of Indigenous peoples to maintain control over their cultural heritage.^[58]

The process of obtaining consent for design registration should begin early in the design development phase.^[59]

Proposed Reforms and Future Directions

Previous reviews have consistently identified the inadequacy of conventional intellectual property mechanisms in protecting Indigenous designs.^[60] However, implementing effective reforms has proven to be challenging, partly due to reconciling fundamentally different approaches to cultural expression and ownership.

The Australian Law Reform Commission's Design Review included issues relating to the protection of Indigenous designs. The report discussed the need to protect pre-existing clan designs of Indigenous groups, which have been passed down through generations.^[61] Following this review, the ACIP review did not address the issues affecting Indigenous designs. IP Australia has been more active in this area, having commissioned several research papers and conducted roundtable sessions from 2016 to 2021. ^[62]

Review of past reform attempts

Looking more broadly at visual arts, the Productivity Commission outlined the numerous studies and inquiries that have focused on Aboriginal and Torres Strait Islander art that suggested changes to the law.^[63]

Other processes have considered the need for standalone legislation, Productivity Commission (CC BY-NC)

Current proposals for integrating Indigenous Knowledge into designs law

The Productivity Commission, while examining Indigenous visual art and crafts, suggested amending the Designs Act 2003 (Cth) to ‘include provisions for the registration of Aboriginal and Torres Strait Islander cultural designs and a perpetual protection period for these designs’.^[64] The suggested changes to widen the scope of the Designs Act were not followed up.

An alternative option is to introduce a dedicated system to protect Indigenous knowledge. One significant avenue for reform is the potential introduction of sui generis protection for Indigenous designs.^[65] Such an approach would create a separate but parallel protection system designed to accommodate the unique characteristics of Indigenous cultural expressions. This could potentially address many limitations of the current system while maintaining the integrity of both traditional and contemporary protection mechanisms.

More recently, the National Cultural Policy, ‘Revive: A Place for Every Story, a Story for Every Place,’ saw the Australian Government pledge to collaborate with First Nations peoples to create independent legislation to recognise and safeguard First Nations' Traditional Knowledge and Traditional Cultural Expressions.^[66] The Office for the Arts, which operates under the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, is tasked with advancing this legislation to Parliament.

Watch

Watch Patricia Adjei, Director of the Stand-alone Legislation team, discuss the efforts to safeguard Indigenous cultural and intellectual property rights.

The Office of the Arts is taking a staged approach to developing the legislation. The first stage will address the harm caused by fake First Nations-style art, merchandise, and souvenirs. The Office will then introduce new rights to protect Indigenous cultural and intellectual property.

In 2023, IP Australia released the findings of a study examining possible models for legislation to protect Indigenous Knowledge.^[67] They identified four elements that would contribute to a new purpose-built legislation:^[68]

1. A new legal right that recognises communal ownership of Traditional Knowledge and Traditional Cultural Expressions, to fill the gaps where existing intellectual property protections do not apply.
2. Measures to deter trade and import of inauthentic product and labelling system to promote authentic products.
3. Create a National Indigenous Knowledge Authority – a dedicated organisation that has the power to help people protect and use their Indigenous Knowledge.
4. Measures to support and build the capacity of Indigenous businesses to manage and commercialise their Indigenous Knowledge.

To illustrate how the model would work in practice, IP Australia proposed a hypothetical scenario and how the new system would apply: ‘An Australian company imports souvenir boomerangs made overseas for sale in a number of its shops. These products are decorated with ‘look-a-like’ Aboriginal-style designs. The packaging and labelling do not say that the products are made by Aboriginal people.’^[69]

How Might the Model Work in Practice – A Hypothetical, IP Australia (CC BY-NC)

International Approaches

Other countries have adopted forms of ‘sui generis’ legislation that provide protection for ICIP of First Nations peoples. The Productivity Commission outlined the approach taken by Panama, South Africa, Cook Islands, Niue, Vanuatu and Mexico, reproduced below.^[70]

• Panama: where a law enacted in 2000 provides perpetual and collective protection of the intellectual property type, based upon a registration requirement, for the handicrafts and other creations of its Indigenous peoples. This law protects a range of Indigenous knowledge, including the traditional dress known as a Mola. As at 2019, approximately a dozen forms of cultural expressions had been registered.
• South Africa: where a law enacted in 2019 provides for the protection of Indigenous knowledge, traditional cultural expressions and natural resources associated with Indigenous knowledge. Protection requires registration and the law will be administered through the National Indigenous Knowledge System Office. The implementation of the Act, including the development and approval of regulations that will govern the application of the legislation is ongoing.
• Cook Islands, Niue and Vanuatu: where national legislation establishing traditional cultural rights and moral rights has been implemented, using the Pacific Model Law for the Protection of Traditional Knowledge and Expressions of Culture as a guide. Fiji, Kiribati, Palau and Papua New Guinea are also currently working towards implementing similar laws.
• Mexico: where the Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican People and Communities prohibits the unauthorised use of Indigenous art and design. The Australian Copyright Council noted some key implementation issues that have arisen, namely a lack of clarity regarding the cultural heritage items/assets that are protected by the legislation, who in a relevant Indigenous community has the authority to grant permission and how disputes between communities or within a community, are to be resolved.

Protecting Indigenous designs within Australia's legal framework presents complex challenges that require innovative solutions. Although the current system provides some mechanisms for protection, it fails to adequately address the unique characteristics of Indigenous cultural expressions and their significance to communities. Developing better protection mechanisms requires careful consideration of legal and cultural factors, along with meaningful engagement with Indigenous communities.

The future development of Indigenous design protection in Australia will likely require significant reforms to existing frameworks. These reforms must balance the need for effective protection of Indigenous cultural expressions with practical considerations of implementation and enforcement. The increasing recognition of Indigenous rights and the growing importance of cultural integrity in commercial contexts suggest that such reforms will become increasingly urgent.