Traditional Knowledge, Biodiversity & IP (LAWS90325)

The conventional intellectual property (IP) system has historically been shaped by Western and European concepts of innovation, creativity, and originality, with implications for the theoretical structures and practical application of IP law. Responding to recent globalising trends in IP law, , developing countries and Indigenous communities have called into question the foundational principles of IP law, advocating greater recognition and respect of traditional knowledge (TK) systems and forms of cultural expression, and equity in the use of genetic resources (GR). This reframing of IP challenges the assumption that such material had 'fallen' into the public domain, free for exploitation without recognition or benefit sharing, akin to terra nullius. 

This reframing of IP law and policy has had diverse influence at theoretical and practical levels, spurring policy debate, international negotiations and legislative reforms, and influencing judicial decisions and IP office practice. International debate has probed the relationship between IP conventions, notably the WTO TRIPS Agreement, and other areas of public international law like human rights (UN Declaration on the Rights of Indigenous Peoples), environmental law (Convention on Biological Diversity), and cultural heritage law (UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions). In May 2024, the World Intellectual Property Organisation concluded the Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge, linking the patent system with GR and TK and recognising Indigenous Peoples and local communities. Developing countries have also integrated TK protection into recent trade agreements. 

Domestically, many countries are revising IP laws or developing sui generis laws to protect TK and traditional cultural expressions, to govern access to GR, and to recognise Indigenous People's collective rights.  Several initiatives in Australia are reshaping the interaction between IP and Indigenous knowledge systems, including practical tools for recognising Indigenous knowledge and customary laws and protocols, applying principles of prior informed consent, and equitable benefit sharing. These developments have increasing practical implications for the practice of patent, trademark and copyright law. 

This subject will: 

Intended learning outcomes

A student who has successfully completed this subject should be able to: 

• Explain and interpret the legal framework shaping the interaction between conventional IP law and traditional knowledge systems, at the level of international and domestic law.
• Analyse and discuss the legal and policy issues and challenges for justice and equity arising from the interaction between traditional knowledge, genetic resources and IP law.
• Apply practical IP measures to the positive and defensive protection of traditional knowledge and genetic resources.
• Undertake legal and policy research on and analysis of laws, legal instruments and specialised IP databases.
• Contribute to policy processes addressing the interface between IP, traditional knowledge and genetic resources.

Generic skills

• Independently analyse, critically reflect on and synthesise diverse viewpoints and theoretical frameworks.
• Undertake specialised research, exercise judgement, and apply research findings to policy processes and the practice of law.
• Communicate, interpret and transmit knowledge, current issues and ideas for specialist and non-specialist audiences.
• Analyse, select and apply appropriate legal tools and specialist information resources in the practice of law.