Indigenous knowledge interests and the law in the commercialisation of native plants: a new approach to an old problem
1. Indigenous knowledge interests and the law
in the commercialisation of native plants:
a new approach to an old problem
Kylie Lingard
PhD Candidate
University of New England
Australian Centre for Agriculture and Law
Cooperative Research Centre for Remote Economic Participation
2. Question
What practical legal strategies enable the
most Indigenous knowledge interests along
the most native plant commercialisation
pathways?
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3. Key terms
• Commercialisation of native plants: the
development of native plants for profit
• Interests: the needs, aspirations and
rights expressed by Indigenous people
over the past 40 years in scholarly works
and international instruments
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4. Indigenous
knowledge interests
• Ownership and control interests
• Maintenance and development interests
• Respect and recognition interests
• Financial interests
• Participation interests
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5. Two approaches
1. Framing of Indigenous knowledge as
important to the public interest
2. Framing of Indigenous knowledge as
intellectual property
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6. IK & the public interest
CBD: promotes respect,
preservation,
maintenance, informed
consent, equitable benefit
sharing
ABS contractual model:
promotes domestic
implementation of these
interests
Federal ABS model: limits
enablement of interests to
when resources are accessed
from Commonwealth areas
Federal ABS model:
limits enablement of
interests to when
knowledge contributes to
commercial outcomes
and is not otherwise
available
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7. IK as IP
Existing IP
regimes
IK
characteristics
IP protection
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New category
of IP
IK
characteristics
IP protection
9. New approach in action
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Freedom to operate
Prior art search
Secure
funding
Funding
agreement
Obtain rights
Rights
acquisition
agreement
Licensing
agreement
Alliance
agreement
Protect idea
Laws of
confidence
Trade secret
laws
Protect
creation
IP
Access to
samples
Wild material
Federal
access laws
State/territory
access laws
Gene
material
MTA