Roots and Rights: Legal Futures for Indigenous Knowledge:community-based TK Regimes in India with the ICIP Reform in Australia with reference to WIPO GRATK Treaty

A Sui Generis Future: community-based TK Regimes in India with the ICIP Reform in Australia with reference to WIPO GRATK Treaty

The memory, identity and ecological wisdom are embodied in traditional and cultural knowledge, which are still living. Internationally, it has drawn growing interest as to both the law and policy as interest in biopiracy, cultural misappropriation, and unfair benefit-sharing have become more and more international concerns. Council India has taken an active interest in coming up with the twin strategy to deal with this issue by propriety of the Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act) and the Traditional Knowledge Digital Library (TKDL). In comparison Australia has adopted a fractured perspective of Aboriginal Cultural and Intellectual Property (ICIP) resorting to broad intellectual property legislations and voluntary guidelines but in recent trends this is set to introduce a logical layer of legislations (Janke, 1999).

This paper critically analyses the Indian and Australian systems of protection of traditional knowledge and identifies notes legislative design, judicial progress, and direction and shape of reform. With reference to the major jurisprudence and literature, it provides an assessing road-map to a more integrated and culturally sensitive justice.

India's Legislative Architecture: The GI Act and TKDL

A. The Geographical Indications Act, 1999

GI Act in India was enacted with the purpose of protecting products whose qualities were inherited due to the geographical tout. The famous ones are Darjeeling Tea, Kanjeevaram Silk and Pochampally Ikat. By 2025, India had registered more than 650 products under this regime and some states such as Uttar Pradesh and Telangana are keen on getting more cultural treasures registered under the regime (CSIR-TKDL, 2024).

The amendments made in the legislations in 2024 have also streamlined the system in incorporating certification marks, including the use of QR-based tags on Kolhapuri chappals thus incorporating the technological genuineness in the legal acknowledgement. The collective custodianship is acknowledged in the Act expressly and spells out the civil and criminal penalties that are to be imposed on the infringement of law. It allows communities to take control of the branding and economic quotation of its traditional goods.

B. Traditional Knowledge Digital Library (TKDL)

The TKDL is a work of mutual cooperation between the Council of Scientific and Industrial Research and the Ministry of AYUSH, and was set up in the year 2001. It records ancient information about medicine based on Ayurveda, Siddha, Unani, and Yoga using numerous foreign languages around the world to enable such knowledge to reach patent examiners across the world (SpringerLink, 2009).

The library has also extended to contain heritage that is not medicinal like crafts and oral traditions as a way of discouraging misappropriation and also a way of presenting knowledge. It is interesting to note that it has been instrumental in striking down a number of controversial patents out there like that of turmeric and neem.

The case of India shows a delicate compromise between the legal safeguarding, the online disclosure, and the involvement of the people.

Australia’s Framework: Fragmentation and Reform Momentum

A. Lack of a Standalone Legal Framework

Australia already does not have a specific legislative system such as to protect ICIP. Conventional knowledge is covered under the current legislation such as Copyright Act 1968, Competition and Consumer Act 2010 as well as common law contracts. These indicators, nonetheless, are restrictive. They usually safeguard personal authorship and are poorly positioned to take care of oral, intergenerational, and shared type of knowledge (Precedent AULA, 2020).

Although consumer law has been adopted in cases of misleading representations relating to Aboriginal art and contract has offered benefits to some communities in the form of negotiated protection, such safeguards cannot rival the enforceability or cultural fit of a specialist law, which the reforms are aimed at providing.

B. Carpets Case Milpurrurru v Indofurn Pty Ltd (1994)

Among the most important judicial acclamations of cultural damage in Australia was the one in the Carpets Case, in which Indigenous artists sued and won against insensitive reproduction of cultural images. The Federal Court did not only appreciate copyright infringement, but damage to culture. Although such move was a significant provision of the doctrine, enforcement could not work in practice since the defendant was made bankrupt and some damages remained unpaid (Janke, 1999).

The case could be viewed as a milestone in the appreciation of at least group-based cultural rights within an essentially individualistic IP regime.

C. Emerging Legislative and Policy Developments

A campaign has been evoked to incorporate legislative reform in filling the gap in ICIP. The suggestion of Productivity Commission is to have sui generis ICIP legislation passed that is informed by Indigenous world views and governance and regimes. There are some of the key pillars in the future that will be characterized by the First Nations Strategy of IP Australia 2025-2030 to have first nations led policy frameworks; they are Control, Protection, recognition and respect (IP Australia, 2025). More pressure has been generated given that Australia has participated as part of the WIPO 2024 international treaty on genetic resources and traditional knowledge. The Indigenous is still advocating and demanding the disclosure of filings under IP, the creation of community-owned version of registries and benefit-sharing agreements should be achieved by host statute.

D. Instruments Protocols

Even though it lacks hard law, several voluntary codes are developed to offer the ethical way of addressing Indigenous engagement. ICIP protocols devised by Terri Janke present Creative Australia with the guideline that should be employed regarding matters touching on consent, attribution, integrity, and benefit-sharing. These guidelines though widely quoted and applied on the government sponsored creative projects are not legally binding.

Legal and Critical Perspectives

Terri Janke has been a long-time advocate of sui generis approach to Indigenous IP beyond the laws of the West to acknowledge community moral claim. Her pioneering work of 1999 has shaped much of the following policy drafts and advocacies (Janke, 1999).

Critiquing state-based reforms on the grounds of overlooking Indigenous governance in heritage protection, Butterly and Lixinski claim that it was associated with the unequal distribution of power and in the danger of cultural erasure in administrative models. They address legal frameworks in a community-led legal establishment and integrity of the settlement procedures (Butterly & Lixinski, 2020).

More current discussion indicates that Australia might use the Indian system of documentation and certification to ensure authenticity and trade validity especially in Aboriginal art industry.

Policy Synergies and International Pathways

There are a number of lessons which can be exported by India. A combination of legislative transparency with the GI Act, technological repellent with TKDL, and a certification based on QR allows the formation of a layered comparative-advantaged, and community-empowering regime. In Australia, however, there is a turning point to formulate its own sui generis framework. Australia might come up with a hybrid solution composed of disclosure obligations, community-owned registers, and a method of legally enforcing cultural rights having taken into consideration both the native legal traditions and international treaties. Making the national law systems of countries compatible with global instruments such as the GRATK Treaty provides a course of action into respectful and enforceable global protection of TK.

Conclusion

Traditional and cultural knowledge should be safeguarded on the basis of profound consideration to the community autonomy, spiritual respect and fair sharing of benefits. India has developed a model that is binding as well as technology-integrated, which is in the form of its GI and TKDL frameworks. Australia, which had historically operated on the basis of fragmented legal instruments, is currently at the threshold of carrying out a revolutionary shift by introducing a specific ICIP regime. The grounds of this comparative analysis show that protection of TK and ICIP must not be left on incidental remedies or moral suasion. It needs structural change, inclusive design and long-term political commitment. There is an increased pressure necessary to install culturally embedded, community-first laws as nations attempt to deal with colonial roots and heterogeneous and diverse legal futures.

Select References

• Janke, Terri. "Our Culture, Our Future: Respecting Indigenous Cultural and Intellectual Property Rights." UNSW Law Journal, 1999. Available at: https://classic.austlii.edu.au/au/journals/UNSWLawJl/1999/16.html
• Butterly, L. & Lixinski, L. "Aboriginal Cultural Heritage Reform in Australia and the Dilemmas of Power." International Journal of Cultural Property, 2020. Available at: https://www.cambridge.org/core/journals/international-journal-of-cultural-property/article/abs/aboriginal-cultural-heritage-reform-in-australia-and-the-dilemmas-of-power/8DBA0DDA69695EBA78C9C2073C01D304
• PrecedentAULA. "Protecting Indigenous art and culture: How the law fails to prevent exploitation." 2020. Available at: https://classic.austlii.edu.au/au/journals/PrecedentAULA/2020/46.html
• SpringerLink. "Effective IP protection of traditional plant knowledge in Australia." GeoJournal, 2009. Available at: https://link.springer.com/article/10.1007/s10708-008-9229-6
• CSIR-TKDL and Ministry of AYUSH. Traditional Knowledge Digital Library. Available at: https://www.csir.res.in/tkdl
• Productivity Commission and IP Australia. First Nations IP Strategy 2025–2030. Available at: https://www.ipaustralia.gov.au/about-us/publications/ip-australias-first-nations-ip-strategy-2025-2030
• The Geographical Indications of Goods (Registration and Protection) Act, 1999. Available at: https://legislative.gov.in/sites/default/files/A1999-48.pdf
• Australian Copyright Act 1968 (Cth). Available at: https://www.legislation.gov.au/Series/C2004A07361