Since colonialism, indigenous peoples’ knowledge and culture has long been exploited for commercial gain. Today it continues through international intellectual property law. Now, a major study by ANU academic Peter Drahos could help reverse the trend.
Think of the word ‘Apache’ these days and you’re likely to imagine a swarm of lethal flying machines efficiently delivering death from above.
But long before the rise of the attack helicopter, and its highly visible presence in American military campaigns, it represented a fallen Native American nation – itself almost wiped out at the hands of European colonialism.
It is just one of the thousands of indigenous names from around the world considered to be in the public domain and therefore ‘free to use’ by states, multinational corporations and businesses.
“But it’s insulting,” says Peter Drahos, a professor in law at the Regulatory Institutions Network in the ANU College of Asia and the Pacific.
“Although you and I might not think twice about using the words ‘Apache helicopter’, a lot of people from the Apache nation might be really offended at being linked to a war machine.”
It’s not just on the battlefield – think Blackhawk, Tomahawk – where this gross misappropriation of indigenous culture is found. It’s on the sporting field too; Washington Redskins, Cleveland Indians – there’s even the Chicago Blackhawks!
Here in Australia, we see it in a range of ways; from cheap knock-offs of Indigenous artworks and artefacts, to the use of sacred plants and flora by pharmaceutical companies for medicines.
How indigenous names, knowledge, culture and land have long been exploited for commercial means by colonial forces is the subject of Drahos’ latest book, Intellectual property, indigenous people and their knowledge.
The culmination of a four-year Australian Research Council grant, and a research road trip which saw him criss-cross the continent and interview more than 230 people, the book examines how Indigenous Australians have responded to this “extractive regime”.
At its core, Drahos, argues that while international intellectual property law helps states exploit indigenous peoples’ knowledge, the creation of a “developmental intellectual property order” based on simple rules, principles and regulation could stop this.
“The first thing Australia should do is commit itself to some simple rules for dealing with Indigenous knowledge and we should think about giving Indigenous people a right of veto over the use of things they find culturally inappropriate,” he says.
“We should populate our intellectual property laws with the right to veto.
“It would actually give Indigenous people a strong bargaining position, because essentially it would mean that people have to come to them and ask for permission.
“The onus isn’t on Indigenous Australians to go and fight this matter out in the courts, which would be litigation-intensive, resource intensive and psychologically taxing for them.”
Where an agreement about the use of indigenous knowledge can’t be reached, Drahos recommends taking disputes “out of the hands of the courts”, due to the inappropriateness of their adversarial nature.
“So my proposed solution involves a commission model that would convene the right people to meet and discuss the use of Indigenous knowledge, and come to some proper solution,” Drahos says.
“And we should think about a commission model rather than a judicial model, because we have to find the right people to ask for permission. You cannot just go and ask anybody.
“One of the really fundamental errors that White Australia makes is to assume that a few Indigenous leaders can speak for all Indigenous people. If I learned one thing from this study, it’s that authority in Indigenous systems is highly decentred. It’s highly fragmented.
“You really have to go out and find the people who can say something, with authority, about the use of that particular name or particular knowledge.
“Only then can you have a genuine discussion about what is or isn’t possible.”
Of course, in any land, not just one that is wide and brown, finding the right people to talk to takes a lot of time. As Drahos puts it, it was often easier for him to arrange a meeting with the World Trade Organization than with senior Indigenous leaders. So with the time-cost, and with commercial control being taken out of their hands, would large multinational corporations looking to the bottom line be likely to sign up to Drahos’ proposed system? He thinks, yes.
“Businesses may find my suggestions faster, in the long run, because potentially, there’s a lot of embarrassment for businesses if they are caught behaving inappropriately with indigenous people’s knowledge,” he says.
“No large multinational wants to be accused, these days, of biopiracy, for example.”
Biopiracy involves obtaining genetic materials from plants and animals without rewarding the community or country of origin.
“In addition, a lot of these companies now support various United Nations initiatives concerning indigenous people. I think there’s a certain sense in which these large businesses want to be seen as ethical,” Drahos says.
In the face of a system set up to clearly favour Western ideas about knowledge and ownership, Drahos has been amazed by the resilience shown by Indigenous Australians.
They have used international human rights law and native title to help strengthen claims for the protection of their sacred knowledge and culture (particularly as land and knowledge are interconnected). But it also comes down to patient persistence.
“Indigenous people just don’t give up. They really don’t give up,” Drahos says.
“I remember arriving at this community for an interview with an elder and it just looked like chaos and it appeared desperately poor. And I think he must have realised that’s what I was thinking, because he said: ‘Don’t worry. We’re not going anywhere. We’re not going away’.
“And I think it’s that sort of attitude that makes me optimistic about the future. Because if you look at the last 30 or 40 years, no one would have predicted the progress that Indigenous people have made on intellectual property.
“At the worst times, when we were taking or separating Indigenous adults from their children, and the terrible infant mortality rates, and so on, you wouldn’t have thought it possible that Indigenous people could make any progress on the whole question of Indigenous knowledge. In separating children from their parents, you’re really destroying the knowledge system, because you’re destroying language.
“And yet, somehow, through all those worst of times, Indigenous people have really kept the fight going.
“So I am quietly optimistic about their chances of success. It won’t happen tomorrow, but at some point it will.”
After at least 40,000 years of continuous knowledge and culture, some point won’t seem too far away. Here’s hoping Drahos’ solutions will help it come sooner.
'Intellectual property, indigenous people and their knowledge' is available from Cambridge University Press.
Find out more about Peter Drahos and his research at the Regulatory Institutions Network.
Article by James Giggacher.