NOVEMBER 2017 THE HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON INDIGENOUS AFFAIRS A SUBMISSION ON INDIGENOUS INTELLECTUAL PROPERTY DR MATTHEW RIMMER PROFESSOR OF INTELLECTUAL PROPERTY AND INNOVATION LAW FACULTY OF LAW QUEENSLAND UNIVERSITY OF TECHNOLOGY Queensland University of Technology 2 George Street GPO Box 2434 Brisbane Queensland 4001 Australia Biography Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law, at the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC) the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works. Dr Matthew Rimmer holds a BA (Hons) and a University Medal in literature (1995), and a LLB (Hons) (1997) from the Australian National University. He received a PhD in law from the University of New South Wales for his dissertation on The Pirate Bazaar: The Social Life of Copyright Law (1998-2001). Dr Matthew Rimmer was a lecturer, senior lecturer, and an associate professor at the ANU College of Law, and a research fellow and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA) (2001 to 2015). He was an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change from 2011 to 2015. He was a member of the ANU Climate Change Institute. 2 Rimmer has a research interest in Indigenous intellectual property and traditional knowledge. He has written about the misappropriation of Indigenous art, the right of resale, Indigenous performers’ rights, authenticity marks, biopiracy, and population genetics. He has also explored access to genetic resources, cultural heritage, and native title. Rimmer is the editor of the collection, Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar, 2015). His key publications in this area include: * Matthew Rimmer, ‘The Trans-Pacific Partnership and Sustainable Development: Access to Genetic Resources, Informed Consent, and Benefit-Sharing’, in Charles Lawson and Kamalesh Adhikari (ed.), Developments in Access and Benefit Sharing of Genetic Resources – New Approaches and Opportunities, Abingdon (Oxon) and New York: Routledge, 2018, QUT ePrints: https://eprints.qut.edu.au/108688/ Based on 2017 workshop https://law.uq.edu.au/event/session/7277 (forthcoming) * Matthew Rimmer, 'The Alliance of Small Island States: Intellectual Property, Cultural Heritage, and Climate Change', in Christoph Antons and William Logan (ed.) Intellectual Property, Cultural Property and Intangible Cultural Heritage, Abingdon (Oxon) and New York: Routledge, 2018, 102-132, https://www.routledge.com/Intellectual- Property-Cultural-Property-and-Intangible-Cultural-Heritage/Antons- Logan/p/book/9781138793620 * Matthew Rimmer, ‘The Trans-Pacific Partnership: New Zealand, Indigenous Intellectual Property, and the Treaty of Waitangi’, Edward Elgar Blog, 6 May 2016, https://elgarblog.com/2016/05/06/the-trans-pacific-partnership-new-zealand- indigenous-intellectual-property-and-the-treaty-of-waitangi-by-matthew-rimmer/ and 3 Medium https://medium.com/@DrRimmer/the-trans-pacific-partnership-new-zealand- indigenous-intellectual-property-and-the-treaty-of-4c28daf83af3#.iiigacfy6 * Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, December 2015, http://www.e-elgar.com/shop/indigenous-intellectual-property * Matthew Rimmer, 'Intellectual Property, Indigenous Knowledge, and Climate Change', in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, 382-414, http://www.e-elgar.com/shop/indigenous-intellectual-property SSRN: http://ssrn.com/abstract=2711042 and BePress Selected Works: https://works.bepress.com/matthew_rimmer/250/ * Robert Dearn and Matthew Rimmer, 'The Australian Resale Royalty Right for Visual Artists: Indigenous Art and Social Justice', in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, 200-230, http://www.e- elgar.com/shop/indigenous-intellectual-property SSRN: http://ssrn.com/abstract=2711040 and BePress Selected Works: https://works.bepress.com/matthew_rimmer/249/ * Matthew Rimmer, 'The World Indigenous Network: Rio+20, Intellectual Property, Sustainable Development, and the Future We Want', in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, 106-130, http://www.e- elgar.com/shop/indigenous-intellectual-property SSRN: http://ssrn.com/abstract=2711039 and BePress Selected Works: https://works.bepress.com/matthew_rimmer/248/ * Matthew Rimmer, 'Mapping Indigenous Intellectual Property', in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, 1-44, http://www.e- elgar.com/shop/indigenous-intellectual-property SSRN: http://ssrn.com/abstract=2711038 and BePress Selected Works: https://works.bepress.com/matthew_rimmer/251/ 4 * Matthew Rimmer, 'The Legacy of David Unaipon', in Matthew Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research, Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015, xxi-xxvii, http://www.e- elgar.com/shop/indigenous-intellectual-property SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract id=2686116 and BePress Selected Works: http://works.bepress.com/matthew rimmer/242/ * Matthew Rimmer, 'Travelling Bones: The Repatriation of Indigenous Remains', in Susanne Berthier-Foglar, Sheila Collingwood-Whittick and Sandrine Tolazzi (Eds.) Biomapping Indigenous Peoples: Towards an Understanding of the Issues, Amsterdam/New York, NY: Rodopi, 2012, http://www.rodopi.nl/ntalpha.asp?BookId=CC+151&type=coming&letter= and http://www.amazon.com/Biomapping-Indigenous-Peoples-Understanding- cultures/dp/9042035919/ * Matthew Rimmer, 'The Genographic Project: Traditional Knowledge and Population Genetics' (2007) 11 (2) Australian Indigenous Law Review 33-55, SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019182 * Matthew Rimmer, 'Blame It On Rio: Biodiscovery, Native Title, And Traditional Knowledge' (2003) 7 The Southern Cross University Law Review 1-49, SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract id=603229 * Matthew Rimmer, 'Australian Icons: Authenticity Marks And Identity Politics' (2004) 3 Indigenous Law Journal (University of Toronto) 139-179. * Matthew Rimmer, ‘Albert Namatjira: Copyright Estates and Traditional Knowledge’ (2003) 24 (6) Incite 6, http://www.alia.org.au/publishing/incite/2003/06/albert.namatjira.html http://www.austlii.e du.au/au/journals/inCiteALIA/2003/104.html 5 * Matthew Rimmer, 'Bangarra Dance Theatre: Copyright Law And Indigenous Culture' (2000) 9 (2) Griffith Law Review 274-302, SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract id=600824 * Matthew Rimmer, 'Four Stories About Copyright Law And Appropriation Art' (1998) 3 (4) Media And Arts Law Review 180-193, SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract id=594642 Executive Summary There is a long history of legal, political, and ethical debate in respect of the problem of misappropriation of Indigenous intellectual property in Australia. There has been perennial public policy inquiries into the topic of Indigenous intellectual property – although there has been only a partial and mixed array of responses. I would comment that the Australian experience has been a mixed one. It is true that von Doussa J of the Federal Court of Australia has shown judicial innovation in a number of cases – most notably, the “Carpets” case, and the “Bulun Bulun” decision. However, there have been limits to the extent of judicial innovation in Australia – as illustrated by the refusal of the High Court of Australia to recognise the linkage between native title rights and traditional knowledge in the case of Ward v Western Australia. The case law has demonstrated that there is a need for a more fundamental legislative reform of laws with respect to traditional knowledge in Australia. Unfortunately, the Australian Parliament has thus far failed to heed many of the recommendations of Terri Janke’s landmark report, Our Culture, Our Future from the 1990s. 6 The Howard Conservative Government did not fully realise its policy plans in respect of the protection of traditional knowledge. A Federal bill on the recognition of communal moral rights in respect of copyright works created by Indigenous communities has not been implemented. Thus far, there have only been piecemeal reforms. The authenticity trade