78186 Intellectual Property and Traditional Knowledge
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Subject handbook information prior to 2024 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ((22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies OR 22 credit points of completed study in spk(s): C04264 Master of Legal Studies)) OR 77905c Preparing for Intellectual Property Practice OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 76521 Intellectual Property and Traditional Knowledge AND 78187 Intellectual Property and Traditional Knowledge
Description
Much has been written about traditional or Indigenous knowledge, its nature, its value, the desire to access that knowledge and the need for its protection. Traditional knowledge has also been the subject of considerable international debate and law-making to ensure its protection and access on mutually agreed terms with the communities that hold that knowledge, including the establishment of benefit-sharing arrangements.
This subject considers the nature of traditional knowledge, how intellectual property in this area is protected under the Australian legal framework, and the development of strategies for its protection. The subject includes an overview of the international treaty framework, relevant Australian legislation and concerns for Australian Indigenous peoples such as appropriation of Indigenous arts and culture, language, spirituality, biodiversity, biotechnology, medicinal knowledge, film and music.
Students are also introduced to comparisons with protection regimes in other nations such as China and India and have an opportunity to explore other nations through a major research project. Intensive seminars enable students to immerse themselves in this exciting field of legal research through reading, discussion and independent research.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Critically and creatively analyse and evaluate the complex nature and scope of international laws, policies and organisations relating to Traditional Knowledge (TK) and Intellectual Property (IP); |
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| 2. | Critically and creatively analyse the theoretical bases for TK protection and the practical commercial and cultural implications of that protection; |
| 3. | Apply advanced knowledge of current developments in IP & TK laws and policies at international, national and regional level; |
| 4. | Take responsibility for complex research, identifying and evaluating significant technical information, legal judgments and issues; to interpret, justify, or critique propositions, methodologies, conclusions and professional decisions; |
| 5. | Communicate accurately and persuasively arguments in relation to how intellectual property in this area is protected under the Australian legal framework, and the development of strategies for its protection using appropriate structure, spelling, grammar and punctuation and in accordance with the Faculty’s preferred style (AGLC3). |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Critical Analysis and Evaluation
Expertise in analysing legal issues critically, strategically and creatively, including an ability to independently identify and reflect on legal problems, concepts and theories, synthesise complex information, and apply specialised cognitive and creative skills in reasoning to generate appropriate theoretical and practical responses to problems and questions in law. (3.1) - Research Skills
Advanced and specialised research and technical skills necessary to independently identify, research and evaluate complex factual, legal and policy issues, interpret theoretical propositions and make appropriate choices in the application of legal methodologies or established theories to specialised bodies of legal knowledge in the context of legal decision making and analysis of complex legal issues. (4.1) - Communication
Expert and specialised professional communication skills, including highly effective use of the English language, an advanced ability to respectfully inform, analyse, report and persuade and apply conventions of legal drafting in practice, academic writing, and professional communications. (5.1)
Teaching and learning strategies
Strategy 1: Students’ Preparation for Learning
Students’ preparation, analysis and reflection are central to the learning in this subject. To ensure that each module provides the most effective learning experience, students complete prescribed reading and attempt prescribed questions before moving on to the next module. There is considerable reading required for this fast changing area and students need to ensure they allocate time to ‘make sense’ of the materials for each module and test their understanding by reflecting on and considering their responses to the questions for discussion in each module (see Canvas). In addition, recent cases, news reports, video clips and topical podcasts will also be posted to Canvas and also discussed in seminars. All learning resources including readings, module questions and other online sources are available on Canvas.
Strategy 2: Online participation
This subject is based on participation online. Online learning is active, discussion based and collaborative. Module discussion is based on a series of prescribed questions for each topic (via Canvas), which students reflect upon and answer. Students also participate online by sharing their reflections on topics, answering and asking questions, and responding to and debating with their peers’ views and interpretations. Such participation allows students to test their understanding of the topics, build upon their prior learning and practice their oral communication skills. Online participation provides students with an opportunity to also consolidate their understanding of the law and issues in the field, prepare their own in-depth research project design and present their initial findings to their peers.
Strategy 3: Collaborative problem solving and presentation activities
Students also work in small teams on a range of collaborative activities to help them develop and test their understanding. Students may work in teams of 3-4 students in order to collaboratively discuss a prescribed question and prepare and present advanced arguments/solutions to their peers. This activity enables students to identify and creatively reflect upon important contemporary issues relating to traditional knowledge and culture and intellectual property. Students have the opportunity to listen to recordings of various materials exploring contemporary issues in traditional knowledge and intellectual property and in this way, further integrate their awareness and understanding of contemporary issues in traditional knowledge and intellectual property and how these may be solved.
Students also present an outline of their research to their peers online. This provides an opportunity for students to share their research, further develop their communication skills, and receive feedback (see Strategy 4 below) on the progress of their research.
Strategy 4: Feedback
Students have the opportunity to receive on-going feedback from the teacher and their peers on their understanding of the materials through regular online participation. Students’ preparation, responses to discussion questions, and participation in online discussions, form an important part of their learning and enable students to practise and test their capacity to apply relevant legal frameworks to resolve issues relating to traditional knowledge and intellectual property, and develop their communication and self-management skills. Students present an outline of their research project online in order to receive extensive individual feedback on their research project from peers and the teacher.
Strategy 5: Independent research, reflection and feedback
Engaging with the research process requires students to investigate, evaluate, justify and apply a research methodology, which facilitates logical, original, persuasive and complex arguments in response to their research question. Students develop a research question, which addresses a legal, or policy issue related to intellectual property and traditional knowledge and/or culture. Students develop and practise their research methodology skills in research activities that support them to make logical, original, persuasive and complex arguments in this area. The research task is broken down into three components and the first and second components, the preparation and presentation of a synopsis and of a research plan enable students to ensure that their research is on track and further develop and refine their arguments before completing their final research essay.
Subject Delivery: This subject is delivered in modules online.
Content (topics)
- The nature and definition of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE)
- The nature and definition of Intellectual Property Rights (IPR)
- Overview of the International Treaty Framework relating to IPR, TK and TCE
- Outline of the major global concerns for Indigenous Peoples in relation to TK, TCE and IPR
- Film, Music and New Technology Industries
- Arts and Crafts, Cultural Objects and Tourism Industry Biotechnology Industry and Medicinal Knowledge
- Comparative Legal Frameworks: The Australian Legal Framework governing TK. TCE and IPR
- Comparative Legal Frameworks: The Indian Legal Framework governing TK, TCE and IPR
- Comparative Legal Frameworks: The Chinese Legal Framework governing TK, TCE and IPR Current Developments
Assessment
Assessment task 1: Online Participation
| Intent: | This assessment task provides students with the opportunity to test their understanding of the principles, laws and global issues affecting intellectual property and traditional knowledge and to practise their communication skills in a supportive online environment. Learning is both an individual and a social act and interactions with teachers and fellow students are an important source of learning and a source of regular feedback throughout the subject. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 3.1 and 5.1 |
| Weight: | 20% |
| Length: | 1000 words equivalent |
| Criteria: |
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Assessment task 2: Research synopsis
| Intent: | This task is designed to support students in the completion of Assessment task 4: Research Essay. The Research synopsis provides students with an opportunity to formulate a research question, develop a research outline and conduct preliminary research towards an in-depth investigation of a contemporary issue in the context of IP and TK. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 3.1, 4.1 and 5.1 |
| Weight: | 10% |
| Length: | 500 words |
| Criteria: |
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Assessment task 3: Research Presentation
| Intent: | This task is designed to further support students to complete Assessment task 4: Research Essay by enabling students to receive feedback on the progress of the research project before their final essay is due. It also enables students to learn about the research projects undertaken by other students. |
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| Objective(s): | This task addresses the following subject learning objectives: 4 and 5 This task contributes specifically to the development of the following graduate attributes: 3.1, 4.1 and 5.1 |
| Weight: | 20% |
| Length: | 1000 words equivalent |
| Criteria: |
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Assessment task 4: Research essay
| Intent: | This task is designed to provide students with an opportunity to conduct an in-depth investigation of a contemporary issue in the context of IP and TK. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 3.1, 4.1 and 5.1 |
| Weight: | 50% |
| Length: | 3000 words (see Further information below) |
| Criteria: |
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Required texts
NP Stoianoff (Ed), Indigenous Knowledge Forum: – Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture (Lexis Nexis, 2017) (NSIKF).
In addition to the weblinks noted in the Program of Topics, the Reading List on Canvas will provide much of the prescribed and recommended readings.
Recommended texts
These readings are suggested and are not intended to be exhaustive. Students are encouraged to use the Library catalogue and databases to locate additional resources.
- P. Drahos and S. Frankel (Eds), Indigenous Peoples' Innovation: IP pathways to development (ANU e-Press, 2012).
- C Antons (Ed.), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region (Wolters Kluwer Law & Business, 2009).
- S. von Lewinski (Ed.), Indigenous Heritage & Intellectual Property (Kluwer Law International, 2nd ed, 2008).
- M. Finger and P. Schuler (Eds), Poor People’s Knowledge: Promoting Intellectual Property in Developing Countries (World Bank and Oxford University Press, 2003).
- S. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge University Press, 2003).
- P. Drahos and R. Mayne (Eds), Global Intellectual Property Rights: Knowledge Access and Development (Palgrave Macmillan, 2002).
- D. Matthews, Globalising Intellectual Property Rights: The TRIPs Agreement (Routledge, 2002).
- C. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options (Zed Books, 2000).
In addition, there are, of course, a wide range of journals with articles of interest as well as interesting websites, notably those of the intellectual property agencies in various jurisdictions, equivalent to Australia's IP Australia, as well as the international bodies. See for example: