Community Intellectual Property Rights

Preamble

Recognising that:

• Indigenous and local communities possess rich traditional knowledge and cultural expressions that represent their cultural identity and heritage;
• This traditional knowledge has been developed, maintained, and transmitted across generations through community practices and customs;
• Communities have inherent rights over their traditional knowledge and cultural expressions;
• Existing intellectual property frameworks provide inadequate protection for community-held traditional knowledge;
• Misappropriation and misuse of traditional knowledge causes harm to communities and their cultural heritage;
• International instruments including the UN Declaration on the Rights of Indigenous Peoples affirm Indigenous peoples' rights to maintain, control, protect and develop their traditional knowledge;

Objectives

The objectives of this legislation are to:

• Recognise and protect the rights of communities over their traditional knowledge and traditional cultural expressions;
• Prevent misappropriation and misuse of traditional knowledge;
• Ensure that communities can control access to and use of their traditional knowledge;
• Ensure fair and equitable benefit-sharing from the use of traditional knowledge;
• Preserve the integrity of traditional knowledge and cultural expressions;
• Support the maintenance and transmission of traditional knowledge within communities;
• Promote respect for the cultural values and practices associated with traditional knowledge.

"Community" means an Indigenous people, ethnic group, local community, or other group of people bound by shared cultural practices, traditions, and identity, who collectively hold traditional knowledge.

"Traditional Knowledge" means knowledge originating from a community, existing in either traditional or codified form, transmitted between generations, and distinctively associated with a community that has maintained, developed, or used it as part of their cultural identity. This includes:

• Technical knowledge, skills, and practices
• Traditional cultural expressions and manifestations of culture
• Knowledge associated with biological and genetic resources

"Traditional Cultural Expression" means tangible and intangible forms in which traditional knowledge and culture are expressed, manifested or communicated, including:

• Textile designs, patterns, motifs, and colour combinations
• Weaving techniques and production methods
• Oral expressions including stories, legends, and songs
• Musical expressions
• Physical expressions including dances and rituals
• Tangible expressions including handicrafts, artistic works, and architectural forms

"Community Intellectual Property Rights" means the collective rights of a community over their traditional knowledge and traditional cultural expressions as recognised under this legislation.

"Competent Authority" means the body established or designated under this legislation to administer community intellectual property rights.

"Free, Prior, and Informed Consent" means consent that is given freely without coercion, obtained prior to the commencement of activities, and based on full disclosure of relevant information in an understandable form.

2.1 Community Ownership

Communities are the owners and custodians of their traditional knowledge and traditional cultural expressions. This ownership is:

• Collective, vested in the community as a whole
• Inalienable, and cannot be transferred or extinguished
• Perpetual, not subject to time limitations
• Pre-existing, arising from the community's historical development and maintenance of the knowledge

2.2 Nature of Rights

Community Intellectual Property Rights include:

• Right of attribution: The right to be identified as the source and custodian of traditional knowledge
• Right of access control: The right to authorise or refuse access to traditional knowledge
• Right of use control: The right to authorise or refuse specific uses of traditional knowledge
• Right to benefit-sharing: The right to fair and equitable sharing of benefits from commercial use
• Right of integrity: The right to protect traditional knowledge from distortion, mutilation, or derogatory use
• Right of defensive protection: The right to prevent third parties from acquiring exclusive intellectual property rights over traditional knowledge

2.3 No Formalities Required

Community Intellectual Property Rights exist by virtue of the community's relationship with their traditional knowledge. Protection does not require registration or other formalities, though communities may choose to register for evidentiary purposes.

3.1 Consent Requirement

Any person or entity seeking to access or use traditional knowledge for commercial purposes must obtain the Free, Prior, and Informed Consent of the relevant community or communities.

3.2 Consent Process

The consent process must:

• Be initiated before any access or use begins
• Allow adequate time for community deliberation according to customary decision-making processes
• Provide full, accurate, and understandable information about the proposed access or use
• Be free from coercion, manipulation, or undue pressure
• Result in documented consent specifying the scope, terms, and conditions of authorised use

3.3 Scope of Consent

Consent is limited to the specific purposes, scope, and duration agreed. Any extension or modification requires new consent.

3.4 Exceptions

Consent is not required for:

• Traditional use by members of the custodian community or communities
• Use for personal, non-commercial purposes that does not harm community interests
• Use for educational purposes within the custodian community

These exceptions do not extend to commercial use, publication, or sharing of traditional knowledge outside appropriate contexts.

4.1 Requirement

Any commercial use of traditional knowledge shall be subject to fair and equitable benefit-sharing with the custodian community or communities.

4.2 Forms of Benefits

Benefits may include but are not limited to:

• Monetary payments: royalties, licensing fees, upfront payments, profit-sharing
• Non-monetary benefits: capacity building, technology transfer, training, employment opportunities
• Recognition benefits: attribution, enhanced visibility, market access support
• Community development contributions: investment in community infrastructure, education, cultural preservation

4.3 Mutually Agreed Terms

Benefit-sharing arrangements shall be negotiated in good faith and documented in written agreements specifying:

• Nature and quantum of benefits
• Payment schedules and mechanisms
• Reporting and audit requirements
• Duration and review periods
• Mechanisms for addressing disputes

4.4 Community Benefit

Benefits shall be shared in a manner that benefits the community as a whole, in accordance with community governance practices.

5.1 Protection of Integrity

Communities have the right to protect their traditional knowledge from:

• Distortion or mutilation that misrepresents its meaning or significance
• Use in contexts that are offensive, degrading, or culturally inappropriate
• Combination with other materials in ways that undermine cultural integrity
• False claims of authenticity or origin

5.2 Attribution

Any use of traditional knowledge shall include appropriate attribution identifying:

• The specific community or communities of origin
• The geographic region and cultural context
• Individual knowledge holders, where appropriate and with consent

Generic attributions such as "tribal" or "traditional" without specific community identification are not acceptable.

5.3 Sacred and Restricted Knowledge

Traditional knowledge that is sacred, secret, or subject to customary access restrictions shall receive enhanced protection. Such knowledge may be excluded from all external access and use, as determined by the custodian community.

6.1 Prevention of Misappropriation

No person or entity may acquire exclusive intellectual property rights (patents, trademarks, designs, copyrights) over traditional knowledge or traditional cultural expressions without the consent of the custodian community.

6.2 Disclosure Requirements

Applications for intellectual property rights that relate to or are derived from traditional knowledge must disclose:

• The source community and origin of the traditional knowledge
• Evidence of consent and benefit-sharing arrangements

Failure to disclose shall be grounds for rejection or revocation of the intellectual property right.

6.3 Prior Art

Traditional knowledge constitutes prior art for the purposes of patent and design examinations, regardless of whether it has been published or documented.

6.4 Invalidation

Intellectual property rights granted in violation of this legislation may be invalidated on the application of affected communities or the Competent Authority.

7.1 Civil Remedies

Communities whose rights under this legislation are infringed may seek:

• Injunctions to prevent or stop infringement
• Damages or compensation for harm suffered
• Account of profits derived from infringement
• Delivery up or destruction of infringing materials
• Public apology or corrective statements

7.2 Criminal Penalties

Wilful and serious violations of community intellectual property rights, including:

• Commercial use without consent
• Fraudulent claims of authenticity
• Deliberate distortion or derogatory use of sacred or restricted knowledge

shall be punishable by fine and/or imprisonment as prescribed.

7.3 Standing

The following have standing to bring actions under this legislation:

• The affected community through its authorised representatives
• Community organisations representing the affected community
• The Competent Authority on behalf of communities

7.4 Dispute Resolution

The Competent Authority shall establish accessible dispute resolution mechanisms including mediation and arbitration, with appropriate representation of Indigenous perspectives.

8.1 Competent Authority

A Competent Authority shall be established or designated to:

• Administer community intellectual property rights under this legislation
• Maintain registers of traditional knowledge (on voluntary basis)
• Facilitate consent and benefit-sharing processes
• Receive and investigate complaints
• Provide guidance and awareness-raising
• Coordinate with intellectual property offices on defensive protection

8.2 Representation

The Competent Authority shall include substantial representation from Indigenous and local communities, ensuring their participation in decision-making.

8.3 State-Level Implementation

State-level bodies may be established to facilitate implementation appropriate to local contexts and community governance structures.