76521 Intellectual Property and Traditional Knowledge

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2017 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): 70517 Equity and Trusts
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 78186 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. Such knowledge has also been the subject of much international debate and law-making in relation to 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 the major assessment task of a research project. This subject is taught through intensive seminars that enable students to immerse themselves in this exciting field of legal research through reading, discussion and independent research. Students consolidate their understanding of the law and issues in the field, and also have time for their own in-depth research project design and for presentation of their initial findings.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1.	Reflect on and interrogate the nature and scope of national and international laws, policies and organisations relating to Traditional Knowledge (TK) and Intellectual Property (IP).
2.	Critically and creatively analyse the theoretical bases for TK protection and the commercial and cultural implications of that protection.
3.	Conduct effective research by locating and evaluating legal and other disciplinary sources and apply that research to investigate a legal or policy issue related to IP and TK and/or culture.
4.	Construct and present clear, critical and persuasive written and oral arguments that are substantiated by research.

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes:

Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate complex legal issues, apply reasoning and research to generate appropriate theoretical and practical responses, and, demonstrate sophisticated cognitive and creative skills in approaching complex legal issues and generating appropriate responses (3.0)
Research Skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues and demonstrate intellectual and practical skills necessary to justify and interpret theoretical propositions, legal methodologies, conclusions and professional decisions (4.0)
Communication and Collaboration
Effective and appropriate professional communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (5.0)

Teaching and learning strategies

Strategy 1: Students’ Preparation for Learning

Students’ preparation, review and reflection outside the classroom are central to the learning in this subject. To ensure that classes provide the most effective learning experience, students complete prescribed reading and attempt prescribed seminar questions before class. 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 seminar and test their understanding by reflecting on and considering their responses to the questions for discussion in each seminar (see UTSOnline). Items such as recent cases, news reports, video clips and topical podcasts will also be posted to UTSOnline and also discussed in seminars. All learning resources including readings, seminar questions and other online sources are available on UTSOnline.

Strategy 2: Seminar participation

This subject is based on learning in ‘small group’ seminars that are active, discussion based and collaborative. Seminar discussion is based on a series of prescribed questions for each class (via UTSOnline), which students reflect upon and answer before coming to class. In class, each student participates by sharing their reflections on seminar topics, answering and asking questions, and responding to and debating with their peers’ views and interpretations either in small groups or in a wider class discussion. Such participation allows students to test their understanding of the topics, build upon their prior learning and practise their oral communication skills.

Strategy 3: Collaborative problem solving and presentation activities

In class, students also work in small teams on a range of collaborative activities to help them develop and test their understanding. On each day of intensive teaching, students work in teams of 3-4 students in order to collaboratively discuss a prescribed question and prepare and present their argument/solution to their peers. This activity enables students to identify and reflect upon important contemporary issues relating to traditional knowledge and culture and intellectual property;

Strategy 4: Feedback

Students have the opportunity to receive on-going feedback from the seminar leader and their peers on their understanding of the materials through regular class participation in the intensive blocks in weeks 2 and 3. Students’ preparation, responses to discussion questions, and participation in seminar 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 climate change, and develop their communication and self-management skills. Students present an outline of their research project in order to receive extensive individual feedback on their research project from peers and the seminar leader on day 5 of the intensive block in week 4.

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 choose a research question from a list of topics available on UTSOnline, 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 class which supports them to make logical, original, persuasive and complex arguments in response to their research question (assessment 3). The research assessment task is broken down into two components and the first component, the preparation and presentation of a research plan (assessment task 2) in week 4 for feedback from the seminar leader and peers enables students to ensure that their research is on track and further develop and refine their arguments before handing in the final research essay.

Subject Delivery

Block learning mode.

Two days week 2; two days week 3; 1 day (presentations) week 4.

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: Class 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 practise their oral communication skills in a supportive class environment. Learning is both an individual and a social act and interactions with teachers and fellow students are an important source of learning.
Objective(s):	This task addresses the following subject learning objectives: 1, 2 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0 and 5.0
Weight:	20%
Length:	1000 words equivalent
Criteria:	Sustained participation across the session Quality of preparation demonstrating evidence of critical thinking in relation to the topics, issues and questions discussed in class Engagement in class and evidence of preparation as demonstrated by questions answered and posed, and the discussion generated in both small and larger group activities; Taking initiative in generating discussion, encouraging others to participate and raising pertinent questions, which contributes to a collaborative learning environment Reflective, responsive and respectful attitudes towards other perspectives Clarity of expression, use of appropriate language and responses formulated in clear and succinct terms.

Assessment task 2: 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.
Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0 and 4.0
Weight:	60%
Length:	3000 words
Criteria:	Interpretation of the task (demonstrating understanding of the topic chosen and the nature of the task) Effective research strategy that identifies an appropriate range of legal and other disciplinary sources Critical analysis and evaluation of the issues raised and concerns regarding the protection of traditional knowledge and traditional cultural expressions Understanding of the theoretical underpinnings of intellectual property law and its interaction with traditional knowledge or traditional cultural expressions Articulation of a clear, concise and coherent argument which is logically structured and supported by evidence; Level of insight and innovative thought about the manner in which IP law and policy operates at a global level, with a particular emphasis upon the impact of intellectual property rights on economic development, trade and human rights Effective essay structure that guides the reader through the arguments and the evidence Clear written expression with correct use of grammar, punctuation and spelling An appropriate bibliography and accurate and consistent referencing in accordance with AGLC and demonstration of judgment and responsibility in terms of academic integrity, in particular honest and complete acknowledgment of sources.

Assessment task 3: Research Presentation

Intent:	This task enables 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 being undertaken by their peers.
Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 3.0, 4.0 and 5.0
Weight:	20%
Length:	1000 words equivalent (15 minute oral presentation)
Criteria:	Clear, thoughtful and interesting presentation Clearly articulate a research topic, argument and research plan Conduct effective research by identifying appropriate legal and other disciplinary materials for the chosen topic Clear and appropriate slides (or similar) that provide the audience with a useful overview of the topic Effective communication of engagement with and critical analysis of materials Thoughtful and respectful responses to questions from the audience.

Required texts

In addition to the weblinks noted in the Program of Topics, eReadings have been provided for this subject rather than producing two volumes of hardcopies.

Access to eReadings for this subject (the same regardless of subject number):

https://www.lib.uts.edu.au/drr/search.html?q=76521

https://www.lib.uts.edu.au/drr/search.html?q=78186

https://www.lib.uts.edu.au/drr/search.html?q=78187

Students can also access these resources via the UTS Library's eReadings collection http://www.lib.uts.edu.au/drr/search.html

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.

NP Stoianoff (Ed), Indigenous Knowledge Forum: – Comparative Systems for Recognising and Protecting Indigenous Knowledge and Culture, Lexis Nexis, 2016.
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, Netherlands (2009)
S. von Lewinski (Ed.), Indigenous Heritage & Intellectual Property, Kluwer Law International,Second Edition, 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, London, 2002.
C. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options, London, 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 Australias IP Australia, as well as the international bodies. See for example:

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