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1. Introduction
Indigenous Australian arts and cultural knowledge has been passed down in cultural practice (including ceremonies, on country transmission, paintings, songs, dances, stories etc.) for many generations. In recent years, the demand for Indigenous cultural products has grown rapidly: Indigenous artworks are in high demand, Indigenous imagery is reproduced on all manner of products (e.g. on T-Shirts), and Indigenous words and motifs are being used as brands and logos by Australian companies. There is similar demand for Indigenous Australian cultural knowledge for use in medicines, foods and technology.
Consequently, Indigenous cultural heritage has often been distorted for commercial gain. Indeed, the commercialisation of Indigenous Intellectual and Cultural Property (ICIP) has often been done without respect for Indigenous cultures, without consent or Indigenous legal authorisation, and without benefit sharing with Indigenous communities. This is leading to the gradual erosion of Indigenous cultural heritage. Indigenous people call for adequate protection of Indigenous Cultural and Intellectual property rights to enable them to protect their culture and to share in the benefits from the use of their heritage where appropriate.
2. What is ICIP?
ICIP stands for Indigenous Cultural and Intellectual Property. Based on the right to self-determination, ICIP rights are Indigenous People’s rights to their heritage and culture. Heritage includes all aspects of cultural practices, traditional knowledge, and resources and knowledge systems developed by Indigenous people as part of their Indigenous identity.[1] ICIP rights also cover:
Literary, performing and artistic works (see Copyright)
Languages
Types of Knowledge, including spiritual knowledge
Tangible and intangible cultural property
Indigenous ancestral remains and genetic material
Cultural environmental resources
Sites of Indigenous significance
Documentation of Indigenous heritage.
ICIP rights are collective in that the cultural expression and knowledge originate from a clan group and are passed on from generation to generation. Due to the continuing nature of Indigenous culture, ICIP also includes items created based on Indigenous cultural heritage.
ICIP rights are based in customary laws which are not recognised by the legal system. There are gaps in the law which mean that unless Indigenous people can meet the requirements of intellectual property laws like copyright, their rights are unprotected and open to exploitation.
Photo by Jackson Mann, UTS Library
3. What is Copyright ©?
Copyright is a type of intellectual property (IP) which confers a series of rights on the owner of the copyrighted material. Copyright is created automatically and does not need to be registered.
The scope of what is protected by copyright is limited by the Copyright Act 1968 (Cth). Accordingly, copyright only arises in relation to defined subject matter. These are:
Literary, Dramatic, Musical and Artistic works (photographs)
Subject matter other than works (including films, sound recordings, broadcasts and published editions).
As well as needing to fall into one of the above categories, there are a number of other requirements for copyright to subsist.
First, the copyrighted work must be recorded in material form. This
means that there is no copyright protection of an idea. Indigenous intellectual property is traditionally orally based and transferred through practice. This means that a lot of Indigenous cultural expression and knowledge is not protected.
Second, the work must be original – requiring skill, labour, judgement and ‘creative spark’.
Third, the author of the material is typically the owner of the copyright. However, the author must be identifiable, have the necessary connection to Australia, and be within the duration period of the copyright protection (usually the life of the author + 70 years).
If these requirements are met, copyright will subsist in the work and the copyright holder will have the exclusive right to reproduce, publish, perform, communicate, and adapt the work.
Moral rights:
Moral rights may offer some degree of protection to ICIP. Moral rights are personal rights held by the creator of an artistic, literary, dramatic and musical work, as well as films. These rights cannot be assigned or sold and remain with the author regardless of who holds copyright. However, a holder of moral rights can consent to infringements of their moral rights. The three types of moral rights are: the right of attribution, the right against false attribution, and the right of integrity.
4. Protecting ICIP with copyright? What are the gaps in the law?
Limited Scope of Protection:
Copyright and IP are only effective at protecting certain types of ICIP which fall into the recognized categories outlined above. For example, Indigenous creators of songs, stories, dances and written knowledge would likely receive protection for these works under Australian copyright law. However, shortfalls and gaps in the law mean that many types of Indigenous creations would not fit into these categories.
Material Form:
Furthermore, the nature of Indigenous cultural expression and knowledge is oral and performance based traditionally. This means that it may not meet the material form requirement.
Additionally, copyright is unable to protect the underlying ideas behind a work. Thus, traditional performances which have not been written down, and styles and methods of art (such as dot painting techniques) are left unprotected.
Community Ownership:
One of the main gaps in IP law is that copyright does not protect communal ownership. This creates particular challenges for Indigenous culture, due to its’ inherent nature of being collectively owned, developed and passed down by generations. Thus, different Indigenous communities, rather than individuals, traditionally have ownership and responsibility for cultural property and traditional knowledge.
While joint ownership of copyright is possible, it requires that the authors have ‘directed their contributions – their ‘independent intellectual effort’ – to the particular form of expression of the work’[2]. Supplying an idea – for example, through the oral passing down of stories – is not constituted as joint authorship.
However, Bulun Bulun v R & T Textiles (1998) provided significant advances in the area of community ownership. The case held that in situations where an artist is given responsibility over Indigenous traditional knowledge, a fiduciary relationship may arise between the artist and the Indigenous custodians of the traditional knowledge. If a fiduciary relationship is found, equity will impose obligations on the fiduciary not to exploit the traditional knowledge in a way that is contrary to customary law. Thus, while the case does not explicitly recognize community ownership, it signifies a move towards greater protection of community rights in relation to traditional knowledge.
Duration:
Another problem with copyright protection for ICIP is the limitations on duration of copyright. For most types of works, copyright only lasts for the duration of the author’s life + 70 years. After this time, copyright lapses and becomes available for use by the public. This is clearly problematic for ICIP, which will often have been in existence for thousands of years.
5. Conclusion – the importance of protocols where the law falls short
Protocols are non-legal guidelines that offer a system of rules stipulating the correct procedures to be followed in particular situations. Protocols have been widely used in Australia to protect ICIP in areas where the law falls short. They provide a mechanism for the protection and recognition of ICIP. True Tracks is an example of such protocols. They recommend:
Respect
Self-Determination
Consent and Consultation
Interpretation
Cultural Integrity
Secrecy and Privacy
Attribution
Benefit Sharing
Maintaining Indigenous Culture
Recognition and Protection
These principles were created by Terri Janke to apply to projects that work with Indigenous people and communities and offer an outline for working with Indigenous peoples to protect ICIP. While the law remains limited in its protections, protocols provide the best alternative to ensure that ICIP is valued and defended. Ideally, protocols should encourage legislative action to implement formal protections for ICIP.
[1] T Janke, Our Culture: Our Future, Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, (Discussion Paper) Michael Frankel and Company, July 1997.
[2] Telstra Corporation v Phone Directories Company Pty Ltd (2010).