Indigenous cultural expression and intellectual property
Indigenous Australians1 express their cultural identity through many ways including songs, stories, dance and art. This intangible cultural heritage is interconnected with land, seas, places and objects. Despite this, the debate regarding the protection of Indigenous cultural heritage has focused on the land, seas, places and objects. The non-Indigenous laws relating to Native Title, land rights and cultural heritage have developed to protect tangible culture. However, for Indigenous people, cultural heritage is holistic in that the tangible is interconnected with the intangible. Consequently, in recent years, Indigenous people have called for recognition of their rights to their intangible cultural heritage. They seek protection of their expressions of culture and traditional knowledge from exploitation from outsiders.
This chapter will examine intellectual property laws and their impact on Indigenous cultural expression and traditional knowledge.
Indigenous cultural expression and traditional knowledge
In 1999, Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights2 examined the scope of ‘Indigenous cultural and intellectual property’. In that report, ‘Indigenous cultural and intellectual property’ referred to Indigenous people’s rights to their heritage. Heritage comprises both tangible and intangible aspects of the whole body of cultural practices, resources and knowledge systems that are developed, nurtured and refined by Indigenous people, and passed on as a living expression of their cultural identity. The heritage of Indigenous people is a living and evolving heritage, and includes items that may be created in the future.
The notion of heritage for Indigenous Australians includes:
• literary, performance and artistic works (including music, dance, songs, ceremonies, symbols and designs, narratives and poetry);
• documentation of Indigenous people’s heritage in all forms of media (including scientific and ethnographic research reports, papers and books, films and sound recordings);
• scientific, agricultural, technical and ecological knowledge (including cultigens3, medicines and the sustainable use of flora and fauna);
• spiritual knowledge;
• movable cultural property (including burial artefacts);
• immovable cultural property (including Indigenous sites of significance, sacred sites and burials);
• Indigenous ancestral remains;
• cultural environment resources (including minerals and species).
The 2006 amended version of the draft Declaration of World Indigenous People produced by the World Intellectual Property Organization stated:
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.4
This chapter will focus on:
• Indigenous cultural expression – including songs, stories, ceremonies, rituals, dance and art including rock art, face and body painting, sand sculptures, and bark paintings;
• traditional knowledge – including knowledge of plants and animals, biodiversity knowledge, medicinal knowledge, environmental management knowledge, cultural and spiritual knowledge and practices, use of biological resources, foods, architecture and agriculture.
The nature of Indigenous cultural expression
There are many different Indigenous Australian groups. Each particular group has ownership of rights over its particular cultural heritage. There may also be overlap between groups, and groups may share certain cultural stories and traditions. Further, many generations contribute to the creation of Indigenous cultural expression and traditional knowledge. In this respect, it is collectively owned, socially based and continuously evolving.
Cultural laws that govern rights to authorise use of Indigenous cultural and intellectual property are common to all Indigenous groups. These laws are based on responsibility for cultural heritage, to ensure that it is maintained and protected, and passed on to future generations. To this end, there is often an individual or group who is the custodian or caretaker of a particular item of heritage, although in some groups, there may not be due to the disruption of cultural practices since colonisation. The traditional custodians are empowered to protect a particular item only to the extent that their actions harmonise with the best interests of the community as a whole. The role of the custodian was noted in the case of Milpurrurru v Indofurn,5 in which the Court observed that the artist Banduk Marika had the authority to depict a traditional, pre-existing design in her artwork by virtue of her birthright. While she held this right, she holds the knowledge embodied in the work on trust for the rest of the clan.
The nature of this custodian relationship was explored more recently in the case of Bulun Bulun & Anor v R & T Textiles Pty Ltd6. In that case, Mr Bulun Bulun was the artist and copyright owner, but in certain paintings, which incorporated collectively owned designs of the Ganalbingu people, he was also a cultural custodian. Mr Bulun Bulun’s use of ritual knowledge to produce the artworks was given to him under Ganalbingu customary law, based on the trust and confidence that those giving permission had in the artist. The Court found that the relationship between Mr Bulun Bulun and the Ganalbingu people gave rise to a fiduciary relationship between them. This relationship imposed the obligation on Mr Bulun Bulun not to:
… exploit the artistic work in a way that is contrary to the law and customs of the Ganalbingu people, and, in the event of infringement by a third party, to take reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work.7
Similarly, the collective, or persons on behalf of the collective, must consent to use of Indigenous cultural and intellectual property. Such consent is given through specific decision-making procedures, which can vary from group to group and may depend on the nature of the particular cultural item. Some communities may have formal procedures, which make use of organisations such as land councils or community councils. In others, decision-making processes will be less formal and may require a person to meet with relevant people, to clear consent.
In the Bulun Bulun case, evidence given by Djardie Ashley discussed how the Ganalbingu laws deal with consent procedures. Mr Ashley noted that, in some circumstances, such as the reproduction of a painting in an art book, the artist might not need to consult with the group widely. In other circumstances, such as its mass reproduction as merchandise, Mr Bulun Bulun may be required to consult widely. Mr Ashley further noted that Mr Bulun Bulun ‘could not act alone to permit the reproduction of “At the waterhole” in the manner that it was done’.8
Non-Indigenous laws and customary law deal with the reproduction and use of traditional knowledge and material in different ways. Indigenous communities need to consider customary obligations regarding ownership of intellectual property, dissemination, reproduction, consent and attribution. Knowledge of intellectual property laws will enable Indigenous people to consider how non-Indigenous law will protect their cultural material and, in this way, make informed decisions about providing wide access to the material.
What rights do Indigenous people want to their cultures?
Our Culture: Our Future reported that there are fundamental rights that Indigenous people need in order to protect and maintain their cultures, including the right to own and control Indigenous cultural and intellectual property.9 Based on the submissions received, the rights fell into the following categories.
a. Cultural custodianship and self-determination
The right to own and control cultural heritage and to define what constitutes heritage is a fundamental right for Indigenous people. So too is the right to ensure that any means of protecting Indigenous heritage is based on the principle of self-determination. In this way, Indigenous people can maintain and develop their own cultures and knowledge systems, as well as their own forms of social organisation.
To continue to practise their cultures, Indigenous people must be able to preserve, care for, protect, manage and control Indigenous cultural objects, Indigenous ancestral remains and Indigenous cultural resources such as food resources, ochres, stones, plants and animals – and Indigenous cultural expressions such as dances, stories and designs.
Indigenous people seek the right to protect their cultural expression and knowledge of sites from exploitation. Maintaining access to Indigenous sites of significance, sacred sites and burials sites for cultural and ceremonial purposes is important for Indigenous people. The unauthorised and inappropriate use of sites and land, and the dissemination of secret information about them, is a concern for them. Sites of cultural importance, and cultural knowledge and stories associated with these sites, are consistently used for tourism purposes (e.g. rock paintings that are photographed for tourism and advertising purposes). Indigenous people also feel that sites uncovered in the interests of tourism have, in some instances, lead to the physical destruction of sites and the theft of associated objects.10
Indigenous people require the rights to control management of Indigenous land and sea areas, and to protect Indigenous sites, including sacred sites.
b. Interpretation and integrity
Keeping the cultural integrity of heritage is also important to Indigenous people who wish to be recognised as the primary guardians and interpreters of their cultures, arts and sciences, whether created in the past, or developed by them in the future. The right to prevent derogatory treatment of Indigenous cultural material, as well as to prevent distortion and mutilation, is critical.
The rise in demand for Indigenous visual arts is obvious and has lead to the inappropriate use of art-based themes, icons and images. Indigenous peoples are concerned that many non-Indigenous individuals and corporations are copying Indigenous designs, motifs, symbols and artworks for commercial gain. For example, Indigenous art has been copied onto carpets, dresses, fabric and T-shirts without the knowledge or permission of the Indigenous artists, or the artist’s community. In many instances, the designs are altered. Indigenous Australians complain that such use is inappropriate, derogatory and culturally offensive. The moral rights provisions of the Copyright Act 1968 (Cth) provide rights to artists to protect their works against derogatory treatment – but the work must be a protected copyright work and an individual artist must assert these rights.
c. Attribution and recognition of collective ownership
Indigenous peoples require full and proper attribution. That is the right to apply for protection of Indigenous cultural and intellectual property rights, which, where collectively owned, should be granted in the name of the relevant Indigenous community. Intellectual property laws tend to focus on individual ownership.
d. Consent and consultation
Indigenous people must have the right to authorise or refuse to authorise the commercial use of Indigenous cultural and intellectual property according to Indigenous customary law. For example, it should not simply be assumed that access or use of material is granted. A story or ceremony may be closed to wider access and only allowed to be seen by the initiated. The right to maintain the secrecy of Indigenous knowledge and other cultural practices is also important.
Furthermore, Indigenous people seek the right of prior informed consent for access, use and application of Indigenous cultural and intellectual property, including Indigenous cultural knowledge and cultural environment resources.
Indigenous people’s traditional stories are often reproduced in books, theatre and film without their prior informed consent. Indigenous people have been concerned when non-Indigenous authors have written creation or ‘traditional stories’ – ones that have never been published but have been orally transmitted – and then that person claims copyright in the version published without proper recognition of the source of the story.
Consequently, Indigenous people should also be in control of where their cultural expression and traditional knowledge is made publicly available, recorded, reproduced and disseminated. The recording and transfixing of cultural expression and knowledge removes control over this material from Indigenous communities. For this reason, Indigenous people need to be able to control the recording of cultural customs and expressions. The language, the particular cultural expression and traditional knowledge is essential to cultural identity, and the teaching of culture.
e. Sharing of benefits
The primary interest of Indigenous people in maintaining and preserving their culture has always been established in intrinsic spiritual considerations that are linked to the fabric of Indigenous society. However, in recent years, there has been economic focus on cultural expression and traditional knowledge, which also require consideration. The Aboriginal art market, for example, has considerable economic value. The worth of traditional knowledge if applied to the patents system can amount to the billions. This has created incentive for increased production and dissemination of Indigenous cultural expression and Indigenous knowledge. Hence, Indigenous people require the right to benefit commercially from the authorised use of Indigenous cultural and intellectual property, including the right to negotiate terms of such usage.
Intellectual property laws in Australia
‘Intellectual property’ is the term used to refer to the rights that the law grants to individuals for the protection of creative, intellectual, scientific and industrial activity, such as ideas (also in material form) and inventions. Such rights are for the protection of economic investment in novel, inventive and/or creative effort.
Intellectual property rights are designed to inspire creative innovation by granting specific economic rights to inventive persons as a reward for sharing their contributions and to stimulate further inventive activities. Through international treaties such as the Berne Convention for the Protection of Literary and Artistic Works,11 intellectual property rights are enforced internationally in countries that are signatories to such treaties.
Australian intellectual property laws provide some protection for Indigenous cultural expression where Indigenous people can meet the criteria for protection. This has usually been for individual Indigenous artists and for their economic rights.
The Australian Constitution gives the Commonwealth power to make special laws regulating ‘copyright, patents of inventions and designs, and trade marks’.12 There are also common law-based actions that relate to breach of confidential information, passing off and trade practices that loosely fall into the term ‘intellectual property’.
Copyright is a bundle of rights granted by statute to creators of artistic and cultural material. The Copyright Act 1968 (Cth) protects literary, dramatic, artistic and musical works from unauthorised use and dissemination.13 Under Part IV of the Copyright Act, rights are given to subject matter other than works: that is, the makers of sound recordings,14 cinematograph films, television and sound broadcasts, and published editions.
Copyright law has been used by Indigenous artists to take action against infringers of their works, included works that incorporate pre-existing communally owned clan designs. However, copyright is limited in the protection it affords Indigenous cultural expression and traditional knowledge.
Requirements of copyright
Copyright protection does not require registration: it exists in a work or film as soon as it is made. However, for copyright to protect a work, it must meet the following requirements.
For copyright to subsist in a work, the work must be original.15 This means that it cannot be copied from another work. The creator must put into the work the necessary degree of labour, skill and judgment to produce the work, giving it some quality or character that the raw material did not possess. As a continuing expression of culture, many Indigenous people draw from the wealth of their cultural heritage by painting pre-existing clan designs, dancing ceremonies and telling stories that have been handed down from their ancestors. It is this nature of Indigenous cultural expression that has lead to speculation of whether an artist who reproduces a traditional or pre-existing design or story is producing original work. This is because the cultural requirement of ‘painting’ iconic themes in accordance with traditional designs limits the scope for interpretation and individuality.16 While the issue depends on the particular facts at hand, von Doussa J in Milpurrurru v Indofurn stated that ‘although the artworks follow traditional Aboriginal form and are based on dreaming themes, each artwork is one of intricate detail and complexity reflecting great skill and originality’.17
b. Material form
Copyright law provides protection for the form of expression of ideas rather than the ideas themselves.18 Indigenous cultural expression such as songs, dances and stories, must be written down or recorded in some permanent tangible form. Non-permanent forms of cultural expression such as oral stories, songs and dances that are ceremonially performed and never before recorded are not protected because they are not produced in a permanent tangible form.
Many Indigenous forms of cultural expression are oral. Traditional songs and stories told and passed on through the generations were not recorded in material form. Some forms of visual art are transient, such as body painting. These do not meet the material form requirement of copyright and are therefore not protected.
As Indigenous oral stories, songs and information are recorded for the first time, the person putting them into material form is recognised as the copyright owner. If the traditional owner writes down an oral story, that individual is recognised as the copyright owner.
c. Meet the connecting factors
The author must be a qualified person when the work is first published: that is, ‘an Australian citizen, an Australian protected person or a person resident in Australia’.19 ‘Published’ means supplied or made available to the public.20
The right to exploit copyright
The copyright owner, who in the first instance will be the author, has the exclusive right to exploit the copyright in the work or subject matter. This includes the right to reproduce and authorise reproduction of the work or subject matter, and to deal with the copyright in a number of ways, depending on the nature of the work or subject matter, such as performing the work in public21, communicating the work to the public22 and making an adaptation of the work.23
Duration of copyright
Copyright protects works and subject matter for only a limited period. For example, protection lasts generally 70 years after the death of the artist for works. After the period elapses, the work, film or sound recording can be used without the need for consent, or payment of royalties.24
This is problematic for Indigenous people. The system does not take into account Indigenous artistic and cultural expression, which is created as part of an ongoing process of passing cultural knowledge to future generations. Indigenous rights to cultural works are in perpetuity and therefore cultural consent to use is always necessary, even if a work is no longer copyright protected.