Our Culture : Our Future. Report on Australian Indigenous Cultural and Intellectual Property Rights

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1 Report on Australian Indigenous Cultural and Intellectual Property Rights

2 Written and researched by Terri Janke, Principal Consultant, Michael Frankel & Company, Solicitors. Prepared for Australian Institute of Aboriginal and Torres Strait Islander Studies and the Aboriginal and Torres Strait Islander Commission. (c)1998 by Michael Frankel & Company and Terri Janke. ISBN Cumbarra Dreaming This painting depicts the life cycle of the Cumbarra plant. The Emu berries, buds, flowers and leaves are represented alongside a waterhole. The plant is used by Indigenous people for various purposes including eating, healing and spiritual well being. Indigenous peoples knowledge concerning the use and the preparation of the fruit and the leaves is part of their living cultural heritage.

3 FINAL REPORT Report on Australian Indigenous Cultural and Intellectual Property This Report is part of a process to develop practical reform proposals for the improved recognition and protection of indigenous Cultural and Intellectual Property. it contains findings and recommendations developed out of extensive consultations with ATSIC s Indigenous Refernece Group and other interested parties, and in light of feedback received as submissions to the Discussion Paper. The Report was researched and written by Ms Terri Janke, Solicitor and Principal Consultant of Michael Frankel & Company, Solicitors, under contract with the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and funded by ATSIC. We are grateful for the invaluable contribution of the many individuals, organisations and government departments who contributed to the development of this document, specifically those who took time to provide us with written submissions to the Discussion Paper. Thank you to all the individuals and organisations who responded. We also acknowledge the contribution of the Steering Committee consisting of Dr Mary Edmunds (Chair), Michael Mansell (Indigenous Reference Group), Michael Davis, Graham Dash and Herb Grant (ATSIC), John Sedgewick, Mark Cannon and Darren Knight (Department of Communications and the Arts), Kathleen Schilling (Family Histories Section, AIATSIS), Gaye Sculthorpe (Board Member, AIATSIS); members of the Indigenous Reference Group chaired by Commissioner Ian Delaney; Russell Taylor and Steven Wilde (AIATSIS); members of the Inter-Departmental Committee on Indigenous Cultural and Intellectual Property; the team at Michael Frankel & Company: Michael Frankel (Principal); Raena Lea- Shannon (Associate, Michael Frankel & Company); Greg Duffy (Solicitor, Michael Frankel & Company); Anna Bartle and Corinne Cambourne (Administration, Michael Frankel & Company); Joanne Brown (Consultant); Kim Lincoln (Administration); Bridget Elliot (Editor of Discussion Paper); John Paul Janke (Office of Public Affairs, ATSIC); Victoria Doidge (Magnify Media); Steven Hayes (TND Computer Systems); Daniel Goodwin (Artist); Bruce Pollock (Editor of Final Report) and Helen Stanwix (Layout and Design of Final Report). We also acknowledge the previous contribution of those organisations and individuals who responded to the Stopping the Ripoffs Issue Paper, the House of Representatives Aboriginal and Torres Strait Islander Standing Committere s Inquiry into Culture and Heritage and the consultations undertaken as part of the Social Justice Reports. I

4 The laws and policies cited in this report are current as at December Many changes have occurred since. Nothing contained in this report should be construed as giving legal advice. The purpose of this report is to provide general information on the issues relating to Indigenous Cultural and Intellectual Property. No person should rely on the contents of this report without first obtaining professional legal advice from a qualified legal practitioner.

5 CONTENTS Preface Executive Summary Diagrams XIV XVII XLVI PART ONE - The Nature of Indigenous Cultural and Intellectual Property 1 Ch.1 Indigenous Cultural and Intellectual Property Rights What is Indigenous Cultural and Intellectual Property? General responses to the working definition Scope of Indigenous Cultural and Intellectual Property Use of terminology The nature of Indigenous Cultural and Intellectual Property Living tradition Holistic nature Communal ownership Responsibility and custodianship Consent to use Indigenous Cultural and Intellectual Property Transmission of culture Property versus heritage Preservationist approach Economic approach Updated definition 11 Ch.2 The commercial value of Indigenous Cultural and Intellectual Property Contribution to industry Arts and crafts industry Tourism industry Rural industry Biotechnology industry Advertising industry Film industry Export industry Other industries Indigenous culture contributes towards Academic/research industry Music industry Didgeridoo industry New technology industry Should Indigenous people share in the benefits? Compensation/royalties How should this be calculated? 18 Ch.3 What are the major concerns for Indigenous people? Appropriation of Indigenous arts and cultural expression Unauthorised use of secret/sacred material Appropriation of Indigenous languages The nature of Indigenous language 20 III

6 CONTENTS Other concerns in relatiuon to use of Indigenous languages Recording of Indigenous languages Appropriation of Indigenous spirituality Appropriation of Indigenous biodiversity knowledge Medicinal knowledge Nutritional knowledge Denial of access to Indigenous land and resources Collection of natural resources Appropriation of cultural objects Objects held by museums, universities and cultural institutions Repatriation by museums, universities and cultural institutions Indigenous ancestral remains Human genetic material Access to and management of land and sites Documentation of Indigenous peoples cultures Recording of oral tradition on film and audiotape Access to archives Representation of Indigenous cultures in archives No informed consent Research issues Not informed on full use of cultural material researched Teaching Indigenous studies Indigenous music The impact of new technology When the Bush Track meets the Information Superhighway The Internet and Indigenous cultural material Creation of databases Authenticity and cultural integrity Use of Indigenous designs and styles by non-indigenous artists Use of Indigenous images by other Indigenous artists Misleading product labelling Imported goods passed off as authentic Fraudulent representations of artworks Appropriation of Indigenous personas Manufacturing and authenticity High resale value of artworks Misrepresentation in the media Community organisations and copyright Unfair contracts Lack of political will 41 Ch.4 What rights do Indigenous people want recognised? Proposed rights in Discussion Paper Responses concerning rights 44 IV

7 CONTENTS The right to own and control The right to control commercial use The rights to benefit commercially The right to full and proper attribution The right to protect sacred and significant sites The right to own and control management of lands The right to prevent derogatory, offensive and fallacious use The right to have a say in the preservation and care The right to control the use of traditional knowledge Other suggested rights Updated list of rights 47 PART TWO: Protection Under the Australian Legal Framework 49 Ch.5 Protection under current intellectual property laws What is intellectual property? Rights to use and deal with intellectual property The public domain Copyright Act What is copyright? Meeting the criteria for protection Ownership of copyright Rights granted under copyright Moral rights Performers rights Enforcement of copyright Fair dealing for research and study Sculptures and craftworks on permanent public display Period of protection Limitations of protection The Designs Act What is a design? Meeting the criteria for protection The Patents Act What is a patent? Meeting the criteria for protection Patenting human genetic material High cost of patenting inventions Plant Breeders Rights Act Meeting the criteria for protection Trademarks Act What is a trade mark? The trade mark application/approval process Meeting the criteria Challenging rade marks of Indigenous cultural material Breach of confidence laws Passing off 74 V

8 CONTENTS Meeting the criteria Summary 75 Ch.6 Protection under cultural heritage laws What is cultural heritage? Ownership of cultural heritage Focus of the legislation Tangible cultural heritage versus intangible cultural heritage Scientific and historical value versus cultural and spiritual value Relics versus living cultural material Ministerial discretionary power Indigenous participation in the decision-making process Restoration of hunting, gathering and fishing rights Cultural heritage agreements Conservation and land management laws Current reform proposals Evatt Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Proposed minimum standards South Australian Aboriginal heritage law reform proposals 86 Ch.7 Other Relevent Laws Archives laws The Australian Archives Act 1983 (Cth) Review of the Archives Act State laws Other access of information laws Museum legislation Native Title Act Land rights legislation Defamation Racial vilification legislation Privacy Trade Practices Act 1974 (Cth) Customs Act and import and export of Indigenous cultural material Administration and Probate Act (NT) Broadcasting laws Laws relating to geographical place names 96 Ch.8 International laws International law International conventions relating to intellectual property Paris Convention for the Protection of Industrial Property (1883) Berne Convention for the Protection of Literary and Artistic Works (1886)100 VI

9 CONTENTS Rome Convention (1961) Budapest Treaty (1977) International Trade-related Aspects of Intellectual Property Rights Agreement UNESCO Convention of Cultural Property (1970) International conventions on human rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Labour Organisation Convention Convention of Biological Diversity Draft Declaration on the Rights of Indigenous Peoples 107 PART THREE: Developing Strategies for Protection 109 Ch.9 Amendments to the Copyright Act Moral rights for Indigenous custodians Copyright Amendment Bill Issues for consideration Responses Collection of fees for use of Indigenous cultural works What is a collective administration system? Suggested legislative model raised in the Discussion Paper Review of Australian copyright collecting societies Issues for consideration Collection of fees for use of Indigenous works Defining Indigenous cultural works Indigenous cultural recording Performers rights Responses Is amending the Copyright Act appropriate? 130 Ch.10 Amendments to the Designs Act Should Indigenous styles be registrable? Issues relating to registration of Indigenous designs The appropriateness of designs law to cater for Indigenous needs 133 Ch.11 Amendments to the Patents Act and the Plant Breeders Act The Patents Act Patenting Indigenous medicinal plants Excluding patents of Indigenous genetic material Patenting Indigenous rights to traditional medicines Expiration of patents which make use of Indigenous knowledge Full and informed consent of Indigenous knowledge Amendments to the Plant Breeders Rights Act 140 Ch.12 Amendments to Trademarks Act Maori trade mark developments 142 VII

10 CONTENTS 12.2 Amendments to Australian trade marks law Whether to allow registration of trade marks with Indigenous content Checks and balances Prior written consent Existing trade marks 148 Ch.13 Amendments to cultural heritage legislation Indigenous rights to own and manage Indigenous cultural heritage Holistic definition of Indigenous cultural heritage 154 Ch.14 Amendments to museums, archives and cultural institutions laws Amendments to museums legislation Ownership of cultural materials Representation on boards Repatriation issues Should there be amendments to museum legislation? Amendments to archives legislation Ownership/custodianship of archives Dealing with sensitive or sacred material 163 Ch.15 Amendments to Native Title Act Amendments to the Native Title Act Native Title Amendment Bill Common law native title claims 168 Ch.16 Amendments to other relevant laws Amendments to broadcasting laws Trade practices issues Customs Issues 174 Ch.17 Developments of common law What is the common law? Equitable ownership of copyright Blasphemy Unfair competition Passing off 178 Ch.18 Specific Legislation Legislative models of protection Is specific legislation appropriate? Purpose of the legislation Scope of the legislation Tangible versus intangible Rights in perpetuity Communal versus individual ownership Traditional knowledge versus new knowledge Arts and cultural expression versus science and biodiversity Torres Strait Islanders 185 VIII

11 CONTENTS Traditional versus urban focus Active provision Prohibited use Remuneration Structure Centralised body Tribunal system Statutory body Separate legal bodies Authorised uses Possible remedies Exemptions and fair dealing Relationship with intellectual property laws Grace period Codes of conduct Further Indigenous consultation/education 194 Ch.19 Indigenous authentication systems National Indigenous authentication trade mark What type of trade mark? Series of marks Protection of marks What is the purpose of the mark Defining authenticity Marketing the mark and labelling system Rules governing use of the mark Who will be the registered owner of the mark? Design for trade mark Business credential systems Referral services Other authentication systems 206 Ch.20 Collecting systems Introduction of public domain royalties system Introduction of a resale royalty What is the resale royalty? Australian Copyright Council Report on Resale Royalty (1989) Benefits for Indigenous artists Introduction by way of contract French and European legislation Indigenous collecting society 212 Ch.21 Negotiating rights under agreement Biodiversity agreements Local government Government authorities Regional agreements 219 IX

12 CONTENTS Workshop on traditional knowledge and biodiversity Cultural contracts Publishing agreements Location agreements Industry body agreements Mechanisms for negotiating agreements 223 Ch.22 Developing cultural infrastructure Establishing a national Indigenous cultural authority Functions of the Authority A national alliance Monitoring systems Developing industry codes Establishing an Indigenous Australian Centre for traditional medicines Establishing registers AIATSIS register Indigenous arts and designs register Register for clearing uses Are registers useful? Establishing keeing places and community cultural centres National Indigenous archives Government records National Indigenous film archives Indigenous cultural legal services Indigenous arts agency Establishing networks With other Australian Indigenous peoples organisations With international Indigenous peoples organisations With government and industry bodies Indigenous owned and controlled recording, research and publishing companies 236 Ch.23 Development of policies and protocols Repatriation of human remains Previous Possessions: New Obligations policy Draft national principles for the return of Aboriginal and Torres Strait Islander cultural property Management of heritage places The Burra Charter Guidelines for the protection, management and use of Aboriginal and Torres Strait Islander cultural heritage places Aboriginal and Torres Strait Islander protocols for libraries, archives and information services State and Commonwealth archives and other government agencies National Film and Sound Archive National Library of Australia 248 X

13 CONTENTS Film Australia s code of conduct Research funding bodies AIATSIS funding guidelines Government policies Australia Council Aboriginal and Torres Strait Islander Arts Board (Australia Council) Australian Industrial Property Organisation DOCA s return of cultural property program Land council policies Central Land Council s Policy of Sacred Objects Industry association policies NIAAA Policy Statement Other suggested areas for policy development Language policy Indigenous music policy 258 Ch.24 Codes of ethics Medical and scientific research guidelines New technology guidelines Media Other suggested areas for codes of ethics Research University education sector Professional associations Collecting societies to establish guidelines 264 Ch.25 Education and awareness strategies Improved awareness strategies for Indigenous Australians Legal education for Indigenous artists, writers and performers Awareness program for the wider community School education Greater consultation on reform options 268 Ch.26 Conclusion Short-term strategies Development of Indigenous cultural protocols Negotiate rights under contracts Establishment of an authenticity trade mark Education and awareness strategies Development of networks Development of codes of ethics Medium to long-term strategies Establishment of Indigenous unit within AIPO Establishment of a national Indigenous cultural authority New laws A holistic approach 272 XI

14 CONTENTS APPENDIX1: Indigenous Reference Group: Draft Principles and Guidelines for the Protection of Indigenous Culture and Intellectual Property 273 APPENDIX 2: List of Respondents to Our Culture:Our Future Discussion Paper 279 APPENDIX 3: Indigenous Cultural Heritage Laws 283 A3.1 Commonwealth legislation 283 A3.1.1 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) 283 A3.1.2 Protection of Moveable Cultural Heritage Act 1987 (Cth) 284 A3.1.3 World Heritage Properties Conservation Act 1983 (Cth) 285 A3.1.4 Museum of Australia Act 1980 (Cth) 286 A3.1.5 Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) 286 A3.1.6 Australian Heritage Commission Act 1975 (Cth) 286 A3.1.7 Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) 287 A3.1.8 Environment Protection (Impact of Proposals) Act 1974 (Cth) 288 A3.2 Northern Territory legislation 288 A3.2.1 The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 288 A3.2.2 Northern Territory Heritage Conservation Act A3.3 New South Wales legislation 290 A3.3.1 National Parks and Wildlife Act 1974 (NSW) 290 A3.4 South Australian legislation 291 A3.4.1 South Australian Aboriginal Heritage Act A3.5 Queensland legislation 292 A3.5.1 Queensland Cultural Records Act 292 A3.5.2 Queensland Cultural Heritage Act 293 A3.5.3 Wet Tropics of Queensland World Heritage Area Conservation Act A3.6 Victorian legislation 293 A3.6.1 Aboriginal and Torres Strait Islander Heritage Protection Amendment Act A3.6.2 Archaeological and Aboriginal Relics Preservation Act A3.7 Western Australian legislation 295 A3.7.1 Aboriginal Heritage Act 1972 (WA) 295 A3.8 Tasmanian legislation 296 A3.8.1 National Parks and Wildlife Act 1970 (Tas) 296 A3.8.2 The Aboriginal Relics Act A3.8.3 Museums (Aboriginal Remains) Act A3.8.4 Planning laws 298 A3.8.5 Living Marine Resource Management Act APPENDIX 4: Model Laws for Protection 299 A4.1 The Aboriginal Folklore Model (1981)299 A4.2 UNESCO/WIPO Model Provisions for the Protection of Folklore 300 A4.2.1 Definition of folklore 301 XII

15 CONTENTS A4.2.2 Nature of protection 301 A4.2.3 Prior authorisation by a competent authority 301 A4.2.4 Where is authorisation required? 301 A4.2.5 Fair use provisions 302 A4.2.6 Prohibited use 302 A4.2.7 Remuneration 303 A4.2.8 Reciprocity 303 A4.2.9 Sanctions 303 A Towards an international standard 303 A Phuket Plan of Action 304 A4.3 Tunis Model Law on Copyright for Developing Countries 304 APPENDIX 5: International Indigenous Peoples Discourses 306 Abbreviations 315 Glossary of Terms 316 Bibliography 318 Index 325 XIII

16 Preface Background In October 1994, the then Federal Attorney-General, the Minister for Aboriginal and Torres Strait Islander Affairs and the Minister for Communications and the Arts, jointly released an Issues Paper, Stopping the Ripoffs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples. This paper called for submissions from interested parties on the inadequacies of current intellectual property laws in their application to Indigenous arts and culture, and sought recommendations on how these might be overcome. Inter-Departmental Committee on Indigenous Arts and Cultural Expression An Inter-Departmental Committee on Indigenous Arts and Cultural Expression (IDC) was set up to evaluate the submissions; to consider legislative and policy reform in this area; and make recommendations to the Government. The IDC is now chaired by the Department of Communications and the Arts and includes representatives from the Attorney-General s Department, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Australian Industrial Property Organisation, the Department of Tourism and the Office of Indigenous Affairs. Many of the submissions recommended the introduction of specific legislation to give Indigenous custodians the necessary rights to control the use of their arts and cultural material by others. Indigenous Reference Group In early 1996, ATSIC established an Indigenous Reference Group (IRG) to find out what Indigenous people believe should be protected, and how problems in this area could best be solved. The IRG is chaired by Ian Delaney, one of the ATSIC Commissioners responsible for Arts, Culture, Broadcasting, Language and the Environment. The IRG consists of Indigenous people who have expertise and experience regarding cultural and intellectual property. Members include representatives from the National Indigenous Arts Advocacy Association, the Foundation for Aboriginal and Islander Research Action and the National Indigenous Media Association of Australia. The skill and guidance of the IRG provided enormous assistance in the development of the Report s final recommendations. The IRG also drafted a set of principles and guidelines for the protection of Indigenous Cultural and Intellectual Property Rights. These Principles and Guidelines are listed at Appendix 1 together with a list of Indigenous Reference Group members. XIV

17 Indigenous Cultural and Intellectual Property (ICIP) Project ATSIC also funded the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) to coordinate a project which aims to develop practical reforms that would improve protection and ensure recognition of Indigenous Cultural and Intellectual Property. AIATSIS appointed Michael Frankel & Company, Solicitors, to carry out the project. Ms Terri Janke is the Principal Consultant. A Steering Committee comprising representatives from ATSIC, the IDC, the IRG and AIATSIS has been convened to oversee the ICIP Project. The Discussion Paper A Discussion Paper, Our Culture: Our Future, which put forward proposals for the improved recognition and protection of Indigenous Cultural and Intellectual Property, was released in July The Discussion Paper identified and outlined some issues and proposed solutions raised in submissions received in response to the following previous government inquiries: Stopping the Ripoffs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples. The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Inquiry into Culture and Heritage. Social Justice Reports and findings from the consultation process conducted by ATSIC, the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the Council for Aboriginal Reconciliation. The Discussion Paper was sent to various Indigenous organisations, industry bodies and government organisations seeking responses to various reform options for the improved recognition and protection of Indigenous Cultural and Intellectual Property. The paper also aimed to inform Indigenous peoples about the current laws and international developments which effect their rights to use and control their cultural and intellectual property. A total of 70 submissions were received in response to the Our Culture: Our Future Discussion Paper. A full list of respondents is included in Appendix 2. The Consultants also attended the following workshops: Mirimbiak Aboriginal Nations Corporation Indigenous Cultural and Intellectual Property Workshop Melbourne, Victoria 9-10 October 1997 XV

18 Queensland Community Arts Network Jumbunna Centre for Australian Indigenous Studies, Education and Research Indigenous Cultural and Intellectual Property Workshop Brisbane, Queensland 20 October 1997 Knowledge & Learning Circle - Indigenous Intellectual Property Rights and Freedoms Jamberoo, New South Wales October 1997 The contents of this Report This Report contains findings and recommendations to be presented to the Board of Commissioners of the Aboriginal and Torres Strait Islander Commission for consideration. The findings and recommendations are based on feedback from various workshops, meetings, consultations and submissions received in response to the Our Culture: Our Future Discussion Paper. PART ONE discusses the nature of Indigenous Cultural and Intellectual Property and the aspects of it that Indigenous people feel should be protected. PART TWO examines how far the existing Australian legal system protects these aspects of Indigenous Intellectual and Cultural Property. PART THREE considers possible solutions under the headings: Legislative solutions; Administrative responses; Policies, protocols and codes of ethics. XVI

19 PART ONE The Nature of Indigenous Cultural and Intellectual Property What is Indigenous cultural and intellectual property? Indigenous Cultural and Intellectual Property Rights refers to Indigenous Australians rights to their heritage. Such rights are also known as Indigenous Heritage Rights. Heritage consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity. Heritage includes: CHAPTER ONE EXECUTIVE SUMMARY Literary, performing and artistic works (including music, dance, song, ceremonies, symbols and designs, narratives and poetry) Languages Scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and sustainable use of flora and fauna) Spiritual knowledge All items of moveable cultural property including burial artefacts Indigenous ancestral remains Indigenous human genetic material (including DNA and tissues) Cultural environment resources (including minerals and species) Immovable cultural property (including Indigenous sites of significance, sacred sites and burials) Documentation of Indigenous peoples heritage in all forms of media (including scientific, ethnographic research reports, papers and books, films, XVII

20 Our Culture: Our Future sound recordings). The heritage of an Indigenous people is a living one and includes items which may be created in the future, based on that heritage. Any definition of Indigenous Cultural and Intellectual Property should be flexible to reflect the notions of the particular Indigenous group and the fact that this may differ from group to group and may change over time. Recommendations: EXECUTIVE SUMMARY 1.1 Informed debate concerning the above definition especially in relation to the issue of commerce versus culture; property versus heritage, should be encouraged. 1.2 Indigenous Australians should be kept informed of the world debate concerning: 1. Indigenous Cultural and Intellectual Property Rights 2. the protection of folklore. CHAPTER TWO The commercial value of Indigenous cultural and intellectual property Contribution to industry The overwhelming response in this area was that Indigenous cultures contribute substantially to the Australian economy in a range of industries, including: Arts and crafts Tourism Rural (including bush foods and traditional medicines) Biotechnology Advertising Film Import/export. Respondents also noted some other commercial uses of Indigenous cultural heritage, including: Academic/research Music Didgeridoo. XVIII

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