McMahon, Michael --- "Indigenous Cultures, Copyright and the Digital Age" [1997] AboriginalLawB 23; (1997) 3(90) Aboriginal Law Bulletin 14

Indigenous Cultures, Copyright and the Digital Age

By Michael McMahon

The development and internationalisation of the `institutionalised' intellectual property system has occurred without any specific consideration being given to the particular needs and aspirations of the indigenous peoples of the world. In Australia over the past twenty years there has been increasing interest in these needs and aspirations[1] but to date little has occurred to assist indigenous Australians through the intellectual property system. The limited achievements have been the result of action by individuals to protect their rights under the existing intellectual property regime.[2] Indigenous laws dealing with intellectual property and endeavours remain unrecognised in Australia and most countries.[3] The need for action to recognise and protect indigenous knowledge has become ever more urgent as the pressures to commercialise information, knowledge and cultures builds and accelerates in what is popularly called the Digital Age. These pressures become harder to resist as technology, transport and travel shift information, articles and people around the globe with relative ease. The rules of the game are changing rapidly and we are all operating into a new context, `one in which borders no longer have their old meaning, rights and powers may not be defined by spatial boundaries, property cannot be protected in traditional ways, and much of the economic, social, and cultural action has been attracted to the upstart venues of cyberspace.'[4]

Digital technology--which allows for all previous forms of communication and information, including text, graphics, sound and moving images, to be encoded into strings of 1's and 0's and retrievable at an address--is changing the intellectual property scenario at a rapid rate. Some writers and commentators believe that copyright will adapt and survive the latest technological developments in the way in which it has in the past.[5] Others argue colourfully and sometimes persuasively that the copyright system in particular will not survive.[6] If this latter group are right then the main `plank' of the institutionalised intellectual property which indigenous people in Australia have used to protect their artistic and cultural expressions will become less relevant and difficult to administer.[7] The basic proposition of these writers and commentators is that the very foundations on which copyright developed--that reproduction and dissemination were difficult and expensive and so could be controlled--no longer apply in an environment where information can be created, stored and disseminated in digital form.

The ever expanding application of digital technology will continue to have profound effects for all people. Keeping pace with, let alone trying to anticipate, the changes and consequences of the application of digital technology to so many aspects of our lives is difficult. Indigenous communities face particular challenges because of the problems they already have of accessing and applying the existing intellectual property system to their cultures, let alone trying to deal with one which is coming under increasing strain from changes in technology.

In any situation there are generally opportunities and the digital age offers some to indigenous cultures, although accessing them may not be as easy as many of the more enthusiastic writers would have us believe. Taking advantage of the benefits of digital technology involves considerable costs which are often overlooked by the commentators such as John Perry Barlow. This is particularly true in the application of digital technology to computer networks--the process which has given birth to the Infobahn. Never before has it been possible to transmit information so quickly and in such quantities as the Infobahn allows. The possibilities sound great but the reality is that costs of computer equipment and software remain beyond the reach of many people, let alone the problem that many remote indigenous communities have no access or high cost access to telephones and electricity.

For example, the community of Yirrkala is situated in Eastern Arnhem Land and is well served with utilities. The community has an enviable record of introducing technology and training people in its use, particularly in its model Literacy Production Centre attached to the Community School. However, for anyone in the community to go `on line' during the day at present to take advantage of the Internet would cost $18 per hour in telephone charges alone to connect to the nearest service provider in Darwin. This means that if the Community School wanted to use the Internet for three hours each day it would cost them about $11,000 per year in telephone charges alone. The present funding environment means that such costs act as a barrier for remote indigenous communities which want to connect to the Infobahn so as to benefit from what it may have to offer them. While there are very progressive uses of digital technology by some indigenous organisations such as the Tanami Network[8] and developments in satellite technology will improve the opportunities to `connect' from a remote location, it is going to take considerable expenditure and investment if indigenous Australians in remote areas are to take full advantage of the Digital Age. As William J Mitchell puts it in `City of Bits', his `windshield survey along the Infobahn':

`No network connection at all--zero bandwidth--makes you a digital hermit, an outcast from cyberspace. The Net creates new opportunities but exclusion from it becomes a new form of marginalisation.'[9]

Many of the community based indigenous organisations which may be able to provide access facilities are being squeezed for funds and having to adjust their priorities. Purchasing computers, training people in the use of them and getting on to the Infobahn all have to compete with the more immediate concerns of health, housing and sewerage in most indigenous communities in Australia.

Another issue that is often overlooked but which is crucial to indigenous people is that as well as having access to equipment and services at a reasonable cost, using digital technology also involves education and training. There may be real advantages in having communication, reproduction and dissemination of information easier but you still have to know which keys to press on the keyboard or where to position the cursor before you click the mouse. For many people, but particularly indigenous people in remote areas for whom English may be a second language, there are major educational barriers blocking access to the Infobahn.

But if these `threshold' issues of cost and training can be adequately addressed then indigenous communities will be well served by the changes to information technology. In the past indigenous people living in remote communities could be easily marginalised and to a large extent ignored in a world where geography determined so much of one's destiny. In the Digital Age that need no longer be the case. Indeed, marginalisation will come (or already existing marginalisation further exacerbated) from a failure to understand use the opportunities which digital technology offers.

Properly equipped and trained indigenous communities will also be able to take advantage of control over the dissemination of information which digital technology allows, as well as reach a much larger audience than is presently possible. Traditionally indigenous communities have relied on reproduction and dissemination of their information by people outside their communities. This has often lead to disappointments and misunderstandings. The use of on-line digital technology will mean that indigenous people in remote areas will be able to exercise greater control over the amount and nature of the information and material which is disseminated from their communities. This would be welcomed after such a long history of surrendering control over so much of their artistic and cultural information and material to third parties to interpret and present to the rest of the world. Already some communities are realising the commercial potential of the Internet[10]

http://www.ozemail.com.au/~jukurrp

and it is to be hoped that before too long we are reading about communities selling their art direct to American purchasers rather than auction houses.[11] While recognising the importance of such developments it is also necessary to recognise the very real fears in communities of `rip-offs' of their intellectual property, particularly in the digital environment where issues of protection remain uncertain and the potential uses and dissemination so wide.

If William J Mitchell is correct and the economic engine in the `soft cities' of cyberspace is the `bit business'--the production and consumption of digital information--then indigenous people may be able to participate in ways that have not previously been open to them. They will have access to information which would have previously been inaccessible to them. They will be able to exchange information and develop strategies with other indigenous people around Australia and around the globe. It will be their common interests which will bring them together. Location will no longer divide people.

As well as the indigenous specific law reform work referred to above the previous Commonwealth government had begun to address some of the more general challenges to the copyright system through the work of the Copyright Law Review Committee.[12] That work has been given an added imperative following Australia's participation in the Diplomatic Conference held by the World Intellectual Property Organisation in December 1996. At its conclusion that Conference adopted the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.[13]

http://www.wipo.int/eng/index.htm

These treaties will have an important effect on copyright law in Australia over the next couple of years as the government decides whether Australia should amend its laws so as to be in a position to comply with the treaties' requirements and ratify them. The Copyright Treaty contains Articles which are intended to set new standards for the digital environment, including the introduction of a new exclusive right of `authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.'[14]

Indigenous people need to be part of the process of adapting the copyright laws to fit the Digital Age. They will need to articulate clearly their needs and demands for a better system of intellectual property protection or alternative arrangements which will protect their cultures in a fast changing technological environment. They too will have to live in the Digital Age where `intellectual property protection will simultaneously become both more necessary and more difficult to obtain.'[15]

At the conclusion of its Diplomatic Conference in Geneva in late 1996 the World Intellectual Property Organisation stated that it wished to do further work on indigenous intellectual property rights and will hold a conference for this purpose in Thailand in April this year. If the Commonwealth Government is serious about its election commitment to address the copyright issues of indigenous Australians it must ensure that it draws on the experiences and work done by indigenous people so that it can play a central and leading role to achieve results at the WIPO Conference. But it should not take the position of handing it all over to WIPO. Considerable work has already been done in Australia and the needs have been largely identified. Those needs are expanding with the increase of digital technology, particularly on-line. What is really required now is the political will to act. Experience in the legislative protection for intellectual property has shown that if the political will, need and impetus are there, change can come. It came when the Commonwealth Parliament hastily passed the Copyright (Amendment) Act 1984 to avoid international discrimination over uncertainty as to protection for computer programs in this country. It also came quickly in 1989 with the passage of the Circuit Layouts Act after pressure from the United States. The need was identified and acted on quickly with the passage of the Olympic Insignia Act 1996.

The needs of Australia's indigenous people for intellectual property reform are no less urgent and are becoming more so in the Digital Age.

---

[1] The Working Party on the Protection of Aboriginal Folklore commenced work in 1975 and reported in 1981 (Report of the Working Party on the Protection of Aboriginal Folklore, Department of Home Affairs and the Environment, 4 December 1981). In October 1994 the Commonwealth published an Issues Paper entitled `Stopping the Rip-offs--Intellectual Property Protection for Indigenous Australians' (Commonwealth of Australia, 1994). Work and consultations continued although the continuation of the process has become uncertain under the present Government.

[2] The recent history of indigenous artists use of the law to protect their artistic and cultural expression is set out and illustrated in Copyrites--Aboriginal Art in the Age of Reproduction, NIAAA and Macquarie University, 1996.

[3] See the casenote by Martin Hardie in this issue concerning the action by John Bulun Bulun and George Milpurrurru where the claim includes a claim in customary law relating to the land from which the artist's work arises.

[4] Mitchell, William J, City of Bits--Space, Place, and the Infobahn, The MIT Press, Cambridge (Mass.), 1995, p.168.

[5] Stanbury, WT, `Aspects of Public Policy Regarding Crown Copyright in the Digital Age', (1996) 10 (2) Intellectual Property Journal 131. (Stanbury analyses the arguments of John Perry Barlow in the article listed in footnote 35). See also Collie I, `Copyright is Dead....or is it?' 1 (1) Artlines 10 and the comments of Schwartz, E., in his Introduction to the `Copyright in the 21st Century' Symposium, (1995) 13 (2) Cardozo Arts and Entertainment Law Journal 13.

[6] See in particular John Perry Barlow, `The Economy of Ideas: A Framework for the Re-thinking of Patents and Copyright in the Digital Age (Everything You Wanted to Know About Intellectual Property is Wrong)', Wired Magazine, March 1994, p. 84; and Nicholas Negroponte, Being Digital, Hodder and Stoughton, 1995, p.58.

[7] Courts are sometimes finding it difficult in dealing with the concepts of computing and digital technology. A Federal Court judge recently distorted a long established copyright principle and sent shock waves through the local computer software industry when he found that a single word in a computer language was a computer program in which copyright subsisted. See Data Access Corporation v Powerflex Services Pty Ltd and Others 33 IPR 194. The decision is being appealed.

[8] Tanami Network Pty Ltd is an indigenous owned video-conferencing network based at Yuendumu. It has undertaken important work in linking communities and has also been involved in the development of multimedia product.

[9] Mitchell, William J, City of Bits--Space, Place, and the Infobahn, The MIT Press, Cambridge (Mass.), 1995, p.18.

[10] [ is the Jukurrpa Artists' web site. This collective of women artists sell artwork from the site.

11] See Sally Blackney, `Sold to the Terminal in the Corner' in The Weekend Australian, 1-2 February 1997 where it is reported that Sotheby's put the whole of its Aboriginal Art Sale catalogue on the net and had an American buyer ring up and spend $18,000.

[12] Copyright Law Review Committee, `Copyright Reform: A Consideration of rationales, Interests and Objectives', February 1996.

[13] See the WIPOweb site for the full text of treaties and other material: [

14] Article 8, WIPO Copyright Treaty, 20 December 1996.

[15] Rubin H, Fraser L and Smith M, `US and International Law Aspects of the Internet: Fitting Square Pegs into Round Holes', (1996) 3 International Journal of Law and Information Technology, 117 at 129.