Cerexhe, Carolyn; Davis, Michael; McDonald, Ian --- "Update: Indigenous Intellectual Property Protection Consultations with Aboriginal and Torres Strait Islander Peoples; What to Do about Copyright Infringements; Forthcoming Publications" [1997] AboriginalLawB 27; (1997) 3(90) Aboriginal Law Bulletin 22

• Stirrings
• Indigenous Intellectual Property Protection Consultations With Aboriginal And Torres Strait Islander Peoples
• Discussion
• What To Do About Copyright Infringements
• Forthcoming Publications

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Stirrings

Indigenous Intellectual Property Protection Consultations with Aboriginal and Torres Strait Islander Peoples

by Michael Davis ATSIC, Canberra, January 1997

In October 1994 the previous government released an Issues Paper called Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples. That Paper discussed the effectiveness of the Copyright Act 1968 (Cth) and other intellectual property legislation for the protection of Indigenous peoples' 'arts and cultural expressions'.

Forty-nine submissions were made to the Stopping the Rip-Offs paper. An Inter-Departmental Committee (IDC) was established, convened by the Department of Communications and the Arts, and including representation from ATSIC, to evaluate these submissions, and make recommendations to the Government for further actions. Among the options being considered is new legislation that would be more appropriate for Aboriginal and Torres Strait Islander peoples. ATSIC has accepted responsibility for undertaking consultations with Aboriginal and Torres Strait Islander peoples to seek their views about, and to provide input into, possible new legislation.

To carry out consultations, in early 1996 ATSIC established an Indigenous Reference Group chaired by the ATSIC Commissioner responsible for Arts and Culture, and comprising twelve Aboriginal and Torres Strait Islander people with expertise and experience in arts, culture and heritage. The group will manage community consultations, provide advice, and report to the ATSIC Board of Commissioners on the outcomes of these consultations.

In June 1996 ATSIC established a consultancy, auspiced through the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) to continue the consultations. A Steering Committee has been established to oversee the project, with representatives from ATSIC, the IDC, the AIATSIS and the Indigenous Reference Group, in addition to the consultants. The consultants, Terri Janke, with Michael Frankel and Company, will prepare a discussion paper, and disseminate this as the basis for consultations with the Indigenous Reference Group and Indigenous communities. A report will then be submitted to ATSIC proposing some options and recommendations for reform. The consultants aim to have the discussion paper produced by May 1997, with Indigenous community-based consultations scheduled through to August, and a final Report to be completed by October.

Discussion

Many of the submissions to the Stopping the Rip Offs Issues Paper argued that the Copyright Act does not provide a sufficient basis for protection of Indigenous peoples' intellectual property, and that new sui generis legislation is necessary. It is also the view of many Aboriginal and Torres Strait Islander people that measures for improved protection of their 'intellectual property' rights should include consideration of a wider range of cultural products and expressions than are protected under existing western intellectual property laws. The range may, for example, include rights in ecological and pharmacological knowledge, biological products and derivatives, secret or sacred information, and intangible cultural expressions such as song, story, dance, and ceremony.

Some discussions have already commenced in relation to the definitional aspects of Indigenous intellectual property, and the range of elements that may be included. The complexities and sensitivities of these considerations were highlighted, for example, at a workshop organised by ATSIC in Canberra, on 5-7 May 1996, with the Indigenous Reference Group, members of the IDC, and visiting speakers. There was discussion at that workshop about the meanings, and appropriateness to Indigenous peoples, of the term 'folklore' as it is sometimes used to label Indigenous intellectual property or cultural heritage. That discussion demonstrated that it is important to develop reforms that are based on a proper understanding of Aboriginal and Torres Strait Islander peoples' perspectives, definitions and categories of cultural products and expressions.

It is also important to Indigenous peoples' perspectives on intellectual property, that reforms incorporate concepts of collective rights, provide for the protection of cultural products and manifestations that exceed the fifty year limit required under existing copyright law, and establish a mechanism that will enable greater control by communities over decisions about the wider uses of their cultural products and expressions. Reforms may also consider ways of introducing measures that will enable Indigenous communities to receive financial benefits that might derive from the utilisation by the wider community of their cultural products and expressions. This would be an important step forward in the achievement of greater economic empowerment for Aboriginal and Torres Strait Islander peoples. Issues to be raised during consultations about possible new legislation will therefore aim to include:

• the definitions and nature of Indigenous intellectual property;
• the range of cultural products and expressions that should be protected by new legislation, including whether this should include secret-sacred material;
• how new legislation might operate to provide for community-level decision making over uses of cultural expressions and manifestations; and
• how new legislation might enable communities to determine the extent, and the mode of distribution of benefits received from, uses of their cultural expressions and manifestations.

The consultants' report will be submitted to the ATSIC Board of Commissioners, and a report with recommendations will then be presented to the IDC, which will provide an important contribution to the development of a response to the Stopping the Rip-Offs paper.

What to Do about Copyright Infringements

by Carolyn Cerexhe

The National Indigenous Arts Advocacy Association Inc (NIAAA) was set up to protect and advocate for Indigenous artists.

If anyone has a query about the authenticity of artwork they have come across, or purchased, they can get in touch with NIAAA for advice.

Lydia Miller, Executive Director of the Aboriginal and Torres Strait Islander Arts Board of the Australia Council, says that the Australia Council quite regularly refers queries to NIAAA from around Australia. The Council has found that there are still many examples of work submitted to them for funding which contravene copyright of other artists by using designs such as X-ray, Rarrk, cross-hatching, specific dot designs, Quinkan or Wadjina.

For further information, contact NIAAA at:

Suite 401, 4th Floor, 60-62 Foveaux Street
SURRY HILLS NSW 2010
Phone: [phone]; fax [phone] email: [e-mail]

Forthcoming Publications

by Ian McDonald, Australian Copyright Council

The Australian Copyright Council will shortly be publishing a detailed discussion paper, entitled Protection of Indigenous Intellectual Property: a Copyright Perspective.

The publication includes discussion of the types of appropriation which are of concern to Indigenous peoples, together with sections on analytical approaches to Indigenous cultural material and on contemporary art practice. The publication also reviews court cases involving Indigenous intellectual property, and summarises a number of the government reports and Issues Papers which have dealt either with the protection of cultural material generally, or specifically with Indigenous cultural material.

In particular, the publication compares the type of protection currently given under the Copyright Act with the type of protection for cultural material given under customary Indigenous law, and discusses the strengths and weaknesses in a variety of common law and legislative responses. The publication also comments on forms of protection for Indigenous cultural material such as trade marks and authenticity labels, education, and the development of protocols and ethical guidelines for persons dealing with Indigenous intellectual property.

Protection of Indigenous Intellectual Property: a Copyright Perspective will be available from the Council for $20.00 ($17.00 for students and the unemployed), with an additional charge of $4.00 for postage within Australia. Contact the Council at

Suite 3,245 Chalmers Street
REDFERN NSW 2016
Phone: [phone]; fax: [phone]
email: cpright@ copyright.org.au

The Council also has a web site with general information on various other areas of copyright law at: www.copyright.org.au