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Morris, Christine --- "Indigenous Intellectual Property Rights: The Responsibilities of Maintaining the Oldest Continuous Culture in the World" [1997] IndigLawB 44; (1997) 4(2) Indigenous Law Bulletin 9

Indigenous Intellectual Property Rights: The Responsibilities of Maintaining the Oldest Continuous Culture in the World

By Christine Morris

The fields of arts and the media often cause great problems in the area of Indigenous intellectual property rights, because they take traditional cultural productions, such as bark paintings or songs, and capture them in time-bound media. In a sense, they take living, evolving cultural traditions, and fossilise them: they render apparently immutable and fixed that which is evolving. The objects of their study, those bark paintings or songs, are then often given titles: by this act, these productions are transformed into `works of art'. These two acts of fossilisation and naming diminish traditional Indigenous cultural productions, obscuring their true meaning and purpose as encoded law bearers.

I am a traditional matrilineal custodian of the Komubmerri clan, and a traditional patrilineal (grandfather) custodian of the Mununjahli clan (both districts are located in south-eastern Queensland). It is my responsibility as a custodian to perpetuate the law. This paper does not advocate definitive answers to the issues it raises concerning Indigenous intellectual property rights and the meeting of Indigenous and mainstream laws. Rather, I hope the arguments in this paper will help foster debate between Indigenous Australians as to the space that their traditional laws should take in mainstream Australian society. I suggest this space should allow them (and non-Indigenous Australians) to perpetuate the oldest continuous culture in the world: a responsibility that belongs to all that live on this land.

Is it art or is it law?

My concern in this paper is those cultural productions which were originally constructed, not necessarily for their aesthetic beauty, but as encoded law bearers, for example, traditional stories which define land title. In a very real sense, these cultural productions represent the Indigenous intellectual property of certain clan groups. However, when these cultural productions are reduced to the level of the merely `artistic' in the mainstream Australian psyche, they are understood to be only productions by the `talented' for the consumption of the `wealthy'. Such an understanding, by its very nature, reduces the authority of these productions, and thus the traditional laws associated with them. Further, due to their mainstream characterisation as `art', Indigenous traditional cultural productions are frequently, and inappropriately, dealt with by the same laws as other art. (However I am not saying many Indigenous people don't produce art for art's sake: they do, and in these situations, mainstream laws can and do have a place in ensuring their protection from abuse.)

All too often the salient point that is missed is that cultural productions derive their uniqueness and power of presentation from the fact that they are law bearers, not because some desert dweller has a talented hand. The antiquity of the images that have been passed down through millennia is what gives the cultural product its aesthetic potency, not the newness of its creation by one particular individual.

The normal process for dealing with breaches of traditional cultural laws has been to bring civil cases before the mainstream courts. I suggest that this endorses the belief by mainstream lawmakers that Indigenous traditional cultural productions are merely artistic productions, and not, as in some cases, legal titles to clan land. The recognition of native title and land rights has done much to enlighten the legal fraternity as to the depth of meaning of cultural productions, such as traditional stories, and their role in validating Indigenous claims to land. (Certainly this is preferable to traditional stories suffering the fate of becoming fodder for quaint coffee table book compilations hailing the accounts of some non-Indigenous author's travels into the Indigenous world: of being understood as cute mythology rather than as proof of native title.)

I suggest that mainstream Australian law makers should bear this point in mind when required to make decisions in relation to Indigenous intellectual property issues. It is the context and intangible power that Indigenous people associate with cultural objects that give rise to their concerns for their intellectual property to be protected: not the objects themselves. An object can just be an object, but the customary factors surrounding its production make it subject to customary law and disputes relating to intellectual property rights in Indigenous society.

The Carpets Case

Cases such as the Carpets Case (see `The carpets case' by Terri Janke in Vol 3, 72 Aboriginal Law Bulletin 36) demonstrate the potency and pervasiveness of customary laws to which Indigenous people are answerable, regardless of the value attached to these by mainstream laws.

Several of the plaintiffs in the Carpets Case could have been dispossessed of their Dreaming rights to re-create certain stories. This may appear to be only a limiting factor to the person's artistic career, but in Indigenous terms this is a mental death sentence. It could also lead to banishment from the land to which one is responsible: in Indigenous terms, also a slow and very effective death sentence. It should be realised that frequently, it is not the person who carries out the violating act that is punished, but rather the custodian who instructed the wrong doer (personal comment by C Wall of Arts Queensland, Indigenous arts policy adviser).

In the Indigenous world (both urban and non-urban) breaches of law are a very serious business, and the penalties associated with breaches are indeed severe. Moreover, the imposition of these laws are unseen, and do not have the effect on non-Indigenous people in the way they do to traditional custodians. I suggest that mainstream law should recognise that infringements of Indigenous law are equivalent to criminal offences, to use mainstream legal terms of reference. This helps suggest the severity of the punishment that is required towards that which is being offended.

The Jalyinbul Statement

To my great pleasure, I was a delegate at the formation of the Jalyinbul Statement. During the sessions leading to its formation, I was able to hear and contribute to what, as an Indigenous person, I found to be a most exciting and enlightening debate surrounding the multifaceted Indigenous laws which give expression to Indigenous intellectual property rights.

One important point from the Jalyinbul Statement is as follows: `Just as Aboriginal Common Law has never sought to unilaterally extinguish English/Australian Common Law so we expect English/Australian Common Law to reciprocate'.

The judges in the Carpets Case certainly acknowledged the relevance of customary laws to the issues in dispute. However, I suggest that the non-imposition of criminal penalties in this case could be seen as flying in the face of the Jalyinbul Statement: mainstream Australian law effectively overtaking and attempting to supersede the role of customary laws.

I suggest that raising the severity of penalties associated with cultural breaches of Indigenous cultural productions will be a positive step towards achieving the above statement point. For example, when outsiders dealing in custodial issues cause offence to someone's custodial responsibilities, they should be dealt with in a `two-way law' manner: that is, the two laws come to an agreement on how to proceed with the case. By giving due recognition to the fact that another law does effect the lives of Indigenous people, a more mature and just settlement to a dispute can be effected (just as mainstream Australian law has recognised the stupidity of the terra nullius land doctrine).

I do believe that such a system is workable. In the past there was a legal space for Church law: in the present, military law exists in it own sphere, but works with the mainstream law system. I would therefore suggest that customary law also be given its space. A space not determined by non-Indigenous lawyers working on the behalf of Indigenous peoples, but a space based on Indigenous perceptions of customary/common law. For unless lawyers are subject to the same customary/common laws as Indigenous persons, they will only ever be able to take an outsider's view of them. But no just and workable legal system is ever constructed by outsiders. To continue to have non-Indigenous lawyers determining our legal future is to continue to divest us of our responsibilities as custodians of this land, and to totally misunderstand the intent of the Jalyinbul Statement.

However, I do not dismiss the role that non-Indigenous lawyers have to play in educating their own people as to the responsibilities Indigenous peoples have to customary laws, and to maintaining and preserving the oldest continuous culture in the world. All Australians should embrace this as part of their responsibility to world heritage, rather than terra nullius it out of their lives.


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