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McDonnell, Siobhan --- "Book Review - Our Culture, Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights" [2000] IndigLawB 19; (2000) 4(27) Indigenous Law Bulletin 23


Book Review-

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

By Terri Janke

ATSIC/AIATSIS 1999

Reviewed by Siobhan McDonnell

Commissioned by ATSIC and AIATSIS in 1997, and based on over 70 submissions from an extensive list of Indigenous and non-Indigenous groups, Terri Janke’s Our Culture: Our Future is a comprehensive, highly readable report on Australian Indigenous cultural and intellectual property rights. In the report, Janke details not only the relevant case law, legislation and International law, but also highlights many of the problems, such as bio-piracy (the appropriation of Indigenous biodiversity knowledge), ‘rip-offs’ of Indigenous artwork and the removal of ancestral remains which face Indigenous people under the current domestic and international intellectual property regime.

Janke begins her report by establishing a broad definition of intellectual property. Such a definition, in order to be workable, must bridge the incongruities between Indigenous and non-Indigenous conceptions of intellectual property. Janke clearly understands this problem, and has engaged in extensive consultation with Indigenous groups through a submissions process in response to her initial discussion paper. In response to these submissions she argues that Indigenous people have the right 'to decide what constitutes their own Indigenous Cultural and Intellectual Property, and how this should be defined'. What has emerged from this process is a definition of intellectual property as:

the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems that have been developed, nurtured and refined...by Indigenous people and passed on by Indigenous people as part of expressing their cultural identity.

From this definition, Janke begins an exploration of the failings of the current intellectual property regimes, namely: copyright, designs, patents, trade marks and confidential information, in protecting the cultural and intellectual property of Indigenous people. For example, the Copyright Act 1968 (Cth) requires that to obtain copyright protection, a work must be recorded in some kind of permanent, tangible form.[1] Given that much of Aboriginal culture is based on an oral tradition, many forms of Indigenous expression will not meet this requirement. Non-permanent forms of cultural expression such as performances of a song, story or dance do not fall within this requirement, and hence will not be protected. Similarly, ephemeral forms of art such as ceremonial designs painted on a body will not receive protection.[2]

Janke explores current legislative and law reform options in response to these problems and in the light of the recommendations put forward by Indigenous groups. However, this section of the report does not do critique and prioritise the different reform proposals. This analysis could have aided government, ATSIC and Indigenous groups alike in either developing or agitating for practical reforms to better protect Indigenous cultural and intellectual property. Without this analysis, the report lacks depth. However, it is arguable that the report was never intended to fulfil this analytical role, and that the process of extensive consultancy mitigated against it.

One other minor criticism that can be made of the report is the length of time it took before the report was made available. The second page of Our Culture: Our Future contains a caveat stating that the laws and policies cited were current as at December 1997. The fact that the Report was unavailable until late 1999, and for many groups not until early 2000, has meant that the law, and thus recommendations contained within it, are already two years out of date. It is clear that the time-frame between report writing and publication must be shortened if future reports are to prove productive.

Siobhan McDonnell is a research assistant at the Centre for Aboriginal Economic Policy Research (CAEPR). She is currently completing the final year of her Economics/Law Degree with double honors at the Australian National University.


[1]See the Copyright Act 1968 (Cth) ss 32(1), 89(1) and 90(1).

[2] J McKeough and A Stewart, 'Intellectual Property and the Dreaming' in Johnstone E, Hinton M and Rigner D (eds) Indigenous Australians and the Law (1997) 61f.


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