Githaiga, Joseph --- "Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge" [1998] MurdochUeJlLaw 13; (1998) 5(2) Murdoch University Electronic Journal of Law

Frames Version

Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge

Author:	Joseph Githaiga Graduate, Murdoch University School of Law
Issue:	Volume 5, Number 2 (June 1998)

Contents

• Introduction
• The Protection of Indigenous Folklore
• (1) Protection of Indigenous Folklore Under Copyright Law
• (a) Ownership and Authorship
• (b) Originality
• (c) Material Form
• (d) Duration
• (e) Rights in Derivative Works
• (2) Proposed Solutions in Australia
• (a) Common Law Alternatives
• Mabo-style Claims
• Breach of Confidence
• (b) Legislative Reform
• Amending the Copyright Act
• Domain Public Payant and Moral Rights Legislation
• Amending Heritage Legislation
• Authentication marks
• Special Sui Generis Legislation
• (3) Key International Attempts to Protect Folklore
• The Protection of Indigenous Knowledge
• (1) Conditions for Patent Protection
• (a) Manner of Manufacture
• (b) Novelty
• (c) Inventive step
• (2) Costs of Registering and Maintaining Patents

(3) International Fora on the Protection of Indigenous Knowledge
• Framework for a Proposed Solution
• (1) Sui Generis Legislation
• (2) Protocols and Guidelines
• (3) Education and Public Awareness
• Conclusion
• Notes

Introduction
1. This paper is concerned with the debate as to whether modern intellectual property regimes adequately protect indigenous cultural heritage. With regard to the latter term, I have adopted the definition formulated by UN Special Rapporteur, Erica-Irene Daes:

The heritage of indigenous peoples is comprised of all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory. The heritage of an indigenous peoples also includes objects, knowledge and literary or artistic works which may be created in the future based upon its heritage. [It] includes all moveable cultural property as defined by the relevant conventions of UNESCO, all kinds of literary and artistic works such as music, dance, song, ceremonies, symbols and designs, narratives and poetry; all kinds of scientific, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of flora and fauna; human remains; immoveable cultural property such as sacred sites, sites of historical significance, and burials; and documentation of indigenous peoples' heritage on film, photographs, videotape, or audio tape.[1]

2. I have focused specifically on the protection of indigenous folklore and knowledge. The former is the label that I have given to those aspects of heritage that Daes defines as "all kinds of literary and artistic works such as music, dance, song, ceremonies, symbols and designs, narratives and poetry". Knowledge refers to "all kinds of scientific, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of flora and fauna".


3. The protection of indigenous folklore and knowledge has become a pressing issue both within Australia and abroad. This has been due to the development of a lucrative international trade in indigenous heritage, which has seen most of the economic benefits diverted to non-indigenous persons and institutions. For example, in Australia, the indigenous arts and crafts industry has a turnover of almost $200 million per annum, but indigenous people only receive about $50 million of this return.[2] Similarly, the global pharmaceutical and agrochemical industries generate billions of dollars annually from products developed with indigenous knowledge, but hardly compensate indigenous peoples for their valuable contributions. For indigenous people the graver and more reprehensible consequence of the commercialisation of their heritage is the denigration of their cultures through the use of heritage in culturally inappropriate ways.


4. I argue that modern intellectual property law regimes, which are rapidly assuming global uniformity, have facilitated and reinforced this process of economic exploitation and erosion of indigenous peoples' cultures. This is because they are based on notions of property ownership which are alien and detrimental to indigenous peoples. Liberal eurocentric discourse, upon which these laws are premised, maintains that individuals have a right to private property. The purpose of recognising private proprietary rights is to enable economic exploitation by the holder of the rights. Therefore the purpose of creating intellectual property rights is to enable individuals to exploit the products of their intellect. Such rights are perceived to reward creativity and encourage innovation and invention. In indigenous world-view, on the other hand, property rights are a means of maintaining and developing group identity rather than furthering individual economic pursuits, they are therefore communal in nature. Therefore any use or alienation of indigenous heritage must be sanctioned by the community as a whole or by its traditional custodians acting with the mandate of the community, and must be on such terms as imposed by the group.


5. In Part A, I analyse the protection of indigenous folklore under copyright law, in particular that of Australia, and highlight the deficiencies involved. The problems relating to copyright law stem from the failure of indigenous folklore to meet the requisite elements of copyright protection: individual ownership; limited duration; originality; and material form. I consider the attempts within Australia, both common law and legislative, to redress these problems, and also the international developments on indigenous folklore.


6. In Part B, I present a similar evaluation of the protection of indigenous knowledge under patent laws. As with copyright law, the problems experienced by indigenous peoples in trying to protect their traditional knowledge under present patent laws emanate mainly from the failure of such knowledge to satisfy the elements of patent laws. Alternatively, where such knowledge does come within the criteria, the prohibitive costs of registering and defending the patent curtail effective protection. There is, therefore, a clear bias in the operation of these laws in favour of the pharmaceutical industry and other institutions based in the industrialised nations. The modern patent laws allow these institutions to monopolise the benefits derived from the exploitation of indigenous knowledge at the expense of indigenous people's interests.


7. In Part C, I propose a basic framework for protecting indigenous folklore and knowledge, which contemplates the enactment of sui generis legislation; the development of policy guidelines and protocols; and the implementation of public awareness and education campaigns. The content of the framework would draw heavily from the issues that have emerged from the debate both at the domestic or national level and the international level.


8. I conclude with a reiteration that the difficulties experienced by indigenous peoples in the protection of their heritage stem from a fundamental misunderstanding between western and indigenous discourses about the concept of property. The key to finding a solution is in acknowledging and embracing the proposals put forward by indigenous peoples and using these as a basis for legislation, policy guidelines and public education on the value of indigenous culture.

The Protection of Indigenous Folklore

(1) Protection of Indigenous Folklore Under Copyright Law


9. Doubts have been cast, both within Australia and abroad, about the inability of the current copyright regimes to fully accommodate and protect indigenous folklore. The deficiencies of copyright law in this regard are manifested in the requirements appertaining to ownership and authorship; material form; originality; duration; and rights in derivative works.

(a) Ownership and Authorship


10. Conventional intellectual property systems vest copyright in the owner, who is generally presumed to be the author, of the work.[3] Eurocentric discourse perceives the aim of copyright laws to be the encouragement and reward of individual creativity.[4] To this end, copyright is regarded as a proprietary interest that is capable of being traded: while a copyright owner has the general right not to exploit his or her material (albeit a right subject to statutory exceptions), or to allow others to deal with it, the expectation built into the system is that copyright will be exploited, and that the copyright owner may thereby receive a return for his or her investment of time, capital or talent. Copyright as private property is justified by reference to its ultimate benefit to the community as a whole.[5]


11. In contrast, indigenous world-view prioritises the interests of the community as a whole over those of the individual. Ownership of folklore in indigenous culture is therefore a collective, as opposed to individual, phenomenon.[6] Consequently, "[t]he lauding of individual artists is very much a western response to Aboriginal art, and a facet of Aboriginal artistry which Aboriginal people find quaint."[7]


12. Indigenous appreciation of folkloric works is not simply based on their aesthetic qualities, but more fundamentally on the ability of the individual author to reflect the culture and livelihood of the community in the folklore: art is considered to be precious, not as an object, but for its life-sustaining qualities. The language it uses - the signs, symbols and codes may all be information necessary for survival.[8]


13. The realisation that folklore is intimately linked with the identity of indigenous communities therefore informs on the definition of ownership in indigenous culture. The concept is akin to custodianship rather than exclusive proprietorship, and hence connotes a set of responsibilities owed to the indigenous community by those in whom ownership of folklore is vested.[9]


14. Ownership of folklore usually lies with tribal custodians, who then license its use to individual members of the community, subject to a strict code of traditional rules.[10] It is these custodians and not the individual authors who define the limits for reproduction and use of the folkloric works.[11]


15. Courts in Australia have acknowledged the failure of the copyright system to accommodate indigenous peoples' concept of ownership. In Yumbulul v Reserve Bank of Australia [12], French J observed that, Australia's copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and uses of works which are essentially communal in origin.[13]


16. Similar sentiments were echoed in Milpurrurru v Indofurn Pty Ltd [14] by von Doussa J who stated that: the statutory remedies do not recognise the infringement of ownership rights of the kind which reside under Aboriginal law.. [15]


17. In addition to the problem of defining ownership, there is the related requirement that an author of the work be identified to whom ownership may be attributed. Indigenous folkloric works generally tend to be the results of a collective effort, with individual additions being incremental and spread out over time. Consequently, it is often the case that no one individual can be solely identified with the authorship of a design, song, dance or other manifestation of folklore.[16]


18. It is evident then that the requirements for individual ownership and author identity are reflections of the underlying eurocentric belief that economic benefit is the primary motivation for creativity. Private property rights are then introduced to allow economic exploitation. It is inappropriate to apply this tenet to indigenous cultural folklore because it is at odds with the indigenous concept of communal ownership. The purpose of the latter is to regulate the use of indigenous folklore and thereby maintain the integrity and the identity of the group. Recognising the primacy of the individual's interests over those of the group, as copyright law does, reflects a lack of respect for indigenous customary laws and facilitates indigenous peoples' loss of culture.

(b) Originality


19. Copyright law requires a work to be original, that is, it should have "[the] distinct individual creative style" of the author. [17] As most folkloric works tend to be inspired by pre-existing traditions and successive patterns of imitation over time, it is arguable that the condition of originality is not satisfied.[18] This factor is particularly relevant to sacred ancestral designs, which must be replicated exactly or to a high degree of accuracy.[19] The World Intellectual Property Organisation (WIPO) has observed that,the very nature of many folkloric works is that they are repetitive; they rely on tradition and the scope for interpretation and individual expression is limited.[20]


20. In Australia the issue of originality in relation to indigenous folkloric works is yet to be curially addressed. Some commentators are of the view that, given the low threshold that courts have generally set for establishing originality, it would not present a major obstacle in the protection of indigenous folklore.[21] Nevertheless, other observers caution that despite a lack of prior judicial comment on the matter, it is a potentially substantial problem, particularly where anonymous authors are concerned.[22] Gray explains that the Australian cases on indigenous intellectual property rights to date[23] have involved artists who are well known both within indigenous and non-indigenous circles and therefore originality has been a non-issue. However, in dealing with less recognisable authors a balance would have to be drawn between the "freedom of artistic expression", on the one hand, and the "recognition of an exclusive legal right in Aboriginal people to significant and identifiable Aboriginal designs", on the other.[24] Non-indigenous authors averse to copyright protection would argue in favour of the former.[25] The counter-argument would be that indigenous designs are not merely ideas, but "property in the most basic sense, the distinction between real and intellectual property having no significance in Aboriginal customary law."[26]


21. Here again we see the economic reward and individual entitlement rationale underpinning copyright law. The aim of having the originality element is to avoid others from exploiting the creator's work. Indigenous world-view, on the other hand, would find such a requirement irrelevant, more so because folklore is the property of the whole community regardless of who created it. I submit that if anything originality may contravene customary laws, for example, where exact replication of design is required any alterations may be deemed inappropriate.

(c) Material Form


22. A key tenet of copyright law is the idea/expression dichotomy where the expression of ideas, as opposed to the ideas themselves, are protected.[27] Therefore, fixation or reduction to material form is a condition precedent to the protection of works. The practical consequence of this requirement is that ideas, themes, styles and techniques embodied in a work are not protectable.[28] This has serious implications for indigenous people since most folkloric works tend to be orally and visually represented.[29] Furthermore, in Australia indigenous designs are regarded as ideas rather than expressions of ideas.[30] Non-indigenous people are thus free to commercially exploit indigenous works with scant regard for indigenous customary law. Even where particular indigenous works are protected, non-indigenous people can still create their own versions of indigenous art, which are in themselves protectable as original works.[31] This way they avoid copyright infringement and at the same time violate indigenous customary law.


23. The observations above lead Puri to conclude that,the fixation requirement should not apply to ancestral designs and works of folklore. Such works form part of the cultural heritage of Aborigines and their very nature lies in their being handed on orally or visually from generation to generation.[32]


24. I would agree based on my comments above that the purpose of folklore in indigenous societies is the expression, maintenance and development of their identity. Denying protection to indigenous ideas, themes, styles and techniques, on the basis that they are beyond the scope of western private property rights is, in my view, unjustifiable and detrimental to indigenous culture.

(d) Duration


25. Section [32] (2) of the Australian Copyright Act (1968) generally limits the duration of copyright in artistic, musical, dramatic and literary works to the creator's life plus 50 years.[33] The reason for limited duration has been stated to be the protection of the creators of the works so as to encourage them to produce such works and to ensure them a fair economic return.[34]


26. The limited duration of copyright offers inadequate protection as it conflicts with longevity of indigenous folkloric works.[35] The concern for indigenous communities is that folkloric works, which are currently protected, could end up in the hands of non-indigenous people once the copyright expires.[36] As a result the rightful owners of the works under traditional customary law would become "culturally dispossessed and impoverished", relying on others to allow them access to that which is rightfully theirs.[37] This problem is particularly likely to arise where non-indigenous persons are concerned. They are much more likely to put folkloric works to culturally inappropriate uses as they are not bound to indigenous customary laws and are therefore not exposed to the sanctions consequent to a violation of such laws, for example, social ostracism.


27. Section 32 (2) clearly has its basis in the economic reward justification for copyright and is therefore at odds with the function of folklore in indigenous culture and with the concept of communal property. It is therefore inappropriate to apply the provision to the protection of indigenous folklore.

(e) Rights in Derivative Works


28. A related issue to that of ownership is the control of works derived from indigenous folkloric works such as traditional designs. Copyright law recognises derivative works as original creations in themselves, which are capable of protection as such.[38]


29. As outlined above, the traditional owners of a folkloric work are not necessarily its legal owners and they therefore do not have legal control over its reproduction or use. Similarly they do not have any legal control over any unauthorised reproductions or adaptations of the work. This state of affairs is insensitive to indigenous customary laws and traditions because it enables non-indigenous people to adapt and exploit indigenous works in culturally inappropriate ways.[39]


30. Exceptions under copyright legislation may still validate an otherwise infringing reproduction or use of a traditional design, even if it violates indigenous customary law.[40] The Yumbulul case is a good illustration of this point. Terry Yumbulul was authorised by tribal elders to craft the Morning Star Pole ("the pole") and license its display in selected museums. The Reserve Bank of Australia commissioned an agent to obtain authorisation from Yumbulul for the use of the pole on a ten-dollar banknote. The agent subsequently obtained an assignment of copyright from Yumbulul and then authorised the Bank to print the pole on the banknote. The primary issue before the judge was whether there had been a valid assignment of copyright. The agent argued that even if there had been no lawful assignment, the reproduction of the pole on a banknote was still valid due to sections 65-68 of the Copyright Act 1968. These provisions allow the reproduction of a sculpture that is on permanent display without the permission of the copyright holder.[41] As the judge ruled that the assignment of copyright had been valid, he did not have to decide on the correctness of the agent's defence. He, however, commented that if the agent was right, then it may be the case that some Aboriginal artists laboured under a serious misapprehension as to the effect of public display upon their copyright in certain classes. This question and the question of statutory communal interests in the reproduction of sacred objects are a matter for consideration by law reformers and legislators.[42]


31. The preceding discussion reveals serious inconsistencies between copyright law and indigenous folklore. I have argued that these problems stem from an underlying conflict in notions of property between eurocentric and indigenous discourses. The former vests private property rights in individuals with the aim of enabling them to derive economic reward for their creativity. The latter embraces a notion of communal property rights aimed at maintaining and developing indigenous cultural identity. Therefore, any protection of indigenous folklore must have cognisance of this basic conflict and must take into account the needs of indigenous people. In the following section I consider the attempts that have been made within Australia to deal with the issue and whether they reflect an understanding of the problem.

(2) Proposed Solutions in Australia


32. The solutions suggested in Australia may be classified into those grounded in common law, on the one hand, and those of a legislative nature, on the other.

(a) Common Law Alternatives


33. The two main non-legislative proposals for protecting indigenous intellectual property rights have been: (1) the introduction of a Mabo[43]-style claim, and; (2) the use of a breach of confidence action.

Mabo-style Claims


34. Gray states that:

[the] recognition by the Australian legal system of proprietary interests under customary law must logically imply recognition of those interests, which are inextricably woven, with those proprietary interests under Aboriginal law. To do otherwise would not be legally impossible if a rigid separation between real property law and intellectual property law were relied upon: but it would be illogical, and its effect would be to deny that measure of respect for Aboriginal customary law which a decision recognising Aboriginal proprietary interest in land at common law would confer.[44]

35. Though a pre-Mabo observation, Gray's statement has nevertheless, received post-Mabo affirmation from Puri who emphasises the proprietary nature of indigenous designs: they "represent the title deeds of Aboriginal land ownership".[45] Indigenous peoples regard intellectual and real property to be so intimately linked that no meaningful distinction can be made between the two.[46]


36. In Mabo the High Court held that where the relevant nexus to the land can be established, native title still subsists, irrespective of any changes to indigenous laws and customs over the years of Crown sovereignty.[47] Puri argues that this reasoning can be similarly applied to indigenous sacred objects, ceremonies or customs even if they have no basis in common law, provided they are consistent with basic common law principles.[48]


37. There are several problems inherent in a Mabo-style approach. Firstly, as most indigenous customary laws are orally passed on, there may be a lack of evidence in proving the existence and continuance of particular rules regulating the reproduction and use of folklore.[49]


38. Secondly, the Mabo case does not grant indigenous law much room in which to operate within the mainstream law. This would lead to a piecemeal approach for determining whether particular customary laws relating to folklore apply in a particular case. This is because the High Court decisions would need to be applied to each and every such customary law.[50]


39. Thirdly, one would need to determine whether there has been any legislative extinguishment (State or Federal) of customary law rights relating to the reproduction and use of folkloric works.[51] In this regard, the Australian Copyright Council (ACC) refers to section 31 of the Copyright Act of 1912 (Cth) which stated that: no person shall be entitled to copyright or any similar right in any literary, dramatic, musical or artistic work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act.[52]


40. One would thus have to determine whether the relevant customary laws conferred rights of copyright or any other similar right.[53]


41. Fourthly, it is unclear whether courts would enforce customary law if a case were brought on that basis, even if indigenous peoples adhered to such law and some non-indigenous people did so out of cultural sensitivity.[54]

Breach of Confidence


42. Gray proposes the equitable action of breach of confidence as an alternative framework for protecting indigenous folklore, particularly sacred designs.[55] The action has three main elements: (a) information of a confidential nature; (b) an obligation of confidence; and (c) unauthorised use of the information.[56]


43. With regard to the first element, the mere ability of the public to inspect a confidential document does not in itself suffice to eliminate the quality of confidentiality.[57] Applying this principle to indigenous art, one may then argue that the publication or public scrutiny of Aboriginal designs does not render the sacred information embodied in the designs any less confidential.


44. The design retains its quality of confidentiality as long as its secrets are known only to those authorised by Aboriginal law to know them.[58]


45. It is indigenous customary law that determines whether or not there has been a breach of confidence.[59] An analogy may be made with trade secrets law, whereby particular trade usage and practices determine existence or otherwise of a breach of confidence.[60] In Yumbulul, the mere public display of the Morning Star Pole in the museum did not negate the confidential nature of its sacred meaning, since that particular use was authorised under customary law. However, when the pole was reproduced in a manner that contravened indigenous law, the aspect of confidentiality was lost.[61]


46. It is not necessary for the recipient of the information to actually know that it is confidential in order for the second element to be satisfied.[62] The test for obligation of confidence is an objective one: was the information communicated in circumstances in which a reasonable person would know that the information is confidential?[63] Thus in Yumbulul it was not necessary for the agent to know that it was breaching indigenous customary law by allowing the reproduction of the pole on the banknote.


47. That amounts to an unauthorised use and what sort of detriment is suffered will depend on indigenous law, and not simply on what the individual artist purports.[64]


48. Gray sums up the main advantage of a breach of confidence action as follows:

[the] action possesses greater scope than any other legal remedy for taking into account Aboriginal law in making the decision, particularly as it is not restricted by the notion that only an individual artist can satisfy its requirements.[65]

49. Both the judicial approaches discussed above are significant in that they recognise the fundamental divergence in western and indigenous perceptions of property ownership. They represent an alternative protection mechanism that is willing to accept communal ownership and customary law as the basis for safeguarding indigenous heritage. However, such acceptance is only conditional on the discovery of a parallel rationale within western common law, and this unfortunately renders the approaches a piecemeal solution to the problem.[66] Consequently, legislative reform seemingly offers more appropriate measures to tackle the problem.

(b) Legislative Reform

Amending the Copyright Act


50. There is a general consensus amongst legal commentators that this would be an inappropriate measure. The 1981 Working Party on the Protection of Aboriginal Folklore noted the inadequacies of the Copyright Act, but rather than recommending an amendment of the statute, it advocated the enactment of sui generis legislation to address the deficiencies.[67]


51. The ACC has also noted several problems with this option:[68] (a) The conceptual and practical differences between copyright and indigenous customary law: copyright regulates property rights in the creations of individuals, whereas indigenous law prescribes cultural rights linked to communities; copyright ignores aspects of genres and styles and offers a host of exceptions to infringement which may be irrelevant to indigenous rights; copyright protects neither indigenous imagery nor knowledge of biodiversity. (b) Any attempt to merge the Copyright Act with the tenets of indigenous customary law would result in a core disturbance and comprise of both systems. (c) Under the Berne Convention, any copyright protection afforded to Australian citizens must be extended to nationals of other convention countries without a guarantee of reciprocal protection. Therefore amendments to the Copyright Act must be considered in light of Australia's obligations under international treaties.[69]


52. In my view, the A.C.C. and the Working Party were right to reject such an approach as it clearly does not address the fundamental problem of conflicting notions of property. It seeks an answer within Copyright law, thus focusing on the wrong discourse from which a solution ought to be derived. It is indigenous perceptions of property which ought to be understood and allowed to develop. Any attempts to mould western copyright law to accommodate indigenous notions of communal property would compromise the former and stifle the latter.

Domain Public Payant and Moral Rights Legislation


53. The doctrine of domain public payant allows the use of works that have entered the public domain in return for the payment of royalties.[70] Therefore indigenous folkloric works that are in the public domain would generate revenues for the indigenous owners. However, whilst such a system would sustain and promote indigenous culture, it would be ineffective as a means of regulating the use of culturally sensitive material.[71] This is because it could create the view that such folklore is available for general use, albeit for a fee.[72]


54. Moral rights are independent personal rights aimed at maintaining the integrity of the author's works.[73] The Australian Copyright Act as it presently stands does not offer much protection in the form of such rights. The only significant provisions in the statute in this respect are sections 189-195, which provide that works should not be attributed incorrectly to a person other than the artist or author.[74] There is however a proposal to redress the omission through the introduction of a right to attribution and a right of integrity in the Act.[75] The first is a right to be named as the author of the work, the second is a right to object to derogatory treatment of the work that is prejudicial to the author's honour or reputation.[76] The significance of moral rights to indigenous artists is that they would prevent the debasement, mutilation and destruction of indigenous folkloric works. They also have the advantage of being "perpetual, inalienable and imprescribtible," and even if the author dies they are exercised by his or her heirs irrespective of who owns the economic rights.[77]


55. Nevertheless, both the doctrine of domain public payant and moral rights suffer the same flaw that copyright does, that is, they are premised on a eurocentric tenet of the individual's right to private property and economic reward. The former is concerned primarily with ensuring a fair economic return rather than maintaining cultural integrity. The latter, though they give priority to the non-economic value of the works, only attach only to individual artists and disregard communal ownership.[78] Consequently, the scope of protection that they are able to offer is limited.

Amending Heritage Legislation


56. Heritage legislation in Australia tends to exhibit a serious lack of uniformity between State, Commonwealth and Territory levels. This is due to the fact that all the three levels of government have power to legislate in regard to cultural heritage.[79] One of the principal concerns that indigenous people have about heritage legislation is that it does not allow them to be the legal owners of their heritage. This is because it construes indigenous cultural heritage as part of the wider Australian cultural heritage, to which no particular group of people should have a monopoly.[80] A good example is the Queensland Cultural Record Act 1987 which makes no distinction between indigenous heritage and other heritage in Queensland.[81] Victorian legislation on the other hand does recognise the right of indigenous people to own and control their own heritage.[82]


57. In regards to folklore in particular it has been suggested that the 1984 Aboriginal and Torres Strait Islander Heritage Act (Cth) be extended to cover indigenous folkloric works, as was done in the State of Victoria. [83] At present the Act generally protects sacred indigenous sites remains and objects. However, in Victoria the statute's ambit is widened to cover "Aboriginal cultural property", which includes "Aboriginal folklore".[84] The latter expression is defined as "traditions or oral histories that are or have been part of, or connected with, the cultural life of Aboriginals (including songs, ritual ceremonies, dances, art, customs and spiritual beliefs) and that are of particular significance to Aboriginals in accordance with Aboriginal tradition."[85]


58. The effectiveness of the Victorian legislation vis-à-vis folklore is, however, open to doubt. Though the statute includes folklore as part of the cultural property to be protected, it nevertheless focuses almost exclusively on the protection of tangible property such as areas, sites and objects.[86] This indicates a distinction made by western legal systems between tangible and intangible cultural property, a difference that finds no equivalent in indigenous cultures. To the latter, all manifestations of culture, be they tangible or otherwise, are defined as heritage and cannot be separated as they are central to the group's identity.[87]


59. Colvan recommends three major amendments to the federal statute:[88]
    
    1. A provision protecting, in addition to presently protected aspects of folklore, artistic works (as defined under copyright legislation) and designs of traditional significance to indigenous people.
    2. A provision for national operation of the scheme of protection under the Act, including a national listing of "local aboriginal communities".
    3. The availability of a civil cause of action akin to copyright to local aboriginal communities, which would help prevent unauthorised reproduction or adaptation of artistic works or designs of traditional Aboriginal significance.


60. He further advocates the exclusion of any form of time limitation as that found in copyright legislation.[89]


61. The possibility of amending heritage legislation to accommodate indigenous intellectual property rights has also been acknowledged in the Stopping The Rip Offs Paper[90] and by the ACC.[91] However, the latter refers to the Evatt Review[92] which noted several administrative and procedural problems that indigenous people have experienced generally with the heritage legislation. These include:
    
    1. Unclear procedures under the Act;
    2. Confusing interaction between Commonwealth, State and Territory laws;
    3. Substantial delays;
    4. Long consultation periods, but few emergency or interim protection orders;
    5. Legal challenges to Minister's decisions;
    6. Intensive scrutiny of indigenous religious beliefs coupled with a limited respect for their confidential aspects;
    7. Insufficient involvement of indigenous people in the process;
    8. Minister has the ultimate discretion on the granting of protection orders and this may prove unacceptable to Indigenous people should the Act be extended to regulate indigenous intellectual property rights.


62. Duri also expresses reservations with ability of the Act, which he regards as "administratively cumbersome", to overcome the deficiencies of the Copyright Act.[93]

Authentication marks


63. The use of a certification or authentication mark to protect indigenous art has been proposed by Marianna Annas, who observes that is appropriation of the works of indigenous artists has now become uncontrollably extensive, the establishment of a national labelling system is a fundamental cultural necessity.[94]


64. However, as Annas concedes the label of authenticity is not intended to make up for the inadequacies of the Copyright Act. It is primarily a marketing device aimed at deterring passing off and misleading and deceptive conduct relating to indigenous art and ensuring the proper remuneration of indigenous people involved in the creation of such art.[95]

Special Sui Generis Legislation


65. The 1981 Report of the Working Party on the Protection of Indigenous Folklore[96] recommended the development of a special scheme of protective legislation that would incorporate:[97]
    
    1. a prohibition on non-traditional uses of sacred-secret materials;
    2. prohibitions on debasing, mutilating and destructive use of folklore;
    3. payments to traditional owners of folklore items used for commercial purposes
    4. development of a system of clearances for prospective users of folklore;
    5. establishment of an Aboriginal Folklore Board to advise the Minister on policy issues;
    6. establishment of a Commissioner for Aboriginal Folklore to issue clearances and negotiate payments.


66. Infortunately the Working Party's recommendations are yet to receive any executive implementation. However, as I shall detail in Part C, I consider a sui generis legislation to be a key element of any framework to protect indigenous heritage.

(3) Key International Attempts to Protect Folklore


67. There have been various international efforts to address the inadequacies of intellectual property in the protection of folklore, but these do not seem to have affected the status quo significantly. One of the earlier international attempts to deal with the problem was the 1967 Diplomatic Conference of Stockholm, which was convened for the purpose of revising the Berne Convention to protect expressions of folklore through copyright law.[98] The conference resulted in the insertion of Article 15(4) in the Berne Convention. The Article provides for the protection of the unpublished works of unknown authors presumed to be citizens of Convention members.[99] In such situations the presumed country of citizenship may by legislation designate a "competent authority" to represent the author and protect his or her rights.[100] The designation is then to be communicated to the Director-General of WIPO. Unfortunately, as recently as 1995, WIPO had yet to receive any designation under Article 15(4). In my opinion, the provision would clearly be inadequate to protect indigenous folklore. This is because it does not address itself specifically to that particular subject matter and would therefore fail to acknowledge the fundamental conflict between western and indigenous notions of property responsible for the problem in the first place.


68. UNESCO and WIPO have also fostered some major developments in the protection of folklore, the most notable being the 1976 Tunis Model Law on Copyright for Developing Countries and the 1985 Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. Both instruments eventuated from a concern expressed by developing nations about the appropriation and exploitation of their national cultural heritage by the institutions and governments of the industrialised nations. They recognise the inadequacies of conventional copyright laws vis-à-vis the protection of folklore. The Tunis Model Law, however, attempts to resolve the deficiencies by widening the ambit of copyright law to accommodate the special features of folklore. Specifically, it provides for three main forms of protection not available under standard copyright systems:[101] (a) exclusion of a time limitation for protection; (b) exemption of folkloric works from the requirement of fixation; and (c) introduction of moral rights to prevent the destruction and desecration of folkloric works.


69. The Tunis Model Law reflects a basic realisation that the nature of folklore poses special problems for standard copyright laws. It acknowledges the on-going or "living" nature of folklore; the oral and visual form of many folkloric works; and the non-economic significance of such works.


70. The Model Provisions, on the other hand, represent a protection mechanism lying outside copyright laws, that is, sui generis protection, hence the use of the term "expressions of folklore" as opposed to "works of folklore".[102] This may also explain why the instrument lacks specific provisions on copyright deficiencies similar to those provided for in the Tunis Model Law. Protection under the Model Provisions takes the form of, [103]
    
    1. a prohibition on the unauthorised use of expressions of folklore;
    2. a prohibition on misrepresentation of the source of expressions of folklore;
    3. a prohibition on the wilful distortion of folklore in a way prejudicial to the interests of the relevant community;
    4. a provision for international extension of protection based on reciprocity.


71. Both UNESCO-WIPO models provide for a "competent authority"[104] to regulate the use of works or expressions of folklore as the case maybe.[105] The designation of such an authority is left up to individual national governments on the grounds that the ownership of folklore may be regulated in different ways in different countries: who should be entitled to authorize the utilization of expressions of folklore depends very much on the situation as regards ownership of them and necessarily varies according to different legislations on the subject.[106]


72. Whilst the respect for national sovereignty on this issue is understandable, I would nevertheless contend that it still leaves room for national governments to sideline indigenous communities on issues of crucial importance to them. For example, one of the problems identified with the Australian Aboriginal heritage legislation by the Evatt Review was the insufficient incorporation of indigenous people in the decision making process and the wide ministerial discretion over important indigenous issues.


73. The latest initiative from UNESCO and WIPO was the World Forum on the Protection of Folklore[107] which was attended by 180 participants from 50 countries. The participants noted the lack of an international standard for the protection of folklore and also the inadequacy of the copyright regime to confer such protection.[108] Of crucial importance was the need to strike a balance between the interests of the communities owning the folklore and the users of the expressions of folklore.[109] In particular the following actions were recommended in the Forum's Plan of Action:[110]
    
    1. the establishment of a Committee of Experts in cooperation with UNESCO to look into the conservation and protection of folklore;
    2. the holding of regional consultative fora;
    3. the drafting of a new international agreement on the sui generis protection of folklore by the Committee of Experts by the second quarter of 1998.


74. Whilst the Forum was an important step in the international debate on the protection of folklore, it is disheartening to note the reluctance of key participants such as the United States and the United Kingdom to associate themselves with the plan of action. This is a clear indication of the insensitivity that western regimes exhibit towards indigenous concerns. It is this arrogant eurocentricity that threatens to erode indigenous cultures around the world.


75. Indigenous peoples have also consulted with each other on an international level to discuss the protection of their folklore. One of the most important indigenous conventions was the 1993 First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples held in Aotearoa, New Zealand. The major outcome of the conference was the Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, which emphasised the right of indigenous peoples to self-determination and their status as "exclusive owners of their cultural and intellectual property".[111]


76. Amongst the key recommendations to indigenous people are that they should:
    
    1. define for themselves their own intellectual and cultural property;[112]
    2. develop a code of ethics which external users must observe when recording (visual, audio, written) their traditional and customary knowledge;[113]
    3. develop and maintain their traditional practices and sanctions for the protection, preservation and revitalisation of their traditional intellectual and cultural properties;[114]
    4. establish an appropriate body with appropriate mechanisms to:
       
       1. preserve and monitor the commercialism or otherwise of indigenous cultural properties in the public domain;
       2. generally advise and encourage indigenous peoples to take steps to protect their cultural heritage;
       3. allow a mandatory consultative process with respect to any new legislation affecting indigenous peoples cultural and intellectual property rights [115]
       
       
    5. establish international indigenous information centres and networks.[116]


77. States, national and international agencies are asked to; (i) recognise that indigenous peoples are the guardians of their customary knowledge and have the right to protect and control the dissemination of that knowledge;[117] (ii) note that existing protection mechanisms are insufficient for the protection of indigenous peoples' cultural and intellectual property rights;[118] (iv) accept that the cultural and intellectual property rights of indigenous peoples are vested with those who created them;[119] (v) develop in full co-operation with indigenous peoples an additional cultural and intellectual property rights regime incorporating the following:[120] (a) collective (as well as individual) ownership and origin; (b) retroactive coverage of historical as well as contemporary works; (c) protection against debasement of culturally significant items (d) co-operative rather than competitive framework; (e) first beneficiaries to be the direct descendants of the traditional guardians of that knowledge; (f) multi-generational coverage span.


78. In my view, though the declaration is not a legally binding instrument, it is nevertheless of great significance to governments seeking to protect the folklore of their indigenous communities. This is because it identifies the issues that should form the basis for any serious attempt to confer such protection. It is representative of an alternative discourse, which I have argued ought to be incorporated in any intellectual property regimes formulated to protect indigenous heritage.

The Protection of Indigenous Knowledge


79. Indigenous peoples are deeply concerned with and offended by the way western governments and institutions use modern patent regimes to appropriate and exploit indigenous knowledge and resources with little or no regard for indigenous peoples' interests. They regard patent laws as a new form of colonialism and a means of achieving monopoly control over indigenous knowledge and resources to the detriment of indigenous people.[121] These laws, being solely concerned with economic profits, ignore the contributions of indigenous people and the inter-relationships that they have with their knowledge, genetic resources and the environment.[122] This trend of exploitation of indigenous peoples' knowledge using modern intellectual property regimes has been labelled as "biopiracy".


80. The use of intellectual property regimes to legitimise the exclusive ownership and control of biological resources and knowledge, without recognition, reward or protection for the contributions of informal innovators.[123]


81. RAFI warns that the monopoly benefits acquired through acts of biopiracy pose a serious threat to global food security and to the conservation and sustainable use of biological diversity, and also threaten to further marginalise the world's poor.[124] A prominent example of biopiracy is the granting of a patent to Agracetus Inc, a subsidiary of W.R. Grace Corporation, for all "transgenic" cotton varieties by the US Government in 1992.[125] The patent was however revoked in 1994 due to public pressure and a legal challenge from the US Department of Agriculture. The effect of the patent would have been to bar any genetically engineered cotton from the market-place without the permission and payment of royalties to W.R. Grace.[126] Though the Company was willing to license the payment, the "licensing fees and royalties could [have been] prohibitive for many scientists, and could [have restricted] research and innovation to a handful of corporations."[127] W.R. Grace also successfully applied for a European patent on all transgenic soybeans, a development that has been labelled as a "threat to world food security" and as "economic high jacking".[128] In Australia, the Western Australian government has licensed Amrad, a pharmaceutical company, to develop an anti-AIDS drug from the Smoke-bush plant, which was traditionally used by Aboriginal peoples for medicinal purposes. Amrad has obtained a global license to develop the patent from the United States National Cancer Institute. Should the project be successful, the WA government will receive royalties in excess of $100 million by the year 2002. No provisions, however, has been made for any remuneration of the Aboriginal people who first discovered the medicinal properties of the drug.[129]


82. The difficulties that indigenous peoples have with the patent regime arise, firstly, from meeting the requisite conditions for patent protection, and secondly, from the costs of registering and maintaining patents. Underlying the first problem is divergence in western and indigenous notions of property rights and their function.

(1) Conditions For Patent Protection


83. Section 18 of the Australian Patents Act 1990 (Cth) set outs five requirements for a patentable invention, of which the most relevant to indigenous knowledge are:
    
    1. a manner of manufacture;
    2. novelty and
    3. an inventive step. [130]

(a) Manner of manufacture


84. For an invention to be patentable it must be a product or process produced or achieved by following specific instructions. Therefore mere discoveries, mental processes or information are not in themselves patentable.[131] For them to be they must be translated into something new and useful.[132] What this means for indigenous people is that: "the mere existence of genetic resources on land [they own] or formerly owned will not give [them] any intellectual property rights in these resources, should they turn out to have some scientific or commercial value. In order to gain protection or to prevent others from gaining it, the indigenous people would have to 'discover' the resources, and put them to a new use with commercial significance".[133]

(b) Novelty


85. The novelty of an invention is usually considered having regard to the prior art base.[134] There is a presumption of novelty under s.7(1) of the Patents Act which may be rebutted by showing that the prior art information was contained in a publicly available document or documents, or was made publicly available through doing an act or acts. For indigenous peoples opposed to a patent application the problem would be proving, firstly, that their prior use of the knowledge or resource under patent application constitutes prior art information, and secondly, that the dissemination of the traditional knowledge to members of the indigenous community constitutes making the information publicly available.[135] Indigenous groups wishing to obtain patents over their indigenous knowledge face the problem that much of it has been documented by researchers hence incorporating it into the public domain.[136]

(c) Inventive step


86. Like novelty the requirement of an inventive step is determined by making a comparison with the prior art base. There is a presumption of inventiveness under s.7(2) of the Patents Act which can be rebutted by showing that "the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date." The problem that indigenous people would have is establishing that because of the traditional knowledge that existed, the scientific or commercial use to which the knowledge has been put to is obvious therefore uninventive.[137] Legal issues would arise as to what the "relevant art" is for the purposes of s.7(2) and as to whether indigenous traditional knowledge forms part of the "common general knowledge" in that art.[138]


87. In my opinion the requirements under the Patent Act are clearly aimed primarily at facilitating economic exploitation of inventions, the rationale being that this promotes innovation and research. These requirements are at odds with the indigenous view that their genetic resources, land and knowledge of these resources constitute communal property, which is incapable of being individually owned. The indigenous notion of communal property focuses on maintaining and developing communal identity, rather than facilitating individual economic gain.

(2) Costs of Registering and Maintaining Patents


88. Even where indigenous peoples are able to satisfy the elements of patentability they still face the prohibitive costs of registering, maintaining and defending the patents. Estimates of registering patents in Australia are put at about $14000 and between $5000 and $23,000 in other countries.[139] The size of these amounts effectively prevents indigenous people from lodging applications, or at the very least limits the number of patents that can be applied for.


89. The financial costs involved in maintaining and defending patents may also present a formidable barrier to effective protection of indigenous knowledge. Patents must be maintained throughout their life, otherwise they lapse. The cost of maintenance may be as much as $250,000 over the life of the patent. The cost of monitoring and defending the patent against infringement is usually much higher, particularly when international patents are concerned.[140]


90. For a patent holder to fully commercially exploit a patent they must have the ability to license it out to others. Determining the fairest or most beneficial licensing proposals calls for a lot of skill and judgement. Most corporate patent holders have access to specialised legal and other advice. Indigenous communities on the other hand do not usually have the financial resources to recruit such advice and are thus poorly equipped to determine the fairest proposals.[141]

(3) International Fora on the Protection of Indigenous Knowledge


91. Blakeney outlines a number of international conventions and indigenous peoples' declarations which have acknowledged the need for the protection of traditional indigenous knowledge.[142] The underlying motivations for seeking protection differ between the various fora. International conventions, such as the Rio Earth Summit[143] and the 1991 ILO Convention No. 169[144] consider the protection of indigenous knowledge an essential component of the greater concern for global ecological sustainability. Indigenous peoples' declarations on the other hand, perceive the protection of their knowledge as a fundamental constituent of their ultimate right to self-determination. Nevertheless, regardless of the underlying rationales, there is no doubt that the protection of indigenous knowledge has become an issue of universal significance.


92. The international conventions recognise the right of indigenous peoples to participate in the management and conservation of their environment.[145] They urge governments to respect, maintain and promote indigenous knowledge; to actively involve indigenous people in the formulation of laws and policies dealing with resource management; and to ensure equitable sharing with indigenous peoples of the economic benefits flowing from the exploitation of their knowledge.[146]


93. The indigenous declarations and statements assert the right of indigenous peoples to self-determination, pursuant to which there must be recognition and protection of their right to control and benefit from their indigenous knowledge, practices and innovations.

[147] These instruments condemn the biased nature of the prevailing intellectual property regimes and propose various measures to redress the problem. The basic theme embodied in the proposed measures is allowing indigenous people greater control of their intellectual as well as physical resources. For example, the Maatatua Declaration calls for,
1. the vesting of commercial exploitation of traditional plants and medicines in the hands of indigenous owners.[148]
2. a moratorium on further commercial exploitation of indigenous plants and human genetic materials until adequate protection mechanisms are in place.[149]
3. consent by indigenous peoples prior to experiments with and commercialisation of their biogenetic resources by companies and institutions.[150]


94. The COICA Statement recommends,[151]
    
    1. the setting up of "an indigenous programme for the collection, use and protection of biological resources and knowledge";
    2. the training of indigenous leaders in aspects of intellectual property and biodiversity;
    3. the formulation of a "Legal Protocol of Indigenous Law on the use and community knowledge of biological resources"; and
    4. the development of a strategy for the dissemination of the Legal Protocol at national and international level.
    
    
95. In my view the greatest significance of the international fora lies essentially in their norm-setting function. Whereas of the conventions only the Convention on Biological Diversity has legal force in Australia, it is arguable that the all the instruments considered in toto are part of current international law which Australia cannot afford to ignore.


96. Together these instruments represent important manifestations of current international thinking on the subject of the rights of indigenous peoples and Australia, as part of the international community has actively contributed in several international forums to the development of the views, ideas and ideals expressed in these instruments. Moreover, to the extent that certain common themes appear in these instruments, they reinforce each other and inevitably have the effect of exerting greater pressure upon governments to implement the obligations contained therein.[152]


97. The indigenous declarations and statements articulate specific issues that need to be addressed and propose measures aimed at securing effective protection of indigenous heritage.


98. These instruments therefore indicate the basics of a framework in which current intellectual property regimes can be expanded to embrace indigenous discourse or in which an alternative and separate legal regime can be established that is based primarily on the demands of indigenous world view.

Framework for a Proposed Solution


99. In this part of my discussion I outline a basic framework for the protection of indigenous people's heritage, based on the inadequacies of the copyright and patent laws noted above. I propose a three-pronged approach involving:
    
    1. the enactment of sui generis legislation;
    2. the development of protocols and guidelines; and
    3. an education and awareness campaign.

(1) Sui Generis Legislation


100. I favour a sui generis protective mechanism because, as I see it, the problem is the fundamental clash in world-views. Any attempts to mould existing copyright or patent laws to accommodate the idiosyncrasy of indigenous intellectual property may, as the ACC has noted,[153] result in an unsatisfactory compromise of both systems. However, this not to say that the current western-based systems should not apply where the relevant criteria is met. A sui generis legislation would allow the law-makers to deal with the problem much more comprehensively, while at the same time avoiding the need for major overhaul of current regimes. Such legislation would also give cognisance to the fact that what is being dealt with is a new legal concept with a previously unacknowledged rationale, in much the same way that native title has altered the real property landscape.


101. With respect to the contents of the legislation, it might stipulate the following:


• A provision that the nature of indigenous intellectual property is to be defined by and in accordance with indigenous customary law;[154]


• A provision recognising the perpetual duration of indigenous folklore and knowledge;[155]


• Exemptions of folklore from the requirements of originality and material form;


• Provisions on moral rights of attribution to indigenous communities (as opposed to merely individual artists) and of integrity vesting in traditional custodians of folklore;[156]


• A prohibition on the ownership of patent or copyright in indigenous heritage by non-indigenous persons or corporations without the prior informed consent of affected indigenous communities.[157]


• A right of recognition and protection of indigenous peoples' contribution to patentable inventions; for example, during the patent examination stage a question should be included as to whether the identification or discovery of the invention involved indigenous knowledge or resources. If it did then the prior informed consent of the indigenous community(ies) should be a condition precedent of patent registration.[158]


• A provision for a right of civil action against infringers of indigenous intellectual property rights, pursuant to which a judicial or administrative enforcement structure should be set up.[159]


• Provisions detailing the persons or bodies empowered to authorise the commercial use of indigenous folklore and knowledge within a particular indigenous group, for example, indigenous land councils, arts and craft centres and so on;[160]


• Establishment of a collecting agency to allow indigenous communities to charges fees for non-customary and commercial uses of heritage.[161]

(a) Protocols and Guidelines

102. In addition to specific legislation all parties ought to develop ethical guidelines which recognise and promote the right of indigenous peoples to own and control their own heritage. A good example of the sort of guidelines appropriate for this purpose are those formulated by Daes in her Final Report.[162] Governments, international organisations and private institutions ought to support the development of educational, research and training centres which are controlled by indigenous communities.[163] They should also support the development of regional and global fora focusing on indigenous science, culture, education and the arts and provide financial and institutional support for indigenous initiatives.[164]


103. Researchers and academic institutions should also develop policy guidelines dealing with, among other issues, the acquisition or holding of items of indigenous heritage; the study of previously undescribed flora and fauna obtained with the consent of traditional owners; increased access for indigenous peoples to all forms of medical, scientific and technical education that might affect them.[165]


104. Business and industry should not offer incentives to individuals to assert claims to heritage which violate indigenous customary law. They should financially assist in the development of research and educational institutions controlled by indigenous communities.[166]


105. Artists, writers and performers should desist from unauthorised incorporation of indigenous heritage in their own works. Instead they should support the artistic and cultural development of indigenous peoples and participate in public awareness campaigns to promote indigenous art and culture.[167]


106. In Australia various entities, such as museums,[168] indigenous groups,[169] and government departments[170] have developed comprehensive policy documents relating to indigenous heritage.

(b) Education and Public Awareness


107. The protection of indigenous heritage must be accompanied by public awareness and education campaigns, which promote a greater public understanding of indigenous culture and reduce the incidence of appropriation of heritage and violation of customary law. Such campaigns may take the form of articles in school curricula and textbooks, films on indigenous issues, signs regarding museum exhibitions of indigenous art, labels on indigenous books and music, and so on.[171]


108. Education programs should also be directed at indigenous people themselves to acquaint them with the rights and remedies available to them vis-a-viz their heritage. That such education is needed was made evident in the submissions to the Stopping the Ripoffs Issues Paper, which revealed that many indigenous people do not comprehend copyright.[172]

Conclusion


109. The issues discussed in this article highlight one crucial point: an attempt to protect indigenous folkloric works and traditional knowledge within existing intellectual property law systems is akin to fitting a square peg in a round hole. The problem stems fundamentally from a clash of social paradigms, a western world-view on the one hand, and an indigenous discourse on the other. The former underlies a dominant social and economic order, which has afforded little accommodation to the principles espoused by the latter. The tenets of individualism and economic value that are central to eurocentric thought and legal order are alien to indigenous peoples, who embrace a holistic attitude to life and nature. For indigenous people, human entitlements to the physical and metaphysical phenomena around us are more a matter of privilege and responsibility, than absolute rights. It is the relationships with such phenomena that define human identity.


110. Indigenous peoples regard all products of the human mind and heart as inter-related, and as flowing from the same source: the relationships between the people and their land, their kinship with the other living creatures that share the land, and with the spirit world. Since the ultimate source of knowledge and creativity is the land itself, all of the art and science of a specific people are manifestations of the same underlying relationships, and can be considered as manifestations of the people as a whole.[173]


111. It is this understanding that should inform the dominant social order vis-a-vis any attempts to accommodate the interests of indigenous peoples in the legal system. It is suggested here that the most suitable means of addressing the problem is through the enactment of sui generis legislation, which recognises indigenous intellectual property rights as a distinct and separate group of rights from copyright and patent regimes, though there may be similarities. The legislative action must be reinforced by effective policy guidelines and protocols, as well as educational campaigns that promote recognition of the right of indigenous peoples to own and benefit from their own cultural heritage.

Notes

[1] Daes, Erica-Irene, Discrimination Against Indigenous Peoples: Protection of the Heritage of Indigenous People, Final Report, United Nations Economic and Social Council, E/CN.4/Sub.2/1995/26, 21 June 1995, p 10, paras 11 & 12.

[2] ATSIC, National Aboriginal and Torres Strait Islander Cultural Industry Strategy, prepared by Focus with assistance from Sharon Boil & Associates, February 1997, cited in Terri Janke, Our Culture, Our Future: Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, (Surry Hills, NSW: Michael Frankel & Company, Solicitors, 1997), at 26.

[3] Puri, Kamal, "Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action" (1995) Intellectual Property Journal, 293, at 310.

[4] Australian Copyright Council, Protecting Indigenous Intellectual Property: A Copyright Perspective (March, 1997), at 38.

[5] Above.

[6] Puri, above note 3.

[7] Above.

[8] Tim Johns, "Reappropriation", in Sue Cramer (ed), Postmodernism: A Consideration of the Appropriation of Aboriginal Imagery, Forum Papers (1989), at 9, cited in Australian Copyright Council, above note 4.

[9] Australian Copyright Council, above note 4, at 43.

[10] Golvan, Colin, "Aboriginal Art and the Protection of Indigenous Cultural Rights", (1992) 7 European Intellectual Property Review, 227, at 230.

[11] Golvan, above; Puri, above, note 3, at 308.

[12] [1991] FCA 332; (1991) 21 IPR 481.

[13] Above, at 490.

[14] [1994] FCA 975; (1994) 30 IPR 209.

[15] Above, at 239.

[16] Puri, above note 3, at 311.

[17] Sims, Charlotte, "Aboriginal Intellectual Property Rights - A Culture Needing Protection", (Unpublished Masters Paper, Murdoch University, 1997), at 7.

[18] Puri, above note 3, at 313; Sims, above.

[19] Sims, above note 17.

[20] Attorney General's Department, WIPO-Australia Copyright Program for Asia and the Pacific (Canberra: AGPS, 1987), 222, cited in Sims, above note 17.

[21] Puri, above note 3, at 314; Australian Copyright Council, above note 4, at 40)

[22] Gray, Stephen, "Aboriginal Designs and Copyright: Can the Australian Common Law expand to meet Aboriginal Demands?", (1991) 9 (4) Copyright Reporter, 8, at 15.

[23] He refers to Bulun Bulun v Nejlam Pty Ltd, Federal Court of Darwin, unreported, 1989, and Yumbulul, above note 12. Originality of artworks has not been a disputed issue in subsequent cases.

[24] Above, note 22.

[25] Above.

[26] Above.

[27] Puri, above note 3, at 315.

[28] Above.

[29] Above.

[30] Gray, above note 22

[31] Puri, above note 27.

[32] Puri, above note 2, at 316.

[33] Janke, Terri, Principal Consultant, Michael Frankel & Company Solicitors, Our Culture, Our Future: Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, (Sydney: Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997), at 42.

[34] Above, at 42.

[35] UNESCO & WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Actions, (1985), at 5.

[36] Puri, above note 3, at 318.

[37] Above.

[38] Australian Copyright Council, above note 4, at 41.

[39] Above.

[40] Above.

[41] Puri, above note 3, at 319.

[42] Per French J, at 492, cited in Puri, above, at 319-20, and Australian Copyright Council, above note 4, at 42.

[43] Mabo Fors v State of Queensland [1992] HCA 23; (1992) 175 CLR 1.

[44] Gray, above note 22, at 14.

[45] Puri, above note 3, at 323.

[46] Puri, above; Gray, above note 22, at 12.

[47] Above note 43, at 29, referred to in Puri, above note 3, at 324.

[48] Puri above.

[49] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31 (Canberra: AGPS, 1986), referred to in Australian Copyright Council, above note 4, at 57.

[50] Australian Copyright Council above.

[51] Above.

[52] Above.

[53] Above.

[54] Above.

[55] Gray, above note 22, at 16.

[56] Coco v Clark (1969) RPC 41 (Ch).

[57] Gray, above note 22, at 18.

[58] Above, at 19.

[59] Above.

[60] Above.

[61] Gray above note 58.

[62] Above note 56, at 48.

[63] Above.

[64] Foster v Mountford (1977) 14 ALR 71.

[65] Above, note 22, at 20.

[66] Australian Copyright Council, above note 4, at 59.

[67] Puri, above note 3, at 326-27.

[68] Australian Copyright Council, above note 4, at 60.

[69] On this particular point the Council referred to the Attorney - General's Department Issues Paper, Stopping The Rip-Offs - Intellectual Property Protection for Aboriginal and Torres Strait Islanders, (Canberra: AGPS, 1994), at 7.

[70] Australian Copyright Council, above note 4, at 61; Puri, above note 3, at 335.

[71] ACC, above, at 61.

[72] Above.

[73] Gray, above note 22, at 16.

[74] Puri, above note 3, at 332.

[75] Attorney - General's Department, above note 69, at 4.

[76] Above.

[77] Puri, above note 3, at 334.

[78] Gray, above note 73.

[79]Our Culture, Our Future, above note 33, at 48.

[80] Above, at 49.

[81] Above.

[82] Preamble to the Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987, see Our Culture, Our Future, above at 49.

[83] Golvan, above note 10, at 230-33.

[84] Above, at 231.

[85] Section 21A of the Act, referred to in Golvan, above.

[86] Our Culture, Our Future, above note 33, at 50.

[87] Above.

[88] Golvan, above note 10.

[89] Above.

[90] Above note 69, at 8.

[91] Above note 4, at 62.

[92] Hon. Elizabeth Evatt AC, "Review of the Aboriginal and Torres Strait Islander Heritage Act 1984", referred to in Australian Copyright Council, above note 4, at 36-37, and at 62-63.

[93] Above, note 3, at 321.

[94] Annas, M., "The Label of Authenticity: A Certification Trade Mark for Goods and Services of Indigenous Origin", [1997] AboriginalLawB 20; (1997) 3 (90) Aboriginal Law Bulletin, 4.

[95] Annas, above, at 5.

[96] Department of Home Affairs and Environment, Report of the Working Party on the Protection of Aboriginal Folklore (Canberra: AGPS, 1981).

[97] Above, at 4, referred to in Stopping the Rip-Offs, above note 69, at 8, and in Puri, above note 3, at 327.

[98] See the "Introductory Observations" of the Model Provisions, above note 35, para 9.

[99] Above.

[100] Above.

[101] See, commentary in Stopping the Rip-Offs, above note 69, at 12.

[102] Model Provisions, above note 35, para 32.

[103] Australian Copyright Council, above note 4, at 48.

[104] And also a "supervisory authority" in the case of the Model Provisions.

[105] Section 6(3) of the Tunis Model Law and section 9 of the Model Provisions.

[106] Commentary on the Model Provisions, para 49.

[107] Held in Phuket, Thailand from April 8-10, 1997

[108] see note in Industrial Property and Copyright: Monthly Review of the World Intellectual Property Organisation, No. 6 June 1997, at 213 -214.

[109] Above, at 214.

[110] Above.

[111] Preamble, Maatatua Declaration.

[112] Article 1.1.

[113] Article 1.3.

[114] Article 1.6.

[115] Article 1.8.

[116] Article 1.9.

[117] Article 2.1.

[118] Article 2.3.

[119] Article 2.4.

[120] Article 2.5.

[121] Statement by the Asian Consultation Workshop on the Protection of Indigenous Knowledge, (TVRC Tambunan, Sabah East Malaysia, 24 - 25 February 1995).

[122] Above.

[123] "Introduction", An Overview to Biopiracy, Discussion Paper prepared by the Rural Advancement Foundation International (RAFI) for the South Pacific Consultation on Indigenous Peoples' Knowledge and Intellectual Property Rights, (Suva, Fiji, April 24-27, 1995).

[124] "Biopiracy Case Studies", An Overview to Biopiracy, above.

[125] Bio-Piracy Case Study #5, An Overview of Biopiracy, above note 123.

[126] Above.

[127] Above.

[128] Above.

[129] Blakeney, Michael, "Bioprospecting and the Protection of Traditional Medical Knowledge of Indigenous Peoples: An Australian Perspective", (1997) 6 European Intellectual Property Reports, at 298.

[130] Gray, Stephen, "Vampires Round the Campfire: Indigenous Intellectual Property Rights and Patent Laws", (1997) 22 Alternative Law Journal 61.

[131] Christie J, Biodiversity and Intellectual property Rights: Implications for Indigenous Peoples', note 1 and 5 of Gray, above, at 61.

[132] National Research Development Corporation v Commissioner of Patents [1959] HCA 67; (1990) 102 CLR 252 cited in Gray above.

[133] Gray, above at 61.

[134] Section 18 (1) (b) of Patents Act 1990 (Cth)

[135] Gray, above, at 62.

[136] Our Culture, Our Future, above note 33, at 45

[137] Gray, above at 62.

[138] Above.

[139] Our Culture, Our Future, above note 33, at 46.

[140] Above.

[141] Above.

[142] Blakeney, Michael, "Bioprospecting and the Protection of Traditional Medical Knowledge of Indigenous Peoples: An Australian Perspective", (1997) 6 European Intellectual Property Reporter, 298, at 300-303.

[143] Earth Summit , convened in Rio De Janeiro, Brazil in 1992 by the United Nations Conference on Environment and Development (UNCED).

[144] International Labour Organisation, Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries.

[145] Article 15 of the ILO Convention No. 169; Principle 22 of the Rio Declaration on Environment and Development and Chapter 26 of Agenda 21 both proclaimed at the 1992 Rio Earth Summit; Article 8(j) of the Convention on Biological Diversity, see Blakeney, above, at 300.

[146] Above.

[147] For a more detailed discussion of the various instruments see Blakeney, above, at 301 - 302.

[148] Article 2.7, see Blakeney above note 147, at 301.

[149] Article 2.8, Blakeney above.

[150] Article 2.9, Blakeney above, at 302.

[151] Blakeney above.

[152] Department of the Prime Minister and Cabinet, Office of the Chief Scientist, Access to Australia's Biological Resources, (Canberra: AGPS, March 1994), at 31, quoted in Blakeney, above, at 303.

[153] Australian Copyright Council, above note 68.

[154] Our Culture, Our Future, above note 33, at 71.

[155] Above.

[156] Above, at 62.

[157] Daes, Erica-Irene, UN Special Rapporteur, Protection of the Heritage of Indigenous People, Final Report, E/CN.4/Sub.2/1994/26, 21 June 1995.

[158]Our Culture, Our Future, above, at 64.

[159] Above.

[160] Above, at 73.

[161] Above.

[162] Above, note 162, at 10 - 15.

[163] Above, at 10-11.

[164] Above, at 11.

[165] Above, at 12.

[166] Above, at 13.

[167] Above, at 14.

[168] Council of Australian Museums Associations, Previous Possessions: New Obligations: Policies for Museums in Australia and Aboriginal and Torres Strait Islander Peoples, 1993.

[169] ATSIC, Draft National Policy for the Return of Aboriginal and Torres Strait Islander Cultural Property, 1993.

[170] Aboriginal and Torres Strait Islander Arts Board, National Aboriginal and Torres Strait Islander Arts Policy Priorities.

[171] Daes, above note 157, at 14; Our Culture, Our Future, above note 33, at 91.

[172]Our Culture, Our Future, at 91.

[173] Daes, Erica-Irene, Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, above note 157, at 7-8.