Chapter 11 - Indigenous cultural and intellectual property rights
This chapter discusses issues relating to Indigenous cultural and
intellectual property (ICIP) rights and Indigenous communal moral rights
(ICMR). Evidence to the inquiry has suggested that current intellectual
property laws and moral rights legislation may not provide adequate protection
of Indigenous cultural and intellectual property and Indigenous communal moral
'Intellectual property' is an umbrella term for various legal entitlements
which attach to certain names, written and recorded media, and inventions. The
holders of these legal entitlements are generally entitled to exercise various
exclusive rights in relation to the subject matter of the intellectual
property. Intellectual property can be an invention, trade mark, original
design or the practical application of an idea.
Intellectual property laws provide creators and inventors with certain
economic rights to exploit their creations and inventions. Through
international treaties such as the Berne Convention, intellectual property
rights are enforceable internationally in countries which have signed such
treaties in recognition that intellectual property rights are important
The following intellectual property rights are recognised by
- artistic, dramatic and literary works and publications under the Copyright
- registered industrial designs relating to commercial products
under the Designs Act 2003; and
- trade marks identifying the origin of goods and services under
the Trade Marks Act 1995.
Indigenous cultural and intellectual property
Indigenous cultural and intellectual property refers to the rights of
Indigenous Australians to their heritage:
Heritage consists of the intangible and tangible aspects of the
whole body of cultural practices, resources and knowledge systems developed,
nurtured and refined by Indigenous people and passed on by them as part of
expressing their cultural identity.
The Myer Report into the contemporary visual arts noted that for
Indigenous cultures, intellectual property rights are an integral component of
their cultural heritage.
The nature or use of Indigenous heritage material is such that it is
transmitted or continues to be transmitted from generation to generation. It is
also regarded as belonging to, or originating from, a particular Indigenous
group(s) or its territory.
Indigenous cultural and intellectual property rights have been
characterised as including the right of Indigenous people to:
- define what constitutes Indigenous cultural and intellectual
- own and control Indigenous cultural and intellectual property;
- be recognised as the primary guardians and interpreters of their
- authorise the use of Indigenous cultural and intellectual
property according to Indigenous customary law; and
- be given full and proper attribution for sharing their heritage.
Indigenous notions of cultural and intellectual property differ markedly
from non-Indigenous notions of intellectual property. For instance, under
Indigenous customary law, intellectual property rights are communally owned
whereas under non-Indigenous laws these rights are owned by individual
creators. Under Indigenous customary law, intellectual property rights are
generally not transferable but transmission, if permitted, is based on a series
of cultural qualifications. Under non-Indigenous laws intellectual property can
be freely transmitted and assigned, usually for economic returns for a set time
and in any medium. Intellectual property right holders can decide how or by
whom the information can be transmitted or assigned. In addition, Indigenous
customary law emphasises preservation and maintenance of culture, whereas
non-Indigenous laws place an emphasis on economic rights.
Submissions and other evidence argued that there is inadequate
protection of ICIP, which has a detrimental impact on both cultural and
financial outcomes for artists. Ms Ayres, Executive Director of the Arts Law
Centre of Australia, stated that:
One big issue that always comes up when we are talking to
Indigenous artists, particularly in the workshops that we give, is the need for
the better protection of Indigenous culture and intellectual property. The
Australian legal system just does not provide adequate protection.
The Arts Law Centre of Australia identified some of the major concerns
in relation to ICIP:
- lack of copyright protection of art and craft works produced by
- lack of protection for the traditional knowledge of communities
contained within art and craft works;
- lack of understanding by non-Indigenous people of the collective
ways in which some Indigenous artworks may be produced which may potentially
affect authenticity; and
- the potential for non-Indigenous interests to exploit Indigenous
words, names, symbols and other aspects of culture without redress being
available to Indigenous custodians.
Submissions argued that existing intellectual property laws are
inadequate in recognising and protecting Indigenous cultural and intellectual
property and these issues are discussed below. The Myer Report recommended that
the relevant Commonwealth departments take action in relation to Indigenous
intellectual property issues, including the misappropriation of Indigenous
cultural imagery and iconography.
Copyright is a set of specific rights granted by statute to creators of
artistic and cultural material. The law protects categories of works under the Copyright
Act 1968 from unauthorised use and dissemination.
Copyright protects the creative works of Indigenous visual artists and
craft practitioners to the same extent that it protects material created by
non-Indigenous artists. However, there are gaps between the protection given to
cultural material under the Australian legal system, and the rights and
obligations in relation to cultural material under Indigenous customary law.
The following requirements must be met for copyright to exist in a work.
As noted below, much Indigenous cultural material does not meet these criteria.
- Originality – for copyright to exist in a work, the work must be
original. This may pose problems for Indigenous art works. As a continuing
expression of culture, many Indigenous people draw on their cultural heritage
by, for example, painting pre-existing clan designs which have been handed down
from their ancestors. It is this nature of Indigenous art that has raised the
question of whether a new Aboriginal work, based on, or derived from, a
traditional pre-existing theme, could satisfy the copyright requirement of
- Material form – a work must be written down or recorded in some
permanent, tangible form. Some forms of Indigenous art are ephemeral such as
body painting and sand paintings. These may not be protected under copyright.
- Identifiable author – there must be an identifiable author, or
authors, for copyright to exist in a work. Given the nature of Indigenous art
an individual person or persons may not always be identifiable. For example, in
rock art painting it may not be possible to identify a single artist or group
of artists and copyright cannot be claimed.
Copyright protection does not protect styles, methods or ideas. By way
of contrast, Indigenous communities generally recognise ongoing rights in
relation to particular images and styles.
The duration of copyright protection is generally the life of the artist
plus 70 years. The Act does not recognise any continuing right of
Indigenous custodians to their ICIP after the term of copyright protection has
expired. Yet cultural works remain part of an Indigenous group's culture and
are of great significance to their traditional custodians in perpetuity.
The Myer Report noted that the current time limit on copyright protection is
inconsistent with Indigenous concepts of cultural heritage and traditional
knowledge and that in any future review of the term of copyright, the
particular needs of Indigenous visual artists should be taken into
Various reforms to the Copyright Act were suggested. NAVA argued that
the Copyright Act should be amended so that the copyright in works produced by
Indigenous artists under certain employment arrangements should remain with the
artist. NAVA suggested that Indigenous artists employed under CDEP schemes, for
example, should retain copyright in the works they produce.
In addition, NAVA suggested that the Government develop guidelines for
determining under what circumstances it is appropriate for an employer to own
the copyright to a work produced by an Indigenous artist. These guidelines
should acknowledge restrictions on ownership of culturally important material
An alternative approach was advocated by Janke and Frankel. They argued
that specific legislation which protects all Indigenous cultural and
intellectual property is preferred over amendments to the Copyright Act. The
specific legislation would recognise Indigenous cultural ownership in
Indigenous visual arts and craft, and literary and dramatic works; and 'provide
rights in that material which allow Indigenous people the rights of prior
consent and to negotiate rights for suitable use'.
Under the Designs Act 2003 'design' is defined in the following
'Design' in relation to a product, means the overall appearance
of the product resulting from one or more visual features of the product.
The designs laws protect designs as they are applied to products and
items. Under Indigenous customary laws, a design or motif belongs to a certain
Indigenous cultural group, and there are laws that govern who can use and
reproduce this material. The designs law applies to Indigenous designs as it
does to all designs that meet the requirements for protection. There is,
however, no special protection for Indigenous designs or cultural material
under the Designs Act.
A design can only be registered in relation to a 'product' – it is not
possible to register a design itself. A 'product' is 'a thing manufactured or
hand made'. Certain Indigenous designs such as clan insignia may not be
commercially applied to a product, therefore they are not registrable as a
design under the Designs Act.
Under the Act, protection for registered designs exists for a maximum of
10 years. Once design protection expires the registered designs are able
to be used by any person.
Indigenous peoples' right to use their communally-owned designs, and to
exclude use by others under their customary law, is a cultural practice that
continues in many Aboriginal communities:
The limited term of protection for designs limits the rights of
Indigenous cultural custodians to control the use of their sacred motifs or
clan identified designs outside this period. Once the period has expired, any
person, either inside or outside a cultural group, can use an Indigenous motif
or design without seeking proper consent under customary law.
Under the Act, generally, the person who creates the design or a person
who employs the creator may register a design. There is no recognition of the
communal ownership of the design as belonging to a cultural group or groups
which is more applicable to Indigenous groups.
The Act protects certain items for industrial or commercial purposes.
One study noted that it would be difficult to use the designs law to protect
Indigenous designs that are protected under customary laws – 'protection under
the Act is focussed on the commercial production of products and it would be
necessary to be the producer of such products'.
The study noted however, that the Act may offer some protection for
commercially applied Indigenous peoples' designs that meet the registration
Reform of the Designs Act was suggested by some submitters. NAVA argued
that the Designs Act should be amended to include provisions for the
registration of Indigenous cultural designs, and that the period of protection
for such designs should be in perpetuity or the life of the Indigenous owner
Janke and Frankel argued that specific legislation which protects all
Indigenous intellectual property is preferred over amendments to the Designs Act.
However, the authors argued that to the extent that the Designs Act can provide
protection for Indigenous communities who wish to commercially exploit their
designs, the Act and its registration process:
...should allow for registration of group interests so that
Indigenous communal ownership of cultural designs is recognised. This might be
done by allowing trusts and other group entities to become the registered
proprietors of a registered design.
A trade mark is a sign used to indicate the trade origin or source of
goods or services. Some Indigenous groups and individuals have complained about
the use of Indigenous cultural material as business names and trade marks by
non-Indigenous people and businesses.
Once a trade mark is registered, the registered owner will be granted a
type of property right to use that trade mark in association with the trade in
question. Trade marks are personal property and can be licensed, assigned and
transmitted. Once registered, the trade mark is protected for 10 years, which
may be renewed, in sets of 10 years, for as long as the registration is kept
One study noted that in this respect trade mark registration is
continuous and can be used to protect Indigenous cultural material for longer
periods of time, even beyond the copyright period – 'this feature of trade
marks law makes it more flexible than copyright, designs and patents for
protecting Indigenous rights because the problem of the public domain may be
The Trade Marks Act 1995 allows third parties to oppose the
registration of a trade mark. Grounds for opposition include that the trade
mark does not distinguish the applicant's goods and services from the goods and
services of others; is scandalous or contrary to law; or is likely to deceive
or cause confusion.
One study noted that Indigenous people may be able to make use of the
restrictive provisions under the Trade Marks Act to challenge culturally
offensive trade marks that are scandalous or contrary to law:
It is arguable that trade marks which make use of sacred
material are scandalous and contrary to Indigenous customary laws. Perhaps
there is scope for an Indigenous community to challenge marks that are against
customary laws as scandalous marks. It may at least be possible to draw
offensive use to the attention of the registrar [of trade marks].
One study argued that amendments to the Trade Marks Act should be
considered. These would provide that Indigenous and non-Indigenous persons
and/or companies would be able to obtain registration of marks containing
Indigenous designs, words or symbols with the consent of the particular
Indigenous community and if other conditions regarding cultural appropriateness
The Trade Marks Act has provisions that allow for the registration of
certification marks. Certification marks are trade marks which are used to
distinguish goods or services which possess a certain quality, accuracy or
characteristic. A mark or label verifying that a product or service is authentically
Indigenous could be registered as a certification mark under the Trade Marks
An example of this approach is the National Indigenous Arts Advocacy
Association's (NIAAA) label of authenticity system launched in 2000. NIAAA
registered two certification marks – an authenticity mark and a collaboration
mark. The label of authenticity is the primary mark that, when affixed to goods
or services, denotes that a product or service is created wholly by an
Indigenous person. The collaboration mark denotes that a genuine Indigenous
work has been reproduced under a legal licensing agreement. The label of
authenticity scheme is discussed further in chapter 10.
Need for specific legislation
As noted above, some submissions and studies argued for the introduction
of sui generis (specific) legislation to protect ICIP. The Arts Law
Centre of Queensland (ALCQ) argued that attempts to use the Trade Marks and
Designs laws to protect Indigenous cultural expression 'are unlikely to be a
suitable means of protection'. The ALCQ argued that the Government should enact
a new intellectual property law, separate but complementary to existing
intellectual property laws, to provide for Indigenous cultural expression.
Ms Winikoff, Executive Director of NAVA, also stated that 'in the longer
term, sui generis legislation is needed because the whole concept of
collective intellectual property is one that is not dealt with well by existing
The Arts Law Centre of Australia argued that sui generis legislation
would provide 'significant, tailored protection' for ICIP and should legally
recognise the following:
- communal ownership;
- artistic styles;
- intangible forms;
- time limitations; and
- protection against Indigenous cultural materials being used
without the appropriate consent of Indigenous custodians.
Janke and Frankel also argued for the introduction of sui generis legislation.
Similar to the Arts Law Centre proposal cited above, they proposed that the
legislation provide protection for works that are intangible – there need not
be a requirement of material form. Rights should also exist in perpetuity. Any
rights granted should ensure that there are no time limits on protection.
Under the proposal the legislation would include provisions which
prohibit the wilful destruction of cultural material; address
misrepresentations of the source of cultural material; and provide for payment
to Indigenous owners for the commercial use of their cultural material.
Disputes would be mediated through an Indigenous Cultural Tribunal, comprised
of Indigenous custodians, specialists in Indigenous law and community elders.
The legislation would include offences such as fines for unauthorised use of
cultural material and criminal sanctions for more serious offences.
The authors noted that the framers of the legislation would also need
to consider how the proposed legislation would interact with existing copyright
and intellectual property laws. They suggested that the legislation should
apply only to cultural works outside the copyright period – where copyright
does not exist. The authors emphasised the importance of extensive consultation
with Indigenous people concerning the introduction of any proposed legislation.
Evidence pointed to the need for education and awareness strategies for
Indigenous people and the wider community on ICIP rights issues.
As part of the COAG Framework on Reconciliation, in 2002 the Cultural Ministers
Council (CMC) agreed to give priority to Indigenous Intellectual Property (IIP)
issues. In 2003, CMC agreed that the key objectives for CMC in terms of IIP
- 'promoting greater links between business and Indigenous
communities about IIP to enhance greater economic independence;
- raising awareness in Indigenous communities, consumers and commercial
operators of the need to protect IIP; and
- enhancing coordination of existing networks of Indigenous and
non-Indigenous organisations working in the area of IIP'.
CMC allocated $100 000 for an Indigenous Intellectual Property
Toolkit (IIP Toolkit) project to further these aims. The WA Department of
Culture and the Arts (DCA) is managing the development of the Toolkit. The
project involves assessing existing information and resources in the Indigenous
intellectual property area to ascertain the extent of the resources available;
and developing and piloting an IIP Toolkit aimed at artists, consumers and
dealers, which caters for regional differences. The project commenced in
November 2005 and has an 18-month timeline.
DCA indicated that Stage One of the development of the Toolkit entailed consultation
with over 600 individuals and organisations, including artists and arts
organisations, private and public galleries, auction houses and consumer groups
across Australia. Stage Two is currently under way and involves the development
of a prototype model to be piloted with representatives of major identified
target groups – artists, consumers and dealers – to gather feedback on the
efficacy of the product.
The Department stated that:
The national Indigenous Intellectual Property Toolkit,
specifically targeting Indigenous artists, commercial operators and consumers
will provide significant benefits by increasing understanding and respect for
Indigenous culture, improving relationships between the sectors and maximising
ethical economic opportunities.
Indigenous communal moral rights
Submissions argued for the introduction of Indigenous communal moral
rights legislation arguing that existing moral rights legislation does not
provide adequate protection for Indigenous people.
Moral rights were introduced into the Copyright Act under the Copyright
Amendment (Moral Rights) Act 2000. Moral rights include the right of an
author to be identified as the author of a particular work; the right not to
have authorship falsely attributed; and the right of integrity of authorship.
This later right provides that an artist may bring an action if the work is
subjected to derogatory treatment. Moral rights are individual rights only.
Currently, an Indigenous clan group or community cannot generally assert moral
The Myer Report noted that the current moral rights legislation does not
provide adequate protection for Indigenous art and crafts practitioners given
the social, economic and community responsibilities of artists under Indigenous
The report recommended that as part of Commonwealth action in relation to
Indigenous intellectual property issues generally, that the Commonwealth extend
moral rights to Indigenous groups.
The Myer Report noted that the rights of Indigenous communities to
assert moral rights are important due to the way in which cultural property is
viewed in Indigenous communities:
The Indigenous 'world-view' gives priority to the interests of
the community over the interest of individuals. Under customary law, ownership
of cultural property, imagery and folklore is a collective, rather than
individual phenomenon. The value accorded to cultural property is based upon
both the aesthetic qualities of the work and the degree to which the work
reflects the livelihood and culture of the community. The artist is a custodian
of the cultural property, and any use, alteration or reproduction of the work
will need to be approved by community elders.
In December 2003 the Government drafted proposed amendments to the
Copyright Act for Indigenous communal moral rights to extend these rights to
Indigenous groups. The draft bill was intended to give effect to the
Government's 2001 election policy commitment and to a commitment made to Senator
Aden Ridgeway when the Moral Rights Bill was passed in December 2000.
The Exposure Draft Copyright Amendment (Indigenous Communal Moral Rights) Bill
2003 was distributed to a number of organisations and individuals for comment.
The draft bill proposed that for Indigenous communal moral rights to be
recognised they must be a copyright work or film. The bill proposed that a
number of conditions would need to be met before ICMR will arise: the work must
be made; the work must draw on the traditions, beliefs or customs of the
community; the work must be covered by an agreement between the author and the
community; the Indigenous community's connection with the work must be
acknowledged; and written notice of consent would have to be been obtained by
the author (or their representative) from all people with an interest in the
work. It was also proposed that communal moral rights would exist alongside
individual moral rights. Indigenous communal moral rights would exist in a work
for the duration of the copyright period.
The draft bill was criticised as being 'highly complicated and
The Arts Law Centre of Australia argued that the bill was 'seriously flawed'
making it 'too difficult' for communities to secure the protection the
legislation was intended to provide. The Centre noted, for example, that the
bill did not protect works where copyright has expired or elements of ICIP in
which copyright subsists.
Ms Winikoff, Executive Director of NAVA, stated that 'we have some
reservations about its form [the bill] but not about the fact that one is
The Northern Territory Government also expressed reservations, arguing
...proposals relating to so-called Indigenous Community Moral
Rights, as they are currently framed, will [not] provide the kinds of
protection for Aboriginal visual arts that its proponents claim. On the
contrary, there are arguments that such legislation has the potential to
promote division amongst and between Aboriginal groups, for no real benefit to
artists, especially individual practitioners.
The Attorney-General's department advised the committee that it
is aware of concerns raised by some stakeholders and is working on options to
'simplify the drafting of the bill'.
There were criticisms of a perceived lack of consultation with
Indigenous groups. The Arts Law Centre of Queensland commented on the 'very
limited circulation of the draft bill for public comment'.
The Arts Law Centre of Australia indicated that the organisation along with a
few other organisations and individuals were provided with a copy of the bill
on a confidential basis and made submissions to Government on the proposed
One study noted that the confidentiality surrounding the bill restricted the
free flow of discussion on the proposed legislation. As a result there was only
limited consultation with Indigenous people, communities and artists – those
very groups supposed to benefit from the legislation.
The Attorney-General's Department advised the committee that the
Government initiated a consultative process on the draft bill in December 2003
that extended into the first half of 2004. The consultation process was
'targeted' so that the Government could obtain the views of a range of groups,
including Indigenous groups, artists' representatives, art galleries and
museums as well as Commonwealth and state government agencies. The department
indicated that the Government received 'extensive feedback' from these groups.
In addition, the Attorney-General met with some stakeholders to discuss the
The Attorney-General's Department advised that the Copyright Amendment
(Indigenous Communal Moral Rights) Bill is listed for introduction in the
2007 winter sittings – 'however, introduction of the bill will depend on
whether the Government decides that further consultation is required'. The
department indicated that it has met with some stakeholders this year to
discuss the draft bill.
The committee recommends that as a matter of priority the government
introduce revised legislation on Indigenous communal moral rights.
Evidence to the inquiry argued that existing intellectual property laws
are inadequate in recognising and protecting Indigenous cultural and
intellectual property rights. The committee believes that current legislation
generally fails to take into account the very different notions of cultural and
intellectual property that form the basis of Indigenous society and cultural
The chapter has discussed specific inadequacies in the current
copyright, designs and trademarks legislation. Various proposals have been
suggested to address these deficiencies. The committee considers that the
Commonwealth should introduce legislation to protect Indigenous cultural and
intellectual property rights. It notes that protection for Indigenous cultural
and intellectual property could be implemented either by amendments to existing
legislation or the introduction of specific legislation. The committee believes
that specific legislation would probably provide the most effective form of
protection given the difficulties associated with amending a variety of current
Earlier chapters noted that there has been limited success in using laws
to ensure the integrity of the Indigenous art market. The drafting of new laws
should be conducted with particular attention to the specific situation and
disadvantages faced by Indigenous artists in seeking to assert their property
and contractual rights.
The committee recommends that, recognising the complexity of the issues
in this area, the Commonwealth introduce appropriate legislation to provide for
the protection of Indigenous cultural and intellectual property rights, that
the legislation be drafted to ensure prosecutions of breaches will have a
realistic chance of success, and that the Australian Customs Service be given
an appropriate role in assisting the protection of these rights in relation to
imported and exported goods.
Evidence also argued that existing moral rights legislation does not
provide protection for Indigenous communal moral rights. The committee believes
that action to implement the extension of communal moral rights to Indigenous
groups is desirable. At the same time it believes that the individual moral
rights of all artists, including Indigenous artists, should be protected on
equal terms. The committee is pleased to note that the Government intends to
introduce the Copyright Amendment (Indigenous Communal Moral Rights) Bill in
the 2007 winter sittings.
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