Michael Davis
Consultant
Social Policy Group
Major Issues Summary
Introduction
Indigenous Peoples and Intellectual Property
Rights
Indigenous Peoples and Cultural
Appropriation
Examples of Appropriation of Indigenous
Cultures
- Arts and Cultural Expressions: Aboriginal Art and
Copyright
- Indigenous Knowledge and Biodiversity: Bioprospecting
- Human Genetic Material: the Human Genome Diversity Project
Intellectual Property Rights
Indigenous Critiques of Intellectual
Property Rights
International Developments
Setting Standards: International Instruments
and Intellectual Property Laws
- Protection of folklore
- GATT-TRIPS
Statements and Standards Supporting
Indigenous Cultural Protection
- United Nations Statements and Developments
- Indigenous Statements
Developments in Australia
Reports and Developments to 1996
- Folklore, Culture, Customary Law, Arts and Crafts and Social
Justice
- Heritage, Biodiversity and Native Title
Possible Avenues for Reform
- Reforms to Existing Intellectual Property Laws
- Other Legislative Reforms Options: Heritage Protection and
Native Title
- Non-Legislative Reform Options
- Sui Generis Legislative Options and Community
Rights
- Other Models: Traditional Resource Rights and Intellectual
Integrity Rights
Conclusions
Endnotes
Indigenous peoples claim that existing intellectual property
rights (IPR) systems do not provide adequate recognition and
protection of their cultural products and expressions. Some critics
consider IPR systems to be a threat to Indigenous peoples' cultural
maintenance.
Western intellectual property rights systems create individual
property rights, which can be subject to transactions, and which
are designed to foster commercial and industrial growth. These
systems are conceptually limited in their ability to afford
recognition and protection of Indigenous intellectual property
rights.
Internationally, the incorporation of Trade Related Aspects of
Intellectual Property Rights (TRIPS) into the General Agreement on
Tariffs and Trade (GATT) in 1994 has, in some critics' views,
provided the impetus for further commercialisation by predominantly
affluent industrialised countries of the knowledge and products of
Indigenous and local communities.
Indigenous peoples' intellectual property rights extend to
include a wide range of subject matter, beyond what is recognised
within existing intellectual property rights and other protection
systems. They are closely linked to land, cultural heritage and
environment, and also to cultural property. In addition, Indigenous
communities possess some unique features of their knowledge,
creative expressions and innovations, which emphasise communal
rights, in which many creative works are of an indefinable
antiquity, and in which cultural products, expressions and
manifestations are tightly integrated into all other aspects of
society. These features are at odds with conventional western
notions of intellectual property.
Indigenous peoples' intellectual property rights are being
exploited in many and diverse ways. Works of art are
misappropriated, and Indigenous peoples' biological resources,
knowledge and human genetic materials are collected and patented
without due recognition being given or benefits distributed to the
Indigenous peoples concerned.
A growing body of declarations, statements, and other
developments both within the United Nations and its agencies, and
by Indigenous peoples, calls attention to the unique features of
Indigenous intellectual property systems and provides potential
opportunities for countries to introduce measures to recognise and
protect these.
Discussions within the World Intellectual Property Organisation
(WIPO) and UNESCO may provide some scope for expanding
international copyright systems to embrace intangible expressions
of culture (termed 'folklore' in these discussions).
The International Labour Organisation (ILO) Convention 169
provides potential opportunities for those countries which ratify
the Convention to develop frameworks, partnerships, or other
'special measures' to protect Indigenous cultures.
Some international developments in the environment and
conservation area can also provide avenues for introducing measures
to recognise and protect Indigenous cultural knowledge. The
framework provided by the outcomes from the 1992 United Nations
Conference on Environment and Development (UNCED) is significant in
this regard, especially the program statement Agenda 21. The
Convention on Biological Diversity required countries to conserve
and protect Indigenous peoples' knowledge, innovations and
practices relevant to the conservation of biological diversity.
The standard setting activities currently being pursued by the
United Nations and its agencies on Indigenous rights - though some
way from being fully realised - also provide important
opportunities for recognition and protection of Indigenous peoples
cultural rights, including their rights to cultural and
intellectual property. Key areas of work in this regard are the
Draft Declaration on the Rights of Indigenous Peoples and the study
on Indigenous Cultural heritage by U.N. Special Rapporteur Erica
Irene-Daes.
A series of developments, legislation, reports and
recommendations have been made in Australia over the last two
decades, not only in intellectual property laws but across a range
of land, heritage and environment issues. To date there has,
however, been little action to provide recognition and protection
for Indigenous intellectual property rights.
The development of new sui generis legislative systems
that provide recognition of the full range of Indigenous peoples'
cultural products and expressions, and which enable community
empowerment for the control of their cultures, is the only way to
achieve a just solution to the problems faced by Indigenous peoples
in the exploitation of their intellectual property rights.
Indigenous peoples claim the western system of intellectual
property rights does not provide adequate protection of their
cultures. Some Indigenous critiques go further, and oppose
intellectual property rights systems as inherently antithetical to
their interests.
In western legal systems intellectual property rights denotes a
specific set of laws designed to foster commercial creativity and
industrial innovation by protecting the rights of individual
creators and innovators.
Indigenous peoples assert that intellectual property systems not
only fail to provide adequate protection for their cultural forms,
products and expressions; they serve the interests of the dominant,
non-Indigenous cultures as against the distinct rights and
interests of Indigenous systems of creativity and cultural products
and expressions.
This paper outlines Indigenous perspectives on cultural
protection, and discusses some of the ways in which their cultures
are appropriated or exploited. The paper then explores where
existing intellectual property laws fail to meet Indigenous
peoples' expectations and aspirations regarding protection of their
cultures.
The paper surveys a range of reports and developments
internationally and within Australia that have either direct or
indirect implications for Indigenous peoples' intellectual property
rights and cultural protection. Some possible avenues for reform
are then explored which may provide better recognition and
protection for Indigenous cultural forms, products and
expressions.(1)
Recognition and protection of Indigenous intellectual property
rights is not only relevant to arts or copyright issues. To
Indigenous peoples artistic designs are an integral part of the
cultural system that also includes language, dance, song, story,
sacred sites and objects. The many elements that make up this
system might also be thought of as cultural heritage, and are
maintained and managed according to a complex set of rights and
responsibilities, which are determined by customary rules and
codes. In a general sense, these rights are considered to be
'owned', and managed communally, or collectively, rather than
inhering in particular individuals. If an individual wishes to
perform, transmit, or make manifest an aspect of culture - such as
a design or motif - he or she will require the authority, consent
or permission of others who may have rights and interests in the
particular design or motif.
These rights and responsibilities, which might also be
considered a system of law, are in turn informed by a knowledge
system that is derived from, and integral to, the dreaming. This
knowledge system links the diverse elements of culture with
country, and also informs the ways in which culture is expressed
and made manifest through material forms.
In conventional western legal terms, intellectual property
rights refers to copyright, patents, trademarks, designs and trade
secret laws, and breach of confidence. To Aboriginal and Torres
Strait Islander peoples, however, the cultural products, forms and
expressions for which protection is sought do not strictly conform
to the limited provisions of intellectual property laws. This is
because it is not only the material forms and created or invented
products for which protection is sought. Indigenous peoples also
consider that they have rights in the substance that underlies
these cultural products. That is, the knowledge, innovations and
practices that give rise to cultural products and expressions are
significant elements of their culture. These intangible aspects are
not considered within the scope of copyright and related laws.
Indigenous knowledge is also essential to Indigenous peoples'
rights and interests in medicinal substances, biological diversity,
land and ecosystem management, and sacred sites and objects, as
well as arts and other cultural expressions. The performance
aspects of Indigenous cultures, such as language use, story, song,
dance and ceremony are vital to Indigenous identity and cultural
expression - and these are inextricably linked to land and sacred
sites and objects, and religious, cultural and political systems.
Given these connections, reforms to provide protection for
Indigenous cultures cannot be purely confined to copyright and
related intellectual property law systems. The rights in cultural
knowledge, expressions and manifestations for which Indigenous
peoples seek recognition and protection will ultimately require a
wide ranging system of law reforms, and legislative and
administrative solutions that can better accommodate the holistic
and collective nature of Indigenous cultural rights.
The scope of Indigenous peoples' intellectual property rights
has become increasingly apparent as these people have raised
concerns about infringements or exploitation of their cultures. To
Indigenous peoples, intellectual property is part of their cultural
heritage in its widest sense. This includes:
- moveable cultural property
- all literary and artistic works (including music, dance, song,
ceremonies, symbols and designs, narratives and poetry)
- scientific, agricultural, technical and ecological
knowledge
- human remains
- sacred sites, burials and sites of historical significance
- documents of Indigenous peoples' heritage (including film,
photographs, video and audio recordings, and archival
collections).
In all these components appropriation and exploitation may
occur, and three examples are outlined below. Not only are art
works and designs misappropriated, but we see exploitation of
Indigenous peoples' rights in biological resources through
'bioprospecting', and of their rights in their own genetic and
bodily material, notably through the Human Genome Diversity
Project.
Arts and Cultural Expressions: Aboriginal Art and
Copyright
Since at least the 1970s there have been instances of
exploitation and misappropriation of Aboriginal peoples' artistic
expressions, and artists have brought actions under intellectual
property laws. These cases have shown that existing intellectual
property laws can be of some, although limited, use in
accommodating Indigenous peoples' perspectives. The most recent of
these cases, Milpurrurru v Indofurn Pty Ltd (1995), known
as the 'Aboriginal carpets case', has been considered a 'landmark'
in Indigenous intellectual property protection. The case was
significant for its recognition of the 'cultural harm' suffered by
the plaintiffs in the awarding of damages, and its implied
recognition of the communal ownership of Indigenous designs in the
distribution of the damages.(2)
Indigenous Knowledge and Biodiversity: Bioprospecting
One of the most significant issues raised by Indigenous peoples
is the collection, screening, and use for commercial and industrial
purposes of their knowledge and of genetic and biological products
which come from their lands or which are important to their
societies. This 'bioprospecting', as its critics refer to it,
raises some important questions about the nature of innovation, and
of the relationships between natural resources, knowledge, and
intellectual property rights.
The ecosystems within which Aboriginal and Torres Strait
Islander peoples have lived, and which they have managed
sustainably for millennia, are not only vital for their survival;
they also figure significantly in their cultural, religious and
social systems. These ecosystems also comprise some of the most
biologically diverse areas in the world, and the products they
yield are sought after by a large and growing biotechnology
industry for use in a vast array of medicinal, cosmetic,
industrial, and food and agricultural products. Biological products
and Indigenous peoples' knowledge about these products and their
properties form a vital contribution to the commercial products and
processes that sustain the rapidly growing biotechnology industry.
The industry isolates and modifies biological and genetic products,
and registers patents for them; and in doing so it is dependent on
Indigenous peoples' knowledge of these products and their
properties.
The Indigenous communities from which these products and
knowledge are obtained receive little or no recognition for their
contribution, and generally do not share equitably in benefits
resulting from uses of biological products and knowledge. The
intellectual property laws which foster commercial and industrial
uses of biological products and processes, and which protect the
interests of the biotechnology industry, cannot effectively be used
to protect Indigenous peoples' claims. This is because of the
strict requirements for inventions registered as patents.(3)
Products and knowledge from Indigenous communities are, in this
way, increasingly being transformed into intellectual property in
the western industrialised world.
The patenting of inventions derived from biological and genetic
resources raises some critical questions for Indigenous
communities. There are ethical concerns regarding the collection
and use of such products and their derivatives without the informed
consent or equitable participation of Indigenous communities who
claim rights in the products and knowledge. There is also the
concern that companies and researchers that collect such knowledge
and products usually provide for few (if any) financial benefits to
be returned to the Indigenous communities.
Another critical concern is the fundamental inappropriateness of
patent laws to Indigenous peoples' ability to protect their own
biological knowledge and resources. As a legal instrument, a patent
confers exclusive rights on an inventor which for a fixed period
prevent others from producing, using, or engaging in commercial
transactions for the invention. A patent requires that an invention
should be useful: that is, it must have an industrial application.
It also requires an invention to be novel, or recent and original,
and not previously known. An invention can also only be accepted
for patenting if it is non-obvious: that is, it must have been
produced by a reasonable level of technical know-how, rather than
having merely been a discovery of what already exists in
nature.
These requirements create an essential incompatibility between
patents and Indigenous knowledge and innovations. Innovation and
knowledge in Indigenous societies generally does not fit the patent
laws' requirement for novelty of invention, which hinges on the
isolation and modification of biological and genetic products using
highly technological processes. Moreover, patents confer rights in
individuals or corporations, and are not applicable to communal
rights which often pertain in Indigenous societies. Indigenous
peoples' notions of property differ generally from those which form
the basis of patent laws. Biological knowledge in Indigenous
communities is generally regarded as being a community resource,
and is shared and transmitted 'freely' within communities according
to customary rights, rules and obligations.(4) The private
ownership rights which patent laws confer for inventions are thus
antithetical to Indigenous peoples' world views.(5)
Although, as with all intellectual property rights systems,
patent laws are available for use by Indigenous peoples, the
incompatibility outlined above means that Indigenous peoples are
unlikely to use these laws to protect their knowledge and
innovations. Moreover, use of such laws is usually costly and time
consuming, and usually necessitates the services of skilled legal
professionals. For these reasons, Indigenous peoples' access to
patent laws, like copyright laws, is likely to be limited.
Although article 8(j) of the Convention on Biological Diversity
may provide scope for countries to develop systems for recognition
and protection of Indigenous knowledge and innovation, this is
still a long way from becoming a reality in Australia. One
potential problem is that, in its current form, and where there is
no effective implementation of its provisions to actively preserve
Indigenous knowledge and innovations, the Convention provides
implicit support for contractual agreements between countries,
which may disadvantage Indigenous communities within those
countries.(6) Implementation of article 8(j) of this Convention may
also be subject to some constraints, as discussed below.
Human Genetic Material: the Human Genome Diversity Project
Indigenous peoples have in recent years begun asserting that
their rights in their bodily substances such as blood and genes are
being violated. This problem has attracted attention since the
early 1990s with the commencement of the Human Genome Diversity
Project (HGDP). This project, dubbed the 'Vampire Project' by its
critics, is being carried out by scientists throughout the world,
with the aim of mapping the broad genetic diversity of humans. The
HGDP involves the taking of genetic samples from a large number of
communities, including a significant proportion of Indigenous
communities. These Indigenous communities are 'targeted' for
sampling on the grounds of being considered 'rare' or
'endangered'.
The HGDP has serious implications for Indigenous peoples, as the
blood and genetic samples that are collected can be modified and
patented, and as such may potentially provide products and
processes which are commercially valuable. Not only do Indigenous
peoples receive no share in the benefits that might result from
these products and processes, but the sampling itself, without
their informed consent, represents a grave violation of their
rights, and raises serious ethical questions. As with biological
sampling, patent laws do not protect genetic or other human
products unless these have been modified or altered. There are
currently no laws to protect the rights of Indigenous communities
to their bodily products.(7)
Intellectual Property
Rights
The western concept of intellectual property rights is based on
the notion that ideas, innovations and inventions, expressed
through various material forms, can be owned, and that individuals
have distinct property rights to these forms of creative
expressions and products. Intellectual property laws are aimed at
protecting rights to literary and artistic property, as well as
industrial property. The 1967 Convention Establishing the World
Intellectual Property Organisation (WIPO), at article 2(viii)
defines 'intellectual property' to include rights relating to:
- literary, artistic and scientific works;
- performances of performing artists, phonograms and
broadcasts;
- inventions in all fields of human endeavour;
- scientific discoveries;
- industrial designs;
- trademarks, service marks, and commercial names and
designations;
- protection against unfair competition; and
- all other rights resulting from intellectual property activity
in the industrial, scientific, literary or artistic fields.(8)
The western system of intellectual property law includes
Patents Act 1990, the Trademarks Act 1955, the
Designs Act 1906, the Plant Breeders Rights Act
1994, and common law areas of trade secrets and
confidentiality. While all these intellectual property laws are
available to Indigenous peoples, some, such as copyright and patent
laws, are more potentially relevant or useful than others. The
Copyright Act, for example, has received most prominence,
as it has been used by Aboriginal artists to seek redress for
exploitation of their designs. As a result of these actions this
Act has been tested to the extent to which it adequately protects
the intellectual property rights of Indigenous peoples (see
discussion above).(9)
The Copyright Act 1968 is designed to protect
copyright, defined by McKeough as 'a form of property, a personal
right, or a combination of both'.(10) Golvan defines the copyright
law as that which 'protects the form of expression of ideas, or the
way in which ideas are expressed in a literary, artistic, dramatic
or musical form, as well as in the form of cinematographic films
and broadcast signals.' As such, Golvan states, the Copyright
Act 1968 'thus founds the basis upon which creators of such
forms of ideas can claim monopoly rights in them.'(11) Although
there is no requirement for registering copyright works, works must
be in material form, and must be original. The term for copyright
protection is limited to the life of the author plus fifty
years.(12)
Golvan claims that advances in technology (such as the
facsimile, and computer and data based technologies) are providing
a challenge for copyright, which is 'increasingly having to be
protected on a collective basis, with copyright ownership, as such,
providing an entitlement to the distribution of centrally collected
fees'.(13) However, the need to rethink the fundamental bases of
copyright and other intellectual property laws is created not only
by advances in technology, but also by the increasing assertion by
Indigenous peoples of their cultural rights.
The requirement that 'ideas expressed are in a tangible medium
in order to attract protection under the Copyright Act',
and the fact that operation of the Act is 'based on the concept of
copyright as an individual property right that can be transferred
or subdivided through commercial transactions', are, in McKeough's
view, the primary impediments to proper protection for Indigenous
peoples' cultural products and manifestations under existing
copyright laws.(14) The requirement that works are 'original' is an
additional limiting factor, since it is often argued that artistic
and other cultural expressions in Aboriginal or Torres Strait
Islander societies are not necessarily produced by a single,
identifiable individual; rather, there may be various levels of
rights and interests in a work of cultural production. A person who
produces a painting in Aboriginal society is not necessarily
thought to be the 'owner' of the work, but may have been given
authority to produce certain designs or images by others within the
community, who may be members of a clan to whom the designs or
images are said to 'belong'. The case of rock art is often cited to
illustrate the difficulties in conforming to the requirements for
'originality', and for the term of protection under the
Copyright Act.
The Patents Act may also be considered in terms of its
applicability to the protection of Indigenous cultural products,
forms and expressions. As discussed above, the requirements under
patent laws concerning the novelty, usefulness, and non-obviousness
of inventions, as well as the limited period for protection, and
the individual nature of these rights, renders these laws
incompatible with Indigenous peoples' interests.
The Designs Act is more limited than the Copyright
Act in terms of Indigenous rights, as it requires
registration, has similar requirements regarding originality, and
offers a shorter term for protection.(15)
The use by Aboriginal people over the past decades of the
Copyright Act (and to a lesser extent other laws such as
breach of confidence) and the judgements resulting from those
actions, have extended the boundaries of the interpretation of
intellectual property laws. They have also emphasised the
conceptual gaps between western notion of intellectual property and
Aboriginal and Torres Strait Islander peoples' perspectives,
derived from their cultural systems.
Although other intellectual property laws such as plant variety
rights legislation are also relevant to Indigenous peoples, there
is not scope in this paper for a discussion of these.
Indigenous Critiques of
Intellectual Property Rights
Western intellectual property rights (IPR) systems have been
criticised by Indigenous peoples (and Third world critics) as
promoting the commercialisation and commodification of cultural
products and expressions at the expense of Indigenous and local
cultures. Although Indigenous people may have access to
intellectual property laws, they are generally inadequately
informed about these laws, and to bring actions under such laws is
a costly and time consuming exercise, usually requiring the
services of legal expertise.
Some Indigenous people argue that western intellectual property
laws are fundamentally incompatible with Indigenous cultural
systems and ignore the complexities of such Indigenous systems. The
IPR system is based on western notions of property that emphasise
individual ownership and alienability. The property rights
established by these systems are essentially managed as commercial
transactions, and are not designed to protect cultural products and
expressions.(16) In some critics' views, IPRs pose a threat to
Indigenous peoples' systems of informal innovation, and communal
rights and responsibilities in cultural products and
expressions.(17) There is a spectrum of views which range through
arguments for the development by communities of their own sui
generis systems, to include community empowerment rights;
arguments advocating greater use by Indigenous peoples of a range
of existing IPR systems together with land, heritage, and
environment laws and statements and human rights regimes; support
for the need for integration between Indigenous and western systems
of innovation; and a position which claims the existing IPR system
is adequate, requiring only minimal amendments.
Western intellectual property laws have been developed from a
context of international developments. These have set the terms and
definitions for the concept of intellectual property, and
established standards for its protection. The Berne Convention for
the Protection of Literary and Artistic Works was formulated in
1886, and has been subject to several revisions. The most recent
revision to this Convention, to which Australia became a signatory
in 1928, was at Paris in 1971.(18) The scope of subject matter
under this Convention is 'literary and artistic works', which is
interpreted broadly to embrace 'any production whatsoever in the
literary, scientific or artistic domain'.(19)
Extensions to copyright laws were introduced in 1989 to provide
some protection of rights for live performers, and consideration is
being given to amendments to protect moral rights. The inclusion of
moral rights protection offers potential for better recognition of
Indigenous peoples' rights, as it may shift the balance away from
the focus on economic dimensions under present intellectual
property rights systems and towards a system that recognises and
protects the 'right of integrity' or 'right of attribution' -
aspects that are fundamental to Indigenous peoples' claims
regarding exploitation of their cultural rights. A moral rights
provision within the terms of the Berne Convention would provide
avenues for redress in cases of distortion, mutilation or
modification of an author's work.(20) The inclusion of moral rights
within amendments to copyright laws, and its implications for
Indigenous people is discussed below.
Protection of folklore
The protection of cultural expressions of Indigenous peoples has
been a developing area internationally. Recognising that copyright
laws are not adequate for many aspects of Indigenous cultural
protection, developments have occurred under the rubric of
'folklore'. The 1971 revision of the Berne Convention provided for
countries to nominate a 'competent authority' to 'control the
licensing, use and protection of national folklore'. Although the
concept of 'folklore' is a potentially useful one for Indigenous
concerns, as it embraces a more holistic notion of culture, the
term is relatively contentious in its relevance, applicability or
appropriateness to describe and define Indigenous cultures.(21)
Moreover, the notion of state control over cultural products and
expressions of the peoples within them is antithetical to
Indigenous peoples' aspirations for self-determination.(22) It is
useful to examine some developments that have considered this
concept as a possible means of broadening the scope of what may be
protected within copyright type regimes. These discussions have
occurred mostly within the World Intellectual Property Organisation
(WIPO) and the United Nations Educational, Scientific and Cultural
Organisation (UNESCO).
An early development that provides potential for recognition of
'folklore' is the 1976 Tunis Model Law on Copyright, developed
through WIPO. This instrument defines folklore as:
all literary, artistic and scientific works created on national
territory by authors presumed to be nationals of such countries, or
by ethnic communities, passed from generation to generation and
constituting one of the basic elements of the traditional cultural
heritage.(23)
The Tunis Model Law provides for protection of cultural
expressions without the requirement for these to be 'fixed' (as
required by copyright laws), and provides protection for an
indefinite period of time. It also includes a provision for 'moral
rights' to 'prevent the desecration and destruction of folklore
works'.(24) While a number of African and other countries have
adopted the Tunis Model Law, it has not as yet been considered in
Australia.(25)
Both WIPO and UNESCO have also considered parallel developments
to protect 'folklore', resulting in 1985 to the formulation of
draft sui generis Model Provisions for National Laws for
the Protection of Folklore Against Illicit Exploitation and Other
Prejudicial Actions. The Model Provisions do not define 'folklore',
but rather 'expressions of folklore' as
productions consisting of characteristic elements of the
traditional artistic heritage developed and maintained by a
community of [name of the country] or by individuals reflecting the
traditional artistic expectations of such a community, in
particular:
(i) verbal expressions, such as folk tales, folk poetry and
riddles;
(ii) musical expressions, such as folk songs and instrumental
music;
(iii) expressions by action, such as folk dances, plays and
artistic forms or rituals,
whether or not reduced to a material form; and
(iv) tangible expressions, such as:
(a) productions of folk art, in particular, drawings, paintings,
carvings, sculpture, pottery, terracotta, mosaic, woodwork,
metalware, jewellery, basket weaving, needlework, textiles,
carpets, costumes;
(b) musical instruments;
(c) architectural forms.'(26)
One of the central issues raised by these developments is
whether such instruments should protect heritage as that belonging
to the nation or state, and therefore the extent to which there is
recognition of the heritage rights of distinct peoples within
nation-states.
GATT-TRIPS
Intellectual property rights have recently become a component of
international trade. The General Agreement on Tariffs and Trade
(GATT), established in 1948 by mainly developed countries sets out
a regulatory framework for trading between member countries. The
GATT aims to promote free trading by allowing negotiation of,
concessions on, or removal of tariff protection.(27)
The 1994 Uruguay Round of negotiations on the GATT resulted in
the incorporation of intellectual property rights and the
establishment of the World Trade Organisation as the administering
body of the GATT. The incorporation into the GATT of intellectual
property rights, known as the Trade Related Aspects of Intellectual
Property Rights (TRIPS), has brought about an additional set of
concerns for Indigenous peoples.
The TRIPS provisions in GATT have the general objective of
harmonising intellectual property rights protection at the global
level, and require countries without IPR systems to develop them in
accordance with the GATT provisions. As Darrell Posey argues, the
requirement in Article 27(3b) for the protection of plant varieties
either by patents or by the creation of effective sui
generis systems is viewed by some Indigenous and Third World
critics as a threat to their community rights, as it 'would create
legal monopolies on common resources'.(28) The TRIPS provisions in
the GATT are regarded both as a threat and as creating potential
opportunities. The new regulations place some pressure on countries
without effective intellectual property rights systems to develop
these quickly, thus creating a risk that the IPR systems that are
introduced will be incompatible with local and Indigenous customary
rights and practices. At the same time, there may be potential
opportunities for countries currently lacking in effective IPR
systems to create innovative sui generis systems that are
in accordance with, and offer protection for, community based
rights.
Some Indigenous and Third World critiques of the GATT/TRIPS have
argued that this is a further development towards appropriation and
control of the biodiversity rich south by the industrialised,
affluent, yet biodiversity deficient north - a move which imposes
additional constraints on recognition of the contribution made by
Indigenous peoples to innovation and development. To these critics,
the global integration of intellectual property rights regimes
favours industrial innovation and discriminates against informal
and communal knowledge systems and innovations.(29)
There have been a number of standard setting and other
developments internationally which provide the basis for an
understanding of Indigenous intellectual property rights within a
wider concept of cultural heritage and Indigenous cultural systems,
and which appear to reflect more closely Indigenous peoples'
perspectives on cultural protection. Some of these developments are
occurring within mainstream agencies of the United Nations and its
agencies, while a parallel series of developments is being pursued
by Indigenous peoples and Third World peoples, thus signalling a
strongly emerging 'soft law' for Indigenous cultural
protection.(30)
United Nations Statements and Developments
Developments within the United Nations and its agencies have
generally adopted an integrated approach to Indigenous peoples'
cultural protection. A 1992 Report of the United Nations
Secretary-General on the Intellectual Property of Indigenous
Peoples states that Indigenous peoples' intellectual property can,
for analytical purposes, be 'usefully divided into three groups:
(i) folklore and crafts; (ii) biodiversity; and (iii) Indigenous
knowledge'.(31) This report concludes that, given the complexity of
finding improved ways to protect the intellectual property rights
of Indigenous peoples, 'a greater understanding of the concerns of
Indigenous peoples...; may be needed before determining the
specific legal remedies which might be appropriate'.(32)
The protection of Indigenous peoples' intellectual property
rights has also been on the agenda of the United Nations Working
Group on Indigenous Populations, established in 1982 by the United
Nations Sub-Commission on Prevention of Discrimination and
Protection of Minorities. The Draft Declaration on the Rights of
Indigenous Peoples developed by the working group includes
important provisions concerning intellectual property rights.
Article 24 states that:
Indigenous peoples have the right to their traditional medicines
and health practices, including the right to the protection of
vital medicinal plants, animals and minerals...(33)
Article 29 states:
Indigenous peoples are entitled to the recognition of the full
ownership, control and protection of their cultural and
intellectual property.
They have the right to special measures to control, develop and
protect their sciences, technologies and cultural manifestations,
including human and other genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora, oral traditions,
literatures, designs and visual and performing arts.(34)
The comprehensive study on Indigenous Cultural and Intellectual
Property prepared by Erica Irene-Daes for the United Nations
Sub-Commission on Prevention of Discrimination and Protection of
Minorities provides further discussion of the nature of Indigenous
intellectual property and the need to consider it as a component of
Indigenous cultural heritage. That study recommended that,
consistent with the views of Indigenous peoples, intellectual
property and cultural property cannot be considered in isolation
from each other, as they are both integral components of Indigenous
cultural heritage.(35) This holistic view is also supported by the
principles in the Draft Declaration discussed above.
Indigenous cultural rights are also recognised in International
Labour Organisation Convention 169, Concerning Indigenous and
Tribal Peoples in Independent Countries.(36) As this Convention is
primarily concerned with labour and employment, it contains only
general provisions that are relevant to intellectual property
rights. Article 4 states, for example, that:
Special measures shall be adopted as appropriate for
safeguarding the persons, institutions, property, labour, cultures
and environment of the peoples concerned.
Article 5 states that:
(a) the social, cultural, religious and spiritual values and
practices of these peoples shall be recognised and protected, and
due account shall be taken of the nature of the problems which face
them both as groups and as individuals;
(b) the integrity of the values, practices and institutions of
these peoples shall be respected.
Article 8 states that:
1. In applying national laws and regulations to the peoples
concerned, due regard shall be had to their customs or customary
laws.
2. These peoples shall have the right to retain their own
customs and institutions, where these are not incompatible with
fundamental rights defined by the national legal system and with
internationally recognised human rights. Procedures shall be
established, whenever necessary, to resolve conflicts which may
arise in the application of this principle.
Article 13 states:
1. In applying the provisions of this Part of the Convention
governments shall respect the special importance for the cultures
and spiritual values of the peoples concerned of their relationship
with the lands or territories, or both as applicable.
Article 23 states:
1. Handicrafts, rural and community-based industries, and
subsistence economy and traditional activities of the peoples
concerned, such as hunting, fishing, trapping and gathering, shall
be recognised as important factors in the maintenance of their
cultures and in their economic self-reliance and development.
Although this Convention has been criticised by Indigenous
peoples and others for providing insufficient recognition and
protection of rights, and for its assimilationist orientation,
unlike the Draft Declaration it provides binding obligations on
countries that have ratified the Convention.(37) It is also argued
that the Convention can be used to encourage governments to
establish structures and processes for greater Indigenous
participation in the political, economic and social life of that
country.(38) It remains questionable, however, as to how rigorously
countries fulfil such 'binding obligations' through legislative
enactments or policy measures.
Developments in Environment and Conservation
Given that Indigenous peoples consider their intellectual
property rights to include rights related to environment,
biological diversity and knowledge, developments in international
standard setting relating to environment and conservation have
particular relevance in so far as these include provisions
concerning the need to recognise and protect Indigenous peoples'
rights. These instruments and statements are especially useful in
that they build up a body of statements recognising, and advocating
protection for Indigenous peoples' knowledge systems - aspects of
Indigenous culture which are currently beyond the scope of
conventional intellectual property laws. The most significant of
these international developments have resulted from the 1992 United
Nations Conference on Environment and Development (UNCED) held in
Rio de Janeiro, Brazil (the 'Rio Earth Summit'). The principal
statements are the Rio Declaration, Agenda 21, the Convention on
Biological Diversity, and the Statement of Forest Principles - all
of which contain provisions relevant to, or implications for, the
recognition and protection of Indigenous peoples' intellectual
property rights.
Perhaps the most comprehensive and potentially useful outcome of
the Rio Earth Summit was Agenda 21, which provides a charter and
programme for action for sustainable conservation and development
into the next century. While there is much of relevance for
Indigenous peoples throughout Agenda 21, Chapter 26 on Recognising
and Strengthening the Role of Indigenous Peoples and their
Communities contains some important provisions directly relevant to
Indigenous peoples' intellectual property rights. Section 26.3
states that Governments should 'in full partnership with indigenous
people and their communities' aim to fulfil objectives that
include:
(a) Establishment of a process to empower Indigenous people and
their communities that include:
(iii) recognition of Indigenous peoples' values, traditional
knowledge and resource management practices with a view to
promoting environmentally sound and sustainable development.
Section 26.6(a) contains a programme statement to implement this
principle, stating that Governments, 'in full partnership with
indigenous people and their communities should, where
appropriate':
(a) Develop or strengthen national arrangements to consult with
Indigenous people and their communities with a view to reflecting
their needs and incorporating their values and traditional and
other knowledge and practices in national policies and programmes
in the field of natural resource management and conservation and
other development programmes affecting them.
These statements in Agenda 21 are reinforced by similar
principles in the Rio Declaration. Agenda 21 is currently being
reviewed by the UN.
One of the binding statements resulting from the Rio Earth
Summit, the Convention on Biological Diversity, contains a number
of provisions relevant to Indigenous peoples' intellectual property
rights. One of the most important is article 8(j) which requires
countries (subject to their national legislation) to:
...respect, preserve and maintain knowledge, innovations and
practices of Indigenous and local communities embodying traditional
lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with
approval and involvement of the holders of such knowledge,
innovations and practices and encourage the equitable sharing of
the benefits arising from the utilisation of such knowledge,
innovations and practices.
The provisions in the Convention on Biological Diversity
relating to Indigenous knowledge are subject to some discussion in
the literature, in terms of the extent to which these provisions
relate to conventional intellectual property systems, and matters
regarding national, versus local and Indigenous rights in
biological resources.(39)
While this Convention provides a potentially useful opportunity
for countries to introduce sui generis systems to
recognise and protect Indigenous knowledge and innovations, it also
imposes some constraints. The requirement that implementation of
article 8(j) should be subject to national legislation may be
problematic for Indigenous peoples, especially if existing national
laws take precedence, and where these might contravene or place
limitations on any measures that may be introduced under 8(j). The
use of 'traditional lifestyles' in the wording of this article may
also be interpreted to exclude many Indigenous communities who have
not retained their direct connections with lands and resources, but
who wish to protect and preserve their knowledge and
innovations.(40)
Although a more comprehensive discussion of the recognition and
protection of Indigenous knowledge and biodiversity is outside the
scope of this paper, it is sufficient to point out that, given that
Indigenous peoples regard their knowledge systems and rights in
biological diversity to be components of their intellectual
property, developments such as the Rio Declaration (and more
particularly Agenda 21 and the Convention on Biological Diversity)
present potentially significant means for recognition and
protection measures to be formulated within the legal system.
Darrell Posey has written extensively on the ways in which
relevant provisions in the Rio Declaration, the Convention on
Biological Diversity, and a wide range of human rights and other
instruments, in addition to emerging Indigenous and other standards
and statements can be used by Indigenous peoples to achieve better
recognition and protection for their 'intellectual property' rights
(or what Posey terms 'traditional resource rights'). Posey's work
on alternative solutions that go 'beyond intellectual property
rights' is outlined below.(41)
Another outcome from the Rio Earth Summit was the establishment
of a new body, the Commission on Sustainable Development (CSD),
within the United Nations Environment Program. The CSD has
established an ad hoc Intergovernmental Panel on Forests (IPF) to
consider a range of matters concerning sustainable forest
management. Part of the program of work of this body includes
considering the role of 'traditional forest related knowledge', a
significant area of work relevant to Indigenous peoples' interests.
The recommendations and future actions arising from the work of the
IPF are included in the agenda for a current United Nations General
Assembly review of international environmental issues.
Other developments relevant to Indigenous peoples' intellectual
property rights are being considered within the United Nations Food
and Agriculture Organisation (FAO) and its agencies (such as the
Commission on Plant Genetic Resources). In 1983 the FAO adopted an
International Undertaking on Plant Genetic Resources as part of the
establishment of a Global System to coordinate and regulate plant
genetic resources relevant to food and agriculture.(42) This
Undertaking has gone through several revisions, one of which in
1989 resulted in the inclusion of the recognition of a concept of
'Farmers' Rights'. These 'Farmers' Rights' are currently subject to
debate, especially in terms of clarifying what is meant by the
term, and its implications for the rights of local and Indigenous
communities regarding food and agricultural knowledge and
production, and access to, control and ownership of plant genetic
resources. Current revision of the International Undertaking is
also considering possible harmonisation with relevant provisions of
the Convention on Biological Diversity.
Indigenous Statements
In addition to the standard setting developments surveyed above,
there is a growing body of declarations and statements by
Indigenous peoples concerning recognition and protection of
intellectual property and related rights.
The Draft Declaration, which has now assumed the status of a
well established process within the formal United Nations
machinery, has been developed by Indigenous peoples and their
representatives during the annual sessions of the United Nations
Working Group on Indigenous Populations (WGIP). As such, this draft
Declaration is a strong statement of Indigenous peoples'
aspirations, and reflects their thinking on a wide range of
cultural and associated rights. The Draft Declaration is currently
being further considered by a special Working Group established by
the United Nations Commission on Human Rights - a higher level body
of the UN. This Commission is, however, a body comprised of
government representatives. Government representatives that may
oppose or be less supportive of the language in the Draft
Declaration are therefore likely to be able to wield greater
influence than was the case during the development of the Draft
Declaration in the WGIP sessions. In any case, it is still many
years before the Draft Declaration is to be considered for adoption
by the United Nations General Assembly. Even when that occurs, as a
Declaration it does not place binding obligations upon countries to
uphold it as law, or to implement its provisions. It is more a
statement of international customary law.
Indigenous peoples are also developing a series of statements
proclaiming their rights in intellectual property. Usually such
statements, consistent with the views expressed in the Daes report,
reflect a more inclusive understanding of intellectual property,
and incorporate variously 'cultural property', 'knowledge', and
'biodiversity' - components that are generally considered outside
the scope of western thinking on intellectual property.(43) These
include the following.
- In February 1992 an Open Forum held as part of the Seventh
Asian Symposium on Medicinal Plants, Spices and Other Natural
Products in Manila, Philippines, produced the Manila Declaration
Concerning the Utilisation of Asian Biological Resources.
- A World Conference of Indigenous Peoples on Territory,
Environment and Development, held in Kari-Oca, Brazil, in May 1992,
produced a statement known as the Kari-Oca Declaration and the
Indigenous Peoples' Earth Charter.
- In June 1993 a meeting of Indigenous peoples took place in
Whakatane, New Zealand. This was the First International Conference
on the Cultural and International Property Rights of Indigenous
Peoples. The meeting produced a statement called the Mataatua
Declaration on Cultural and Intellectual Property Rights of
Indigenous Peoples. This Declaration was submitted to the 1993
Session of the UN Working Group on Indigenous Populations.
- In November 1993 an international conference on Indigenous
intellectual and cultural property was held at Jingarrba in north
east Queensland issued a statement, known as the Julayinbul
Statement on Indigenous Intellectual Property Rights.
- A series of regional consultations and meetings of Indigenous
peoples to discuss intellectual property rights took place in
Bolivia, Malaysia and Fiji during 1994 and 1995. These meetings,
sponsored by regional non-Government organisations, including the
Coordinating Body for the Indigenous Peoples' Organisations of the
Amazon Basin and the United Nations Development Programme, issued
statements concerning the recognition and protection of
intellectual property rights.
- The regional meeting in Fiji also produced a Treaty for a
Lifeforms Patent-Free Pacific and Related Protocols, to prevent
exploitation of local and Indigenous peoples in this region by
biological prospecting and the collection of human genetic
materials.
These Indigenous statements are generally more inclusive in
their coverage than statements in western law, incorporating a
wider range of subject matter which Indigenous peoples consider to
be their cultural and intellectual property. They form an important
emerging body of principles which ultimately must influence western
legal systems to provide improved protection for Indigenous
cultures.
There have been various developments in Australia that have
proposed recommendations concerning protection for Aboriginal and
Torres Strait Islander peoples' intellectual property rights.(44)
Most of these have focussed on the protection of Indigenous
intellectual property rights in artistic works; relatively little
comprehensive consideration has been given to protecting other
components of Indigenous intellectual property such as secret or
sacred material, cultural heritage, knowledge, or biodiversity.
This section surveys some of these developments.
Folklore, Culture, Customary Law, Arts and Crafts and Social
Justice
Report of the Working Party on the Protection of Aboriginal
Folklore, 1981
During the 1970s, partly as a result of the copyright cases
brought by Aboriginal artists and the increasing entry of the works
of Aboriginal artists into the national and international art
markets, there was a growing recognition of the need to address
inadequacies in legal protection for Aboriginal and Torres Strait
Islander peoples' intellectual property rights. In May 1973 the
first National Seminar on Aboriginal Arts, held in Canberra,
resolved that the Aboriginal Arts Board of the Australia Council
should initiate procedures which would 'enable each tribal body to
protect its own particular designs and works and to strictly
control the use of them by non-Aboriginals'.(45) The Copyright
Committee of the Australia Council referred that resolution to the
Government, with a recommendation that a committee be established
to 'examine the nature of legislation required to protect
Aboriginal artists in regard to Australian and international
copyright'. This led to the establishment by the then Commonwealth
Department of Home Affairs and Environment of a Working Party on
the Protection of Aboriginal Folklore. The working party comprised
representatives from the Attorney-General's Department, the
Australia Council, the Australian Copyright Council, the Department
of Prime Minister and Cabinet and the Department of Aboriginal
Affairs. The working party's report released in 1981 recommended a
draft law called the Aboriginal Folklore Bill, designed to
establish an Aboriginal Folklore Board and a Commissioner for
Folklore empowered to make determinations about uses of Aboriginal
cultural items.
In deciding that the object of its study should be directed
towards the protection of Aboriginal 'folklore', the report
concluded that 'folklore' was a useful term if applied in an
expanded sense, and that its use is also justified on the basis of
its recognition in some international legal contexts. The report
states that 'use of the term 'folklore' recognises that traditions,
customs and beliefs underlie forms of artistic expression, since
Aboriginal arts are tightly integrated within the totality of
Aboriginal culture'. It argued that 'folklore is the expression in
a variety of art forms of a body of custom and tradition built up
by a community or ethnic group and evolving continuously.'(46) The
Report draws on the Tunis Model Law which defines folklore as:
all literary, artistic and scientific works created on national
territory by authors presumed to be nationals of such countries, or
by ethnic communities, passed from generation to generation and
constituting one of the basic elements of the traditional cultural
heritage.(47)
The recommendations from the working party report have not been
implemented, although the model it outlines is one of the options
for reform being considered by an interdepartmental committee. One
potential difficulty posed by the model suggested in the folklore
report is the centralised nature of the structure to be
established; this is likely to be at odds with the concept of
localised community decision making about uses of folklore.
A further difficulty is in the definition and scope of the term
'folklore'. Although this terminology is used in the WIPO/UNESCO
discussions, it is not appropriate to uncritically impose it onto
the Aboriginal and Torres Strait Islander context. As some writers
have argued, although the term 'folklore' is used in some
discussions about African societies, it is derived from an early
European and British context, and when used to denote Indigenous
cultures connotes an entity that is subordinate to culture or
heritage.(48)
Report on the Recognition of Aboriginal Customary Law,
1986
In February 1977 the Australian Law Reform Commission (ALRC) was
asked by the then Federal Attorney-General, the Hon. R.J. Ellicott,
to inquire into the extent to which the existing system of laws
might recognise Aboriginal customary laws.(49) The terms of
reference for this inquiry were:
(a) whether existing courts should be empowered to apply
Aboriginal customary law and practices in the trial and punishment
of Aborigines; and
(b) to what extent Aboriginal communities should have the power
to apply their customary law and practices in the punishment and
rehabilitation of Aborigines.
The ALRC report discussed the definition of customary law,
finding that there was some agreement among the many writers on
this subject that 'there existed, in traditional Aboriginal
societies, a body of rules, values and traditions, more or less
clearly defined, which were accepted as establishing standards or
procedures to be followed and upheld ... [and] ... furthermore,
these rules, values and traditions continue to exist, in various
forms, today'. There remained some difficulties, however, in the
ALRC report's discussion, about the extent to which this body of
'values, rules and traditions' may be considered, in the legal and
anthropological tradition, as 'law'.(50)
The main focus in the ALRC report was on criminal law and
justice issues, and it considered only very briefly other aspects
of customary law.(51) With regard to cultural heritage, and
intellectual property rights in art and cultural expressions, the
ALRC touched briefly on these, but mostly stated that these matters
were adequately covered in the report of the Working Party on the
Recognition of Aboriginal Folklore, and that the Commonwealth
Government was 'considering the implementation of the
recommendations' of that report. The ALRC report recognised the
inadequacies in existing copyright law for protection of Indigenous
intellectual property, stating that 'the protection of traditional
designs is difficult to reconcile with the law relating to
intellectual property, which grants a short term monopoly to the
artist on the condition that the design or idea will eventually be
available in the public domain.' In the light of these
incompatibilities, the ALRC report supports special legislative
protection for Indigenous cultural items not adequately protected
by copyright laws, stating that 'such special legislative measures,
together with careful use of the general law, and greater use of
existing by-law powers, offer greater assistance to Aboriginal
people than the enactment of a broad range of customary offences as
part of the general body of criminal law.'(52)
The relationships between Aboriginal and Torres Strait Islander
customary law (defined as the body of rules, values and traditions
in Aboriginal and Torres Strait Islander societies) and
intellectual property rights as protected under existing copyright
laws have been explored by various writers.(53) The general
conclusion is that there is a fundamental difference between
copyright laws, which exist to encourage creativity and investment
by creating a private property right that can be transferred within
a commercial market economy, and the 'production and regulation of
imagery within Indigenous communities ... [which] ... is not based
upon notions of talent or individual expression, but stems from
systems of inherited rights and obligations'.(54)
The problem of recognising Aboriginal and Torres Strait Islander
peoples' intellectual property rights has mostly been discussed as
these relate to works of art. As such, a number of reports and
other processes regarding what has come to be known as the
Aboriginal and Torres Strait Islander 'arts and crafts industry'
often have some regard to intellectual property issues. Most of
these reports emphasise the need to support commercial and economic
aspects of Indigenous 'arts and crafts', and focus on discussions
about industry viability, improvement of marketing strategies, and
funding initiatives for arts and crafts enterprise development.
While the achievement of commercial success is undoubtedly an
important component of the path towards self-determination for
Aboriginal and Torres Strait Islander peoples, so too is the
recognition of their distinct cultural rights as Indigenous
peoples. The promotion of Indigenous art as a significant industry
must equally have regard to the 'cultural integrity' of the
art.(55)
Report of the Review Committee on the Aboriginal Arts and
Crafts Industry, 1989
In recognition of the increasing income generating potential of
the Aboriginal arts and crafts industry, a committee appointed in
1989 by the then Aboriginal and Torres Strait Islander Affairs
Minister, the Hon. Gerry Hand, was asked to conduct an inquiry into
this industry. Although this committee's primary concern was with
matters relating to the commercial viability of the Aboriginal arts
and crafts industry, and the need for a more effective marketing
strategy, in its report of 1989 it did recognise the importance of
protecting Indigenous intellectual property rights, and the
difficulties in achieving adequate protection within existing laws.
The report's recommendations were more cautious than those of the
Working Party on Protection of Aboriginal Folklore, but nonetheless
supported the consideration of the latter report.(56)
Report of the Royal Commission into Aboriginal Deaths in
Custody, 1991
The Royal Commission into Aboriginal Deaths in Custody included
consideration of Aboriginal arts and crafts in its discussion on
increasing economic opportunity. The Commission added its support
to the recommendations of the Arts and Crafts Industry Review
Report, which advocated the establishment of an Aboriginal and
Torres Strait Islander arts and crafts industry strategy, improved
coordination of activities relating to Indigenous arts and crafts
development, increased support to Indigenous arts and crafts
centres, and special programs to assist these activities. Copyright
issues are included in the Royal Commission's discussion,
supporting the views propounded in the previous Report.(57)
The central issue here is that a pattern is emerging wherein
each report has merely reasserted what is already well known, and
reinforced the need to implement recommendations advocated in
previous reports. While there is some merit in reasserting the same
recommendations, relatively little of substance has been added to
the comprehensive analysis in the 1981 Working Party Report. The
same recommendations are being recycled, with little regard to
serious consideration of implementation.
The need to support arts and crafts industry development is
certainly of great importance. Indeed, the increasing entry of
Indigenous arts and crafts into commercial markets brings an
increasing urgency to protect the cultural sensitivities and
customary rights of the producers and their communities. It is
clearly not viable to argue that Indigenous arts and crafts are
purely an industrial activity; the cultural dimensions are
integral, and must be given added consideration as the industry
continues to grow.
Creative Nation, 1994
The Keating Government released a Commonwealth cultural policy
in October 1994. This document drew attention to the inadequate
protection of Aboriginal and Torres Strait Islander peoples'
intellectual property rights under existing laws, and added to the
body of reports and statements advocating reforms to protect
Indigenous peoples' intellectual property rights. Creative
Nation stated that any measures should include consultations
with Indigenous communities.
Discussion Paper, Proposed Moral Rights Legislation for
Copyright Creators, June 1994
In June 1994 the Commonwealth Government released a discussion
paper on moral rights. This paper examined the possibility of
introducing the recognition of moral rights into the Australian
legal system, to provide protection for creators. Moral rights, as
distinct from the economic rights that are currently the focus of
copyright law, comprise two components: 'the right to be identified
as the author of a work (the right of 'attribution'), and the right
to object to distortion, mutilation or other modification of, or
derogatory action in relation to, the work which is prejudicial to
the author's honour or reputation (the right of
'integrity')'.(58)
The introduction of moral rights would fulfil obligations under
the Berne Convention, and would also enhance the ability of the
Copyright Act to protect Indigenous peoples' rights. Moral
rights would provide legal recognition of the 'use of works', and
provide mechanisms for redress where works have been misused. As
such, the discussion paper says, these rights might 'provide an
additional and significant means of redress for some Aboriginal
artists'. Since moral rights are 'personal' in nature, and
therefore cannot be transferred, in the view of the authors of the
discussion paper, they allow potentially greater control by
Indigenous creators over their works.(59)
Issues Paper, Stopping the Rip-Offs: Intellectual Property
Protection for Aboriginal and Torres Strait Islander Peoples,
October 1994
One of the more comprehensive developments since the 1981 Report
of the Working Party on the Recognition of Aboriginal Folklore was
the release in October 1994 of the issues paper Stopping the
Rip-Offs: Intellectual Property Protection for Aboriginal and
Torres Strait Islander Peoples. This was prepared by the
Commonwealth Attorney-General's Department and issued under the
auspices of three Ministers in the Keating Labor Government: Duncan
Kerr, Minister for Justice; Robert Tickner, Minister for Aboriginal
and Torres Strait Islander Affairs; and Michael Lee, Minister for
Communications and the Arts.
This issues paper expanded on recommendations in Creative
Nation and outlined the problems in achieving adequate
protection for Indigenous peoples intellectual property rights
under existing intellectual property laws. It surveyed some of the
existing international and domestic laws relating to intellectual
property, and suggested a range of possible options for improving
protection for Aboriginal and Torres Strait Islander peoples'
intellectual property rights.
The paper adopts the terms 'intellectual property', and 'arts
and cultural expressions' to denote aspects of Indigenous cultures,
and defines 'arts and cultural expressions' to 'encompass all forms
of artistic expression which are based on custom and tradition
derived from communities which are continually evolving'. Since
this paper is bound within a conceptual framework of 'copyright',
its discussion is limited to 'those aspects of the protection of
arts and cultural expression that have a close connection with
copyright law'. It therefore precludes consideration of 'other
areas such as biodiversity and indigenous knowledge ... [which] ...
are sometimes considered to be protected by intellectual property
laws', since 'these areas often touch on aspects of intellectual
property protection without involving property rights
themselves'.(60) The paper is thus problematic in that it denies
the potential for Indigenous rights and interests in biodiversity
and knowledge to be considered as 'property rights'. As such, this
paper does not adequately address Indigenous intellectual property
rights: it deals only with one aspect.
An interdepartmental committee convened by the Department of
Communications and the Arts is currently developing a response to
the Stopping the Rip-Offs paper.
Social Justice Reports, 1995
Following the passage of the Native Title Act in 1993,
and establishment of a body to administer the Indigenous Land Fund,
the former Government proposed a series of additional measures to
address Aboriginal and Torres Strait Islander peoples'
disadvantage. The proposed social justice strategy recognised that
not all Aboriginal and Torres Strait Islander peoples would be able
to claim native title or other forms of land rights, and that there
were many areas of Indigenous disadvantage that would not be
addressed by these initiatives. In formulating its social justice
strategy, that Government released a discussion paper and called
for submissions. Among the most prominent submissions received were
those by the Aboriginal and Torres Strait Islander Commission
(ATSIC), the Council for Aboriginal Reconciliation (CAR) and the
Aboriginal and Torres Strait Islander Social Justice Commissioner
of the Human Rights and Equal Opportunity Commission.
The submission from ATSIC, presented in 1995, consistent with
United Nations statements and Indigenous perspectives, recognised
that to Indigenous peoples 'intellectual property' and 'cultural
property' comprise integral components of what this report termed
'cultural integrity and heritage protection'.(61) This report
provided the following three specific recommendations for the
protection of Indigenous intellectual property rights:
The Commonwealth Government should amend statutes relevant to
intellectual property rights to safeguard the integrity and
ownership of indigenous cultural [and intellectual] property in a
manner which recognises the particular features of Aboriginal and
Torres Strait Islander ownership, including perpetual and communal
rights. (Recommendation 81)
The Commonwealth Government should introduce measures to
regulate and ensure appropriate compensation for agreed use of
indigenous intellectual and cultural property. (Recommendation
82)
The Commonwealth Government must ensure that ATSIC and
appropriate indigenous organisations are fully involved in
negotiating the legislative reform and other aspects of the
recommendations relating to cultural protection. (Recommendation
83)(62)
Similar recommendations were made in the submissions by the
Council for Aboriginal Reconciliation and the Aboriginal and Torres
Strait Islander Social Justice Commissioner.(63)
The social justice package is not part of the Coalition
Government's agenda, although the Aboriginal and Torres Strait
Islander Commission is carrying out some work on intellectual
property.(64)
Coalition Government Policy, 1996
The policies of the Coalition Government support the need for
improved protection for Aboriginal and Torres Strait Islander
peoples' intellectual property rights. In its Aboriginal and Torres
Strait Islander Affairs policy the Coalition says that it will
'ensure that relevant copyright laws fully recognise the cultural
and economic rights of Indigenous artists.' It is not certain at
this stage whether the Coalition's policies will be limited to
reforms to the Copyright Act to provide better protection
for Indigenous artists, or extend to recognising the full range of
Indigenous peoples' intellectual property and include consideration
of new sui generis legislation.
Australian Copyright Council Discussion Paper, Indigenous
Intellectual Property Rights: A Copyright Perspective, March
1997
In March 1997 the Australian Copyright Council released a
discussion paper on Indigenous intellectual property rights. This
paper is a valuable contribution to the literature, and provides a
very comprehensive coverage of the issue. As it openly states, this
paper is working within a copyright framework, and its conclusions
therefore remain cautious regarding reforms, suggesting that there
may be sufficient remedies within existing copyright law to provide
'a measure of protection to the communities of individual
indigenous creators'.(65)
Heritage, Biodiversity and Native Title
The protection of intellectual property is integral, in
Indigenous peoples' views, to heritage and land. A number of
legislative and other developments on heritage, biodiversity and
land are relevant to Aboriginal and Torres Strait Islander
intellectual property rights.
Protection of Indigenous Heritage
The Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 provides for the Commonwealth Minister to
make declarations for protection over significant areas, sites or
objects that are under threat of desecration. This Act is a 'last
resort' to be used when State or Territory processes have failed.
The Commonwealth Act does not include provisions for protection of
non material aspects of heritage, but there is scope in Part IIA of
this Act, enacted for Victoria. Part IIA includes 'folklore' in its
definition of 'Aboriginal cultural property', which refers to:
...traditions or oral histories that are or have been part of,
or connected with, the cultural life of Aboriginals (including
songs, rituals, ceremonies, dances, art, customs and spiritual
beliefs) and that are of particular significance to Aboriginals in
accordance with Aboriginal tradition.(66)
The Heritage Protection Act was the subject of a review
carried out in 1996 by the Hon. Elizabeth Evatt, AC. The Evatt
Report has added to the growing number of reports and
recommendations advocating the need to consider 'intellectual
property' and other intangible aspects of Indigenous heritage in
legislative and policy reforms.
This report made many recommendations aimed at improving the
operation and effectiveness of the Act for protecting Indigenous
heritage, and for achieving better coordination of heritage
protection across all levels of government. Included in these
recommendations are the need to include consideration of intangible
components of heritage (including intellectual property) in
protection measures, and matters concerning the need to respect
confidentiality, and customary restrictions on information in
dealing with heritage protection. The report also recommended that,
if State and Territory governments do not establish appropriate
bodies, the Commonwealth Government should establish an Indigenous
cultural heritage committee to ensure that Indigenous peoples have
primary responsibility in deciding the significance of sites. This
may allow the potential for the inclusion of intangible aspects of
cultural heritage, including knowledge in frameworks for
protection.
A discussion paper was released by the Aboriginal and Torres
Strait Islander Commission in March 1997, on Proposed Minimum
Standards Framework for the Accreditation of State and Territory
Aboriginal and Torres Strait Islander Heritage Protection Regimes.
This paper proposes that protection should be accorded to 'areas
and objects which are culturally significant to Aboriginal and
Torres Strait Islander people, including human remains, cultural
property and historic and archaeological areas (including
buildings).'. The paper considers that the 'significance of, and
the nature of the threat or desecration to, an area or object is a
matter for indigenous people to decide in accordance with their
contemporary traditions'.
The Minimum Standards paper retains the emphasis on
notions of physical places or objects as the primary (or only)
manifestations of Indigenous cultural heritage, omitting any
discussion of non-physical aspects. Although there may be some
scope within the approach in this paper for Indigenous peoples to
promote the non-physical dimensions of their heritage in ascribing
significance, since the interpretation and management of heritage
ultimately rests with government (the Commonwealth in this case),
the focus appears likely at this stage to remain squarely on
physical heritage.
The importance of incorporating Indigenous perspectives on
heritage in Government approaches is recognised in some reports.
This has been usefully discussed in a report by the Australian
Heritage Commission released in February 1997, Australia's
National Heritage: Options for Identifying Heritage Places of
National Significance, which drew attention to the importance
of knowledge:
Indigenous people have a strong sense of heritage as including
intangible aspects such as language, song, stories and art, and can
be critical of a notion of heritage based too narrowly on 'place'.
Protecting knowledge associated with a place may be equally or more
important than physical protection of a place. Indigenous
understandings of heritage will need to be acknowledged...(67)
Other developments which have raised the problems in protecting
Aboriginal and Torres Strait Islander peoples' intellectual
property rights have included an Inquiry into Aboriginal and Torres
Strait Islander culture and heritage that was commenced by the
House of Representatives Standing Committee on Aboriginal and
Torres Strait Islander Affairs, and which was discontinued with the
change of government in March 1996. The full reference for that
inquiry was:
...to inquire into and report on the maintenance and promotion
of Australia's Indigenous arts, cultures and cultural identity.
This encompasses the full range of artistic and cultural
activities, both traditional and contemporary, including visual
art, craft, language, design, dance, music, drama, storytelling,
folklore, writing, sound, films, heritage, traditional cultural
practices and spiritual beliefs.
Of those components that the inquiry was to pay 'particular
attention to', was the inclusion of 'intellectual property rights,
including the ownership and integrity of artistic work'. The
inquiry received many comprehensive submissions, and conducted
public hearings throughout several States before it was
discontinued.
Indigenous Cultural Property
As advocated in international and Indigenous statements, to
Indigenous peoples cultural property is inseparable from
intellectual property, and these together comprise integral
components of their cultural heritage.
Cultural property is generally considered to include a range of
objects such as human remains, artefacts, items of a secret or
sacred nature, and historical materials (including archival and
other records). Much of this material is held in museums and other
collecting institutions (both overseas and within Australia), for
research and display purposes. Indigenous peoples claim their
rights in this material, as it forms an essential component of
their collective heritage, and is crucial to cultural identity.
Although many museums are actively working with Indigenous
people to repatriate cultural property, there is little or no
nationally consistent approach or policy, and no legislative
obligation to repatriate. While the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984 and some State
laws may be used to a limited extent for this purpose, the
Commonwealth Act provides only for protection orders of a limited
duration to be placed over collections, while attempts are made to
negotiate regarding repatriation.
Some progress towards the development of a national policy was
made in the early 1990s following lengthy and difficult
negotiations between Indigenous peoples, museums, and governments,
but this ultimately fell short of achieving an agreed national
policy. Limited success was achieved by the museums association and
by the Aboriginal and Torres Strait Islander Commission, each of
which independently finalised policy positions and guiding
principles.
The challenges to successful achievement of a national policy
include matters such as ownership rights and interests in cultural
property, questions of access and provision of information about
such material, and relative roles and responsibilities (including
financial) of key stake-holders, including governments, museums and
their organisations, and Indigenous peoples.(68)
Protection of Indigenous Secret or Sacred Information
Indigenous peoples consider information to be part of their
intellectual property, and such information is regulated and
managed according to strict cultural codes and rules. Matters of
confidentiality and secrecy in Aboriginal and Torres Strait
Islander societies are integral to the functioning of these
societies, and are closely interconnected with religious, cultural,
political and social systems.(69)
As with all their forms of intellectual property, knowledge is
frequently obtained as information from Aboriginal or Torres Strait
Islander people by researchers, scientists, government officials
and a host of others, often without the consent of the people who
'own' the knowledge. As such, rules of confidentiality, often
little understood or appreciated by the recipients of the
information, are breached. Few actions have been brought by
Indigenous people under western laws for breach of confidentiality,
despite the fact that such information is very frequently sought.
One case (Foster v Mountford (1976)) that has been
documented is the action brought by members of the Pitjantjatjara
Council who in 1976 sought to prevent information obtained by an
anthropologist (Mountford) from being published in the Northern
Territory. This action was taken using breach of confidence rules,
and the court granted the plaintiffs an injunction to prevent sale
of the book.(70)
The problems of confidentiality, especially with regard to
Indigenous peoples' secret or sacred information, are particularly
pertinent to the taking of evidence in courts, and to hearings and
provision of evidence in land and heritage matters. These issues
have been discussed in the 1986 Law Reform Commission's Report
on the Recognition of Aboriginal Customary Laws, and were
prominent in relation to claims that were made under the
Aboriginal and Torres Strait Islander Heritage Protection Act
1984 by Aboriginal people for heritage protection around the
Hindmarsh Island Bridge area. The Hon. Elizabeth Evatt, AC, devoted
some considerable discussion of secret and sacred information in
her 1996 report of the review of the Heritage Protection
Act, and produced a number of recommendations aimed at
ensuring that heritage protection laws and procedures have respect
for customary restrictions on information.(71)
Protection of Indigenous Knowledge in Biodiversity
Indigenous peoples assert that their intellectual property
rights extend to protection for biological diversity. Although
international developments are proceeding in the complex area of
Indigenous cultural rights, there has been relatively little
consideration of possible measures that may provide recognition and
protection for Indigenous peoples' rights in biological diversity
in Australia.
The most significant international development that provides
potential for protection of Indigenous knowledge is the Convention
on Biological Diversity, discussed above.
The Conference of Parties to the Convention on Biological
Diversity and its technical advisory body, the Subsidiary Body on
Scientific, Technical and Technological Advice, include in their
programs of work consideration of the implementation of Article
8(j).(72) Issues raised by this work include the clarification of
the relationship between Indigenous knowledge and intellectual
property rights, and whether Indigenous knowledge can be construed
as a property right.
Developments in Australia gained some momentum following the
1992 United Nations Conference on Environment and Development. In
1992 the then Commonwealth Government, with State and Territory
governments, endorsed the Intergovernmental Agreement on the
Environment, which includes an agreement to conserve biological
diversity. Following that, in the same year a Task Force on
Biological Diversity was established by the Australian and New
Zealand Environment and Conservation Council (ANZECC) to oversee
and report on the implementation of the Convention on Biological
Diversity. Following recommendations from the Task Force, the
Council of Australian Governments agreed in 1992 to implement a
National Strategy for Ecologically Sustainable Development, which
includes the conservation of biological diversity as one of its
central objectives.
The Australian Government ratified the Convention on Biological
Diversity in June 1993, and in 1996 the Commonwealth, State and
Territory governments endorsed the National Strategy for the
Conservation of Australia's Biological Diversity. Action 1.8.2 of
this Strategy is to:
Ensure that the use of traditional biological knowledge in the
scientific, commercial and public domains proceeds only with the
cooperation and control of the traditional owners of that knowledge
and ensure that the use and collection of such knowledge results in
social and economic benefits to the traditional owners. This will
include:
(a) encouraging and supporting the development and use of
collaborative agreements safeguarding the use of traditional
knowledge of biological diversity, taking into account existing
intellectual property rights; and
(b) establishing a royalty payments system from commercial
development of products resulting, at least in part, from the use
of traditional knowledge.
The Commonwealth Government is also considering implementation
of the Convention in various committees. The ANZECC Task Force on
Biological Diversity recommended that a Commonwealth/State Working
Group (CSWG) should be established to 'investigate and report on
the strengthening of existing controls governing access to genetic
resources'. This CSWG was established in May 1994, and an
interdepartmental committee convened by the Department of Industry,
Science and Tourism was subsequently formed to monitor the work of
the CSWG and to develop a Commonwealth position on issues raised by
the CSWG.(73)
The CSWG has prepared a draft discussion paper which includes a
brief outline of Indigenous peoples' rights in biological and
genetic resources, and the inability of existing intellectual
property rights systems to adequately protect these. The paper
concludes however that questions of Indigenous rights and ownership
are too complex, are outside the scope of the Working Group's
concerns and being dealt with in other forums. The paper therefore
limits its discussion to the management of access to
biological and genetic resources.
There are important implications particularly for Indigenous
peoples post Mabo for ownership and control of biological and
genetic resources. Given these implications and the multiple,
intersecting and competing rights and interests in these resources,
the CSWG's consideration of these aspects appears to be relatively
inadequate.
Another intergovernmental committee convened by the Department
of Environment, Sport and Territories is considering strategies for
implementing the Convention; and a committee convened by the
Department of Primary Industries and Energy is dealing with the FAO
International Undertaking and related matters.
It remains to be seen how effectively these developments can
incorporate consideration of Indigenous perspectives, including
Indigenous intellectual property rights, particularly in the light
of Australia's obligations under the TRIPS Agreement.
The links between protection and conservation of biological
diversity, and the role of Indigenous peoples' knowledge, practices
and innovations, are of more than academic interest. Indigenous
peoples are increasingly concerned about exploitation of plants and
animals, and other biological products and derivatives, and of the
knowledge about them. Indigenous biological knowledge is being
collected and utilised by pharmaceutical, cosmetic and other
research companies, without regard to the custodians and holders of
this knowledge, and with little or no financial returns to the
Indigenous communities.(74) The protection of Indigenous biological
and other types of knowledge is not within the scope of existing
patent or other intellectual property laws.
Native title
The High Court's 1992 Mabo decision, the Native Title Act
1993, and the 1996 Wik decision carry potentially large
implications for recognition of Indigenous intellectual property
rights. Some writers have suggested that the recognition in common
law of native title rights, could extend to recognising customary
laws, including those related to ancestral designs.(75)
Given the close connections between intellectual property and
land in Indigenous peoples' perspectives, it is feasible that
claims could be made under the Native Title Act, using the
Mabo Decision principles, to assert Indigenous peoples' rights in
intellectual property. Whatever interpretations are made of these
connections, there is no doubt that the Mabo Decision, the
Native Title Act, and the more recent Wik Decision provide
firm principles for the recognition of Indigenous customary laws
within the western legal system.(76)
There are many possible ways in which reforms can be introduced
to provide better protection for Indigenous intellectual property
rights. These range from amendments to a range of existing laws,
through more creative uses of these laws, a variety of common law
and non-legislative approaches, to new sui generis systems
which would be designed specifically for Indigenous peoples'
intellectual property rights and which would provide greater
community control over cultural products and expressions.
While a relatively comprehensive discussion of reforms is
contained in the Australian Copyright Council's recent discussion
paper, given the focus of that paper on a copyright approach it is
ultimately cautious in its recommended solutions.(77)
Reforms to Existing Intellectual Property Laws
One possible avenue for providing improved protection for
Aboriginal and Torres Strait Islander peoples' intellectual
property rights is through amendments to existing laws. The problem
with this 'minimalist' approach is that it will not go far enough
to sufficiently address intellectual property rights from
Indigenous peoples' perspectives.
Amendments to the Copyright Act might be usefully
considered that extend, or waive the fifty year period for
copyright protection, and expand the scope of the Act to include
provisions for copyright protection of non-corporeal forms of work,
such as performances. The provisions in the Copyright Act
for performers' rights may offer some scope for protecting
Indigenous ceremonial performances, but do not recognise the
communal rights in these performances, and protection would still
be subject to the limitations within the Act discussed above. The
inclusion of moral rights protection would go some way towards
better protecting Indigenous creators, and enabling them to seek
redress for misuse of their works.
Ultimately, however, copyright and allied intellectual property
laws are reactive. They operate retrospectively: persons who
consider that their copyright has been infringed bring actions
under the Copyright Act for redress. Effective use of the
Copyright Act also requires sufficient knowledge of the
workings of that Act, access to legal assistance, and adequate
resources to cover costly litigation. These latter requirements may
provide constraints on Aboriginal and Torres Strait Islander people
seeking to use this legislative option.
The Australian Copyright Council has discussed the concept of
domain public payant as a possible avenue for reform. This
system would establish a system for the payment of royalties to be
made, for the commercial uses of works that are in the public
domain. As that paper argues, however, this type of system would be
likely to be antithetical to Indigenous peoples' interests, as it
would depend for its operation on cultural products and expressions
being in the public domain, and therefore freely accessible. This
would increase the risk of exploitation of Indigenous cultural
works. Since a domain public payant system also requires
state control, this would deny Indigenous peoples' wish to control
their own cultural products and expressions, and to receive
benefits from the wider uses of these.(78)
Other Legislative Reforms Options: Heritage Protection and
Native Title
Greater protection for Aboriginal and Torres Strait Islander
intellectual property rights may be achieved by considering
amendments to heritage laws. This avenue is particularly
interesting, as it would be a recognition (consistent with
international developments surveyed above) that Indigenous peoples'
intellectual property is a component of their cultural
heritage.
The principal Commonwealth law for protection of Indigenous
heritage is the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984. This Act is designed as a 'last resort'
to enable the Minister to issue protection declarations over sites,
areas or objects which are deemed to be of 'significance' and which
are in threat or danger of desecration.
This Act currently does not include in its provisions scope for
protection over non-tangible aspects of heritage. There is,
however, increasing recognition of the fact that Indigenous
heritage is a more inclusive entity, which incorporates the
intangible and the expressive (i.e. song, dance, ceremony, etc)
aspects of heritage as well as physical sites or places. A recent
discussion paper produced by the Australian Heritage Commission in
relation to the national heritage register drew attention to the
importance of the intangible dimensions of heritage, and the
knowledge associated with sites. Similar assertions have been made
in the recommendations of the report by Elizabeth Evatt on the
review of the Aboriginal and Torres Strait Islander Heritage
Protection Act. Some writers have argued that amendments to
the Aboriginal and Torres Strait Islander Heritage Protection
Act may be a more fruitful way to better protection for
Aboriginal and Torres Strait Islander peoples' intellectual
property rights.(79) It is also significant to note in this regard
the provisions of Part II of the Heritage Protection Act
which were introduced for Victoria. These provisions go further
than those in the Commonwealth Act, in that they allow for the
inclusion of items of heritage other than purely physical places or
objects in determining protection. This part of the Act also
provides for a system of community control over heritage - an
important aspect also absent from the Commonwealth law.
The Native Title Act 1993, as discussed above,
establishes principles for recognition of Indigenous customary
rights. This Act may also be interpreted to include recognition of
Indigenous knowledge as intellectual property rights, within the
meanings and definition of native title. One writer argues that
since native title is defined according to the customs and
traditions of the claimant group, this by definition must imply the
inclusion of intellectual property rights, because to Indigenous
peoples the 'knowledge of the properties of fauna and flora' - a
component of their intellectual property - is determined according
to customary laws.(80)
Non-Legislative Reform Options
There are options for considering common law reforms, using such
mechanisms as 'blasphemy', and 'prerogative rights'. These are also
canvassed in the Australian Copyright Council's discussion
paper.(81) While they may establish some useful precedents, these
approaches are of limited effectiveness in providing adequate
recognition and protection for the full subject matter of
Indigenous peoples' intellectual property rights, and incorporating
their cultural perspectives in areas such as communal rights.
The development of guidelines, agreements, protocols, codes of
conduct and similar arrangements are important areas for
considering effective reforms. There are some significant emerging
standards internationally, such as the Principles and
Guidelines for the Protection of the Heritage of Indigenous
People recommended in the 1995 study of Indigenous heritage
prepared by the United Nations Special Rapporteur, Erica
Irene-Daes.(82)
The development of regional agreements, either within the
provisions of the Native Title Act or independently,
provides scope for including for Indigenous control of, and full
participation in, management - which could include management of
natural and cultural resources, products and expressions. These
regional agreement type developments are currently being negotiated
in the Cape York Peninsula region of Far North Queensland and in
the Kimberley region of West Australia.
One non-legislative measure with some potential to protect
Indigenous intellectual property is the development by the National
Indigenous Arts Advocacy Association of an authentication mark or
trademark for Aboriginal and Torres Strait Islander art and
cultural products. This is a label that will attach to cultural
products, and which will be used to protect the origin and
'authenticity' of the products.(83) Although the authenticity label
is essentially a 'marketing tool', designed to protect the consumer
more than the Indigenous producer or community, by ensuring that
products are 'authentic' it may in time act as an inducement for
galleries, traders, and others in the commercial art and cultural
products market to recognise and respect Indigenous art, and
thereby mitigate the potential for exploitation and
misappropriation. It is also proposed that the development of the
label be accompanied by an information and education strategy about
Indigenous art and authenticity - an initiative that would also
assist in protecting Indigenous peoples' intellectual property
rights.
The development and introduction of effective reforms requires
an active and committed approach throughout the entire machinery of
government. A proliferation of committees, working parties and
other bodies within the government bureaucracy may be an impediment
to effective reforms. Conversely, with commitment and resources,
these bodies can provide the impetus and the momentum necessary for
meaningful and long term change.
Sui Generis Legislative Options and Community
Rights
The inadequacies of existing intellectual property rights
systems, and the challenges imposed by the GATT TRIPS are
increasingly moving some communities to consider developing their
own innovative solutions. One of the most potentially powerful is
the development of sui generis systems for cultural
protection, and community rights schemes. Some model legislation
has been developed, notably by Third World countries, which seeks
to establish a system for community control over cultural and
resource rights. One such model, outlined by Nijar, suggests a
conceptual framework and essential elements of a rights
regime.(84)
Legislation has been introduced in India providing for community
control over cultural items and resources. This Act, the
Provisions of the Panchayats (Extension to the Scheduled Areas)
Act 1996 provides a model which, as well as that suggested by
Nijar, could well be considered by other communities with a view to
formulating approaches to recognition of their community rights.
There are also debates among some Third World development scholars
and advocates about sui generis systems for protection of
biodiversity related community intellectual rights biological
resources. Some writers have advocated such an approach, called the
Model Biodiversity Related Community Intellectual Rights
Act.(85)
Other Models: Traditional Resource Rights and Intellectual
Integrity Rights
Some emerging developments suggest a potential for introducing a
more integrated approach to provide recognition and protection of
Indigenous peoples' intellectual property rights, and which
incorporate the 'holistic' approach advocated by Indigenous
peoples. For example, British ethnobotanist Darrell Posey is
developing a model based on what he terms 'traditional resource
rights'. Posey bases his model on a notion of rights rather than on
a model of commercialisation and commodification. 'Traditional
resource rights' defines a 'bundle of rights', and Posey advocates
an integrated process through which Indigenous peoples can employ a
range of international human rights instruments and principles of
equity and justice to assert their claims to property.(86) The
advantage this approach offers is its foundational assertions about
social justice, equity and self-determination: it embraces a more
far-reaching set of Indigenous rights issues than more limited
arguments for intellectual property reforms and other legislative
measures.
Another model has been suggested in a 1994 Report by the
Canadian based advocacy group Rural Advancement Foundation
International (RAFI). In RAFI's report Conserving Indigenous
Knowledge: Integrating Two Systems of Innovation the authors
argue that Indigenous peoples have a number of options available to
them for protecting their knowledge.(87) These include utilising
existing intellectual property systems, developing a new sui
generis legal regime, entering bilateral contractual
arrangements, and establishing a system that combines each of these
strategies. The RAFI report advocates an integrated system that
combines all these approaches in what the authors term an
'intellectual integrity framework'.
The RAFI model and Posey's work are two emerging developments
that move beyond simply restating the problem, towards attempting
to develop some useful approaches based on a terminology largely
free of value laden assumptions.
This paper has reviewed a range of international and national
developments, legislation, policies, reports and recommendations
concerning protection for Indigenous peoples' intellectual property
rights. It is evident that existing copyright and other
intellectual property protection laws do not provide a sufficient
basis for protecting Indigenous peoples' intellectual property
rights. Although the Copyright Act, and to a certain
extent other intellectual property laws, have been used relatively
successfully by Aboriginal people to obtain redress and
compensation for misappropriation of their cultural products and
expressions, there is a conceptual gap between Indigenous
perspectives and western intellectual property laws.
The cases that have been brought by Aboriginal artists under the
Copyright Act have demonstrated that this Act can be
extended and interpreted in a way that is more accommodating of
Indigenous interests, but there remain some fundamental problems
with the conventional intellectual property approach.
There can be no doubt that amendments to the Copyright
Act and other intellectual property laws are required to
provide more effective protection for Indigenous peoples'
intellectual property. The Copyright Act could, for
example, be amended to extend the range of items for which
copyright can attach. The term for protection under the
Copyright Act could be extended beyond the current fifty
year term to allow for Indigenous cultural products and expressions
of some antiquity to be protected. A greater degree of information
and education is required, so that Indigenous people especially are
in a far better position to understand the laws that are available,
and to have improved access to, and assistance in, using the
existing legal framework.
There is a conceptual gap between existing intellectual property
systems and the protection and recognition of Indigenous peoples'
rights to their cultural knowledge, products and expressions.
Indigenous peoples consider their intellectual property rights are
an integral component of a 'holistic' cultural heritage, which
includes a wider range of subject matter than can be accommodated
within existing intellectual property laws. Given this, it becomes
apparent that a different system is necessary to protect Indigenous
peoples' rights, and it is for this reason that reforms to existing
laws are best accompanied by the formulation of a new sui
generis legislative arrangement that provides for community
controlled decision-making, and financial benefits to Indigenous
communities for the use by the wider community of their cultural
products, expressions and knowledge. Although the terminology will
need to be revised so that it is more appropriate to Indigenous
concepts and perspectives, the model proposed in the 1981 folklore
report offers a good basis for consideration of a suitable
approach. The proposed model law could be harmonised with the
provisions in the Convention on Biological Diversity, so as to
provide a more integrated scheme for recognition and protection of
Indigenous intellectual property. If a system for community
decision-making and financial returns is devised, it could also
pave the way for greater economic, as well as cultural self
reliance.
- A recent paper by the Australian Copyright Council provides an
excellent comprehensive discussion: see Ian McDonald,
Protecting Indigenous Intellectual Property: A Copyright
Perspective, Australian Copyright Council, Sydney, March
1997.
- There is a voluminous literature on Aboriginal art and
copyright. For useful summaries of cases, see for example
Stopping the Rip-Offs: Intellectual Property Protection for
Aboriginal and Torres Strait Islander Peoples, Issues Paper,
Canberra, October 1994: 4-6; McDonald, op. cit: 23-30; Aboriginal
and Torres Strait Islander Commission (ATSIC), 'The application of
copyright and other intellectual property laws to indigenous art
and cultural expression: Cases, matters settled out of court and
disputes that never went to court', paper prepared by Terri Janke,
Michael Frankel and Company, Sydney, April 1996; Duncan Miller,
'Collective ownership of the copyright in spiritually-sensitive
works: Milpurrurru v Indofurn Pty Ltd', Australian
Intellectual Property Journal, 6(4), Nov. 1995: 185-207.
- A full discussion of bioprospecting and Indigenous peoples is
outside the scope of this paper, but see for example Josephine Axt,
M.L. Corn, M. Lee and D.M. Ackerman, Biotechnology, Indigenous
peoples, and Intellectual property Rights, Congressional
Research Service, Library of Congress, Washington DC, 1993; Andrew
Gray, Between the Spice of Life and the Melting Pot:
Biodiversity Conservation and its Impact on Indigenous
Peoples, IWGIA Document 70, Copenhagen, August 1991; Clark
Peteru, 'Indigenous peoples' knowledge and intellectual property
rights', consultation working paper for consultations in Suva,
Fiji, April 1995, Pacific Concerns Resource Centre (Inc.); Michael
Blakeney, 'Bioprospecting and the protection of traditional medical
knowledge', paper presented to Symposium on Intellectual Property
Protection for the Arts and Cultural Expression of Aboriginal and
Torres Strait Islander Peoples, Perth, 1 October 1996; Jean
Christie, 'Biodiversity and intellectual property rights:
Implications for Indigenous peoples', conference papers and
resolutions, Ecopolitics IX Conference, Northern Territory
University, Darwin, 1-3 September 1995; Dinah Shelton, 'Fair play,
fair pay: Laws to preserve traditional knowledge and biological
resources', WWF Research Report, May 1995.
- See for example, Howard Morphy, ''Now you understand': An
analysis of the way Yolngu have used sacred knowledge to retain
their autonomy', in Aborigines, Land and Land Rights, eds
Nicolas Peterson and Marcia Langton, AIAS, Canberra, 1983: 110-133;
Deborah Bird Rose, 'Whose confidentiality? Whose intellectual
property?', in Claims to Knowledge, Claims to Country: Native
Title Claims and the Role of the Anthropologist, ed. Mary
Edmunds, Native Title Research Unit, Australian Institute of
Aboriginal and Torres Strait Islander Studies, Canberra, 1994:
1-11; Stephen Brush, 'Indigenous knowledge of biological resources
and intellectual property rights: The role of anthropology,
American Anthropologist, 95(3): 653-671.
- Darrell Posey and Graham Dutfield, Beyond Intellectual
Property: Toward Traditional Resource Rights for Indigenous Peoples
and Local Communities, International Development Research
Centre, Ottawa, 1996: 76-81; Peteru, op. cit: 14-18.
- Rural Advancement Foundation International (RAFI),
'Bioprospecting and indigenous peoples: An overview', paper
prepared for the Asian Regional Consultation on the Conservation
and Protection of Indigenous Knowledge in the Context of
Intellectual Property Systems, Sabah, East Malaysia, 24-27 February
1995, para. 2.
- RAFI communique, 'Patents, Indigenous peoples, and human
genetic diversity', May 1993; Stephen Gray, 'Vampires round the
campfire', Alternative Law Journal, 22(2), April 1997:
60-63; Michael Mansell, 'Barricading our last frontier: Aboriginal
cultural and intellectual property rights', in Our Land Is Our
Life: Land Rights, Past, Present, and Future, ed. Galarrwuy
Yunupingu, University of Queensland Press, St Lucia, Brisbane,
1997: 195-209.
- Jill McKeough, ed., Blakeney and McKeough, Intellectual
Property: Commentary and Materials, 2nd edn, Law Book Company,
North Ryde, NSW, 1992: 1-2.
- Useful summaries of these actions are to be found in
Stopping the Rip-Offs op. cit: 4-6; ATSIC, 'The
application of copyright and other intellectual property laws to
indigenous art and cultural expression', op. cit: 23-30.
- ibid: 13.
- Colin Golvan, An Introduction to Intellectual Property
Law, Federation Press, Sydney, 1992: 1.
- ibid: 4-12.
- ibid: 1-2.
- McKeough, op. cit: 16.
- See Department of Home Affairs and Environment, Report of
the Working Party on the Protection of Aboriginal Folklore,
Canberra, 4 December 1981: 15.
- Posey and Dutfield, op. cit: 60; Gray, Between the Spice of
Life and the Melting Pot, op. cit: 51-3; Peteru, op. cit: 3;
Axt et al, op. cit: 32-36; Darrell Posey, Indigenous Peoples
and Traditional Resource Rights: A Basis for Equitable
Relationships?, Green College Centre for Environmental Policy
and Understanding, Oxford, 1995.
- Vandana Shiva, Afsar H. Jafri, Gitanjali Bedi, and Rhadha
Holla-Bhar, The Enclosure and Recovery of the Commons:
Biodiversity, Indigenous Knowledge and Intellectual Property
Rights, Research Foundation for Science, Technology and
Ecology, New Delhi, India, 1997; Chakravarthi Raghavan,
Recolonization: GATT, the Uruguay Round and the Third
World, Zed Books, London, 1990.
- See Sam Ricketson, Intellectual Property: Cases, Materials
and Commentary, Butterworths, Sydney, 1994, especially ch. 8.
Also, Study on the Protection of the Cultural and Intellectual
Property of Indigenous Peoples, report by Erica Irene-Daes,
Special Rapporteur to the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, ECOSOC,
E/CN.4/Sub.2/1993/28: 31-32.
- Ricketson, op. cit: 350
- ibid.: 360-362.
- See Michael Davis, 'Competing knowledges? Indigenous knowledge
systems and western scientific discourse', paper presented to
international conference Science and Other Knowledge Traditions,
James Cook University, Cairns, 23-27 August 1996.
- Daes, op. cit: 32, Kamal Puri, 'Australian Aboriginal People
and their Folklore', Ngulaig Monograph No. 9, University of
Queensland, St. Lucia, Brisbane, 1992: 37-39.
- Section 18(iv), cited in Puri, op. cit: 3, fn.14. Puri has a
useful discussion about the term 'folklore' and its derivations and
uses in international and domestic contexts.
- ibid: 36.
- ibid: 35-36; Blakeney, op. cit.
- WIPO/UNESCO, Model Provisions for National Laws on the
Protection of Expressions of Folklore Against Illicit Exploitation
and Other Prejudicial Actions, Section 2, 'Protected
Expressions of Folklore'. For discussion of the model provisions
see Michael Blakeney, 'International protection of indigenous arts
and cultural expressions', paper presented to Symposium on
Intellectual Property Protection for the Arts and Cultural
Expression of Aboriginal and Torres Strait Islander Peoples, Perth,
1 October 1996; Daes, op. cit: 31-32.
- Peteru, op. cit: 23.
- Posey and Dutfield, Beyond Intellectual Property, op
cit.: 102.
- See for example Posey and Dutfield, op. cit: 102-103; Vandana
Shiva et. al, op. cit; Shelton, op. cit: 35-36; Chakravarthi
Raghavan, op. cit: 114-138; Gurdial Singh Nijar, 'A conceptual
framework and essential elements of a rights regime for the
protection of Indigenous rights and biodiversity', Third World
Network, Paper prepared for Intergovernmental Committee on the
Convention on Biological Diversity, Nairobi, 20 June - 1 July
1994.
- Posey defines 'soft law' as 'a variety of instruments,
declarations of principles, codes of practice, recommendations,
guidelines, standards, charters, resolutions, etc'. See Posey and
Dutfield, op. cit: 120.
- United Nations Economic and Social Council, Commission on Human
Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Forty-fourth session, Discrimination
Against Indigenous Peoples, Intellectual Property of Indigenous
Peoples: Concise Report of the Secretary-General,
E/CN.4/Sub.2/1992/30, 6 July 1992: 2.
- ibid: 7.
- United Nations Economic and Social Council, Commission on Human
Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Forty-sixth session, Discrimination
Against Indigenous Peoples, Technical Review of the United
Nations Draft Declaration on the Rights of Indigenous Peoples,
Addition: Draft Declaration as Agreed upon by the Members of the
Working Group at its Eleventh Session,
E/CN.4/Sub.2/1994/2/Add.1, 20 April 1994: 7.
- ibid: 9.
- Daes, op. cit: 708.
- See Manuela Tomei and Lee Swepston, Indigenous and Tribal
Peoples: A Guide to ILO Convention No. 169, International
Labour Organisation, Geneva, July 1996.
- For a critique of Convention 169 see Sharon Venne, 'The new
language of assimilation: a brief analysis of ILO Convention 169',
Without Prejudice, vol. II, no. 2, 1990: 53-57.
- Arguments in support of ILO Convention 169 have been propounded
by Lee Swepston,
'A new step in the international law on indigenous and tribal
peoples: ILO Convention 169 of 1989', Oklahoma City University
Law Review, vol. 15, 1990: 677-714, and Russel Barsh, 'An
advocate's guide to the Convention on Indigenous and Tribal
Peoples', Oklahoma City University Law Review, vol. 15,
1990: 209-253.
- See for example, Donna Craig, 'Implementing the Convention on
Biological Diversity: indigenous peoples' issues', contribution to
IUCN Commission on Environmental Law Technical Paper on Legal and
Institutional Issues Arising from the Implementation of the
Convention on Biological Diversity, presented to Regional
Conference on the Biodiversity Convention, Manila, 6-8 June 1994;
and see Posey and Dutfield, op. cit., for discussions about the
Convention on Biological Diversity and indigenous knowledge.
- Craig, op. cit; Lyle Glowka, Francoise Burhenne-Guilmin and
Hugh Synge, A Guide to the Convention on Biological
Diversity, Environmental Policy and Law Paper No. 30, IUCN,
Gland, Switzerland, 1994.
- Posey and Dutfield, op. cit; Darrell A. Posey, Traditional
Resource Rights: International Instruments for Protection and
Compensation for Indigenous Peoples and Local Communities,
IUCN/World Conservation Union, Gland, Switzerland, 1996
- Glowka et al, op. cit: 76-84.
- See Posey and Dutfield, op. cit. for a good summary of these
developments.
- There is a good overview and discussion of many of these
developments (as they relate predominantly to protection of art) in
the Copyright Council's Discussion Paper: McDonald, op. cit.
- Department of Home Affairs and Environment, Report of the
Working Party on the Protection of Aboriginal Folklore,
Canberra, 4 December 1981: 2.
- ibid., para. 502.
- ibid: 3, 17 (citing the 1976 WIPO/UNESCO Tunis Model Copyright
Law for Developing Countries).
- See for example Davis, op. cit; MacDonald, op. cit: 10-11.
- Law Reform Commission, The Recognition of Aboriginal
Customary Laws, Report No. 31, Australian Government
Publishing Service, Canberra, 1986, vol. I: 7. Note that this
report did not specify whether 'Aboriginal' was taken to include
'Torres Strait Islanders'.
- ibid: 76.
- ibid: 153-155.
- ibid: 337-338.
- e.g. Davis, op. cit; McDonald, op. cit: 38-46.
- ibid: 38.
- ibid: 34.
- Australian Government, Department of Aboriginal Affairs,
Report of the Review Committee on the Aboriginal Arts and
Crafts Industry, Canberra, 1989; McDonald, op. cit: 34
- Commonwealth of Australia, Royal Commission into Aboriginal
Deaths in Custody, National Report, vol. 4,
Canberra, AGPS, 1991: 406-408.
- Commonwealth of Australia, Proposed Moral Rights
Legislation for Copyright Creators, Discussion Paper,
Canberra, June 1994: 5.
- ibid: 23-25.
- Stopping the Rip-Offs, op. cit: 2.
- Aboriginal and Torres Strait Islander Commission,
Recognition, Rights and Reform: Report to Government on Native
Title Social Justice Measures, Canberra, 1995: 99-125.
- ibid., Overview and Recommendations Report, vol. 2:
30.
- Council for Aboriginal Reconciliation, Going Forward:
Social Justice for the First Australians, submission to the
Commonwealth Government's Native Title Social Justice Measures,
Canberra, 1995; Aboriginal and Torres Strait Islander Social
Justice Commissioner, Submission to the Parliament of the
Commonwealth of Australia on the Social Justice Package,
Sydney, April 1995.
- For a summary of current developments see Michael Davis,
'Indigenous intellectual property protection consultations with
Aboriginal and Torres Strait Islander peoples', Aboriginal Law
Bulletin 3(90), March 1997: 22-23.
- McDonald, op. cit: 68.
- See Hon. Elizabeth Evatt, AC, Review of the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984, Report,
August 1996: 365.
- Australian Heritage Commission, Australia's National
Heritage: Options for Identifying Heritage Places of National
Significance, Discussion Paper, Canberra, February 1997:
13.
- A useful summary of events up to 1993 is in Michael Davis,
'Policy development on Aboriginal and Torres Strait Islander
cultural property', paper presented to the international conference
Post-Colonial Formations: Nations, Culture, Policy, Institute for
Cultural Policy Studies, Griffith University, Brisbane, 7-10 July
1993; for museums policy see Council of Australian Museum
Associations, Previous Possessions, New Obligations: Policies
for Museums in Australia and Aboriginal and Torres Strait Islander
Peoples, Melbourne, December 1993.
- See Deborah Bird Rose, 'The public, the private and the secret
across cultural difference', in Heritage and Native Title:
Anthropological and Legal Perspectives: Proceedings of a
Workshop, ed. Julie Finlayson and Ann Jackson-Nakano, Native
Title Research Unit, Australian Institute of Aboriginal and Torres
Strait Islander Studies, Canberra, 1996: 113-128; Deborah Bird
Rose, 'Whose confidentiality? Whose intellectual property?', op.
cit; Morphy, op. cit: 110-133; James F. Weiner, 'Anthropologists,
historians and the secret of social knowledge', Anthropology
Today 11(5), October 1995: 3-7.
- See ATSIC, 'The application of copyright and other intellectual
property laws', op. cit: 5; McDonald, op. cit: 23-24; Miller, op.
cit.
- Evatt, op. cit., especially recommendations 4.1 to 4.4, 6.7,
7.1 to 7.6, and 9.4.
- See UNEP, Convention on Biological Diversity, Subsidiary Body
on Scientific, Technical and Technological Advice, Second Meeting,
Montreal, 2-6 September 1996, 'Knowledge, innovations and practices
of indigenous and local communities', note by the Secretariat,
UNEP/CBD/SBSTTA/2/7, 10 August 1996; UNEP, Convention on Biological
Diversity, Conference of the Parties to the Convention on
Biological Diversity, Third Meeting, Buenos Aires, Argentina, 4-15
November 1996, 'Knowledge, innovations and practices of indigenous
and local communities: implementation of article 8(j)', note by the
Executive Secretary, UNEP/CBD/COP/3/19, 18 September 1996.
- There is a useful summary of developments in Blakeney,
'Bioprospecting and the protection of traditional medical
knowledge', op. cit: 11.
- There is an extensive and growing body of literature on
indigenous knowledge, intellectual property, and bioprospecting;
see for example Axt et al, op. cit; Stephen B. Brush, 'Indigenous
knowledge of biological resources and intellectual property rights:
The role of anthropology', American Anthropologist, 95(3),
1993: 653-671; Peteru, op. cit. and United Nations Development
Program, Crucible Group, People, Plants and Patents: The Impact
of Intellectual Property on Conservation, Trade, and Rural
Society, International Development Research Centre, Ottawa,
1994.
- Kamal Puri, 'Cultural ownership and intellectual property
rights post-Mabo: Putting ideas into action', Intellectual
Property Journal, vol. 9, 1994-95: 324-325; Kamal Puri,
'Copyright protection for Australian Aborigines in the light of
Mabo', in Mabo: A Judicial Revolution: The Aboriginal Land
Rights Decision and its Impact on Australian Law, eds M.A.
Stephenson and Suri Ratnapala, University of Queensland Press, St.
Lucia, Brisbane, 1993: 132-164.
- Mabo v State of Qld (No. 2) (1992) 175 CLR 1;
Native Title Act (Cth) 1993; Wik Peoples v
State of Qld (1996) 141 ALR 129; McDonald, op. cit: 26, 56-7,
62-3.
- ibid: 50-67.
- ibid: 61-62.
- Colin Golvan, 'Aboriginal art and the protection of Indigenous
cultural rights', European Intellectual Property Review,
vol. 7, 1992.
- David Bennett, 'Native title and intellectual property', in
Land, Rights, Laws: Issues of Native Title, ed. Paul
Burke, Issues Paper No. 10, Native Title Research Unit, Australian
Institute of Aboriginal and Torres Strait Islander Studies,
Canberra, April 1996.
- McDonald, op. cit: 56-59.
- Erica Irene-Daes, Annex to Protection of the Heritage of
Indigenous People, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, 48th Session, 28
August 1996, E/CN.4/Sub.2/1996/L.51.
- Marianna Annas, 'The label of authenticity: a certification
mark for goods and services of indigenous origin', Aboriginal
Law Bulletin, 3(90), March 1997: 4-8.
- Gurdial Singh Nijar, op. cit.
- Vandana Shiva et al, op. cit.
- Posey, op. cit. and Posey and Dutfield, op.cit.
- Rural Advancement Foundation International, Conserving
Indigenous Knowledge: Integrating Two Systems of Innovation,
Ottawa, 1994.