“Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.” – The UN Declaration on the Rights of Indigenous Peoples
Existing intellectual property (IP) legislation in Australia does not provide adequate protection and recognition of Aboriginal and Torres Strait Islander peoples’ cultural expressions. IP rights in Australia are based on western world views, individual property rights, and commercial principles. Sometimes Australian IP rights are antagonistic to Indigenous cultural rights.
It is encouraged that development professionals seek out appropriate, respectful advice when working with Aboriginal and Torres Strait Islander peoples’ and communities.
This information is not exhaustive, and the focus of this summary is on Aboriginal and Torres Strait Islander peoples. However, Indigenous peoples face similar challenges and opportunities globally. We recognise the diversity within and between Indigenous peoples. Nonetheless, the points below may have some relevance to Indigenous peoples globally, although the Indigenous experience within other contexts should be considered in approaches to rights and allyship.
The following six issues were identified by Indigenous agency, Terry Janke and Company as problematic and/or unresolved in Australian copyright and IP laws regarding Aboriginal and Torres Strait Islander people:
- Misappropriation of Indigenous arts and crafts
- Misuse of Indigenous languages, words and clan name
- Recording and digitisation of Indigenous Knowledge
- Misappropriation and misuse of Traditional Knowledge
- Use of Indigenous genetic resources and associated Traditional Knowledge
- Misuse and derogatory treatment of secret or sacred knowledge
Terry Janke and Company also identified the importance of meaningful Indigenous consent related to IP and the absence of consent leading to cultural theft and misuse of traditional knowledge.
The 1988 Barunga Statement was presented by Aboriginal people to the Australian Government. It provided a framework for considering this vision in its assertion of rights:
- To the protection of and control of access to sacred sites, sacred objects, artefacts, designs, knowledge and works of art
- To the return of the remains of ancestors for burial in accordance with traditions
- Respect for, and promotion of, Aboriginal identity including the cultural, linguistic, religious and historical aspects.
There have been few meaningful changes since the Barunga Statement. However, IP Australia is reviewing how Australia’s IP system can support the cultural integrity and economic potential of Indigenous Knowledge held by Aboriginal and Torres Strait Islander people, which include:
- Traditional Knowledge (TK)—practices, techniques and skills, and know‐how; and
- Traditional Cultural Expressions (TCEs)—performance, words and narratives, visual imagery, design, and names.
In consultation with Aboriginal and Torres Strait Islander stakeholders, IP Australia identified the following four themes as important. These serve as useful design guidance for researchers and practitioners’ engagement with Aboriginal or Torres Strait Islander people and honouring IP and copyright concerning TK and TCE:
Indigenous people want to control who uses Indigenous Knowledge and how it is used.
Indigenous people are seeking measures that can stop unauthorised use of Indigenous Knowledge and impose sanctions against misappropriation.
Indigenous people want to be recognised as the owners of their Indigenous Knowledge.
Indigenous people want their ownership of Indigenous Knowledge and the cultural protocols associated with it to be respected.
- Video: The future of Indigenous Knowledge in the trade marks and designs systems (video, 1 hour)
- Video: Indigenous Cultural Intellectual Property: Arts Law’s Artists in the Black Service (video, 2 minutes)
- Protocols For Using First Nations Cultural And Intellectual Property In The Arts (report, 6.5 hours)
- Indigenous Knowledge: Issues for protection and management, Terri Janke and Company. (Discussion Paper. Executive summary 11 minutes; full report, 5.5 hours).
- Indigenous Protocols and Processes of Consent relevant to Trade Marks, Terry Janke and Company, (Report, Executive summary 2 minutes; full report, 1.5 hours).
- The impact of globalization on Indigenous Intellectual Property and Cultures, (Lecture by Professor Dr. Erica-Irene, 30 minutes)
- Indigenous Peoples and Intellectual Property Rights, Michael Davis – Parliament of Australia (article, 115 minutes)