Indigenous Law Bulletin
Indigenous cultural knowledge is an important and valuable asset. As Australian and international
industries are discovering, indigenous Australian knowledge, including arts and crafts, tourism, medicine, bushfoods and lifestyles has useful commercial value. For instance, the Aboriginal and Torres Strait Islander Commission’s (ATSIC) National Aboriginal and Torres Strait Islander Cultural Industry Strategy estimated that the indigenous arts and craft market is worth almost $200 million per annum. Furthermore, ATSIC’s National Aboriginal and Torres Strait Islander Rural Industry Strategy estimated the value of Australian rural industry at around $27 billion per annum. Indigenous contribution to such markets and industries are often unpaid, undervalued or the possibilities are underexplored.
The rights of indigenous people to own and control their traditional knowledge is supported in a range of international standard setting documents including the Convention of Biological Diversity and the United Nations Draft Declaration of the Rights of Indigenous People. Whilst there is little recognition of these international standards within the Australian legal framework, it is clear that indigenous peoples seek benefits in the use of their knowledge and are looking to intellectual property law and contracts to provide a way to protect both their economic and cultural interests.
Intellectual property laws are laws which grant rights to creators of ideas, creations, inventions and certain other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields’.
In Australia, the following categories of intellectual property rights are recognised:
Indigenous people are concerned that often their cultural material is not protected by intellectual property law and that often others reproduce their cultural material such as songs, dances and knowledge without their consent or knowledge and without proper attribution to the relevant indigenous group.
Whilst intellectual property rights do not adequately protect the knowledge and resources of indigenous people, and cannot address issues of self-determination and sovereignty, there are benefits for indigenous peoples from using current intellectual property law and where there are shortfalls in intellectual property law, using contracts to assert their indigenous cultural and intellectual property rights over their cultural knowledge and resources. The following are examples of ways in which intellectual property law might be of some, however limited, use to indigenous people:-
Copyright is a set of specific rights granted to the creators of literary, dramatic, artistic or musical works and the makers of sound recordings, films and audio recordings under the Copyright Act 1968 (Cth). There is no need to register copyright in Australia. Copyright will exist as soon as a work is created or a recording is made, provided that certain criteria are met. The criteria include that the works are original and that they have been reduced to material form.
If these criteria are satisfied, and the author or maker is an Australian citizen or resident, then generally the author or maker can exercise the exclusive reproduction rights until the term of copyright expires. The copyright term is fifty years after the death of the author. For recordings, the term is generally fifty years from the date of making.
Copyright is limited in its protection of indigenous cultural material largely because:
Under copyright law, copyright owners have the right to authorise others to copy or reproduce the work; perform the work in public, broadcast, translate or adapt the work; and to make a sound recording or record a film of the work. The rights granted can be divided in time, territory and medium. For instance, it is possible for a copyright owner to license rights to reproduce the work for three years to one person, and after that period has lapsed, they might license it to another person. Rights can also be licensed for different territories and in different media. If indigenous creators meet the criteria and the works are suitable for wide dissemination, copyright can potentially generate considerable income for indigenous artists, musicians and writers, if properly managed.
There is copyright in original songs. If you have written a song, your song, the music and lyrics will be protected by copyright as soon as it is created. Copyright, in Australia, is automatic and there is no official process of registration, unlike the USA. As soon as a work is in material form, written down or recorded, it is capable of protection. A musician is entitled to income, for example, when his or her song is reproduced, broadcast or performed in public.
In the past there have been complaints by indigenous musicians, who have recorded their traditional music, but have not received copyright royalties from recording companies who continue to sell and distribute their records. The recording company may have considered that there was no copyright in the traditional music, as the author of the music itself had been deceased for over fifty years. However, depending on the circumstances, there may have been other relevant copyright, for which the performer should have been paid, such as copyright in the musical arrangement. An indigenous person who performs a traditional song with relevant cultural permission, might alter the song through their individual input. For example, the performer might play a didgeridoo and introduce a new solo rift, thereby creating a new arrangement to the piece.
There may also be ways in which the communal ownership by the indigenous group can be recognised by developing mechanisms through which royalties can benefit the group as a whole, for instance, by establishing a trust or company arrangement.
The Australasian Performing Rights Association collects royalties for broadcasts and public performances of copyright musical works. This includes performances in concerts, hotels, shop and broadcasting on radio. Royalties are then distributed to members.
Films and sound recordings are protected by copyright. This type of copyright is a different right to the right owned by the actual artist. In the case of a sound recording, for example, copyright is also owned by the maker of the recording, the actual person doing the recording or the person who paid for it. If a community is approached for recording of a film, they might want to negotiate ownership of copyright of the developed film or sound recording. This could be done on a percentage basis.
A work of art is protected by copyright as soon as it is created. The copyright in an artwork is a separate right of ownership outside the ownership in the tangible artwork. Basically, this refers to the right to reproduce the work in a material form. In an age of new technology this could mean reproduction in a catalogue, postcard, carpet, t-shirt or even on the internet. An artist can ask for a reproduction fee for the work to be reproduced. For example, if an artist licenses one of her artworks to a book publisher for use on the cover of title for a set fee, she can also license the same artwork to a postcard manufacturer for reproduction internationally on postcards. In return for the international licence the artist receives remuneration on a royalty basis, according to the number of sales.
Some artists have made considerable amounts from licensing their works for designs on t-shirts. However, one word of warning: it is important that the artist enters into a contract. If artists want to continue to control further uses of their work, they should make sure that they license the rights rather than assign them. Artists should obtain legal advice where possible. It is also a good idea to examine the financial background of the company or person seeking the licence. The artist should make sure that they have a suitable accounting system for calculating royalties. The licensing agreement should provide regular intervals for them to account back to the artist for royalties. Perhaps, every three months.
VISCOPY is a voluntary agency which collect royalties for artists in respect of reproductions of their works. Joining such an organisation saves the artist considerable time and trouble in the collection of royalties.
Copyright lasts after death, so it is important for artists to assign their works to those whom they wish to benefit from any royalties. This can be done in a will.
There are performers’ rights in the Copyright Act which give performers the right to prevent certain unauthorised uses of recordings of their performances. This requires film and sound recording makers to obtain the consent of performers and principal participants. Hence, indigenous performers who take part in a film or sound recording can ask for performance fees.
For a scale of fees indigenous performers should contact the Media Entertainment Arts Alliance.
Currently, there is no copyright recognised in a performance. However, there is a discussion paper recently released by the Attorney General’s Department and the Department of Communications and the Arts which considers whether Australia should extend performers rights to a full copyright.
Indigenous people can ask for location fees if a film is made on their land, or in their houses or organisation’s premises. Indigenous communities may also negotiate other terms. These may relate, for example, to the maintainance of cultural integrity in the production of a work, or to the use of film or video footage which not been included in the final cut.
Indigenous knowledge itself is generally protected unless confidential. However, if indigenous people participate in a research project which requires them to communicate traditional knowledge and information, they can ask for fees. Under the Australian Institute for Aboriginal and Torres Strait Islander Studies’ research guidelines, researchers are advised to pay interviewees fees for taking part in research projects and to pay adequate financial compensation to indigenous co-workers, assistants and subjects of research where time is required to be spent outside normal personal and community activities.
A person or company can register a trade mark, which can be used as a sign, mark or logo to indicate the trade original or source of the goods or services, and to distinguish the business of that person or company from other rival traders. Trade marks can become valuable assets as marketing tools. Some well known trade marks include Toyota and Coca-cola. A trade mark can be registered with IP Australia, for a fee.
Indigenous peoples’ artworks and products are becoming sought after products and there are many copycat products within the market.
The reputation of indigenous artists and communities might also be enhanced by trade mark registration by indigenous producer groups. A trade association or indigenous alliance made up of representatives of different indigenous communities selling similar products could register a collective trade mark that could be used by all member communities. Certification trade marks and labelling systems may also be useful.[10.]
Indigenous people have developed, over time, an intimate knowledge of their local environments. Such knowledge might include, for example, what plants are useful for healing. This knowledge has been recognised internationally and nationally by pharmaceutical companies in the development of new drugs.
Agreements in relation to use of indigenous knowledge and resources could be entered into with potential research and development agencies including government, pharmaceutical and environmental management companies. Attention could be paid to various considerations in the making of such agreements, such as the provision of fair and equitable payment or compensation, calculated for the contribution of all those who have invested in the discovery, use and continued existence of the subject resources. People who receive payment or compensation could include indigenous communities, researchers, collectors, producing companies and source countries.
Amrad, a Victorian pharmaceutical company, has signed an agreement with the Tiwi Land Council for bioprospecting purposes, which allows it to conduct research with plant species in the Tiwi Islands, with the assistance of local indigenous groups. This type of arrangement is likely to increase in the future as medical researchers seek to discover the full extent of earth’s biological resources. Indigenous people should be aware of their intellectual and cultural property rights so that they can negotiate terms for sharing such knowledge, if appropriate.
Intellectual property law does not provide a panacea for the protection of indigenous cultural and intellectual property. However it can, where applicable, provide protection for particular financial interests of indigenous people and communities. There is a need to look further, to understanding how to protect indigenous cultural and intellectual property rights. Indigenous people may need to develop alternative systems of protection, within the current legal framework, as well as finding ways to protect their interests through changes to the existing policies and law.
Terri Janke is a Solicitor at Michael Frankel & Company, Sydney.
 ATSIC, National Aboriginal and Torres Strait islander Cultural Industry Strategy, Canberra, 1997 page 5.
 ATSIC and the Department of primary Industries and Energy, National Aboriginal and Torres Strait Islander Rural Industry Strategy, May 1997, page 7.
 Article 8(j), Convention of Biological Diversity.
 Article 29.
 Article, 2(viii), Convention Establishing the World Intellectual Property Organisation, 14 July 1967.
 See Terri Janke, Michael Frankel & Company, Our Culture: Our Future, Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property, July 1997, page 47.
 Section 248J Copyright Act 1968.
 Attorney General’s Department, Performers Intellectual Property Rights: Scope of Extended Rights for Performers under Copyright Act 1968, December 1997.
 AIATSIS Research Guidelines, 1998 Research Grants Program, AIATSIS, Canberra, 1998.
[10.]One proposal for a certification mark is being developed by the National Indigenous Arts Advocacy Association. For information see Marianna Annas, ‘the Label of Authenticity: A Certification Trade Mark for Goods and Services of Indigenous Origin’, Vol 3, No 90. March 1997, Aboriginal Law Bulletin, pp 4 - 8.
 See Carolyn Oddie, ‘Bioprospecting’, Australian Intellectual Property Journal, Vol.9, pp6–20, at page 9.
 These issues are explored more in Terri Janke, Michael Frankel and company, Our Culture Our Future.