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Editors --- "Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights - Digest" [1999] AUIndigLawRpr 51; (1999) 4(4) Australian Indigenous Law Reporter 115

Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights

Aboriginal and Torres Strait Islander Commission

Canberra, September 1999.

In 1997, ATSIC released the discussion paper Our Culture: Our Future: Proposals for the Protection and Recognition of Indigenous Cultural and Intellectual Property, and invited public comment on the need for protecting and recognising Indigenous Cultural and Intellectual Property Rights. The report extracted here was developed in the light of over 70 submissions received on this discussion paper, and also in consultation with a National Indigenous Reference Group and other relevant individuals, communities and organisations. It was written and researched by Terri Janke, a solicitor at Michael Frankel and Company Solicitors as part of a National Indigenous Cultural and Intellectual Property Project coordinated by the Australian Institute of Aboriginal and Torres Strait Islander Studies and funded by the Aboriginal and Torres Strait Islander Commission.

The Report details the types of rights Indigenous people seek in relation to their cultures and considers the application of current laws. It also makes recommendations for a comprehensive range of measures for improving the level of protection, including legal and non-legal reforms. The executive summary of the Report is reproduced below.^[1]

Part 1: The Nature of Indigenous Cultural and Intellectual Property

Chapter 1: What is Indigenous Cultural and Intellectual Property?

'Indigenous Cultural and Intellectual Property Rights' refers to Indigenous Australians’ rights to their heritage. Such rights are also known as 'Indigenous Heritage Rights'.

Heritage consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity. Heritage includes:

• Literary, performing and artistic works (including music, dance, song, ceremonies, languages, symbols and designs, narratives and poetry);
• Scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and sustainable use of flora and fauna);
• Spiritual knowledge;
• All items of moveable cultural property including burial artefacts;
• Indigenous ancestral remains;
• Indigenous human genetic material (including DNA and tissues);
• Cultural environment resources (including minerals and species); and
• Immovable cultural property (including Indigenous sites of significance, sacred sites and burials); and
• Documentation of Indigenous peoples’ heritage in all forms of media. (including scientific, ethnographic research reports, papers and books, films, sound recordings).

The heritage of an Indigenous people is a living one and includes items which may be created in the future, based on that heritage.

Any definition of Indigenous Cultural and Intellectual Property should be flexible to reflect the notions of the particular Indigenous group and the fact that this may differ from group to group and may change over time.

Recommendations:

1.1 Informed debate concerning the above definition especially in relation to the issue of commerce versus culture; property versus heritage, should be encouraged.

1.2 Indigenous Australians should be kept informed of the world debate concerning:

(1) Indigenous Cultural and Intellectual Property Rights
(2) the protection of folklore.

Chapter 2: The commercial value of Indigenous Cultural and Intellectual Property

Contribution to industry

The overwhelming response in this area was that Indigenous cultures contribute substantially to the Australian economy in a range of industries, including:

• Arts and crafts,
• Tourism,
• Rural (including bush foods and traditional medicines),
• Biotechnology,
• Advertising,
• Film, and
• Export.

Respondents also noted some other commercial uses of Indigenous cultural heritage, including:

• Academic/research
• Music
• Didgeridoo.

Compensation/royalties

Another overwhelming response was that Indigenous people should receive compensation or royalties for use of Indigenous cultures where appropriate and prior informed consent has been granted by an Indigenous group.

Indigenous people should be able to stop commodification of some aspects of their cultures. There are some things that cannot be sold, such as secret/sacred objects and information. Many felt the cultural importance of culture needed to be reinforced, rather than its commercial application.

How should this be calculated?

Many respondents felt Indigenous people should be empowered with negotiation rights regarding the use of their cultures.

Recommendations:

2.1 An independent economic evaluation and analysis should be conducted by a team including a majority of Indigenous people with specialist skills in accounting, marketing and projection estimates on the value of Indigenous cultural heritage to Australian industries.

2.2 An independent analysis should be undertaken into the cultural losses (or gains) of commercialisation regarding Indigenous cultures. This should be conducted in consultation with Indigenous communities. Indigenous people should develop assessment criteria to determine cultural losses and the impact or danger of this for Indigenous culture and people. The assessment criteria could suggest compensation procedures acceptable or required by Indigenous people.

2.3 Support should be given to develop systems and standards which allow Indigenous people to fully negotiate terms in relation to the commercial use of their cultural heritage.

2.4 The development of education and awareness strategies that reinforce the cultural value of heritage should be supported.

Chapter 3: Major concerns for Indigenous people

Indigenous people are concerned about various uses of their heritage, including the appropriation of Indigenous arts and cultural expression, unauthorised use of secret/sacred material and the appropriation of Indigenous biodiversity knowledge, often without their informed consent or knowledge.

There is also a concern for the use of cultural resources developed and nurtured by Indigenous people. The following is a list of some of the concerns raised:

• Appropriation of Indigenous arts and cultural expression;
• Unauthorised use of secret/sacred material;
• Appropriation of Indigenous Languages;
• Appropriation of Indigenous Spirituality;
• Appropriation of Indigenous Biodiversity Knowledge;
• Appropriation of Cultural Objects;
• Retention of Indigenous Ancestral Remains;
• Misuse of Indigenous Human Genetic Material;
• Not fully informed concerning research;
• Impact of New Technology; and
• Unfair Contracts.

At the heart of these concerns are issues of cultural integrity and authenticity.

Chapter 4: What rights do Indigenous people want recognised?

The rights Indigenous peoples need in relation to their Cultural and Intellectual Property include the right to:

(1) Own and control Indigenous Cultural and Intellectual Property.

(2) Define what constitutes Indigenous Cultural and Intellectual Property and/or Indigenous heritage.

(3) Ensure that any means of protecting Indigenous Cultural and Intellectual Property is based on the principle of self-determination, which includes the right and duty of Indigenous peoples to maintain and develop their own cultures and knowledge systems and forms of social organisation.

(4) Be recognised as the primary guardians and interpreters of their cultures, arts and sciences, whether created in the past, or developed by them in the future.

(5) Apply for protection of Indigenous Cultural and Intellectual Property rights which, where collectively owned, should be granted in the name of the relevant Indigenous community.

(6) Authorise or refuse to authorise the commercial use of Indigenous Cultural and Intellectual Property according to Indigenous customary law.

(7) Prior informed consent for access, use and application of Indigenous Cultural and Intellectual Property, including Indigenous cultural knowledge and cultural environment resources.

(8) Maintain the secrecy of Indigenous knowledge and other cultural practices.

(9) Benefit commercially from the authorised use of Indigenous Cultural and Intellectual Property, including the right to negotiate terms of such usage.

(10) Full and proper attribution.

(11) Protect Indigenous sites, including sacred sites.

(12) Control management of Indigenous areas on land and sea, conserved in whole or part because of their Indigenous cultural values.

Prevent derogatory, offensive and fallacious uses of Indigenous cultural and intellectual property in all media including media representations.

(13) Prevent distortions and mutilations of Indigenous Cultural and Intellectual Property.

(14) Preserve and care, protect, manage and control Indigenous cultural objects, Indigenous ancestral remains, Indigenous cultural resources such as food resources, ochres, stones, plants and animals and Indigenous cultural expressions such as dances, stories, and designs.

(15) Control the disclosure, dissemination, reproduction and recording of Indigenous knowledge, ideas, and innovations concerning medicinal plants, biodiversity, and environmental management.

(16) Control the recording of cultural customs and expressions, the particular language which may be intrinsic to cultural identity, knowledge, skill and teaching of culture.

Recommendations:

4.1 A National Declaration of Indigenous Cultural and Intellectual Property Rights should be developed, based on the list of rights and developed in consultation with Indigenous people.

4.2 Appropriate measures should be taken to educate the broader Australian community about Indigenous value systems, law and cultural processes, where sharing this knowledge is appropriate.

Part II: Protection under the current Australian legal framework

The current Australian legal framework offers limited recognition and protection of Indigenous Cultural and Intellectual Property.

Chapter 5: Intellectual Property Laws

Existing intellectual property laws are generally considered inadequate in recognising and protecting Indigenous Cultural and Intellectual Property rights because non-Indigenous notions of intellectual property are quite different from Indigenous beliefs.

Copyright

While some Indigenous artists have used copyright law to protect their interests in their creations, there are problems with the application of copyright provisions to Indigenous works because these works may fail to satisfy the requirements of copyright. These are:

• Originality;
• Material form; and
• Identifiable author.

Some of the practical effects of copyright include:

• Exclusive rights are granted to individual authors and makers of recordings to use and deal with the copyright in their works.
• No special protection is given for secret or sacred material.
• Performances of oral traditional material are not protected under copyright provisions and receive only limited protection under performers’ rights.
• There are no performers’ rights in relation to still photography.

The limitations of protection

• Commercial interests are protected under copyright law, rather than interests pertaining to cultural integrity.
• There is no right of attribution for Indigenous communities over works that include or incorporate aspects of their cultural heritage.
• Rights are valid for a limited period and then become freely available, whereas under Indigenous laws, they exist in perpetuity.
• Individual notions of ownership are recognised, rather than the Indigenous concept of communal ownership.

Designs Act

The Designs Act offers limited protection for Indigenous Cultural and Intellectual Property:

• The focus of design protection is to enable commercial interests to gain a competitive edge.
• A limited period of protection is offered whereas traditional rights to Indigenous designs exist in perpetuity.
• Protection is afforded to a registered owner, whereas Indigenous laws recognise communal rights.

Patents Act

Indigenous material often does not meet the requirements of patent because:

• They are not novel.
• They do not involve an inventive step.

Human beings and the biological processes that make them do not constitute a patentable invention. Nevertheless, a contentious issue is that patent application is allowable where human genetic resources such as genes are concerned.

Trade Marks Act

To be registered as a trade mark, Indigenous cultural material would have to be used in the course of trade, which is not appropriate to the cultural significance or the traditional use of such material.

Indigenous people may be able to make use of the restrictive provisions under the Trade Marks Act to challenge culturally offensive trade marks which are scandalous or contrary to law.

Breach of Confidence Laws

These may be useful when Indigenous cultural material has not previously been published.

Passing Off

This is a limited resource for Indigenous communities, because it has to be proven that damage to goodwill and reputation has occurred through deception by the defendant.

Recommendations:

5.1 Indigenous people need to be informed about existing intellectual property laws and how these impact on their cultural obligations.

5.2 Indigenous people need to be informed about how existing intellectual property laws might benefit their needs regarding the use and control of their Indigenous cultural heritage.

5.3 There is a need for greater protection for Indigenous heritage, particularly in relation to communal rights, and the protection of sacred/secret material.

Chapter 6: Cultural heritage law

Cultural heritage laws are inadequate in their application to all aspects of Indigenous Cultural and Intellectual Property and do not recognise many rights Indigenous people believe are important for the continuation of their culture. Inadequacies include:

• Ownership of cultural heritage is often vested in a government minister rather than in the appropriate Indigenous community.
• The focus of cultural heritage laws is on tangible cultural heritage, such as specific areas, objects and sites. The intangible aspects of a significant site, such as its associated stories, songs and dreaming tracks, are not protected.
• The focus is on past heritage rather than living heritage.
• The emphasis for protection is scientific and/or historical value, rather than cultural and spiritual values.
• The onus is on the relevant government minister to take action to protect; Indigenous participation in decision-making is usually limited.

There has been a turnaround recently in the focus of Indigenous cultural heritage legislation. This has seen the development of cultural heritage agreements and the restoration of hunting and gathering and fishing rights in some States and Territories.

Recommendations

6.1 Indigenous people need to be informed about existing cultural heritage laws and how these impact on their Indigenous Cultural and Intellectual Property Rights.

6.2 Indigenous people need to be informed about how existing cultural heritage laws might benefit their needs regarding the use and control of their Indigenous cultural heritage material.

6.3 There is a need for greater protection of Indigenous heritage, particularly in relation to the protection of knowledge and the intangible aspects of a site or place.

Chapter 7: Other relevant laws

Archives legislation

Existing archives legislation fails to specify who can access a particular institution’s records. This is of particular concern for Indigenous peoples, as their records often contain personal and culturally sensitive information.

Museum Legislation

These laws focus on anthropological and scientific issues, and not on the cultural and spiritual value to Indigenous peoples of institutions’ collections.

The Native Title Act

This legislation is currently interpreted as focusing on tangible issues relating to rights to lands and waters.

Defamation

Current defamation laws apply to individuals rather than to indeterminable groups.

Racial vilification laws

These concentrate on material which publicly incites or encourages racial hatred. However, a lot of culturally offensive material falls short of this definition.

Privacy

To date, there is no general right of privacy in Australia.

The Trade Practices Act

This Act prohibits misleading and deceptive conduct and may provide some protection against false labelling and marketing practices affecting Indigenous Cultural and Intellectual Property.

Customs Act and import and export of Indigenous cultural material

Certain laws prohibit the export of Indigenous heritage material such as human remains and rock art and require exporters to apply for a permit to export other materials such as objects made on missions and reserves. The Customs Act provides customs officers with search and seizure powers in relation to this material. But there is no law dealing with the export or import of articles which reproduce this material on commercial objects.

Administration and Probate Act 1993 (NT)

This Act allows a person to claim an entitlement to the estate of an Aboriginal person who dies without a will, under the customs and traditions of the community of the group to which the deceased belonged.

The management of copyright income or any accruing copyright actions for infringement of a deceased artist’s works is not considered.

Broadcasting laws

There are provisions in the Broadcasting Act dealing with content on Australian television, radio and on-line services. But they do not adequately address Indigenous issues, including how Indigenous people are portrayed in the media.

Laws relating to geographical place names

Various State and Territory legislation covers geographical names and place names, including those of Indigenous origin. Once registered as a geographic name, a word becomes public property. Businesses and organisations may then use the name, without having to seek permission from the relevant Indigenous community.

Recommendations

7.1 Indigenous people need to be informed about the laws which may affect their Indigenous Cultural and Intellectual Property Rights, including laws concerning archives, land rights, native title, defamation, racial vilification, privacy, trade practices, customs, administration and probate, and broadcasting.

7.2 Indigenous people need to be informed how these laws may benefit them in relation to the use and control of Indigenous cultural heritage material.

7.3 There is a need for greater consideration of how these laws might help Indigenous peoples achieve their Indigenous Cultural and Intellectual Property Rights.

Chapter 8: International laws

Many international agreements and treaties deal with Indigenous Cultural and Intellectual Property Rights. These may help Indigenous peoples realise their cultural heritage rights.

Recommendations

8.1 Indigenous people need to be informed about the international treaties and agreements which may affect their Indigenous Cultural and Intellectual Property rights, including international conventions on intellectual property; international trade agreements; UNESCO conventions; international conventions on human rights; the International Labour Organisation (ILO) Convention 169; the Convention of Biological Diversity; and the Draft Declaration on the Rights of Indigenous Peoples.

8.2 There is a need for greater consideration of how international laws might assist Indigenous peoples achieve their Indigenous Cultural and Intellectual Property rights; greater use of international legal avenues should be explored.

8.3 The Australian Government should strongly support the passage of the Draft Declaration on the Rights of Indigenous Peoples, including the provisions on self-determination, cultural and intellectual property rights, education and the media.

8.4 All governments, cultural institutions and industry bodies should strongly support implementation of the principles outlined in the Draft Declaration when dealing with Indigenous peoples’ rights.

8.5 Indigenous people need further information about the Draft Declaration on the Rights of Indigenous Peoples and other international treaties and conventions affecting their Indigenous Cultural and Intellectual Property rights.

Part III: Developing Strategies for Reform

Research and analysis of responses to the Discussion Paper and discussions with the Indigenous Reference Group (IRG) and others, clearly indicates a need to adopt measures to redress shortfalls in the current Australian legal system in providing rights Indigenous people require in relation to their heritage.

In formulating the reform strategies, the following major observations were noted:

• A body of Indigenous law exists.
• The Australian legal system provides limited protection and needs to accommodate Indigenous Cultural and Intellectual Property rights.
• Indigenous peoples have responsibility for their culture, so measures should aim to empower Indigenous people.
• Respect and understanding of culture means recognising that there are two parallel and equal systems of law.

It is fundamental that any changes to the law or major policy initiatives should allow Indigenous people self-determination all levels.

The major recommendations are listed below.

Chapter 9: Amendments to the Copyright Act

9.1 The enactment of a specific Act which protects all Indigenous Cultural and Intellectual Property is preferred over amendments to the Copyright Act. The specific Act should recognise Indigenous cultural ownership in Indigenous visual arts, craft, literary, music, dramatic works and Indigenous knowledge; and provide rights in that material which allow Indigenous people the rights of prior consent and to negotiate rights for suitable use.

While a specific Act is favoured, if this option is not pursued amendments to the proposed moral rights provisions set out below should be further considered.

9.2 Moral rights for Indigenous custodians

Further consideration should be given to amending the Copyright Act 1968 to include moral rights for Indigenous custodians which provide the Indigenous cultural group whose tradition is drawn upon to create a copyright work with rights of attribution, false attribution and cultural integrity.

Introducing a new type of work − 'an Indigenous cultural work' defined as 'a work of cultural significance to Aboriginal and Torres Strait Islander people' − should be considered. Where ownership of an Indigenous cultural work is communal, as opposed to individual, then the 'Indigenous owners' should be given a right of attribution, a right of false attribution and the right of cultural integrity. However, this might only cover Indigenous cultural works within the copyright period and will not refer to Indigenous material currently considered in the public domain.

9.3. Collecting fees for use of Indigenous cultural works

A compulsory licensing system such as that which sets up a copyright agency limited (CAL) is not appropriate for Indigenous cultural works. Any Indigenous collecting society or societies should be voluntary or set up under sui generis legislation. The authorisation of materials should be based on the premise of prior consent and rights should be given to the society under licence rather than as an assignment of rights.

9.4. Performers’ rights amendments

A full performer’s copyright should be generally supported for all performers. A general performer’s copyright will protect Indigenous performing works such as ceremony and dance. Indigenous people need to be included in discussions about adopting a full performer’s copyright.

Chapter 10: Amendments to the Designs Act

10.1 A specific Act which protects all Indigenous Cultural and Intellectual Property is preferred over amendments to the Designs Act to protect pre-existing and Indigenous styles or designs in perpetuity.

10.2 However, to the extent that the Designs Act can provide protection for Indigenous communities who wish to commercially exploit their designs (if appropriate under Indigenous customary laws), the Designs Act and its registration process should allow for registration of group interests so that Indigenous communal ownership of cultural designs is recognised. This might be done by allowing trusts and other group entities to become the registered proprietors of a registered design.

10.3 Rights granted under the Designs Act should not interfere with the traditional and customary use of Indigenous cultural material.

10.4 AIPO should establish an Indigenous Unit which should, among other things, implement AIPO’s access and equity program by encouraging Indigenous business, companies and arts centres to consider this means of protection for commercially applied designs only and provide advice to Indigenous people concerning the limitations of such protection.

10.5 Even in the absence of legislation on the subject, AIPO should adopt procedures for considering applications for the registration of designs which contain or are based on Indigenous designs or themes. Such procedures should ensure that informed consent of the relevant Indigenous custodial group is obtained prior to authorising registration.

Chapter 11: Amendments to the Patents Act and the Plant Breeder Rights Act

1.1 Enactment of a specific Act which provides protection for all Indigenous Cultural and Intellectual Property is preferred over amendments to the Patents Act and the Plant Breeders Rights Act.

11.2 However, in the event that new legislation is not developed, the Patents Act and the Plant Breeders Rights Act should be amended deny any person or corporation the right to obtain a patent for any element of Indigenous heritage without adequate documentation of the free and informed consent of the Indigenous owners to an arrangement for the sharing of ownership, control, use and benefits.

11.3 Rights granted under the Patents Act and the Plant Breeders Rights Act should not interfere with the traditional and customary use of Indigenous cultural material.

11.4 The possibility of amending the Patents Act and the Plant Breeders Rights Act to take into account Indigenous concerns requires investigation. Such amendments need to include at least inquiries as to whether it is feasible to:

• allow Indigenous Australians to register their interests or to patent Indigenous knowledge notwithstanding that there is prior publication;
• allow secrecy of these processes, so that people are not forced to disclose details of the remedy; and whether the remedy should be available for public use when the patent expires.

11.5 A new class of proprietary right for traditional knowledge should be considered, or the creation of a transfer agreement for the adoption of procedures which ensure that:

• Indigenous people are informed of patent applications or plant breeders rights applications that include Indigenous material or relate to Indigenous species;
• Prior informed consent to use such material and species has been obtained from any relevant Indigenous group or groups;
• Indigenous people have a right to negotiate the types of use permitted and to share in any economic benefits that might accrue. Where possible, rights should be effected in written agreements.

11.6 Indigenous human genetic material should not be patentable without the full and informed consent of Indigenous people to an arrangement for sharing ownership, control, use and benefits of any derived intellectual property.

Chapter 12: Amendments to the Trade Marks Act

12.1 Indigenous and non-Indigenous persons and/or companies should be able to obtain registration of marks containing or incorporating Indigenous designs, sounds, words or symbols but only with the prior informed consent of the particular Indigenous community and if other conditions regarding cultural appropriateness are met.

12.2 The Registrar of Trade Marks should introduce checks and balances and enact regulations to ensure that trade mark applicants seek prior informed consent from Indigenous communities for use of the words, designs, sounds etc before registration is granted. Consideration should be given to the New Zealand model.

12.3 AIPO needs to establish an Indigenous Staffing Unit and a Trade Mark Focus Group/Trade Mark Consultative Group.

12.4 An inquiry should be conducted into existing Indigenous trade marks. The inquiry should consider:

• the number of trade marks which make use of Indigenous cultural material;
• whether use is culturally appropriate;
• whether trade marks are held by Indigenous or non-Indigenous entities; and
• whether consent has been obtained.

12.5 Rights granted under the Trade Marks Act should not interfere with the traditional and customary use of Indigenous cultural material.

Chapter 13: Amendments to cultural heritage legislation

13.1 Cultural heritage legislation should acknowledge Indigenous ownership of Indigenous cultural heritage and property to be vested in the local community of origin. However, where there is no local community claiming ownership, ownership/responsibility should vest with the Indigenous-appointed bodies or organisations.

13.2 Cultural heritage legislation should empower Indigenous people with the management and control of Indigenous cultural heritage to be exercised by the local community and its appointees so that local autonomy over cultural matters is promoted.

13.3 Cultural heritage legislation should cover a wider range of cultural heritage materials including the intangible aspects of objects and sites.

13.4 Cultural heritage legislation should enable Indigenous groups to be the decision-makers concerning cultural significance of sites.

13.5 Further investigation is needed into whether a National Indigenous Cultural Heritage Authority should be established. Any structure should allow States and Territories the necessary autonomy to control and manage Indigenous cultural heritage within their own areas.

Chapter 14: Amendments to museums and other cultural institutions legislation

14.1 A separate Act relating to Indigenous Cultural and Intellectual Property Rights is preferred, but in the absence of specific legislation, museum legislation could be amended to include the following measures:

• Museums should establish Indigenous cultural heritage management committees to address issues relating to the identification, return, preservation, use and ownership of Indigenous cultural heritage material held by museums.
• Museum boards should include provision for Indigenous representation.
• Museums should be legally required to repatriate human remains and cultural objects where Indigenous claimants request it.
• Indigenous departments and other staff dealing with care and management of Indigenous collections should work under the direction of the Indigenous cultural heritage management committees.
• The compulsory development of policies which address the access, display, handling and use of Indigenous cultural material.
• Special attention should be given to the access and management of sacred or secret material.

14.2 Archives legislation could also be amended to:

• establish Indigenous cultural management committees to address issues relating to the access, identification, preservation, use, control and copying of Indigenous cultural records held by Archives;
• include provision for Indigenous representation on Boards;
• include the compulsory development of provisions which address the access, identification, preservation, use, control and copying of Indigenous cultural records held by Archives; and
• Special attention should be given to the access of personally sensitive material.

14.3 Where appropriate, Archives should make copies of records relating to Indigenous cultural issues available to Indigenous people in the spirit of the recommendations of the Bringing Them Home Report.

14.4 Museums, Archives and other cultural institutions should provide Indigenous people with access to information on material held in institutions. The development of reports, guide books and databases should be designed, controlled and managed by Indigenous people. Information should be made available via Information Centres.

14.5 Museums, Archives and other cultural institutions should liaise with Indigenous communities to consider the development of new technology-based forms of compiling and disseminating information held by museums and archives. Issues relating to Indigenous control over the collection, administration and distribution of such databases and content developed for disc-based or on-line services must be addressed.

Chapter 15: Amendments to Native Title

15.1 Support should be given for native title actions which test and expand the meaning of native title rights and interests to other areas of Indigenous cultural heritage including stories, biodiversity knowledge and cultural objects.

Chapter 16: Amendments to other relevant laws

16.1 Broadcasting law

• Self-regulatory guidelines which address distribution, publication of Indigenous cultural and intellectual property in the media and on-line services should be developed by Indigenous communities, ATSIC, Australian Film Commission (AFC), service-providers, Australian multi-media centres and industry bodies in association with the Australian Broadcasting Authority (ABA).
• On-line industry bodies should be encouraged to support and participate in the development of codes.
• International networks should be established to deal with Indigenous issues on line. This could include:

  (a) developing guidelines with UNESCO info-ethics;
  (b) setting up e-mail hotlines to police culturally inappropriate content.

16.2 Trade Practices

The Australian Competition and Consumer Commission (ACCC, formerly the Trade Practices Commission) should inquire into the advertising and labelling of Indigenous arts, cultural products and cultural services in association with Indigenous people.

16.3 Customs Issues

• Australian Customs laws should include provisions which filter the export and import of fake Indigenous cultural material.

Chapter 17: Developments of law

17.1 Cases which expand the common law to protect Indigenous Cultural and Intellectual Property should be supported.

17.2 Unfair competition should be investigated as a potential way to protect Indigenous Cultural and Intellectual Property. Separate legislation based on Article 10bis of the Paris Convention could be useful to protect the commercial interests of Indigenous people in their cultural heritage and to also safeguard consumers against misleading and deceptive marketing practices.

Chapter 18: Specific legislation

18.1 A sui generis (specific) legislative framework should be established to protect Indigenous Cultural and Intellectual Property Rights, including ecological knowledge.

Indigenous people prefer the introduction of one Act. However, if this is too broad to legislatively manage, or not feasible constitutionally, it might be possible to implement two or more Acts which deal with the following:

(a) Arts and cultural expression
(b) Indigenous ecological (biodiversity) knowledge.

18.2 Any definition used in the legislation should be broad to allow for the above.

18.3 The legislation should provide protection for works that are intangible; there need not be a requirement of material form. Rights should exist in perpetuity.

18.4 Any rights granted should ensure that there are no time limits on protection and no fixed form requirement for protection to be given.

18.5 The legislation should include provisions which:

• Prohibit the wilful distortion and destruction of cultural material;
• Prevent misrepresentations of the source of cultural material;
• Allow payments to Indigenous owners for the commercial use of their cultural material; and
• provide special protection for sacred and secret materials.

18.6 The legislation should not inhibit the further cultural development of materials within their originating communities. That is, customary and traditional use should not be affected.

18.7 The legislation should consider how it will interact with existing copyright and intellectual property laws; for example, perhaps the legislation should apply only to Indigenous cultural works outside of copyright period – where copyright does not exist.

18.8 The legislation should also consider how pastiche and stylised 'rip-offs' of cultural material should be dealt with; that is, false and misleading provisions which make it an offence to make false statements or misleading provisions.

18.9 A central network administration system should be set up with local, regional and state offices. The organisation should be an Independent Indigenous Authority making use of existing national, regional or local authorities to provide administration.

18.10 An Indigenous Cultural Tribunal should also be established to mediate disputes. The tribunal should be made up of custodians, owners, specialists in Indigenous law and community elders. Use of ADR procedures with culturally sensitive mediators. There must be avenues to the Federal Court for determinations.

18.11 Prior authorisation provisions should be included, based on respect, negotiation and free and informed consent.

18.12 There should be fair dealing provisions only for traditional and customary use (this to be defined), research and study, and judicial proceedings. But judicial proceedings relating to sacred/secret material should not be made public or used for other purposes. No innocent infringement provisions.

18.13 There should be a system which allow members to negotiate fees and collect royalties. To this end, voluntary collecting schemes at the regional level are advised. This might be done by a voluntary system of registering material that can be commercially used and by identifying groups, individuals or organisations who can authorise use. Lists of inappropriate material can be generated, taking into account Indigenous secrecy laws.

18.14 To facilitate authorisation and/or fee collection, Indigenous groups could develop protocols on acceptable uses and prohibited uses.

18.15 Particular communities should decide on fees to be charged and how this should be collected and distributed. The Tribunal could act as a guide, and act as arbitrator if disputes arise.

18.16 The legislation should allow particular groups of Indigenous people to bring civil actions against infringers of their cultural and intellectual property and to obtain remedies similar to those under existing intellectual property laws. For example, damages; account of profits; injunction to restrain use and delivery up of infringing material.

18.17 The legislation should include offences such as:

• Criminal sanctions for more serious offences such as destruction and severe mutilation of Indigenous sacred and secret material.
• Fines for breaches of cultural rights.

18.18 Confidentiality provisions should set out what can be disclosed to the public and what cannot be; for example, closed tribunal hearings.

18.19 The legislation should address Aboriginal and Torres Strait Islander cultures only. However, the issue of whether Torres Strait Islanders should have a separate legislation requires further consultation with Torres Strait Islander people. International mechanisms should be reviewed in light of moves internationally for Indigenous systems of protection.

18.20 There should be a grace period of 12 months to allow commercial users to come into line with new amendments.

18.21 There should be extensive consultations with Indigenous people concerning the introduction of any proposed legislation.

Chapter 19: Establishing an Indigenous certification mark

19.1 Support should be given to establishing a national certification mark and labelling system which allows local, regional and State decision-making on who may use the label. The mark – and a series of derivative marks which allow for local, regional and State differences – should be registered under the Trade Marks Act.

19.2 The purpose of the Indigenous certification mark is to:

• Promote products made by Indigenous people in local, regional, national and international markets.
• Denote authentic Indigenous cultural products.
• Help consumers identify authentic, genuine Indigenous cultural products and to indicate sale of the item is not culturally sensitive and has the authority of the community.
• Increase fair and equitable returns to Indigenous producers.

19.3 Any definition of authenticity adopted and applied under the mark’s rules should acceptable to Indigenous people. Indigenous people need to decide upon and be informed of any definition. Any definition must be supported by Indigenous people nationally or allow for local and regional variations.

19.4 The registered owner of the mark should be a newly-established Indigenous authority which has the power to license use of the label to local and regional organisations. Indigenous people should be involved in the establishment and management of the authority and its infrastructure. The national authority authorises State, regional and local authorities to affix the mark to products meeting the requirements under the rules. Consent and authority to use the label by individual artists should be made at the local, regional and State level.

19.5 A marketing strategy needs to be developed to coincide with implementation of the mark.

19.6 Indigenous communities should be encouraged where appropriate to make use of registered trade marks and collective marks to enhance goodwill in their products and promote the authenticity of their community’s products.

Part IIIB: Administrative Responses

Chapter 20: Collecting systems

20.1 Public domain collecting society

The establishment of a public domain collecting society for Indigenous works is not favoured because this supports the current legal assumption that Indigenous cultural and intellectual property out of copyright is in the public domain and free for all to use and exploit.

20.2 Resale royalty

• Introduction of a resale royalty within the Australian legal system for artists generally is supported in principle.
• There is a need to ensure that administrative costs do not exceed the benefits to artists.
• There is an urgent need for Indigenous artists to participate in informed public debate concerning the best way to introduce a resale royalty to allow for culturally appropriate distribution of revenue collected.
• There is an urgent need for Indigenous artists to be better informed about estate management of copyright and other rights relating to their works.

20.3 Indigenous collecting society

Further consideration should be given to the establishment of an Indigenous collecting society. If established, this should be voluntary and operate on the premise of prior consent.

Chapter 21: Negotiating rights under agreement

21.1 Biodiversity agreements

• The development of a process of negotiation which facilitates agreements between Indigenous people and local, regional, State and national authorities should be supported.
• Such a process should recognise Indigenous peoples’ rights to their cultural environment and address Indigenous Cultural and Intellectual Property rights.
• Agreements should be enforceable under national legislation.

21.2 Cultural agreements

There should be support for cultural agreements within all industries which allow Indigenous people to negotiate their Indigenous Cultural and Intellectual Property rights.

21.3 Funding research and cultural projects

Where Indigenous cultural projects or research is commissioned or funded by government agencies and research bodies, a condition of the grant or contract should be that Indigenous Cultural and Intellectual Property rights are respected. Clauses should address the following issues:

• Prior written consent of the Indigenous group whose culture is involved has been obtained.
• Any arising intellectual property rights have been negotiated and agreed upon between parties.
• The proposed use will not be culturally offensive or inappropriate or contrary to Indigenous customary law.

Criteria for grants could include:

• Active involvement of Indigenous people in the area of research or activity.
• Informed consent and support of the people from whom information is sought.
• Respect for confidentiality and privacy.
• Respect for cultural integrity and control of their own heritage.
• All material should be communicated to participating Indigenous people and communities in an accessible and acceptable manner.

Chapter 22: Developing cultural infrastructure

22.1 National Indigenous Cultural Authority

A National Indigenous Cultural Authority should be established as an organisation made up of various Indigenous organisations to:

• Develop policies and protocols with various industries.
• Authorise uses of Indigenous cultural material through a permission system which seeks prior consent from relevant Indigenous groups.
• Monitor exploitation of cultures.
• Undertake public education and awareness strategies.
• Advance Indigenous Cultural and Intellectual Property Rights nationally and internationally.

The National Indigenous Cultural Authority should be the peak advisory body on Indigenous Cultural and Intellectual Property Rights. Representation on the Authority should aim to cover all areas of Indigenous Cultural and Intellectual Property. The National Indigenous Cultural Authority should be funded by both industry and government.

22.2 Indigenous Australian Centre for Traditional Medicines

Support should be given to the development of an Indigenous Australian Centre for Traditional Medicines.

22.3 Establishing registers

Consideration should be given to the establishment of a national register which identifies the owners of Indigenous Cultural and Intellectual Property. Any established register should not be a means of evidencing title. The Register should be used only to provide contact details for subsequent users of Indigenous material to contact the relevant community for prior consent. The register should be designed, managed and controlled by Indigenous people.

22.4 Keeping places and community cultural centres

Encourage existing local and regional keeping places/community cultural centres to allow Indigenous people to maintain, revitalise and reclaim their cultures. In line with the Bringing Them Home report, these keeping places should also be given copies of government records.

22.5 National Indigenous archive

A national Indigenous archive is not recommended at this stage but could form much of what is already held by AIATSIS and the Australian Museum.

22.6 Indigenous cultural legal services

• An Indigenous Cultural Legal Centre should be established similar to the Arts Law Centre, but should have the powers to provide legal advice and take on legal actions as would general legal services provided by professional solicitors.
• Appropriate provision should be made for Indigenous Australians, both artists and communities, to be represented by fully qualified and experienced intellectual property and copyright lawyers who are familiar with Indigenous legal frameworks. Appropriate provision for lawyers of both sides to be familiarised with relevant traditional or customary laws applying to the people involved, the cultural property and the situation in which it is applied.
• Provision for ongoing legal education for non-Indigenous lawyers, judges and legislators to understand the breadth of Indigenous laws of succession, responsibility and customary interconnections, for example, through moiety and totemic systems.

22.7 Networks

• Encourage the development of networks between Indigenous cultural organisations immediately.
• Support the establishment of an on-line information network with web links and search engine covering all areas of Indigenous Cultural and Intellectual Property; e-mail discussion lists or usernet groups, working through a central server.
• Support for convening a National Conference of Indigenous Cultural and Intellectual Property Rights.

22.8 Indigenous-controlled recording, research and publishing companies

Encourage the development of Indigenous-controlled recording, research and publishing companies.

Part IIC: Policies, Codes and Education

Chapter 23: Development of policies

23.1 Ancestral human remains

The introduction of a national policy and/or legislation on the repatriation of Indigenous ancestral remains and sacred objects held by cultural institutions should be supported.

23.2 Previous Possessions: New Obligations

Support for the Previous Possessions: New Obligations policy to become a national policy or the basis of national legislation.

23.3 National Principles for Return of Indigenous Cultural Property

The National Principles should be disseminated to museums and collecting institutions. ATSIC to monitor implementation.

23.4 State cultural institutions

• All State and Commonwealth cultural institutions which hold, collect and display Indigenous Cultural and Intellectual Property should be required to draft and adopt guidelines, in consultation and approved by Indigenous people, which deal with Intellectual and Cultural Property Rights issues.
• There should also be an independent national inquiry into the state collections of Indigenous cultural heritage to identify what materials various bodies hold and whether or not the appropriate Indigenous custodians have been identified.
• There should be a national forum to address issues relating to archival institutions and Indigenous Cultural and Intellectual Property.

23.5 National Indigenous Language Policy

In the absence of specific legislation which provides Indigenous people with rights to own and control their languages, a National Indigenous Language Policy should be drafted and adopted, addressing issues such as:

• community ownership and group rights over Indigenous languages;
• rights in perpetuity.

23.6 Indigenous research policy

A national Indigenous research policy should be developed.

23.7 Indigenous policies in other areas

All areas of industry should be encouraged to develop policies relating to the use and control of Indigenous Cultural and Intellectual Property.

Chapter 24: Codes of ethics

24.1 Medical and scientific research ethics

Medical and scientific ethics associations should develop ethics relating to research and use of Indigenous genetic material.

24.2 New technology guidelines

Indigenous people and various Industry bodies such as INTIAA should develop guidelines relating to use and dissemination of Indigenous Cultural and Intellectual Property on line and in multi-media.

24.3 Media codes of ethics

• The media should take effective measures to promote understanding of and respect for Indigenous peoples’ cultural practices and heritage, in particular through special broadcasts and public service programs. These should be where possible made by Indigenous media or made in collaboration with Indigenous peoples.
• Journalists and public relations officers should respect the privacy of Indigenous people, particularly concerning customary, religious, cultural and ceremonial activities, and refrain from exploiting or sensationalising Indigenous peoples’ heritage.
• Journalists should actively assist Indigenous peoples in exposing any activities which exploit, destroy and degrade Indigenous peoples’ heritage.

24.4 Research codes of ethics

All research institutions including universities, colleges etc should support:

1. The development of a research code of conduct for work within Indigenous communities.
2. The development of research ethics when researching Indigenous communities.
3. The need to address different ownership interests when research is carried out on Indigenous communities, including:

(a) institutional ownership rights, data and materials produced by the research institution, including materials included in courses pertaining to Indigenous Australians,
(b) individual intellectual property rights held by researchers and Indigenous contributors; and
(c) collective rights of Indigenous community groups with ownership of language, dreaming, dances, songs etc.

24.5 Collecting societies codes of ethics

Collecting societies should establish codes covering the use and authorisation of Indigenous Cultural and Intellectual Property. Such codes should be developed in consultation with Indigenous people.

Chapter 25: Education and awareness strategies

25.1 Awareness strategies for Indigenous people such as legal and cultural workshops and publication of information material on Indigenous Cultural and Intellectual Property rights should be developed.

25.2 Awareness should be raised among the wider community of Indigenous Cultural and Intellectual Property rights and reform options.

25.3 Indigenous associations and organisations should be encouraged to adopt policies and practices which assert ownership over Indigenous cultural heritage.

25.4 Further consultations should be conducted with Indigenous peoples around the country on the reform proposals.

^[1] The full report is available at <www.icip.lawnet.com.au>.