2019 is the United Nations International Year of Indigenous Languages.  This puts the spotlight on the work of the Indigenous language and cultural centres. This celebration provides a platform to showcase the different ways to revitalise Indigenous languages around the world. Many projects involve the recording of Indigenous languages, and for this reason, it is important to consider how copyright laws apply to the development of languages. Whilst copyright doesn’t protect a language itself, copyright will vest in materials that are created for language maintenance. It is therefore necessary that the issue of copyright be discussed at the outset of language projects.
Issues with Copyright regarding language materials:
Where language resources are created as a result of revitalisation projects, a range of materials are created including recordings, written texts and teaching materials as well as software and songs. Copyright will apply to these materials as per the general rules in the Copyright Act 1968 (Cth). The important issues to look at are the material form requirement; authorship provisions and how that impacts the ownership of materials.
Generally, there is no copyright in languages unless they are expressed in material form, being either written or recorded. Even then, the copyright protects the expression and not the underlying language. This can be an issue for Indigenous peoples and language centres as their language is oral, in that it is passed down through generations. Oral stories or performances in traditional language are not protected by copyright law, but documented audio or textual representations of languages and sounds that are embodied in an article or thing are in a material form and are therefore protected. Any language resources in which the language is recorded and stored will be protected by copyright protection. Some examples of resources can include computer programs and software, websites, compilations, applications and sound recordings. Indigenous Languages have been recorded in the past, often by researchers and linguists employed by universities for example. Who owns the copyright in these resources?
The creator of a material, that is the author, is recognised as the owner of the copyright in the work under general copyright law. However, if a person is employed to create the resources, the employer will own the resource. If they are a contractor only, that person may own the copyright in the resource. In Indigenous language work there are many parties involved, including Aboriginal or Torres Strait Islander language speakers, linguists and Indigenous language centres. This can create questions regarding who should own the copyright in the materials created. Often it is the linguist, who documents the oral language information into material form, who is attributed as the author of the material, and is subsequently recognised as owner of its copyright.
The need for written agreements
This western view of ‘ownership’ of materials does not reflect the involvement of Indigenous peoples over the years of nurturing language. As such, in Indigenous language projects it is crucial that the Indigenous knowledge and language holders who provide the information are acknowledged and respected as the primary guardians and interpreters of their cultural heritage and traditional knowledge. This can be done through the use of agreements in contracts which assign the copyright of language materials and resources developed as a result of engagement to the Indigenous knowledge holders and authorities. The Copyright Act allows for copyright to be assigned so long as it is in writing. In this way, Indigenous language centres can require linguists to assign their copyright to the organisation for the future benefit of the Indigenous clan group.
When recording languages and engaging linguists to assist you with language revitalisation consider who will own copyright in the materials. Get advice and use written agreements to ensure that the materials can be used by the Indigenous language organisation, and the future generations of Indigenous language speakers. Indigenous languages are integral to Indigenous culture and identity, and as Indigenous Cultural and Intellectual Property, should be guarded and respected as important cultural heritage.
How can TJC Help?
Terri Janke and Company can assist by:
Drafting agreements and clearance forms
Developing IP strategies for language projects
Advising on the publication of books, software and websites.
 2019 International Year of Indigenous Languages, Background <https://en.iyil2019.org/about/>.