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Codifying Culture: Indigenous Australian Art: Commercial Code of Conduct | |
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Codifying Culture: Indigenous Australian Art, Commercial Code of ConductThe Australian Indigenous art industry is in need of systematic change to prevent the occurrence of unethical trade practices. The Senate Standing Committee on Environment, Communications, Information Technology and the Arts Inquiry, into Australia’s Indigenous Visual Arts and Craft Sector in 2007, recommended the introduction of an Indigenous Australian Art Commercial Code of Conduct which would aim to set minimum national standards of trade. The Indigenous Australian Art Commercial Code of Conduct would set terms for best practice conduct which would be utilised in the negotiation of agreements between artists, agents and dealers. In this way, the regulation of sales relationships in the visual arts industry would encourage more ethical business practices that will protect the commercial interests, rights and integrity of artists and their communities. In their article, Codifying Culture: Indigenous Australian Arts Commercial Code of Conduct, Lan Pham and Terri Janke examine the Indigenous Australian Art: Commercial Code of Conduct, the implications that it has for artists and address its shortfalls. The article appears in the July/August edition Issue 13 of the Indigenous Law bulletin. |For a copy of Codifying Culture: Indigenous Australian Arts Commercial Code of Conduct |top Pathways & Protocols - A filmmaker’s guide to working with Indigenous people, culture and conceptsTerri Janke’s, Pathways & Protocols - A filmmaker’s guide to working with Indigenous people, culture and concepts provides a framework for the development and implementation of protocols used for film production. It is a reference guide which deals with legal and ethical issues surrounding the use of Indigenous content such as images and stories, protocols and interaction with Indigenous people, their communities and their land. Pathways & Protocols - A filmmaker’s guide to working with Indigenous people, culture and concepts highlights the need for protocols that promote recognition and respect of Indigenous cultural intellectual property, beliefs and heritage. It examines copyright and ownership issues pertaining to Indigenous material and offers general advice on the main laws in Australia governing the use and reproduction of songs, stories, dance, artistic works, sound recordings and films. The guide also provides a list of contacts for relevant people and information which may be useful to filmmakers. Pathways & Protocols A filmmaker’s guide to working with Indigenous people, culture and concepts encourages the development and adoption of protocols, ethical practices and industry standards to effectively maintain the integrity of Indigenous peoples and their cultures. The protocols were used by Baz Luhrman in the production of Australia. A copy of the protocols is available from Screen Australia: |For a copy of Pathways & Protocols - A filmmaker’s guide to working with Indigenous people, culture and concepts |top Beyond Guarding GroundAustralia needs a new authority to promote and protect Indigenous cultural and intellectual property from being ripped off and exploited, according to Indigenous lawyer, Terri Janke. In the position paper entitled, Beyond guarding ground a vision for a National Indigenous Cultural Authority, Ms Janke proposes the establishment of a National Indigenous Cultural Authority that would develop standards for the negotiated and appropriate use of Indigenous cultural and intellectual property. “In the last four decades the value of and demand for Indigenous arts, cultural expression and knowledge has grown tremendously. The Aboriginal Art Market is valued at $300 million per year, traditional knowledge has applications in industries that range from tourism and entertainment through to the biotechnology industry”, Ms Janke said. “We need to consider how we can use collective systems to benefit Indigenous creators and communities, for use of their culture”. The application of Indigenous cultural and intellectual property has potential markets in arts and culture, tourism, bush foods, medicines, health and beauty, and merchandising for a range of products including clothing, carpets and stationary. If Indigenous cultural and intellectual property rights are managed effectively , Indigenous people can benefit economically, socially, and culturally from increasing consumer desire for authentic Indigenous products and services. Use intellectual property tools, protocols and contracts in a coordinated and transparent way could generate economic and cultural benefits. Ms Janke proposed a strong trade mark and branding system-like the Fair Trade logo-to endorse projects, goods and services which are made with fair trade through the sharing of benefits with Indigenous people. “ There is no national independent organisation currently that represents Indigenous artists and creators. We need to make sure that culture is appropriately used, properly recompensed, that our Indigenous creators are valued and attributed, and also that our culture is not derogatorily used”. |For a copy of, Beyond guarding ground a vision for a National Indigenous Cultural Authority, contact the Australia Council’s ATSIAB, Phone: 02 9215 9118, Email: adoyle@australiacouncil.gov.au |top Writing up Indigenous research: authorship, copyright and Indigenous knowledge systems - Terri JankeAugust 2009 Indigenous cultural and intellectual property rights are the rights to develop, disseminate, reproduce, maintain and adapt cultural and traditional knowledge. When recording traditional knowledge in to material form, it is important that these rights are recognised so that the integrity of that knowledge and the ways in which it is passed on is respectful to the owners of traditional knowledge. It is only in this way, that future generations will be able to trace back to the source knowledge holders and communities. Knowledge systems are integral to the cultural heritage of Indigenous people and the complex system of consents with which they are guarded must be considered in the research and writing related to them. In this paper Terri Janke explains the intricate issues of copyright, old knowledge, authorship, sacred and secret material, and discusses the implications of modern research methods in relation to Indigenous traditional knowledge systems. Indigenous knowledge holders and their communities are entitled to be rightly attributed and have their knowledge and rights respected. The recognition of ICIP laws would empower Indigenous people and allow them to share in the benefits of their traditional knowledge. The shortfalls of copyright and Intellectual Property laws are discussed and Indigenous cultural protocols and University IP policies are examined as a means of developing modern research methods and acknowledging knowledge holders. | Click here for a copy of the document | top Australia Council 2nd edition of Indigenous protocol guidesApril 2008 Australia Council for the Arts has released the 2nd edition of the Indigenous protocol booklets. The five booklets are performing arts, media arts, writing, music and visual arts. The protocols guides were first written by Terri Janke and Robynne Quiggin in 2002. They have been widely received. This edition adds new case studies and update law and policy. Dr Chris Sarra, chair of the Australia Council’s Aboriginal and Torres Strait Islander arts board said the guides should be compulsory reading for anyone working in the arts, and an automatic first point of reference for Australians working alongside Indigenous culture. They are available to download from the website www.australiacouncil.gov.au or you can also ask for hard copies by calling 9215 9000. | top
City of Melbourne Code of PracticeOctober 2007 The City of Melbourne launched the ‘Code of Practice for galleries and retailers of Indigenous art’ on 20 September 2007. The Code was initiated by Council’s Indigenous Arts Advisory Panel and written by Terri Janke. The Code promotes fair and open relationships between galleries and retailers and advocates for the use of written agreements. It also encourages the sale of authentic Indigenous art. | To download a copy of the Code visit www.melbourne.vic.gov.au/arts | top Australian Indigenous Knowledge and LibrariesMarch 2007 An E-book covering Indigenous knowledge and libraries is available online. The book called Libraries and Indigenous Knowledge: A National Forum for Libraries, Archives and Information Services (edited by Martin Nakata and Marcia Langton) includes papers presented at the National Forum for Libraries in 2004. Terri Janke contributed a paper (see chapter 8). | Click here for a copy of the document | top Indigenous cultural protocols and radioMarch 2006 Terri Janke and Company has written a paper on Indigenous cultural protocols and radio for the Australian Film, Television and Radio School. The paper Listen, learn and respect is written by Terri Janke and Nancia Guivarra, an Indigenous media professional with extensive radio experience. It sets out some of the major Indigenous cultural protocols that require consideration in radio practice. The issues discussed include interviewing Indigenous people, reporting the news, relevant codes of practice and the use of Indigenous cultural and intellectual property. | Click here for a copy of the Paper | top Discussion Paper on Aboriginal Customary LawsFebruary 2006 The WA Law Reform Commission has released a Discussion Paper, Aboriginal Customary Law, with 93 proposals relating to areas of cultural concern for Aboriginal people in WA. There are three proposals relating to Indigenous cultural and intellectual property:
The paper is available online at www.lrc.justice.wa.gov.au and submissions close on 30 April 2006. A Background Paper on Indigenous cultural and intellectual property and customary law, written by Terri Janke and Robynne Quiggin, is also on the website. | Click here for a copy of the Background Paper (Acrobat pdf document, 320KB) | top Our Culture: Our Future (OCOF) Report (1999) – It's back onlineSeptember 2005 Our Culture: Our Future was written and researched by Ms Terri Janke, Solicitor (then employed by Michael Frankel & Company) under commission by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and the Aboriginal and Torres Strait Islander Commission (ATSIC) Report on Australian Indigenous Cultural and Intellectual Property Rights (ICIP). The Report was part of a process to develop practical reform proposals for the improved recognition and protection of Indigenous Cultural and Intellectual Property. It contains findings and recommendations developed out of extensive consultations with ATSIC's Reference Group and other interested parties and in light of feedback received as submissions to the Discussion Paper. It was released in 1999 but remains an important document for Indigenous Australian ICIP. | Click here for a copy of the Report (Acrobat pdf document, 2.5MB) | top Tasmanian Aboriginal Cultural Protocols30 November 2004 Arts Tasmania has released a specific protocols guide for Tasmanian Aboriginal arts projects. The booklet, Respecting Cultures: Working with the Tasmanian Aboriginal Community and Aboriginal Artists was written by Jim Everett and is based on the Australia Council's Indigenous protocols series, Cultures written by Terri Janke and Company. Respecting Cultures promotes cultural integrity, consultation and recognising the Tasmanian Aboriginal community's right to manage their intellectual and cultural property. | email arts.tasmania@arts.tas.gov.au for a copy of the guide | top World Intellectual Property Organisation (WIPO) publishes Minding Culture15 March 2004 The World Intellectual Property Organization (WIPO) has published a collection of practical case studies on the use of the intellectual property system by Indigenous communities in Australia written by Terri Janke. The publication, entitled ‘Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions’, gives actual examples of how industrial designs, copyright and trademarks have been used by Indigenous Australian communities to protect and promote their artworks, cultures and identities, as well as their economic interests. The case studies point out where Indigenous people found existing systems useful and where they were found inadequate. The studies also suggest policy and practical measures that could improve the protection of traditional cultural expressions by intellectual property, and other laws. The publication will be used in the ongoing discussions of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). For a copy of the final studies contact the World Intellectual Property Organisation or | Click here for a copy of the study (Acrobat pdf document, 761KB) | top Indigenous Communal Moral Rights Bill 200320 February 2004 The Federal Government has announced that it will introduce amendments to the Copyright Act 1968 (Cth), possibly in the Autumn Sittings of the Commonwealth Parliament. The Indigenous Communal Rights Bill 2003 proposes to give Indigenous communities moral rights protection over creative works or films that draw upon Indigenous traditional culture. Indigenous communal rights will exist in works and films if there is a voluntary agreement between the creator and the Indigenous community. The rights must be exercised by an authorised representative of that Indigenous community and include:
| top Fijian Law to Recognise Indigenous Cultural Rights13 February 2004 The Fijian Government Cabinet has approved the drafting of appropriate legislation to recognise and register Indigenous intellectual property rights. It is envisaged that traditional knowledge and expressions of culture will now be protected through this legislation. The new legislation will acknowledge Indigenous cultural rights and ensure that local Fijian communities are no longer exploited but are able to share in the economic and commercial returns flowing from their cultural rights and folklore. To date, the current Intellectual Property rights system in Fiji has been recognised as being inadequate in protecting traditional knowledge. The legislation will be based on the Pacific Model Law formulated by member states of the Pacific Islands. The Model law recognises rights to traditional knowledge and expressions of culture and allows traditional owners to be compensated for the use of their traditional knowledge. It also provides for the establishment of national institutions to create and maintain databases on owners as well as permitting the establishment of a national dispute resolution system. | top Resale Royalty24 October 2003 The Labor party is drafting a private members bill on the Resale Royalty Bill to present in Federal Parliament. The resale royalty right entitles an artist (or the artist's heirs) to receive a percentage of the sale price if his or her work is resold. The Resale Royalty is law in many European countries. Australia has no such law. Many Indigenous artists' work resells for greater amounts. The Resale Royalty, if introduced, would benefit Indigenous artists and their families. | top AFC Indigenous Filmmaking Protocols1 August 2003 Terri Janke and Company has been engaged by the Australian Film Commission to develop a new protocol for filmmakers both non-Indigenous and Indigenous working in Indigenous filmmaking. The protocol will provide a framework to assist and encourage recognition and respect for the images, knowledge and stories of Indigenous people, as represented in documentaries and drama, including short dramas, feature films and television drama. The protocol will include principles for:
For a copy of the discussion paper entitled Towards a Protocol for Filmmakers Working with Indigenous Content and Indigenous Communities please visit the AFC website: www.afc.gov.au Submissions have closed. We have received an overwhelming response with a range of views. We are drafting the final report to be completed by the end of the year. We want to thank everyone who submitted a comment, suggestion or submission. | top Misleading labelling and Indigenous Art24 July 2003 The Australian Competition and Consumer Commission (ACCC) is taking legal action against Australian Icon Products Pty Ltd (Australia Icon), a Queensland-based souvenir manufacturer under section 52 of the Trade Practices Act 1974 (Cth). Under this section, it is illegal for corporations to engage in conduct, in the course of trade or commerce, that is "misleading and deceptive or which is likely to mislead or deceive." Australian Icon makes a range of hand painted and carved products including didgeridoos, boomerangs and plates bearing "Aboriginal" designs. Some of these designs are made by Aboriginal people and others are not. The ACCC was granted interim orders on 4 April 2003 to prevent Australian Icon from describing a product as "Aboriginal art" or "authentic" if it is not created by a person of Aboriginal descent. The case is going to trial and the ACCC is seeking to require Australian Icon to implement a trade practices compliance program. | top Indigenous cultural and intellectual property (ICIP) review of Uluru Kata Tjuta National Park (UKTNP)May 2003 Terri Janke and Company has been engaged by the Uluru Kata Tjuta National Park (UKTNP)
to conduct a review of Indigenous cultural and intellectual property related to UKTNP.
The terms of reference include:
| top Global Spotlight on Traditional KnowledgeDecember 2002 The World Intellectual Property Organisation (WIPO) has established an international
committee to examine the intellectual property issues associated with traditional knowledge.
The IGC has also considered the WIPO-commissioned Minding Culture Case Studies
on Intellectual Property and Traditional Cultural Expressions researched and written
by Terri Janke. Minding Culture presents specific and actual examples where Indigenous
Australians have explored and used intellectual property laws to protect their arts
and cultural expression. | top Protecting Traditional Knowledge in the PacificSeptember 2002 A new model law to protect traditional knowledge in the Pacific provides a blueprint for Pacific nations wanting to enshrine "traditional cultural rights" in national legislation. Drafting of the Pacific Regional Framework for the Protection of Traditional Knowledge and Expression of Culture was completed in July 2002. Terri Janke attended preliminary meetings and advised the Australian delegate to the Council of Pacific Arts. The framework establishes traditional cultural rights for traditional owners over traditional knowledge and expression of culture by requiring their prior and informed consent to, among other things:
| Click here to email us for more information | top Call for Government to act on Indigenous copyright and IPSeptember 2002 A new report to the Australian Government on contemporary visual arts and crafts recommends that action be taken to protect the ICIP and copyright of Indigenous artists. The "Myer Report" – undertaken by Mr Rupert Myer for the Department of Communications, Information Technology and the Arts – also recommends the introduction of a resale royalty arrangement in Australia to further protect the rights of all visual artists. Recommendation 4 on Indigenous copyright and intellectual property recommends that the Australian Government to take action in relation to:
The report urges implementation of its recommendations as an immediate priority, with funding provision in the 2003-2004 federal budget. | top |