• By Jean Kearney, Aurora Intern and Terri Janke

Rights to Culture: Indigenous Cultural and Intellectual Property (ICIP), Copyright and Protocols

1. Introduction

Indigenous Australian arts and cultural knowledge has been passed down in cultural practice (including ceremonies, on country transmission, paintings, songs, dances, stories etc.) for many generations. In recent years, the demand for Indigenous cultural products has grown rapidly: Indigenous artworks are in high demand, Indigenous imagery is reproduced on all manner of products (e.g. on T-Shirts), and Indigenous words and motifs are being used as brands and logos by Australian companies. There is similar demand for Indigenous Australian cultural knowledge for use in medicines, foods and technology.

Consequently, Indigenous cultural heritage has often been distorted for commercial gain. Indeed, the commercialisation of Indigenous Intellectual and Cultural Property (ICIP) has often been done without respect for Indigenous cultures, without consent or Indigenous legal authorisation, and without benefit sharing with Indigenous communities. This is leading to the gradual erosion of Indigenous cultural heritage. Indigenous people call for adequate protection of Indigenous Cultural and Intellectual property rights to enable them to protect their culture and to share in the benefits from the use of their heritage where appropriate.

2. What is ICIP?

ICIP stands for Indigenous Cultural and Intellectual Property. Based on the right to self-determination, ICIP rights are Indigenous People’s rights to their heritage and culture. Heritage includes all aspects of cultural practices, traditional knowledge, and resources and knowledge systems developed by Indigenous people as part of their Indigenous identity.[1] ICIP rights also cover:

  • Literary, performing and artistic works (see Copyright)

  • Languages

  • Types of Knowledge, including spiritual knowledge

  • Tangible and intangible cultural property

  • Indigenous ancestral remains and genetic material

  • Cultural environmental resources

  • Sites of Indigenous significance

  • Documentation of Indigenous heritage.

ICIP rights are collective in that the cultural expression and knowledge originate from a clan group and are passed on from generation to generation. Due to the continuing nature of Indigenous culture, ICIP also includes items created based on Indigenous cultural heritage.

ICIP rights are based in customary laws which are not recognised by the legal system. There are gaps in the law which mean that unless Indigenous people can meet the requirements of intellectual property laws like copyright, their rights are unprotected and open to exploitation.

Photo by Jackson Mann, UTS Library

3. What is Copyright ©?

Copyright is a type of intellectual property (IP) which confers a series of rights on the owner of the copyrighted material. Copyright is created automatically and does not need to be registered.

The scope of what is protected by copyright is limited by the Copyright Act 1968 (Cth). Accordingly, copyright only arises in relation to defined subject matter. These are:

  • Literary, Dramatic, Musical and Artistic works (photographs)

  • Subject matter other than works (including films, sound recordings, broadcasts and published editions).

As well as needing to fall into one of the above categories, there are a number of other requirements for copyright to subsist.

First, the copyrighted work must be recorded in material form. This

means that there is no copyright protection of an idea. Indigenous intellectual property is traditionally orally based and transferred through practice. This means that a lot of Indigenous cultural expression and knowledge is not protected.

Second, the work must be original – requiring skill, labour, judgement and ‘creative spark’.

Third, the author of the material is typically the owner of the copyright. However, the author must be identifiable, have the necessary connection to Australia, and be within the duration period of the copyright protection (usually the life of the author + 70 years).

If these requirements are met, copyright will subsist in the work and the copyright holder will have the exclusive right to reproduce, publish, perform, communicate, and adapt the work.

Moral rights:

Moral rights may offer some degree of protection to ICIP. Moral rights are personal rights held by the creator of an artistic, literary, dramatic and musical work, as well as films. These rights cannot be assigned or sold and remain with the author regardless of who holds copyright. However, a holder of moral rights can consent to infringements of their moral rights. The three types of moral rights are: the right of attribution, the right against false attribution, and the right of integrity.

4. Protecting ICIP with copyright? What are the gaps in the law?

Limited Scope of Pro