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By Dr Terri Janke, Laura Curtis, and Adam Shul
Image Description: Archway into the entrance of the Wangka Kanyilku Wangkawa! Decolonising First Nations’ Languages Conference 2023 in Kalgoorlie, WA. Taken by Senior Solicitor, Laura Curtis.
The United Nations has declared the decade between 2022-2032 as the International Decade of Indigenous Languages, calling attention to state of Indigenous languages globally.[1] The designation reflects a drastically changing landscape that has seen an increased focus on the preservation, revitalisation, and promotion of Indigenous languages. Noting this, and in celebration of Aboriginal Languages Week, this blog post outlines the importance of language to Indigenous peoples and discusses the current laws in place regarding the use and preservation of language. It then informs where TJC can assist in celebrating and protecting Language.
The Importance of Language
There are more than 250 Aboriginal and Torres Strait Islander languages in Australia with more than 800 dialects. Language is culture, and culture is language. Speaking language keeps strong connections to Country, identity, culture, kinship, and community.[2]
Strong language connection has also demonstrated positive outcomes for well-being, and physical and mental health.[3] Although many languages are at varying stages in their revitalisation process, the long-lasting and continued impacts of colonisation have negatively affected the use of Language. The National Indigenous Languages Report 2020 found that around 90% of Indigenous Australians do not speak their traditional language.[4] In fact, all Indigenous languages are under threat, with only 12 of the 123 languages currently in regular use. [5]
Despite this, Indigenous communities around the country are working extremely hard to preserve, revitalise, and celebrate the use of Language, with many communities seeing positive results.[6] The government is also leading many initiatives to support Indigenous languages. One such initiative is Voices of Country: Australia’s National Action Plan for the International Decade of Indigenous Language. [7] The Action Plan was co-authored in partnership between the International Decade of Indigenous Languages Directions Group and the Australian Government., a framework that will guide Australia’s participation in the International Decade of Indigenous Languages.
The Copyright Act 1968 (Cth) – Challenges and Opportunities
Despite the significant efforts regarding protecting Indigenous languages, Australian copyright, and intellectual property (IP) laws have brought challenges to preservation and revitalisation efforts. For example, The Copyright Act 1968 (Cth), does not recognise Indigenous peoples as the rightful custodians of their languages for several reasons.
Firstly, copyright only protects work that has been reduced to material form, meaning that if language knowledge is written down or recorded by a non-Indigenous person such as a linguist, researcher, or academic, they (or their employer) may own the copyright.[8] This also leads to a practical challenge faced by language experts doing language revitalisation projects, as there is a large amount of language material such as field notes and recordings inaccessible to them and stored off country in universities or libraries.
Secondly, there is no recognition of communal cultural rights to knowledge and cultural expression in the Copyright Act. The copyright law does not recognise the custodial relationship between language, culture, and Indigenous peoples. All this means that communities are not recognised as having a copyright interest in written materials, recordings and films that record their ancestors speak about language and culture. This limits them in being able to control and manage how their languages and culture is used and attributed.
Where there are challenges there are also opportunities. Understanding copyright and negotiating rights at the point of writing down or recording materials in written agreements can empower First Nations communities with greater control over how their language is used. First Nations language and culture experts, and Indigenous language centres, can use contracts to assert copyright ownership of the language resources they create like recordings, dictionaries, online resources such as websites or apps, or physical learning resources such as textbooks.[9] Further, First Nations language and culture experts can create legally binding agreements to use cultural protocols when sharing language knowledge including oral words, or traditional songs. This includes when language and culture experts are asked to collaborate with schools to teach language, but they want to make sure that they stay in control of the cultural integrity of their language.
The Role of State Based Laws and Policies
Although The Copyright Act 1968 (Cth) is limited in its ability to protection Language, State-based laws can play an essential role in supporting community-led language revitalisation and protection efforts.
For example, the Aboriginal Languages Act 2017 (NSW), led to the creation of the Aboriginal Languages Trust (ALT). The ALT is managed by a board comprised of Aboriginal subject matter experts, who represent numerous Language groups across the state.[10] The ALT’s main purpose is to identify priority areas, manage funding and investment, support education and employment opportunities, and encourage the wider use of Language throughout the state.[11] The success of the ALT reflects the importance of collaborative and inclusive frameworks that account for diverse considerations and contexts.
States can also play a supporting role for community-led language revitalisation projects through their policies. Co-designed state-based action plans can map out how state governments intend to meet best practice obligations to support language diversity. Additionally, many states have also started introducing dual naming policies that operate by extensively consulting with Traditional Owners and language experts. This includes Tasmania’s Aboriginal and Dual Naming Policy,[12] or Western Australia’s Guideline to Aboriginal Naming and Dual Naming.[13]
Beyond the Law
Given the significant gaps in the law, many industries and organisations that regularly deal with First Nations language have adopted Indigenous Cultural and Intellectual Property (ICIP) protocols to help steer projects on the correct path. In some contexts, protocols may be more beneficial than legislation, as they can accommodate for the diverse range of cultural practices and values that different Language-groups may have, which laws often fail to account for. [14] ICIP protocols are extremely helpful tools that can ultimately act as best practice guidelines to ensure institutions assisting with language revitalisation efforts, or Language more broadly are respectfully and ethically engaging with Language and language practitioners. Protocols promote ethical practice and can support the implementation of Indigenous rights to their languages however, they are not legally binding unless a commitment to comply is founded in contract, which is enforceable against the parties signing that contract. What we need is laws that recognise ICIP rights, but until then protocols, contracts and notices and acknowledgements are a comprehensive strategy for greater control of language materials.
How can Terri Janke and Company Assist in Language Protection and Revitalisation Efforts?
Terri Janke and Company (TJC) is committed to assisting in the reawakening and protection of Language. In fact, between 24-26 October 2023, Laura Curtis, Senior Solicitor at TJC, presented at Wangka Kanyilku Wangkawa! Decolonising First Nations’ Languages Conference 2023 in Kalgoorlie, WA, hosted by Goldfields Aboriginal Language Centre Aboriginal Corporation. At the Conference Laura presented on the current landscape of Indigenous languages and the law and spoke about how the True Tracks ® principles can apply to language revitalisation projects.
If you wish to read more, you can find the languages section in True Tracks, or you may purchase More than Words: Writing, Aboriginal and Torres Strait Islander Culture and Copyright in Australia. Written by Solicitor Director Dr. Terri Janke, Senior Associate Anika Valenti, and Senior Solicitor Laura Curtis, the guide provides practical tips for authors, illustrators, and publishers who are dealing with Indigenous language and culture. You can access the guide here.
TJC can also offer many services in this area to assist language practitioners, language centres, or institutions working with Language. This includes, but is not limited to:
True Tracks® Workshops specifically tailored to account for Language projects;
Agreements and Contracts, including licensing agreements, consent and collaboration agreements, or shared copyright agreements, and deeds of assignment;
ICIP protocols;
Advice for ICIP considerations in relation to First Nations Language Projects;
Trade marks;
Copyright advice; and
Notices and acknowledgements.
[1] UNESCO, Indigenous Languages Decade (2022-2032) (Web Page), <https://www.unesco.org/en/decades/indigenous-languages>.
[2] Reconciliation Australia, Let’s Talk Languages, (Web Page, October, 2021). <https://www.reconciliation.org.au/wp-content/uploads/2021/10/ra-letstalk-factsheet-languages_final.pdf>.
[3] Australian Government, Australian National University (ANU), Australian institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) & International Year of Indigenous Languages (IYIL), National Indigenous Languages Report (Report, 16 August 2020) <https://www.arts.gov.au/publications/national-indigenous-languages-report-document> 23.
[4] Australian Government, ANU, AIATSIS & IYIL, National Indigenous Languages Report (Report, 16 August 2020) <https://www.arts.gov.au/publications/national-indigenous-languages-report-document> 41.
[5] Australian Government, ANU, AIATSIS &, IYIL National Indigenous Languages Report (Report, 16 August 2020) <https://www.arts.gov.au/publications/national-indigenous-languages-report-document> 41.
[6] Australian Government, ANU, AIATSIS &, IIL National Indigenous Languages Report (Report, 16 August 2020) <https://www.arts.gov.au/publications/national-indigenous-languages-report-document> 57
[7] Australian Government, First Languages Australia, International Decade of Indigenous Languages, Voices of Coutnry: Australia’s Action Plan for the International Decade of Indigenous Languages 2022-2023, (Action Plan, 2023) <https://www.arts.gov.au/sites/default/files/documents/voices-of-country%E2%80%94australias-action-plan-for-the-international--decade-of-indigenous-languages-2022%E2%80%932032.pdf>.
[8] Copyright Act 1968 (Cth), subsection 22(1)
[9] Terri Janke, True Tracks (New South Books, 2021) 50.
[10] Aboriginal Languages Trust, Aboriginal Languages Trust Board (Web Page) <https://www.alt.nsw.gov.au/our-story/aboriginal-languages-trust-board/>.
[11]Aboriginal Languages Trust, Our Story (Web Page) <https://www.alt.nsw.gov.au/our-story/>.
[12] Department of Communications Tasmania, Aboriginal and Dual Naming Policy A Policy for the naming of Tasmanian geographic places and features (Policy, 2019) <https://nre.tas.gov.au/land-tasmania/place-naming-in-tasmania/aboriginal-and-dual-naming.
[13] Landgate WA, Aboriginal Naming A guideline to Aboriginal naming and dual naming of geographic features and places in Western Australia (Guidelines, 2023) <https://www.landgate.wa.gov.au/siteassets/documents/location-data-and-services/place-names-and-addressing/guideline-to-aboriginal-naming-and-dual-naming.pdf>.
[14] Australian Government, ANU, AIATSIS & IYIL, National Indigenous Languages Report (Report, 16 August 2020) <https://www.arts.gov.au/publications/national-indigenous-languages-report-document> 71.
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