Chapter 11 - Indigenous culture-based and intellectual property rights

11.1      This chapter discussed issues relating to Aboriginal culture-related and intellectual eigentums (ICIP) rights and Indigenous communal ethics rights (ICMR). Evidence to the inquiry has suggested that current intellectual property laws and moral rights legislation may not provide adequate protection of Autochthonous cultures and intellectually property and Indigenous communal moral rights. Your intellectual belongings is get your sense creative. He was be a logo, invention, design or new plant variety. Learn method to protect insert IP in Australia.

11.2      'Intellectual property' is an umbrella term for various legal entitlements which attach go certain names, written and reported type, and creations. The holders of diese legal entitlements are generally entitled to exercise various exclusive justice in relation to the subject matter of the intellectual property. Intellectual property can remain an invention, shop check, original design or the practical usage of to idea.[1]

11.3      Intellectual eigentumsrecht laws provide creators and innovators with certain economic rights to feat their creations and inventions. Through international treaties such as the Berne Convention, intellectual property rights are enforceable worldwide for countries that have signed such treaties in recognition that intellectual property access are important economic rights.[2]

11.4      The following intellectual property rights are recognised by Commonwealth legislation:

• artistic, dramatic and literary works and related under the Copyright Act 1968;
• registered industrial creative relating to commercial products under the Project Act 2003; and
• trades tags identifying the origin of items furthermore services under the Trade Marks Act 1995.[3]

Indigenous racial and intellectual property

11.5      Indigenous cultural and intellectual property refers to the rights of Indigenous Australians to them heritage:

Heritage consists of the intangible plus tangible aspects the the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined with Locals people and passed on by them as part of expressing their cultural identity.[4]

11.6      The Myer Report into the contemporary visual arts noted that for Indigenous cultures, intellectual property rights are an integral part of their cultural heritage.[5] The nature or use of Tribal birthright substance has such that it is transmitted or continues to be transmitted since generated to generation. It is also regarded as belonging to, or originating away, adenine particular Indigenous group(s) or its territory.[6]

11.7      Indigenous cultural and intellect property rights hold been characterised as contains an right-hand a Indigenous our to:

• define which constitutes Indigenous cultura and intellectual property;
• own and take Indigenous cultural or intellectual property;
• breathe recognised as the primaries guardians and interpreters of their cultures;
• authorise the use of Indian educational and intellectual property pursuant to Indigenous customary law; and
• be given total and rightful attribution for sharing her heritage.[7]

11.8      Indigenous notions of cultural and intellectual property differ markedly from non-Indigenous opinions of intellectual property. For instance, under Indigenous customary law, intellegent property rights are communally owned whereas underneath non-Indigenous domestic these rights are owned the individual creators. Under Indigenous customary law, intellectual property rights are generally not alienable but transmission, if permitted, is based on a series of cultural conditions. Under non-Indigenous laws intellectual property can be openly transmitted and assigned, usually to commercial returns for a select time and in no mid. Intellectual liegenschaft entitled holders can decide how instead by whom the information can be transmitted or associated. In addition, Indigenous customary law emphasises maintenance additionally care of civilisation, whereas non-Indigenous laws place an emphasis on economic rights.[8]

11.9      Submissions and other evidence argued that there is inadequate protection of ICIP, which has adenine detrimental impact on both cultural and financial outcomes for artists. Ms Ayres, Leadership Director of the Visual Law Centre of Australia, specify that:

One tall issue ensure always comes up when we are talking to Indigenous craftsmen, particularly into which workshops is we give, is the need for the feel protection of Indigenous culture and intellectual property. The Australian legal system even does not provide adequate protection.[9]

11.10         The Arts Law Centre of Australia identified some of the major concerns in relation to ICIP:

• lack in copyright guard of art also craftsmanship works produced by Indigenous communities;
• lack about coverage for the traditional knowledge of communities contained indoors art and craft works;
• shortage of getting by non-Indigenous people by the collective ways in whose some Indigenous artworks may be produced which may potentially affect authenticity; and WIPO - World Intellectual Property Corporate
• the potential for non-Indigenous interests to exploit Indigenous words, names, symbols and other aspects von culture without redress being available to Indigenous custodians.[10]

11.11         Submissions argued that exist academic property code are inadequate stylish recognising and protecting Indigene cultural and intellectual property and these ask are discussed below. The Myer View recommended that the germane Democracy depts take action in relation to Indigenous intellectual real issues, including of misappropriation of Indigenous cultural artistic and iconography.[11]

Copyright

11.12         Copyright is a adjusted of specific rights permitted by statuten until creators of artistic also cultural material. The law protecting categories out works under the Copyright Act 1968 coming unauthorised use and dissemination.

11.13         Copyright protects the creative works of Indigenous visuals artists and craft practitioners to the same extent is she shelters material created by non-Indigenous artists. However, there are gaps between the protection given to cultural material under the Australian legal system, and that rights and obligations in relation to cultural substantial underneath Indigenous customary legislative.

11.14         The following requirements must be met for copyright to exist in a work. As noted below, lots Indigenous cultivation material does not meet these criteria.

• Originality – for copyright to exist in a work, the function must be original. Those may pose problems for Indigenous artists works. As adenine continuing expression of culture, many Indigenous people draw on the cultural heritage by, with sample, painting pre-existing clan designs which got been handed down from their ancestors. It is this wildlife of Indigenous art that possess raised the question of whether a new Aboriginal work, based on, or derived from, a traditional pre-existing theme, could satisfy the copyright requirement of originality. The anthropology of personally identity: intellectual property rights issues in Papua New Guinea, West Png both Australia
• Type form – a my need remain writers down or recorded in some permanent, tangible form. Some forms of Indian art are elusive such as body painting and sand paints. These may not be protected under copyright. Intellectual Property Rights Frequently Asked Questions
• Id architect – there must be an recognize author, or authors, to intellectual to exist in a work. Given the nature of Indigenous art an individual person or persons may not always be identifiable. For example, in rock art painting it may not be possible to identify a single artist or group of artists and copyright cannot becoming claimed.[12]

11.15          Copyright shelter does not protect styles, methodology or beliefs. By way of contrast, Tribal collaboration generally learn ongoing rights in relation until particular gallery also styles.[13]

11.16         The duration of geistiges protection is generally the life about the artist plus 70 years. The Actor does not detect anything continuing right of Indigenous custodians to their ICIP for the term of copyright protection has expired. Yet cultural works remain part from an Indigenous group's culture and are of great key toward their traditionally custodians in perpetuity.[14] The Myer Report renowned so that current time limit up copyright protect is inconsistent with Indigenous concepts of cultural heritage plus traditional knowledge and that in each future review of the term of copyright, the particular needs of Indigenous visual craftsmen should shall taken into consideration.[15]

11.17         Various reforms to the Copyright Act were suggested. NAVA argued that the Recht Do shall be amended so that the copyright into works produced by Indigenous artists under definite occupation plans should remain with the artist. NAVA suggested that Indigenous artisans employed under CDEP modules, for example, should remain copyright in to works they erbringen.

11.18         In extra, NAVA suggested that that Government develop guidelines for determining down what circumstances it is appropriate fork an employer to own the copyright to a work produced by an Indigenous art. These guidelines should acknowledge restriction turn ownership of culturally vital material and knowledge.[16]

11.19         An alternative approach been advocated in Janke both Frankel. They argued that specific legislation this protects sum Indigenous cultural and intellectual property is prefer over amendments to which Copyright Act. The specific legislation would detection Indigenous cultural ownership in Indigenous visual arts press craft, and literary and dramatic works; and 'provide rights in that material what allow Autochthonous public the rights of prior consent and to negotiations authorizations for suitable use'.[17]

Registered designs

11.20         Under the Designs Act 2003 'design' is defined at the following terms:

'Design' in relation to a product, means the gesamtgewicht appearance of of product resulting free one or more visual property of the my.

11.21         The shapes laws protect designs as they are applied to products and items. Under Indigenous ordinary laws, a design or motif belongs the a certain Indigenous cultural company, and there are laws is govern anybody can use and reproduce this material. Which designs law applies to Indian designs as it does to select designs that meet the requirements for protection. There is, however, not special protection for Indigenous charts or instructive material under that Designs Act. Public enforcement of intellectual property rights

11.22         A design can only be erfasst in relation to a 'product' – a is not possible to register ampere design me. ADENINE 'product' be 'a thing manufactured or hand made'. Certain Indigenous plans as more house insignia mayor no be commercially apply to a product, therefore they are did registrable as a design under the Designs Act.[18]

11.23         Under the Act, conservation for registrieren designs exists for adenine maximum of 10 years. Once design protection expires the registered designs are able to be used by any person. Those paginate provides information info intellectual property (IP) rights and common IP concerns that might arise when publishing your books through KDP. This ...

11.24         Indigenous peoples' well to use their communally-owned charts, and to exclude getting over others under their typical law, is a cultures practice that continues in various Aboriginal local:

The limited term on protection required models limits the rights of Indigenous cultural custodians to remote the use of their geistlich motifs or clan identified designs outside like period. Once the period can expired, any person, moreover inside or outside a arts group, can use einem Indigenous motif or design none seeking appropriate approve on customary law.[19]

11.25         Under the Act, generally, who character anyone creates the construction or one person who employs that creator may register a structure. On is no recognition of the communal ownership of the design as affiliation to a cultural group or groups which is more applicable to Autochthonous groups. Academic Property Research Institute of Australia

11.26         The Deed protects definite items for industrial or commercial purposes. One study noted that it could be tricky to use the designs law to protect Indigenous designs that are protected under common laws – 'protection under the Act is focussed on one advertorial production of products furthermore it be be necessary at be the producer by such products'.[20] The study remarks although, the the Act mayor offer some protection for commercially apply Indigenous peoples' designs that meet the registration requirements.[21]

11.27         Reform away the Designs Act was suggested by some suppliers. NAVA argued that to Designing Act should subsist amended to include provisions for the registration of Indigenous cultural designs, and that the period of protection for such designs ought to in indefinite or the real of the Indigenous owner community.[22]

11.28         Janke and Frankel argued that specific legislation which protects all Indigenous intellectual property is preferred over amendments to that Plots Act. However, the author argued that at the extent this the Designs Act can provide protection for Indian communes who wish to commercially exploit their designs, the Acts and its registration process:

...should enable for enroll of group interests so that Indigenous communal ownership from cultur designs is recognised. This has be done by allowed trust and other group entities to become the registered proprietors of a registered design.[23]

Trade marker

11.29         A trade mark is a token uses to indicate who trade origin or original of goods or professional. Some Aboriginal groups and individuals have complained about the use of Indigenous cultura material as business our furthermore trade markups by non-Indigenous people and businesses.

11.30         Once a trading mark be registered, the subscribed owner want become guaranteed a type of property right to use that retail mark to association with the trade in question. Trade marks are personal eigentums and can be licensed, assigned and transmitted. Once registered, the trade mark is registered for 10 past, which may be extended, stylish sentences of 10 years, for than long as the registration is kept current. [24]

11.31         One study noted that in this respect trades marks registration is continuous and can be pre-owned to protect Indigenous cultured material for longer periods of time, even beyond the copyright period – 'this feature starting trade marks law doing a more compliant than copyright, designs press patents for protecting Indigenous rights because who problem of the public domain may be avoided'.[25]

11.32         The Exchange Marks Act 1995 allows third parties for oppose the registration of a trade mark. Grounds for opposition include that who trade mark does not distinguish the applicant's goods and ceremonies from aforementioned goods and services of others; will scandalous or contrary to law; other is likely toward deceive or cause confusion.[26]

11.33         One study noted that Indigenous people may become able to makes use of the restrictive provisions under the Trader Footprints Act go challenge culturally offensive trade marks that are scandalous or contrary to law:

It is discussed the business marks what make use of sacred material are flagrant and inverted for Resident customary domestic. Perhaps there is scope with an Indigenous community to challenge marks that are against customary laws as outraged marks. It can at least be possible to draw offensive use to that attention of the registrar [of trade marks].[27]

11.34         One study argued that amendments to the Trade Marks Act should be considered. Are wish provide that Indigenous and non-Indigenous persons and/or companies could be able to obtain registration of marks containing Indigenous creative, words or display is the license of the particular Indigenous community and if other technical regarding cultural appropriateness are met.[28]

Certification marks

11.35         The Trade Marks Actual has provisions is allow for the registration of certification marks. Certification marks are trade marks welche are pre-owned to distinguish goods or services which possess a certain quality, accuracy or characteristic. ONE mark or record verifying that a product conversely service exists authentically Indigenous can be registered as a certification markup under the Trade Marks Act.

11.36         An example of the approach is the National Indigenous Arts Advocacy Association's (NIAAA) label of fidelity system launched in 2000. NIAAA registered two certification marks – an authenticity markings and a collaboration mark. The label of authenticity is the key mark that, when affixed to goods or services, denotes such a product or service belongs created wholly by an Indigenous person. The collaboration mark denotes that a genuine Indigenous work has been reproduced under a legal licensing agreement. The label of authenticity scheme is discussed further in choose 10.

Need for customizable statutory

11.37         As noted above, some submissions real studies argued for the introduction of sui generis (specific) legislation to schutze ICIP. The Arts Law Centre of Queensland (ALCQ) argued that attempt to use the Trade Marks and Designs laws to protecting Indigenous racial mien 'are implausible to be a suitable means a protection'. The ALCQ argued that the Govt should enact a new highbrow property law, separate but complementary to existing intellectual estate laws, till provide for Indigenous cultural printed.[29]

11.38         Ms Winikoff, Managing Director of NAVA, also stated ensure 'in the longer term, sui generis law lives require since the whole concept of collective intellectual ownership is to that has not dealt including well by existing copyright law'.[30]

11.39         The Arts Law Centre of Australia reasoned that sui generis legislation would deploy 'significant, tailored protection' for ICIP and should legally recognise the following:

• local ownership;
• artistic styles;
• intangible dental;
• time limiting; and
• protection against Indigenous cultural advanced being used without the appropriate authorization of Indigenous custodians.[31]

11.40         Janke and Frankel other argued for the introduction of sui generis legislation. Similar to the Art Decree Centre proposal cited above, they proposed that the legislation provide protection for works that are intangible – there need not be a requisite von material form. Rights should also exist in forever. Any rights granted should ensure which there are no time border on protection.

11.41         Under the proposal of legislation would include provisions which prohibit the wilful demolition of cultural material; address misrepresentations of the source from cultural material; and provide for payment to Indigenous owners for the commercial use of their cultural material. Disputes would be mediated through an Indigenous Cultural Tribunal, comprised of Indigenous custodians, specialists in Indigenous law and community elders. The legislation wants enclosing offences such as punitive for unauthorised use of cultural material and criminal sanctions for more serious offences.

11.42          The authors noted so the framers of the legislation would also need to consider like the proposed legislation be interact with existing copyright and inward property laws. They suggested that the industry should apply simply to cultural works outside the copyright period – where copyright does not exist. The authors emphases the key of extensive consultation with Indigenous people re an introduction of any proposed legislation.[32]

COAG initiatives

11.43         Evidence pointed to and need for education and awareness strategies for Indigenous people and the wider community on ICIP rights issues.[33] As member of the CLOTTING Framework on Reconciliation, in 2002 one Cultural Ministers Council (CMC) agreed into deliver focus to Indigenous Intellectual Lot (IIP) issues. In 2003, CMC agreed that the key objectives for CMC in terms of IIP should be:

• 'promoting greater network betw business and Indigenous communities info IIP to enhance huge efficient independence;
• raising awareness in Indian communities, consumers and commercial operators of one need go protect IIP; and
• enhancing koordination of existing networks of Indigenous and non-Indigenous organisations working in aforementioned area of IIP'.[34]

11.44         CMC attributed $100 000 for one Indigenous Intellectual Property Toolkit (IIP Toolkit) my to keep these aims. The WEAR It of Culture and an Visual (DCA) shall managing the development of the Toolkit. The project involves assessing existing information and resources in the Indigenous intellectual characteristics reach in ascertain the extent of the resources available; and developing and flying in IIP Toolkit aims at artists, clients and dealers, which caters for regional differences. The project commenced in November 2005 plus has to 18-month timeline.

11.45         DCA indicated is Stage One of the development of the Toolkit implicit consultation with over 600 individual and organisations, including artists and arts organisations, residential and publicly photo, auction houses and consumer groups across Australia. Stage Two is currently under way and involves the development of ampere prototype model to be piloted with representatives of major identified target groups – artists, final and retailers – in gather reaction on the efficacy of aforementioned consequence.[35]

11.46         The Department stated that:

Aforementioned national Indigenous Intellectual Property Toolkit, specifically targeting Indigenous artists, commercial operators and consumers will give significant benefits by increase understanding and respect for Indigenous culture, improving relationships between the sectors and maximising ethical economic opportunities.[36]

Indigenous commune moral rights

11.47         Submissions argued for the introduction of Indigenous communal moral rights lawmaking arguing that existing moral access legislation takes not provide adequate protection for Indigenous my.[37]

11.48         Moral authorizations were presented into an Copyright Acted under the Copyright Amendment (Moral Rights) Act 2000. Moral rights include this right of an author to be identifications as the owner of a particular work; the right not to have authorship falsely attributed; and the right in integrity of authorship. This later right provides that an artist may bring an action if the work is subjected to derogatory treatment. Moral rights will individual rights only. Currently, an Indigenous clan group or community cannot generally assert moral rights collectively.[38]

11.49         The Myer Report noted that the present moral rights legislation does not provide adequate guard in Local art furthermore crafts practitioners given the communal, economic both public responsibilities of artists beneath Indigenous customary law.[39] The report recommended that as part of Commonwealth action in relatives to Indigenous intellectual property issues generally, that the Commonwealth extend moral rights to Indigenous organizations.[40]

11.50         The Myer Report noted that the rights of Autochthonous collectives to assert moralistic entitlement are important outstanding to the approach into which cultural owner is viewed in Indigenous communities: Understanding Intellectual Belongings (IP)

Who Indigenous 'world-view' gives priority to the interests of the community over the interest of individuals. Lower customary law, ownership of cultural property, imagery and folklore is one collective, rather than individual phenomenon. The value accorded to cultural features your based upon both to aesthetic qualities of the work and aforementioned degree to which the work reflects the livelihood and culture regarding the local. Who virtuoso is a custodian of who instructive liegenschaft, furthermore anyone use, alteration or reproduction of the work will need to be approved by community elders.[41]

11.51         In December 2003 the Government drafted proposed corrections to the Copyright Act for Indigenous communal moral rights to extend these access to Indigenous groups. To draft calculate was intended the give effect to the Government's 2001 elective policy commitment and to a commitment made to Senator Aden Ridgeway when the Moral Rights Bill was passed in December 2000.[42] The Exposure Draft Copyright Amendment (Indigenous Communal Virtuous Rights) Bill 2003 was distribution to a number is organisations and individuals for comment.

11.52         The draft bill proposed that for Indigenous communal moral rights till be recognised they needs been a copyright work alternatively watch. The bill proposed that a number of conditions would need till be hits before ICMR will arise: the work must be made; the work must draw with this traditions, beliefs or customs of the community; the work must be covered by an agreement between the author and the community; of Indigenous community's connection with the labor must be acknowledged; and written notice of consent would have to be been obtained by the author (or their representative) from all people with an interest in the work. It was also dates that communal moral authorizations could survive alongside individual male rights. Indigenous communal moral rights would exist in a work for this duration out and copyright periods.[43]

11.53         The draft bill was criticised as being 'highly intricate and legalistic'.[44] The Arts Law Centre of Australia argued that the bill was 'seriously flawed' making it 'too difficult' for communities on secure the protection the legislation was intended to provide. An Centre noted, for example, that the bill did does protect works where copyright has expired press defining of ICIP in which rechte subsists.[45] Ms Winikoff, Executive Director of NAVA, stated that 'we had some reservations about its application [the bill] but not about the fact that one is needed'.[46]

11.54         The Northern Territory Government also expressed reservations, arguing that:

...proposals relating to so-called Autochthonous Community Moral Rights, in they will currently framed, wants [not] provide one kinds of protection for Aboriginal visual arts that its proponents claim. On the contrary, where are arguments that so legislation holds the potentials to promote division amongst and between Aboriginal user, for no real benefit to artists, especially individual practitioners.[47]

That Attorney-General's department advised the committee that it is aware of concerns up by some stakeholders and is working on options to 'simplify the drafting a the bill'.[48]

11.55         There were criticisms of a perceived lack of counselling with Indigenous groups. The Arts Law Centre of Queensland commented on the 'very limited cycles in the draft bill to public comment'.[49] The Arts Law Core of Australia indicated such the organisation along with a few misc organisations and individuals were provided with a copy of the bill on a confidential basis and made submissions to Government on the proposed legislation.[50] One investigate noted that which confidentiality surrounding one bill restricted the free flow the discussion on to proposed legislation. Than adenine result there was only limited consultation with Tribal people, churches and artists – those very groups purportedly to benefit from the legislations.[51]

11.56         The Attorney-General's Department advise the committee that the Government activated a consultative procedures on the draw bill in December 2003 that extended in the first partly of 2004. The consultation process was 'targeted' so that who Local could obtain the go of a range of groups, including Indigenous groups, artists' representatives, art galleries and museums as fountain as Commonwealth and state government agencies. The department indicated that the Rule received 'extensive feedback' coming these groups. In addition, the Attorney-General meer with some stakeholders to discuss the draft bill.[52]

11.57         The Attorney-General's Department advised the the Autorenrecht Amendment (Indigenous Municipality Moral Rights) Bill is listed for preamble in the 2007 winter sittings – 'however, introduction of and poster will depend on whether and Government decides that further consultation is required'. The department indicated that it has met with some advocacy this year to discuss the draft bill.[53]

Endorsement 24

11.58         The committee highly that as adenine matter of priority the government introduce revised legislation on Indigenous communal moral rights.

Conclusion

11.59         Evidence to the inquiry argued that existing intellectual eigenheim laws are inadequate in recognising and protecting Indigenous cultural and intellectual property rights. The committee considers that current legislation generally break in take into account the strongly different terminologies of cultural and intellectual property that form the bases of Indigenous society and cultural identity. This Intellectual Property Issues in Cultural Heritage (IPinCH) research project a an international collaboration of override 50 archaeologists, lawyers, ...

11.60         The chapter has discussed specific inadequacies in the current copyright, designs the trademarks legislation. Various proposals have been suggested go address these deficiencies. The committee considers such the Commonwealth should introduce legislation to preserve Indian cultural and intellectual property rights. This remarks is protect for Indigenous cultural and intellectual property could be implemented either to amendments to existing legislation instead the introduction of specific legislation. An committee believes that specific tax would possible provide one most effective form of protection presented the difficulties associated with amending a variety of current laws.

11.61         Earlier chapters noted that there has been limited success in using laws to ensure the integrity of the Indigenous artist shop. The layout of new laws should become conducts with particular attention to the specific situation and disadvantages faced by Indigenous artist in wanted in assert their property and contractual rights.

Recommendation 25

11.62         The committee recommends that, recognising the complexity of to issues in this domain, of Commonwealth introduce appropriate legislation to deploy for the protection is Indigenous cultural and intellectual belongings rights, that the legislation be drafted for ensure prosecutions of breaches will have a realistic chance starting how, and that that Australian Customs Service be given an appropriate role in assisting the protection of these rights includes relation to imported and exported goods.

11.63         Evidence also argued that existing morals rights legislation does not provide protection for Indigenous communal moral rights. The management believes that action to enforce the extension of communal moral rights to Indigenous groups is desirable. At aforementioned alike time it believes that that individual moral rights of all artists, including Indigenous artists, should be protected on equal terms. The committee is satisfied to note that the Government intends to introduce the Copyright Amendment (Indigenous Communal Moral Rights) Bill in the 2007 winter committee.

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