What is Indigenous Cultural Intellectual Property and how does it protect traditional knowledge?
Delwyn Everard, Lawyer, Social Justice, and Arts Advocate sat down with Franzi Ohly-Smith, Winyama’s Marketing, and Events Officer to discuss.
Delwyn’s career in law has included large and small law firms in New York and Australia, working in government and in teaching. While her early career was dedicated to litigation in a courtroom, 15 years ago her focus shifted exclusively to the creative sector. Working with musicians, writers, filmmakers and artists through a community legal centre, it was during this time that Delwyn also began working closely with Indigenous community groups, looking at how traditional culture is protected – and at times not protected – by Australian law. Delwyn now owns her own boutique law firm; a kitchen-table practice that works primarily with Indigenous organisations, arts organisations, and non-profits.
What is Indigenous Cultural Intellectual Property?
Indigenous Cultural Intellectual Property (ICIP) is a term used globally to refer to the basic human rights of Indigenous communities to protect and use their traditional knowledge and forms of traditional cultural expression. Like other human rights - freedom of expression, and the right to an education - it is not always recognised and given legal protection in every country.
The United Nations Declaration on the Rights of Indigenous Peoples provides a framework for what that human right looks like. In 2009, Australia announced its support for the declaration, joining many other countries that were already on board. The United Nations Declaration on the Rights of Indigenous Peoples can be used as a guide by countries looking to reconcile and protect their First Nations people. However, it is up to each country supporting the declaration to decide how it will protect ICIP. Some countries have enacted specific laws giving ICIP the same level of protection as other types of intellectual property such as copyright. Other countries, including Australia, have taken the view that existing IP laws are enough and that no more is needed.
What is the difference between ICIP and IP?
Australia has many Intellectual Property (IP) laws. These IP laws protect writing, music, art, and scientific inventions. Some IP laws that you may know are copyright, trademarks, patents, privacy, and confidentiality. There is no specific IP law in Australia protecting Indigenous Cultural Intellectual Property.
Sometimes Australia’s IP laws will operate to protect traditional knowledge and cultural expression. Sometimes, they won’t. A good example of this can be found when looking at the works of a contemporary Aboriginal or Torres Strait Islander artist. Under Australian IP law, the artist’s work is protected by copyright. With some exceptions, no one is able to make a copy of the artwork without the express consent of the artist and if they do, they may be open to legal action being taken against them. However, copyright protects the particular painting, not the story it tells or the styles and techniques used by Aboriginal artists such as the rarrk techniques of the Yolngu peoples. Copyright does not prevent non-Indigenous artists from appropriating those traditional stories and techniques in their own work and, indeed, may even protect them when they do so. Current IP laws do not protect artistic styles or techniques, processes based on traditional knowledge, Indigenous language, cultural knowledge about Country and land management and many other facets of ICIP.
It’s fair to say though, that Australia is now trying to grapple with the question of how to provide legal protection for these things. You can learn more about what ICIP is currently protected in Australia through IP law and what ICIP isn’t protected through this resource by Arts Law.
What are some examples of ICIP through the lens of Indigenous land management?
ICIP in the context of Indigenous land management could include information about the seasons, certain knowledge about flora and fauna in an area, fire management practices, or mapping songlines on Country.
What are some legal means of protection available to Traditional Custodians in Australia?
At the moment, ICIP can generally only be protected to the extent that it falls within the protection given by IP laws - laws relating to copyright, patents, confidential information and so on. These laws protect individuals - they are not designed to protect communities as a whole which is a problem as ICIP is considered to be a communal human right held by a whole people (or their Elders and recognised Traditional Custodians) collectively.
There are however some legal avenues available if your traditional knowledge doesn’t fall under IP law protection. It is possible to establish a system of protection via contract or by having protocols in place.
For example, if you have an agreement allowing a research organisation into your community to listen to your Elders sharing knowledge about a sacred site, you can include stipulations in that contract which detail where and how they are allowed to use that information.
There have been many instances where Indigenous communities have been let down by organisations after cooperating with them and sharing cultural knowledge. An Indigenous community may have shared their cultural knowledge, only to find that data containing that knowledge is being used in a way that is culturally disrespectful or is being monetised for the benefit of non-Indigenous third parties without any benefit flowing back to the community. Kakadu plums are an example of this, with multinationals coming in and trying to lock up the intellectual property rights connected to this native bush food.
If an Indigenous organisation wants to proactively protect their ICIP, where can they start?
A good place to start is with an ICIP audit. Look at your organisation and identify how traditional knowledge is embedded into its operations, the data it collects and stores and how it does business. If you have data containing cultural knowledge that third parties can access, what are the checks and balances in place to ensure that they only access what is appropriate, that they are required to use data accessed in a culturally respectful manner and that benefits from that sharing flow back to the community? Note down where data is recorded, where it’s stored, who has access to it, who collects it and how it is used. This can help you identify any weak points in your current data management system.
For example, your audit might identify that some data only exists in the memories and knowledge of a few of your community's Elders. How can you ensure that information is not lost? Can it be recorded and kept safe? Your audit might find that the lack of privacy protections and access protocols on your company computers means that all staff including non-Indigenous staff can access culturally sensitive information or data that should only be viewed with the permission of the Elders.
Another means of protecting your ICIP is to develop an ICIP protocol. An ICIP protocol can be a resource which outlines internal rules for employees among your own organisation and external rules, for third parties. A great starting point is Aboriginal lawyer and advocate Terri Janke’s publication True Tracks Respecting Indigenous Knowledge and Culture explaining ten foundation principles for designing systems to protect Indigenous knowledge. Local Contexts is another great free resource to look at prior to drafting your ICIP protocol. Local Contexts was developed in 2010 by Jane Anderson and Kim Christen for the purpose of enhancing and legitimising “locally based decision-making Indigenous governance frameworks for determining ownership, access and culturally appropriate conditions for sharing historical, contemporary and future collections of cultural heritage and Indigenous data.”
Finally, it is important that your organisation reviews each contract from third parties in detail or has access to someone who is trusted who can do it for you. Look at what your community is gaining from the partnership. Is benefit sharing included? What ICIP are you sharing and what limits and controls should be placed on its use? Is the third party gathering data which stores cultural knowledge and, if so, how will that data be shared with you?
Winyama understands the importance of preserving cultural knowledge and the value it has to Australia’s First Nations people and wider society. If you are looking for consultation on how to embed a strong data management plan into your organisation our team would love to help!
If you need legal advice about Indigenous Cultural Intellectual Property, including how to develop research protocols or contracts with robust ICIP protection, you can reach out to Delwyn Everard here.