Guarding ground : a vision for a



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Guarding ground: a vision for a
National Indigenous Cultural
Authority


Wentworth lecture 2008 as delivered

Paper by Terri Janke
Terri Janke and Company Pty Ltd


Wentworth Lecture 2008
Australian Institute of Aboriginal and Torres Strait Islander Studies


22 August 2008

Guarding ground: a vision for a National Indigenous Cultural Authority

Terri Janke, Terri Janke and Company Pty Ltd, Sydney, 2008

Wentworth Lecture, 2008 Convened by: Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra

www.aiatsis.gov.au

Written by: Terri Janke

Terri Janke & Company Pty Ltd

PO Box 780

Rosebery

New South Wales 1445, Sydney, Australia

www.terrijanke.com.au

Copyright: ©Terri Janke Terri Janke and Company Pty Ltd, 2008

All rights reserved. No part of these materials shall be reproduced, stored or introduced into a retrieval system, or transmitted in any form or by any means (electronic, mechanical, photocopying recording or otherwise) without permission of the Terri Janke and Company Pty Ltd.

WARNING

The document contains names of deceased Aboriginal and Torres Strait Islander people.

Important legal notice

This paper provides general advice only in an effort to encourage constructive debate on the topic. It is not intended to be legal advice. If you have a particular legal issue, we recommend that you seek independent legal advice from a suitably qualified legal practitioner.

Acknowledgments

Terri Janke, the author would like to thank Anastasia Charles - Professional Assistant, Andrew Pitt - Finance Manager, Jeremy Morse- Graduate Lawyer of Terri Janke and Company for their assistance in putting this paper together. Terri would also like to acknowledge the inspiration of Dr Matthew Rimmer, Lecturer at ANU; Michael Davis, author of Writing Heritage and Jacquie Lambert of AIATSIS.

ISBN 978-0-9757044-1-7
Guarding ground: a vision for a National Indigenous Cultural Authority

Contents

Synopsis .............................................................................. 5
Author Profile
....................................................................... 6



  1. Introduction and background on Bill Wentworth ............... 7



  2. 40 years of Indigenous cultural rights advocacy ............ 10




2.1 David Malangi and the $1 note .............................. 11



2.2 Wandjuk Marika’s call for copyright protection parity 12

2.2 Yumbulul and the $10 note ................................... 13



2.3 Bulun Bulun T-shirts ............................................. 13



2.4 The Carpets Case ................................................ 14



2.5 Bulun Bulun v R & T Textiles – the fiduciary duty .... 14

2.6 The potential extent of fiduciary duty...................... 17



2.7 Brandl rock art case study .................................... 19



    1. 3. Our Culture: Our Future – what happened to that big report? .............................................................................. 21

    2. 3.1 Indigenous communal moral rights – right or wrong way?.... .......................................................................... 25

    3. 4. A idea worth discussing: a National Indigenous Cultural Authority ............................................................................ 27

    4. 4.1 Why we need a national authority for Indigenous culture. .......................................................................... 30

    5. 4.2 Promoting rights .................................................. 33



    6. 4.3 Legal structure..................................................... 34



    7. 4.4 Membership ........................................................ 35



    8. 4.5 Governance and service delivery .......................... 35



    9. 4.6 Government funding and reporting ........................ 36



    10. 4.7 Tools to assist functions ....................................... 37



    11. 4.7.1 A strong trade mark to promote the licensing of ICIP…….. .................................................................. 37

    12. 4.7.2 A comprehensive database ........................... 37



    13. 4.7.3 Agreement templates .................................... 38



    14. 4.7.4 Protocols ..................................................... 39



    15. 4.7.5 Dispute resolution ......................................... 40



    16. 5. Prior informed consent models .................................... 41



    17. 5.1 WIPO models ...................................................... 41



    18. 5.2 Pacific Model Law ................................................ 42



    19. 5.3 African Traditional Knowledge Bill ......................... 44



  1. Conclusion: Towards a National Indigenous Cultural Authority ............................................................................ 45 Bibliography ....................................................................... 47


Synopsis

In the past 20 years Indigenous Australians have called for greater recognition of Indigenous cultural and intellectual property rights. The intellectual property system does not acknowledge Indigenous communal ownership of cultural expressions and knowledge passed down through the generations, and nurtured by Indigenous cultural practice. Sacred knowledge is also at risk.

115 legislative and policy recommendations were made in Terri Janke’s 1999 report -Our Culture: Our Future – report on Australian Indigenous cultural and Intellectual Property Rights. Yet, the protection of Indigenous cultural and intellectual property rights remains largely unprotected in Australia, and a hotly debated international issue. Now is the time for us to reassess the current framework.

This lecture will sketch out the ground gathered by Indigenous copyright cases and examine international model laws and draft provisions. Ms Janke argues for greater infrastructure to support and defend Indigenous cultural and intellectual property rights. Her vision is for a National Indigenous Cultural Authority to facilitate consent and payment of royalties; to develop standards of appropriate use to guard cultural integrity, and to enforce rights.
Author Profile

Terri Janke is an Indigenous arts lawyer, writer and consultant. She is a member of the Council of AIATSIS. Terri’s law firm, Terri Janke and Company, is a Sydney based specialist Indigenous law firm representing Indigenous artists, writers, filmmakers and Indigenous businesses across many fields, in copyright and intellectual property issues. Her publications include Our Culture: Our Future — report on Australian Indigenous Cultural and Intellectual Property Rights, the first of its kind to outline a comprehensive framework for protecting Indigenous cultural heritage. She is also a published fiction author.
1. Introduction and background on Bill

Wentworth

I acknowledge the Ngunnawal people on whose traditional lands we gather today. I also thank the Chairman, Professor Mick Dodson and the Australian Institute of Aboriginal and Torres Strait Islander Studies for inviting me to present the 2008 Wentworth Lecture. I am honoured to join the esteemed list of past presenters, including the 2006 lecture’s presenter, Emeritus Professor Bob Tonkinson, who is a co-member of the AIATSIS Council, and is with us here today.

This biennial lecture is in honour of Bill Wentworth. I acknowledge his family and thank them for their continuing support of this lecture series. Bill Wentworth was an extraordinary Australian with great passion and persistence who brought the idea of a national Australian Institute for the promotion of Aboriginal and Torres Strait Islander Studies into fruition. This wonderful institution, the books, documents, films, photographs, sound recordings, the knowledge and the people – owe their existence, in some part to Bill Wentworth’s vision.

His visionary nature has influenced my lecture today. Bill Wentworth was the first minister of Aboriginal Affairs, appointed after the 1967 Referendum that delivered powers to the Commonwealth to legislate with respect to Aboriginal people. He was Minister in 1968, for the passing of the current Copyright Act, and remained in office through its subsequent enactment on the 1 January 1969. My working career has been focused on Indigenous intellectual property, mostly copyright, and the advancement of Indigenous cultural and intellectual property rights.
I discovered a link between Bill Wentworth’s time in office and the focus of my paper when I was reading a colleague, Michael Davis’ book, Writing heritage. In 1969, Bill Wentworth was involved in the early stages of exploring the need for Indigenous traditional cultural property protection. The newly established Council of Aboriginal Affairs’ Chair, Nugget Coombes, the Council’s chairperson, outlined a proposal for legislation to protect ‘Traditional Aboriginal Property’ to ‘establish property rights in certain works of art, designs, areas of religious, ceremonial, ritual, artistic and tribal significance’ to Aboriginal people. The proposed Traditional Aboriginal Property Act would serve to vest traditional Aboriginal property rights in a Trustee and by his (sic) delegation to corporate bodies, and to provide for the protection, development, and where appropriate, economic exploitation of these property rights in the interests of Aboriginal people. It further aimed to protect the work of Aboriginal people from ‘imitation and unreasonable commercial practice, and to also provide effective marketing of their products.1 This proposal more than likely influenced the moves of the Whitlam Government in the early 1970s to establish a Working Party on the protection of Aboriginal folklore. The Working Party took several years to complete their findings, which were finally released in 1981.2 Generally, the Working Party recommended

1 Michael Davis, Writing Heritage, the Depiction of Indigenous Heritage in European-Australian Writings, Australian Scholarly Publishing and National Museum of Australia Press, Canberra, 2007, p. 283. 2 The Australian Working Party into the Protection of Aboriginal Folklore defined “folklore” as the “body of traditions, observances, customs and beliefs of Aboriginals as expressed in Aboriginal music, dance, craft, sculpture, painting, theatre and literature”. Australian Department of Home Affairs and
the enactment of an Aboriginal Folklore Act which would provide safeguards against certain uses of Aboriginal arts and cultural material which are offensive to Aboriginal people and their traditions whilst at the same time encouraging fair and authorised use of Aboriginal arts and cultural material.

These proposed Australian laws did not take shape as law but the fact that such discussions took place in the early stages of Aboriginal affairs highlight that there was a debate about Indigenous cultural and intellectual property rights.

In the last four decades there has been a remarkable growth in the value and demand for Indigenous arts, cultural expression and knowledge. The Aboriginal Art Market is valued at $300 million per annum, traditional knowledge has applications in industries that range from tourism, entertainment through to the biotechnology industry. The increase in demand also meant the rise of a rip-off industry where Indigenous arts and knowledge was taken without consent, and without acknowledgment. In 40 years of calling for legal protection most of the measures have been instigated by Indigenous advocates guarding their ground by asserting cultural rights, bringing test cases, devising protocols and enforcing rights under agreement. Hence, my call for a National Indigenous Cultural Authority for Indigenous people to continue the advancement of rights.

My paper is in four parts:

1. 40 years of Indigenous cultural rights advocacy

Environment, Report of the working Party on the Protection of Aboriginal Folklore , Australian Government Printing Service, Canberra,1981.


  1. Our Culture: Our Future – what happened to the recommendations in that big report

  2. A good idea: a proposal for a National Indigenous Cultural Authority

  3. Learning from developing International prior informed consent models.


2. 40 years of Indigenous cultural rights

advocacy

Indigenous arts and cultural expression is interconnected with land and seas, handed down through the generations as part of cultural heritage. Painting, dances, stories, songs, and knowledge come from the land, and are passed on from generation to generation as Indigenous cultural heritage. Culture is not static, it evolves and adapts, and Indigenous people must be recognised as the primary custodians of their culture.

Since the 1970s, Indigenous artists have been calling for recognition of their creative rights on the same level as that of other Australian artists. In Australia, the Copyright Act 1968 (Cwlth) provides rights for copyright owners to control the use and dissemination of literary, dramatic, artistic and musical works, and also certain listed subject matter including sound recordings, cinematograph films, television and sound broadcasts, and published editions.3 There are certain requirements that must be met before protection is granted. But if a work, film or sound recording meets these requirements, then the law makes it the subject of copyright, without the need for

3 Copyright Act 1968 (Cwlth) – for full text see www.comlaw.gov.au.
registration. This feature of the law has two main impacts for Indigenous people:

  1. Indigenous arts and culture is orally and performance based, and therefore does not meet requirements of copyright, at least in the old days of the 1960s and 1970s. Prior to the recent case law, Aboriginal arts was seen as folklore and considered unoriginal in that copying artistic traditions did not amount to innovation and interpretation.

  2. The second main impact was that copyright was recognised however, in the written interpretations and recordings made of Indigenous knowledge, arts, dances, music and stories. Copyright protected the films and tapes which recorded Indigenous people and their cultural knowledge. But, that copyright was recognised in the material form created often by non-Indigenous people, and the ownership vested in the recorder as the ‘author’ of these works. So songs, dances, customs, knowledge about bushfoods and medicines have been recorded and continue to be recorded but not by the Indigenous knowledge holders or their communities.


2.1 David Malangi and the $1 note

In 1966, the new decimal $1 note depicted ‘ancient Aboriginal art’ by David Malangi. The selection of this art for the note involved no consultation with the artist. The original bark painting was purchased by an international art collector three years before, and had subsequently been donated to the Paris Museum of Arts of Africa and Oceania. The collector gave a photocopy of the art to an officer of the Reserve Bank of Australia and then the designer of the $1 note. Nugget Coombes, Governor of the Reserve Bank was deeply embarrassed by the incident, himself a great advocate for Indigenous artists’ rights. The Reserve Bank had not consulted at all, assuming the design was the work of an ‘anonymous and probably long dead artist’. It was a copyright work of course. David Malangi was given $1,000, a fishing kit and a silver medallion.
2.2 Wandjuk Marika’s call for copyright protection parity

In 1975, Wandjuk Marika, the first Chair of the Aboriginal Arts Board called for greater protection after seeing his important sacred works reproduced on a tea-towel. He said, ‘this was one of the stories that my father had given to me and no-one else amongst my people would have painted it without permission. I was deeply upset and for many years I have been unable to paint. It was then that I realised that I and my fellow artists needed some sort of protection.4 He pointed out copyright did not protect Indigenous arts and craft which was referred to as ‘folklore’ and dealt with as if it was in the public domain, terra nullius, free for all to use.

The early cases reflect a terra nullius notion of Indigenous arts where much of the art work was labelled ‘artists unknown’ and collected without reference to the cultural significance but its value as an object of curiosity. Wandjuk Marika’s call set the ground for action by Indigenous people over the following years.

4 Dr Vivien Johnson, Copyrites, National Indigenous Arts Advocacy Association, Sydney, 1997, p. 11.



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