10 Indigenous Cultural and Intellectual Property
What is Indigenous Cultural and Intellectual Property?
Indigenous Cultural and Intellectual Property (ICIP) refers to the rights that Indigenous people have, and want to have, regarding their traditional knowledge, cultural practices, spiritual knowledge, ancestral material, and language that has been passed down from generation to generation. (Terri Janke and Company 1998).
Terri Janke and Company (1998) write that ICIP can refer to:
- Literary, performing, and artistic works
- Languages
- Types of knowledge, including spiritual knowledge
- Indigenous ancestral remains and genetic material
- Cultural environmental resources
- Sites of Indigenous significance
- Documentation of Indigenous heritage.
Watch the Indigenous Cultural Intellectual Property: Arts Law’s Artists in the Black Service video (YouTube, 2m10s), produced by Arts Law and CAAMA.
Why is ICIP important?
In modern Australia, it has been noted that the property rights systems created by Western intellectuals often create individual property rights. Such rights are often subject to transactions and were created to encourage commercial and industrial growth. Michael Davis and Company note that these systems are conceptually limited in their ability to afford recognition and protection of Indigenous intellectual property and cultural rights (Research paper no. 20, 1996-1997, Australian Parliament House , p.8, p. 35).
In 2007, a Senate Standing Committee Inquiry into Australia’s Indigenous visual arts and craft sector heard evidence that ‘current intellectual property laws and moral rights legislation may not provide adequate protection of Indigenous cultural and intellectual property and Indigenous communal moral rights’ (Indigenous Art—Securing the Future: Chapter 11, ‘Indigenous cultural and intellectual property rights’, p. 157).
ICIP rights are still not recognised by any specific legislation in Australia. ICIP rights may be protected by copyright laws, trademarks, laws around trade practice, and confidential information laws. However, the protection is finite and subsequently, a lot of Indigenous cultural knowledge and expression is not protected (Jean Kearney and Terri Janke 2018).
In essence, ICIP rights aim to protect Indigenous people from exploitation by:
- enabling Indigenous peoples to own and control ICIP rights
- allowing Indigenous groups to commercialise ICIP rights in accordance with their specific traditional laws
- fostering commercial benefits from the authorised use of ICIP rights
- providing protection of significant tangible and sacred materials (National Copyright Unit).
To sum up, while ICIP rights are somewhat protected by some Australian laws such as the Copyright Act 1968, the protection is limited (Terri Janke and Company 1998). Therefore, it is important that non-Indigenous Australians recognise the limitations of Western laws in protecting the rights of Indigenous Peoples and their ICIP. As a result of these limitations, it is important non-Indigenous Australians remain respectful, seek consent, recognise and protect ICIP and maintain the conversation with Indigenous Australians surrounding ICIP.
