Minding Culture: Case-Studies on Intellectual Property and Traditional Cultural Expressions - Introduction by the Author

This study, Minding Culture, presents specific and actual examples where Indigenous Australians have explored and used intellectual property laws to protect their arts and cultural expressions. The case studies report on the use of copyright, trademarks and designs:

1. The Carpets Case: M*, Payunka, Marika & Others v Indofurn (copyright)
2. Use of Trade Marks to Protect Traditional Cultural Expressions (trade marks)
3. Bulun Bulun & Anor v R & T Textiles Pty Ltd (copyright)
4. Industrial Designs and their Application to Indigenous Cultural Material (industrial designs)
5. Protection of Indigenous Dance Performances (copyright)
6. Unauthorized Reproduction of Indigenous Rock Art (copyright)
7. Indigenous Arts Certification Marks (trade marks)
8. Desart Trade Mark and Copyright Licensing Model (copyright and trade mark)

These cases are instances where Indigenous Australians have used, or have attempted to use, the existing intellectual property system to protect arts and cultural expressions. The study examines the extent to which the laws have been useful in assisting Indigenous Australians protect their cultural rights.

There are shortfalls in the intellectual property system, as the studies indicate. For example, stories that are orally transmitted are often not protected under copyright, at least not in common law systems. Works that are very old, where the original creator passed away more than fifty years ago, are not protected. Economic remedies are the focus of copyright and trademark actions, not cultural rights. The costs and procedure of designs and trademarks registration often serve to hinder Indigenous people’s access to and use of the intellectual property system.

I also wish to emphasize that intellectual property law is just one avenue Indigenous Australians have explored for protecting traditional knowledge and cultural expressions. Other strategies are being employed as Indigenous people assert their rights to own and control their traditional knowledge and arts. These include:

• the use of contracts;
• the establishment of collective management systems;
• the drafting of cultural protocols;
• the use of knowledge management systems; and
• the strengthening of Indigenous customary laws.

Indigenous Australians continue to call for legislation to protect Aboriginal and Torres Strait Islander traditional knowledge and cultural expressions. They ask for recognition of their cultural rights within the Australian legal and policy framework.

"This means not only recognizing the uniqueness of Indigenous culture but also respecting it and understanding that Indigenous knowledge and Western knowledge are two parallel systems of innovation. Furthermore, it must be recognized that Indigenous customary laws and the existing Australian legal system are two parallel systems of law, both of which need to be given proper weight and recognition."
(Terri Janke, Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights, Michael Frankel and Company, Sydney, 1999, page 112)

Thank You.

Terri Janke, 12 June 2002