Minding Culture: Report on Consultation

This paper reports on the research, consultations and investigations undertaken by Terri Janke in preparing the Case-Studies on Intellectual Property and Traditional Cultural Expressions. It includes phone conversations, interviews, meetings and consultations that were conducted for the purposes of researching and writing the eight studies.

Sydney, 13 June 2000

The consultant met with Mr. Wend Wendland, Senior Legal Officer, the World Intellectual Property Organisation (WIPO) in Sydney on Monday 13 June 2000 to discuss the consultation project and to sign the consultant’s contract.

The consultant and Mr. Wendland met with Libby Baulch, Executive Director and Ian McDonald, Legal Information Officer of the Australian Copyright Council. The Australian Copyright Council has produced two publications on Indigenous issues and copyright, Indigenous Arts and Copyright and Protecting Indigenous Intellectual Property.

We also met with staff of the Aboriginal and Torres Strait Islander Unit of the Australia Council, Frank Puccini (Acting Director), Rick Shapter, Programs Manager and Martin Munz, Program Manager. The Australia Council is the federal governments peak advisory and funding body for the arts. The Unit funds the National Indigenous Arts Advocacy Association and provided assistance with funding for M* v Indofurn 30 IPR 209 (the "Carpets Case").

Mr. Wendland and the consultant met with the late Kumantjayi Perkins, Chairperson, Daryl Wright (Board Member) and Keven Francis, Executive Director - all of the National Indigenous Arts Advocacy Association (NIAAA). NIAAA is an organization established to further the rights of Indigenous artists. It coordinated the Carpets Case and is the organization that established and currently administers the National Label of Authenticity.

Mr. Wendland and I met with Steven Bowditch of Aboriginal Traders Alliance and NSW Business Department to discuss the extent of commercial use of Indigenous intellectual property in the business sector.

Then we met with lawyers at the Arts Law Centre of Australia. The Arts Law Centre is a community legal centre that provides over the phone advice to artists, including Indigenous artists. Arts Law also has a website and informative newsletter that provides information on moral rights, licensing and other arts issues. We met with Delia Browne, Executive Director and Sally McCausland, Senior Legal Officer.

Canberra, 14 - 15 June 2000

On 14 June, Wend Wendland and myself traveled to Canberra. We met with Susan Farquhar, Director and Stewart Atkins, Deputy Director of External Relations Section, IP Australia. We met with staff of IP Australia including Dr Albin Smrdel, Director of Development and Legislation; Jessica Wyers, Development & Legislation; Helen Dawson, External Relations and other staff from IP Australia to discuss the project.

We then attended the offices of the Department of Foreign Affairs and Trade to meet with members of the Inter-Departmental Committee on Indigenous Cultural and Intellectual Property including Tony Taubman, and Jane Kriegel, International Section of Department of Foreign Affairs and Trade; Maureen Grant-Thomson, Information and Security Law Division, Attorney-General’s Department and Kristiane Herrman, Biotechnology & R & D Branch, Agriculture, Fisheries and Forestry. The purpose of the meeting was to explain and discuss the project.

We then visited the Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and met with Russell Taylor, Principal, in relation to the Rock Art Case. AIATSIS is a statutory authority of the Commonwealth government with a Council of mainly Indigenous scholars and an increasing number of Aboriginal and Torres Strait Islander members and staff.

On 15 June, we met with representatives of the Aboriginal and Torres Strait Islander Commission (ATSIC) - Sonia Smallacombe, Manager of the Indigenous Cultural and Intellectual Property Taskforce and Michael Davis, Project Officer and Paul Burke of the Native Title Section. ATSIC commissioned the report, Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights.

We then visited the National Gallery of Australia to browse the Aboriginal art collection and meet with Kathryn Wells, the consultant who worked on the initial consultation phase for the Label of Authenticity for the National Indigenous Arts Advocacy Association.

Canberra, 17 - 18 July 2000

On 17 July, I traveled to Canberra to conduct research at IP Australia. I met with Susan Farquhar, External Relations Section who organized my research at IP Australia Office in Phillip, Canberra.

I also met with Pat Ryan, Strategies and Project Section. Mr. Ryan provided me with information on IP Australia’s functions and registration processes.

I met with Hugh Ness, Deputy Registrar of Designs who provided me with information on the Designs Registration system and the recent proposals for change. Hugh also advised me of the procedures and provided me with copies of submissions to the ALRC Review on Designs undertaken in 1994. At the Designs Office I also met with Ms Sharon Thomas, Designs Examiner. Together we conducted a detailed search of the Designs Registrar for types of Indigenous designs likely to be registered.

On 17 July, I also met with staff of ATSIC - Sonia Smallacombe, Manager of the Indigenous Cultural and Intellectual Property Taskforce and Megan Davis, Legal Section of ATSIC. The purpose of our meeting was to keep ATSIC informed of the progress of consultations.

On 18 July, whilst still visiting IP Australia, I met with Helen Hardie, Deputy Registrar, Trade Marks Office who provided me with an overview of trade marks appeals process. I spent most of the day with Dr Noel Taylor, Trade Mark consultant with over twenty years experience in trade marks. Together Dr Taylor and myself researched the trademark register to ascertain the extent of usage by Indigenous Australians.

I met briefly with Ross Wilson, Registrar of Trade Marks to advise him of the studies. We discussed Indigenous Cultural and Intellectual Property (ICIP) rights and the use of trade marks generally.

I met with Anna Pino, Assistant Director, Marketing, and Matt Skelly, Marketing section of IPAustralia. They provided information on the success of some Australian designs and trade marks.

Darwin, Jabiru and Yirrkala Fieldtrips, 30 July – 2 August 2000

On 30 July, I traveled to Kakadu National Park by car from Darwin. The trip by road took approximately three hours. I met with Mandy Muir, Indigenous screen printer, ranger and rock art expert at Cooinda. Together we viewed the rock art galleries at Nourlangie Rock and viewed the Cadell River Galleries from the escarpment area. We were unable to view the particular rock art sites which the Mimi figures originate, due to inaccessibility.

On 31 July, I traveled to Nhulunbuy in the Gove Peninsula area of Arnhemland. I met with Colin Lane, Coordinator of Yirrkala Landcare. We visited the nearby Aboriginal community Yirrkala Dhanbul Association, council organisation which provision of services and infrastructure to Yirrkala, the Aboriginal community where Banduk Marika comes from. Banduk was in Darwin as a relative had got suddenly sick and was taken to hospital.

On 31 July, I also met with Andrew Blake and Diane Blake at the Buku Larrngay Mulka, the Aboriginal Arts Centre at Yirrkala which sells and markets Banduk’s work. There is also a museum at the Arts Centre which includes rare pieces of art and cultural history such as the Yirrkala church doors. At the museum, one of the carpets from the Carpet Case, which reproduces Djanda and the Sacred Waterhole, is displayed alongside information about the Carpets Case. We were shown around the museum by Will Stubbs, Coordinator.

On 1 August, I met with Mawalan Marika, Traditional Custodian of Rirratingu clan. Mawalan is the most senior member of the Rirratingu clan and is the person holding the rights to authorize others to paint the image of Yelangbara, and to disclose rights to the underlying knowledge.

I also met with staff of the Aboriginal and Torres Strait Islander Commission including Commissioner of ATSIC Gatjil Djerkerra and Mrs. Andrea Collins, Manager ATSIC Nhulunbuy.

On 2 August, Banduk returned from Darwin and I met with her and Timmy Burarrwanga, at Banduk’s home at Yirrkala beach. Timmy and Banduk have a role in traditional law, where Timmy must act as verifier of her knowledge. Timmy is himself an artist. Both Timmy and Banduk advised me of the importance of the traditional knowledge embodied in the painting, Djanda and the Sacred Waterhole.

Yulara, 9 August 2000

On 9 August I was in Yulara, Northern Territory. I met with Ms Joanne Wilmot, Chair of the Board of Management of Uluru Kata Tjuta National Park and Paul Josif, Executive Officer of Office of Joint Management at Uluru Kata Tjuta National Park. Mr. Josif had attended a WIPO and IP Australia meeting in Sydney in February 2000. He, along with other Indigenous representatives, had met with Dr Kamil Idris, Director General of WIPO. The National Park has many intellectual property issues that arise in the course of its operation including filming, research and access to resources. In the near future, the Park intends to conduct their own ICIP inquiry and seek guidance from WIPO.

Alice Springs, 31 August – 2 September 2000

In Alice Springs I spent a day at Desart Offices to research files and to meet with Desart Committee Members. Desart is an umbrella organization representing 40 Aboriginal Arts Centres in Central Australia. Ron Brien, Executive Director, provided details of Desart structure and issues relating to the Desart Trade Mark study.

Whilst in Alice Springs, I also visited with CAAMA, Central Australian Aboriginal Media Association. I met with Merv Franey, Executive Officer and Chris Ross, Deputy Officer. CAAMA operates radio broadcasting services in the Centre for remote Indigenous communities. CAAMA also operates recording facilities and has produced many Indigenous sound recordings that are marketed and sold under the CAAMA music label.

Dubbo, 25 August 2000

I spent a day at Dubbo and met with Lewis Burns, Indigenous artist and didgeridoo maker. Lewis was sued by another party for trade mark infringement. The matter has settled under confidential terms. Lewis showed me around his gallery and workshop. We discussed his designs and artistic works. Lewis is the designer of the footed didgeridoo as mentioned in the Designs Study.

Aurukun, 11 September 2000

On 11 September, I traveled from Cairns to Aurukun in the West Cape York Region with Louise Goodchild, Principal Legal Officer with the Cape York Land Council (CYLC). The Wik people, from Aurukun, are one of the Cape Aboriginal communities that the CYLC assist in land matters.

We visited the Aurukun Shire Council Chambers and met with Councillor Jacob Wollomby and Gary Kleindon, Executive Officer. We addressed the full meeting of Councillors to advise them of the outcomes of the case, and the purposes of the WIPO Feasibility Study. The Councillors expressed that there were many issues pertaining to copyright and traditional knowledge. Councillor Wollomby noted issues with commissioned film footage being used commercially by the film-consultant who they had commissioned some years ago. The use of this footage by commercial channels when Wik issues are discussed by television news has caused a lot of fighting with local peoples. Issues include consent and how far the right of the film-consultant to use the film after the commissioned job has ended.

I also met with Ricky Maynard, Tasmanian Aboriginal photographer who is doing some work in Aurukun. We discussed copyright and photography generally.

We also met with Gladys Tybingoompa, a Wik woman who is quite famous in Australia for dancing at parliament house when the judgment was handed down for the Wik Case. She has in the past performed at the Laura Festival and was in fact performing with the Wik Apalech dancers in 1995 when the photograph in the "Protection of Dance" Study was taken. Her image was reproduced on t-shirts promoting the Laura Festival. She was not all together happy about this because the organisers had not sought her prior consent. She works with education and is a spokesperson on issues affecting the Wik. She said that she did not want to perform at Laura in future. "Why" I asked. "I have had lessons" she says. "First the t-shirt, now the photo."

We met with members of the Wik Apalech dance group that were photographed at the Laura Festival in 1995. They were all male members of the dance group photographed as follows:

Felix Yunkaporta
Bruce Yunkaporta
Marty Shortjoe
Perry Yunkaporta
Leon Yungaporta
Patrick Koongotena
and elder spokesperson, Joe Ngallanetta

The dancers spoke about their anguish and outrage in seeing their images used for commercial purposes.

Cairns, 12 September 2000

I returned to Cairns and met with Lani Ashby from the Cape York Land Council.

I also visited Jenuarrie, Indigenous Arts Officer at the Far North Queensland Aboriginal and Torres Strait Islander Unit of Arts Queensland. We discussed general copyright and trade marks issues. I also met with artist Margaret Chatfield.

I met with Sandra Levers of ATSIC who is devising an arts and cultural strategy for Far North Queensland.

I met with Anthony Yagmoor, Financial Controller of Apunipima Health Services in Cairns on 12 September 2000 concerning the arrangement they have with the Photosphere for use of children’s photographs on cards. Apunipima provide health services to the Indigenous communities on Cape York.

Thursday Island, 13 September 2000

I traveled to Thursday Island on 13 September and met with Aven Noah of Torres Strait Islander Media Association (TSIMA) and members of the TSIMA Board and staff including Wayne See-Kee, Emphraim Bani and George Dewis. TSIMA has a plan to develop regional protocols for protecting Indigenous Cultural and Intellectual Property and is seeking funding for an officer on staff to ensure proper consent is sought.

I also met with Walter Waia, Executive Officer of the Native Title Office at the Torres Strait Regional Authority; Paul Hayes, Native Title lawyer; Andrew Plate, Economic Development Officer and Peter Anderson, Secretary of the Island Coordinating Council. We spoke about the issues for Torres Strait Islanders; the use of the flag for commercial purposes and future directions in terms of cultural development. Walter is also an accomplished poet and traditional songwriter.

Unfortunately I could not meet up with Sam Pilot, ex-Cultural Arts Officer, as he was on Darnley Island, an outer island and was unable to travel to Thursday Island. We caught up by telephone on my return to Sydney.

Cairns, 15 September 2000

On 15 September 2000, the Cape York Land Council coordinated an open session for copyright and Indigenous arts, in Cairns. Over fifty people attended including Indigenous artist, David Hudson; Gallery owner, Greg Singh and Seth Fourmile, artist.

I met briefly with Robert Williams of Ang-Gnarra Aboriginal Corporation. Ang-Gnarra hosts the Laura Festival. Mr. Williams advised that the local Indigenous community also had some intellectual property issues with the unauthorised commercial use of photographs of Quinkin. The local people of this region are concerned that their sites are being exploited without their overseeing and without any financial returns to them as the owners of the land, and the cultural custodians of the rock art sites.

I also met with artists generally at the session including Indigenous artists Dale Oliver and Wayne Peckham (also executive member of NIAAA). Mr. Oliver recently won a case against a large manufacturer of Aboriginal t-shirts.

On 26 September, I spoke with Michael Winer on the telephone, Indigenous Business Institute for Cape York Partnerships. Cape York Partnerships is an organisation which aims to reduce the welfare dependencies of Aboriginal communities by exploring business opportunities. Michael Winer provided me with information on the Photosphere children cards. Royalties are paid to Apunipima Health Services for the use of Indigenous children’s photographs on cards and proper attribution to the communities is given. The photographs were taken at the Laura Festival. This project is mentioned in the "Protection of Dance" Study.

General Consultations

I undertook extensive general consultations for the studies. This included:

• Attendance at the launch of the Collaboration Mark of the Label of Authenticity, launched in association with the Rainbow Serpent at Sydney International Airport - meetings with Ross McLean, Baker & McKenzie.

• Meetings with Michael Frankel, Raena Lea-Shannon and Greg Duffy, lawyers from Michael Frankel and Company. I was employed at Michael Frankel and Company when I acted for the Australian Institute of Aboriginal and Torres Strait Islander Studies in the Rock Art Case and wrote the Our Culture: Our Future Report.

• On 10 August, I interviewed via telephone Ms Rose Wallis, Coordinator of Walkatjara Arts Centre in Mutitjulu Community, Northern Territory. We spoke about the use of trade marks by Arts Centres generally and copyright issues.

• On 16 August, I spoke to Sam Pilot, ex-Cultural Arts Officer for the Torres Strait. We spoke about use of trade marks and copyright issues generally.

• I spoke to Wal Saunders, Gounditch Mara Native Title representative about the licence agreement with the Museum of Victoria. The Gounditch Mara is licensing the rights to their traditional design in a skin cloak to the Museum to reproduce on uniforms for staff. Wal Saunders was also a member of Indigenous Reference Group of ATSIC, for consultations for Our Culture: Our Future. The details of the Skin Cloak design licence were referred to in the Designs Study.

• On 1 February 2001, I interviewed Kerry Spencer of Photosphere concerning the authorized use of photographs of Indigenous children reproduced on cards where royalties are paid to Apunupima Health Services. She and Debra Plueckhahn, the photographer provided information on the clearance procedures and benefit sharing, for the development of the cards.

• I met with Dr Larrissa Behrendt, Indigenous Australian Lawyer, Australian National University.

• On 8 November, I met with Keven Francis, Executive Director, National Indigenous Arts Advocacy Association in Sydney at the NIAAA Offices. I also met with Chris Harrison, Administrator and Keith Brandy, Label of Authenticity Education Officer for NIAAA.

• Leonora Lancaster, Arts Adviser for Aurukun Arts provided assistance with details of cultural clans and dances in the Protection of Indigenous Dance Study.

• Nancia Guivarra, Producer of Awaye, Aboriginal and Torres Strait Islander arts program for Radio National, Australian Broadcasting Corporation provided some information concerning the Laura Festival 1999.

• Dr John Von Sturmer - anthropologist, specialising in the Wik Aurukun region, met with me to discuss Wik clans and dance ceremonies.

• I consulted with Ron Levy, Senior Legal Adviser of the Northern Land Council, concerning the Rock Arts Study.

• I also met with Dr Linda Barwick, ethnomusicologist, specialising in the recording to traditional Indigenous music.

• I met with Colin Golvan, barrister on the Carpets Case, Yumbulul v Reserve Bank and Bulun Bulun v R & T Textiles. Colin reviewed the Carpets Case study and provided me with Banduk’s affidavits. He provided me general comments on copyright and traditional ritual knowledge and the fiduciary duty.

• I met several times with Dr Vivien Johnson, academic and author of several publications on Copyright and Aboriginal Art. Vivien was the curator for the Copyrites exhibition for NIAAA in 1996 and authored the catalogue: Copyrites: Aboriginal Art in the Age of Reproductive Technologies. She is also the author of the House of Aboriginality CD Rom and website. The House of Aboriginality is an evolving multimedia project about the rip-offs industry which has arisen to exploit the popularity of Aboriginal art. The website aims to expose rip-offs and generally raise awareness of the issues of copyright and cultural integrity in the commercial application of Indigenous art. Vivien was consulted regarding the Rock Art Study. Vivien also provided feedback on the first draft.

• I researched old files at the National Indigenous Arts Advocacy Association and met with several members of staff and the board including Phil Hall, Chris Harrison, Keith Hall and Mundara Korrang.

• I discussed trade marks issues with a number of Indigenous peoples include Lorraine Peeters, Winangali; Will Stubbs, Buku-Larrangay; Michael Mansell, lawyer at Tasmanian Aboriginal Centre and Glen Brennan, Director of the Australian Sports Commission.

• I contacted Murray Browne, lawyer from Canada, who has worked with First Nations groups in registering their trade marks.

• I spoke with Wroth Wall, lawyer for the Bandjalang Aboriginal Corporation, concerning their trade mark applications.

• I met with Ross McLean and Rohan Singh, lawyers from Baker and McKenzie, who drafted the rules of the Label of Authenticity and made the application for NIAAA’s certification mark.

• I participated in several seminar and conference including ATSIC Seminar "Arts for Money’s Sake" which provides some findings for the Label of Authenticity study; "Talking: Protecting: Keeping" in Perth, held in November 2000 which provided findings on use of trade marks.

• I consulted with John Bulun Bulun and Peter Danaja of Maningrida Arts on the first draft of the Bulun Bulun Study.

• I consulted with Jill McKeough, Dean of University of New South Wales and leading intellectual property lawyer on the Designs Study.

• Susan Farquhar of External Relations of IP Australia provided feedback on the trade marks, designs and label of authenticity drafts.

• Victor Portelli, Deputy Registrar, Designs Office provided feedback on the designs study first draft.

• Dr Noel Taylor, Trade Marks Officer, IP Australia provided feedback on the trade marks study.

• Ian McDonald of the Australia Copyright Council provided me with feedback on the first drafts and also met with me to discuss the issues.

• Sally McCausland, SBS, also provided me with feedback on first drafts of the Studies.

• Angelina Hurley, Officer Manager, Terri Janke and Company assisted in editing and compiling the trade marks information.

• Roybnne Quiggin, solicitor, also provided me with feedback, and assisted with research, re-writing and editing of the final drafts of the study.

To all the above persons and their respective companies and organisations, I am extremely grateful.

Concluding Comments

I would like to express my thanks to Mr. Wend Wendland of WIPO who assisted me greatly in the development of the terms of reference and the focus of the studies. His advice and guidance is greatly appreciated. Thanks also to Aimee Dunn-Courtial of WIPO for assisting with the administrative operations of the project.

I enjoyed working on the project immensely as I am dedicated to the realisation of Indigenous Cultural and Intellectual Property Rights in national and international law and policy. I hope this shines through in the studies.