1. Home
  2. Aboriginal Art
  3. Protecting Australian Indigenous art
  4. Background information
  5. Mechanisms for protection in Australia
  6. International policies and protocols
Print this page Reduce font size Increase font size

International policies and protocols

In recent years, various international agreements and documents have recommended greater recognition of Indigenous cultural rights. While these documents do not directly impose obligations on Australia to protect Indigenous art forms, they serve as reference points for Australian policy and law. These policies and protocols can become legally binding if they are included in a valid contract.

Significant developments include the following:

  • The Berne Convention for the Protection of Literary and Artistic Works, while not setting any particular requirements in relation to Indigenous art, does have an optional provision for the protection of unpublished works of unknown authority. This is thought to apply to expressions of traditional culture.
  • The World Intellectual Property Organisation (WIPO) and United Nations Educational, Scientific and Cultural Organisation (UNESCO) have set out Model Provisions for the Protection of Expressions of Folklore from Illicit Exploitation and Other Prejudicial Actions. Developed in the early 1980s, these model provisions target ‘expressions of folklore’ in order to extend protection to elements not effectively covered by copyright laws, such as intangible expressions. The Model Provisions use the term ‘expressions of folklore’ to refer to productions consisting of characteristic elements of traditional artistic heritage developed and maintained by a community, or by individuals reflecting the artistic expectations of their community. Such expressions are protected whether or not they are in fixed form, and they include expressions of word, music and movement, as well as craft products and musical instruments. Since the 1980s there have been a number of interesting developments. In December 1996 WIPO member states adopted the WIPO Performances and Phonograms Treaty, which also provides protection for a performer of an expression of folklore. In April 1997 the UNESCO-WIPO World Forum on the Protection of Folklore took place in Phuket, Thailand. In October 2000 WIPO set up an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore to act as an international forum for debate and dialogue concerning the interplay between intellectual property, and traditional knowledge, genetic resources, and traditional cultural expressions.
  • The Working Group on Indigenous Populations has produced a Draft Declaration on the Rights of Indigenous Peoples. The Declaration sets down the right of Indigenous peoples to protection for traditional cultural manifestations. (Established by the United Nations, the Working Group is unique in UN forums in that governments do not control it.)
  • In 1993, New Zealand (Aotearoa) hosted the first International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, at which the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples was prepared. The Declaration sets out the principle that Indigenous peoples are entitled to define for themselves what their intellectual and cultural property is, and it calls on governments to recognise that Indigenous peoples are guardians of customary knowledge and should have the right to protect and control the dissemination of that knowledge.
  • In 1993, the United Nations’ Sub-Commission on the Prevention of Discrimination and Protection of Minorities endorsed a study on the protection of cultural and intellectual property of Indigenous peoples. The study was undertaken by Erica-Irene Daes and produced a document titled The Final Report on the Protection of the Heritage of Indigenous Peoples which included ‘Principles and Guidelines for the Protection of the Heritage of Indigenous People’. Principles 46-48 relate to artists, writers and performers. Article 46 states that ‘Artists, writers, performers should refrain from incorporating elements derived from Indigenous heritage into their works without the informed consent of the traditional owners’. These Principles and Guidelines were adopted and elaborated on by ATSIC’s Reference Group on Indigenous Cultural and Intellectual Property in 1997.
Print this page Reduce font size Increase font size
International policies and protocols