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Indigenous Communal Moral Rights (ICMR)

ICMR are not legally protected in Australia. The enactment of ICMR would enable Indigenous communities to prevent unauthorised and derogatory treatment of works that embody community images or knowledge.

There have been a number of studies and reports documenting the concerns of Indigenous communities over the misrepresentation or misuse of their culture. (Terri Janke’s Our Culture: Our Future, discussed in 'The 'Our Culture: Our Future' discussion paper and report', is one such report.) The concerns stem from instances in which people use Indigenous cultural material without regard for the way in which their use of that material is perceived by the communities from which it is derived. Whatever the cause, the end result is the same: misappropriation of Indigenous cultural traditions and knowledge that is deeply resented by traditional custodians.

The Commonwealth Government first signalled its commitment to developing a framework that would specifically recognise the communal moral rights of Indigenous people within the law in 2001. This commitment was reiterated in the Coalition’s pre-election arts policy Arts for All:

Amendments to the moral rights regime will give Indigenous communities a means to prevent unauthorised and derogatory treatment of works that embody community images or knowledge.[8]

In what was its firmest commitment to the acknowledgment of ICMR the Government stated in May 2003:

Indigenous communities will be able to take legal action to protect against inappropriate, derogatory or culturally insensitive use of copyright material under new legislation proposed by the Government. Amendments to the Copyright Act, to be introduced into Parliament later this year will give Indigenous communities legal standing to safeguard the integrity of creative works embodying community knowledge and wisdom.[9]

By mid-December 2003 copies of the draft Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 were distributed for comment. However, to date the Bill has not been made available to the public and was only distributed to ‘several organisations and one individual for comment’.[10] Attorney-General Philip Ruddock suggested that ‘the protection of Indigenous culture depends upon strong and effective copyright laws’.[11] It appeared, therefore, that Indigenous communal images and knowledge were going to be protected within the framework of copyright law.

However, although the new Bill provided an opportunity to implement meaningful reform, it has been widely criticised. Some commentators claim that despite the Government’s assertion that the legislation’s intent is to ‘provide a simple, workable and practical schema for Indigenous communities, artists, galleries and the public’,[12] the focus appears to be on creating legal solutions rather than developing realistic and practical outcomes for Indigenous people. The Bill has been criticised for being impractical as it is phrased in highly complicated and legalistic language,[13] which raises serious questions of access for the Indigenous communities for whom the Bill is supposed to be designed.

Furthermore, there are five requirements that must be met before ICMR can be recognised.[14] The first requirement is that, as with the existing moral rights legislation (see 'Moral Rights'), there must be subject matter that is protected by copyright (that is, literary, dramatic, musical or artistic works or cinematographic works). This then raises the problem of works of art, dance, rituals and songs that are centuries old. Protection of copyright in the Copyright Act only subsists for 70 years after the death of the author.[15] Therefore many Indigenous works are not just ‘out of copyright’, they preceded any copyright legislation. The Bill does not take this unique circumstance into consideration.

The second requirement is that the work must draw on the particular body of traditions, observances, customs or beliefs held in common by the Indigenous community.

The third and highly contentious requirement is that an agreement must be entered into between an Indigenous community and the individual creator of the work acknowledging the communal nature of the work. This is a voluntary agreement that can be oral. The presumption here is that at the time of executing the final work the ‘individual artist’ will first attend to the legal affairs and formally consider the question of communal moral rights management - presumably in anticipation of the commercial reproduction of the work.
A particularly contentious and paradoxical aspect of this requirement is that the onus is on the Indigenous people and the communities to initiate contact and negotiation with parties who have an interest in using the cultures and customs of the community.

It is implied here that the community will know or will find out, presumably through the benevolence of the creator, that a work is being created that draws on the community’s ‘traditions, customs and practices’. This requirement could be particularly onerous on Indigenous communities in isolated parts of Australia. In addition, because the agreement is voluntary, there is no obligation on the creator to enter into the agreement with the community.

The fourth requirement is that there must be acknowledgement of the Indigenous community’s association with the work.

Finally, ‘interested parties’ need to have consented to the rights arising, and this consent must be provided through written notice - so it is not only the community that needs to consent to the rights arising but all interested parties.[16] If an interest holder does not consent no protection is provided. The Bill does not define who exactly ‘interested parties’ are, but it can be assumed it includes ‘interests’ other than just the author and the community, such as a gallery owner. What is certain is that because all interest holders need to consent, this effectively takes control away from Indigenous communities.

Another important practical difficulty in relation to entering into formal agreements is that such agreements do not take into account the difficulties of language, legal translation and legal mediation. With difficulties in basic service delivery for remote and rural communities, it is important to recognise that the challenge in accessing legal advice on any matter, let alone complex copyright matters, is substantial for the communities that are the target of the Bill.

Although the Bill has been met with criticism, in February 2006 the Commonwealth announced that a revised version of the Copyright Amendment (Indigenous Communal Moral Rights) Bill would be on the legislative agenda later in 2006.

[8] Liberal Party of Australia, The Howard Government: Putting Australia’s Interests First: Election 2001 - Arts for All (2001) 21,  (viewed May 14 2005).

[9] Department of Communication Information and Technology, Commonwealth Attorney General’s Department, and the Department of Immigration and Multicultural and Indigenous Affairs, ‘Indigenous Communities to Get New Protection for Creative Works’ (Press Release, 19 May 2003) (viewed 10 May 2005).

[10] See J Anderson, ‘Indigenous Communal Moral Rights: The utility of an ineffective law’ (2004) 30(5) Indigenous Law Bulletin 8.

[11] Philip Ruddock, ‘The Government’s Copyright Policy Agenda’ (Paper presented at the Eleventh Biennial Copyright Law and Practice Symposium, Sydney, Nov 2003)

[12] Department of Communication Information and Technology, Commonwealth Attorney General’s Department, and the Department of Immigration and Multicultural and Indigenous Affairs, ‘Indigenous Communities to Get New Protection for Creative Works’ (Press Release, 19 May 2003) (accessed 10 May 2005).

[13] Justice Lindgren, Federal Court Judge, President of the Australian Copyright Tribunal, and one of the most learned judicial authorities on copyright issues in this country is critical of the complex and ambiguous language of the Bill: see C Sexton, ‘In Conversation with the Honourable Justice Lindgren’ (2004) Intellectual Property Forum: Journal of the Intellectual Property Society of Australia and NZ 6, 8 -10.

[14] Dr Jane Anderson also identifies these five requirements: see J Anderson, ‘Indigenous communal moral rights Bill - failure of language and imagination’ (2004) 17(2) Australian Intellectual Property Law Bulletin 26.

[15] This protection has changed from life of the author and 50 years to life of the author and 70 years in light of the Free Trade Agreement with the United States. However, whether the protection period is 50 or 70 years, it is completely insignificant in light of how old these traditional Indigenous cultural customs are.

[16] Once parties have agreed on the terms of the voluntary agreement a notice must be displayed on the work identifying the community that has the association with the work and stating that all people with an ‘interest’ have consented.

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