1. Home
  2. Aboriginal Art
  3. Protecting Australian Indigenous art
  4. Background information
  5. Proposals for change
  6. The 'Our Culture: Our Future' discussion paper and report
Print this page Reduce font size Increase font size

The 'Our Culture: Our Future' discussion paper and report

In 1997, the now abolished ATSIC commissioned the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) to coordinate a project to develop reform proposals for the protection and recognition of Indigenous cultural and intellectual property. Terri Janke’s discussion paper titled ‘Our Culture: Our Future: Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property’ outlined several proposals for change that are discussed in this section. More than 70 submissions were received in response to the discussion paper, and the final report, Our Culture: Our Future - Report on Australian Indigenous Cultural and Intellectual Property Rights, sets out the framework for recognising and protecting ICIP.

The recommendations include legal and non-legal measures and aim to guide Indigenous peoples, government and industry concerning the rights Indigenous Australians want in relation to their cultural and intellectual property and the range of measures that could be adopted and implemented in order to provide these rights.

ATSIC and the Indigenous Reference Group on ICIP accepted the report.

What rights do Indigenous people want recognised?

Our Culture: Our Future found that there are certain fundamental rights that Indigenous people need in order to maintain and continue their cultures. These rights include:

  • the right to own and control ICIP
  • the right to control the commercial use of Indigenous ICIP in accordance with traditional laws and customary obligations
  • the right to benefit commercially from the authorised use of ICIP
  • the right to full and proper attribution
  • the right to protect sacred and significant cultural material.

New laws

Our Culture: Our Future calls for new laws, based on respect and understanding of culture and recognising two parallel and equal systems of law. In particular, it calls for specific legislation to protect ICIP property in preference to amending existing laws, such as the Copyright Act, Designs Act or Trademarks Act. The new laws would aim to preserve Indigenous cultural tradition and at the same time protect the economic interests of Indigenous people with respect to their rights to commercialise (or otherwise) their intellectual property on their own terms and conditions. The report recommends that the new laws recognise that Indigenous rights to cultural heritage exist in perpetuity and that the laws contain specific provisions prohibiting the misrepresentation and wilful distortion of Indigenous cultural material.

Amendments to the Copyright Act

Since many Aboriginal art forms are out of copyright, the Our Culture: Our Future report suggests that in the absence of specific legislation, an additional category should be established under the Copyright Act for ‘Indigenous cultural work’ - defined as ‘a work of cultural significance to Aboriginal and Torres Strait Islander people’. This category would include artworks that currently are no longer protected by copyright but that are still governed by Indigenous customary laws.

A central agency, such as the National Indigenous Cultural Authority, could then be established to list such works and to administer applications for their reproduction. Upon application, this agency would identify owners, obtain their permission and terms of use, and collect fees on their behalf.

Designs

The Our Culture: Our Future discussion paper raised the question of whether the Designs Act should be amended to allow, for example, particular rarrk designs to be registered by an artist or community that wishes to use the designs in the course of industry.

The Our Culture: Our Future report recommended that the enactment of specific legislation would be a better way to address these issues. It also recommended exploring the feasibility of registering communal interests in designs for commercial exploitation of the designs. These recommendations remain matters for future consideration.

Trademarks

The use of Aboriginal symbols, words and designs in the company trademarks of non-Aboriginal organisations is a matter of concern to many artists and communities. Apart from the issue of cultural appropriation, there is a potential for trademarking to exclude Aboriginal communities from their own cultural property, because it allows individuals or companies to register words, designs and symbols in a way that gives them exclusive entitlement.

A solution to this situation could be to modify trademark regulations in order to empower the Australian Trade Marks Office to undertake certain inquiries whenever the Office is considering an application involving elements drawn from Indigenous cultures. Such applications might require, for example, the prior written consent of the relevant community.

New Zealand adopted this practice in 2002 when it enacted the Trade Marks Act 2002 (NZ) to establish the Maori Trade Marks Advisory Committee. The Advisory Committee, whose members are appointed by the Commissioner of Trade Marks are required to have knowledge of te ao Maori and tikanga Maori. Other desirable attributes include having an understanding of and experience in te reo Maori, matauranga Maori, as well as business and/or legal expertise and strong Maori networks.

The Advisory Committee is charged with advising the Commissioner of Trade Marks about whether the registration of a trademark that is, or appears to be, derivative of Maori text and imagery, is likely to be offensive to Maori. However, the key limitation of this process is that the advice of the Committee is not binding on the Commissioner. The Commissioner considers the advice together with other factors affecting the eligibility of the application for the trade mark and may come to a decision that is different to the Committee’s recommendation.[17]

Cultural heritage

Our Culture: Our Future also suggests amendments to cultural heritage legislation so that it better protects the rights of Aboriginal and Torres Strait Islander people. The suggestions have two key emphases:

  • the transfer of the management of heritage sites, objects etc from governments to their communities of origin
  • the establishment of an authority to coordinate the multitude of heritage provisions under Commonwealth, State and Territory legislations. This body would consist mostly, if not entirely, of Aboriginal and Torres Strait Islander people.

The report also says Indigenous people should advocate for the Commonwealth Government to demonstrate leadership in these rights-based areas to ensure that Australia’s standards adhere to international standards.

 

[17] New Zealand Ministry for Economic Development< http://www.med.govt.nz/templates/Page____1291.aspx>

Print this page Reduce font size Increase font size
The 'Our Culture: Our Future' discussion paper and report