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Case study 1: The ownership of knowledge

Late in 1976, a matter came before the Supreme Court in Alice Springs that, in the words of the presiding judge, ‘may be unique’.

The Pitjantjatjara Council brought the proceedings on behalf of the Pitjantjatjara peoples, seeking injunctions to prevent Charles Mountford, an anthropologist, from publishing his book, Nomads of the Australian Desert. The book contained information about Pitjantjatjara sacred sites, which had been revealed to Mountford in confidence.

In essence, the Pitjantjatjara Council claimed that publication of the book would do damage to Pitjantjatjara-speaking communities. The judge, Muirhead J, agreed and found in their favour, ordering that the book be restrained from sale, distribution and display within the Northern Territory (the area over which the court had jurisdiction).

Background

Around 1940, anthropologist Charles Mountford made a field trip through Pitjantjatjara country. In the process, he was taken into the confidence of the local people, who privileged him with viewings and explanations of many sacred sites, objects, paintings and rock engravings. Mountford recorded these experiences through photographs, sketches and notes.

Thirty-five years later, Mountford’s research and experiences were prepared and produced as Nomads of the Australian Desert - a book that the judge recognised as being ‘a magnificent publication’. Mountford was aware of the potential consequences. The book carried a caution that, where its use might involve Aboriginal communities, local male religious leaders should first be consulted.

Mountford’s caution was well founded. Some of the material in the book communicated knowledge that was never intended to be shared beyond a restricted group of initiated men. The judge recognised that the book was likely to find its way into Territory schools and libraries, where it would be easily accessible to young Aboriginal people.

In support of his injunction order, the judge observed the following:

... These secrets may, by continuing publication in the Northern Territory, be revealed to those to whom it was understood they would not be revealed ... continuance of such publication ... may cause damage of a serious nature, damage of a type to which monetary damages are irrelevant, and which are not, in fact, claimed in this action.[19]

Issues raised

In considering the Pitjantjatjara Council’s application, the judge sought to satisfy himself that the book had opened ‘new ground’. This suggests that the matter might have been viewed differently if the knowledge had already been communicated in some other way.

Two other key issues also arise. Firstly, there is a question as to the changing lifestyle, practices and customary beliefs of particular communities: to what extent do contemporary groups retain a practical attachment to their ‘traditions’, and how might this affect attitudes to protection? In this case, the judge observed:

Despite Dr Mountford’s prognosis that their life and beliefs are ‘quickly vanishing’, there is still an urgent desire in these people to preserve those things, their lands and their identity, and the existence of the [Pitjantjatjara] Council itself illustrates these objectives. [20]

Secondly, the judge recognised that there were matters of public policy involved, in particular, ‘one’s right to disseminate the results of scientific or anthropological research under such conditions’. Should authors be able to publish and disseminate information of a secret/sacred nature and information that is imparted to them in a relationship of confidence?

This case raises the issue of whether chroniclers of Indigenous culture should be able to publish and disseminate information of a secret/sacred nature and information that is imparted to them in a relationship of confidence. Under the present copyright law, authors are clearly able to do so because information that was previously unpublished (eg oral traditions) and is recorded by a non-Aboriginal anthropologist becomes the property of the recorder. (This is one of the many law reform issues currently being pursued by Aboriginal people.) However, this case shows that the courts may give equitable relief, in certain circumstances, for breach of confidence.

Discussion points

  • Compare this case to the ‘Flash T-shirts’ and ‘carpet art’ cases, where materials could be attributed to individual artists owning copyright over their work.
  • What individual rights and collective rights are involved in this case? In what ways do these rights compete?
  • The Pitjantjatjara people took this action because they believed that publication of the book was a ‘breach of confidence’. Why are there laws that protect secret or privileged information? How is the Aboriginal concept of knowledge different from Western concepts of knowledge?
  • List and discuss the Aboriginal law reform issues involved in this case (refer specifically to protection of culture and heritage issues).

[19] Muirhead, J, 'Foster v Mountford', in Australian Law Reports, Vol 14, Butterworths, Sydney, NSW, 1977.

[20] ibid.

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