Indigenous Cultural Intellectual Property – NAIDOC Week 2021

This week has been a celebration of NAIDOC Week from 4-11th July. NAIDOC Week celebrates the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. NAIDOC Week is celebrated by all Australians and is a great opportunity to learn more about Aboriginal and Torres Strait Islander communities. This year’s theme is “Heal Country!”

For more information on NAIDOC week, head to:

www.naidoc.org.au

In honour of NAIDOC week, we want to share some information on Indigenous Cultural Intellectual Property & Copyright.

Indigenous cultural intellectual property (ICIP) is a right that Indigenous people have to protect their traditional art and culture. Sometimes the term “Cultural Heritage” is used interchangeably when referring to ICIP.

ICIP covers a lot of areas and is based on the principle of self-determination.

Terri Janke and Company is an Indigenous owned and managed law firm. On their website they detail a full list of rights that ICIP covers including:

+ Literary, performing and artistic works (Copyright)

+ Languages

+ Types of knowledge, including spiritual knowledge

+ Tangible and intangible cultural property

+ Indigenous ancestral remains and genetic material

+ Cultural environmental resources

+ Sites of Indigenous significance

+ Documentation of Indigenous heritage.

As ICIP rights are based in customary laws, some are not recognised by the legal system. This can leave Indigenous people’s IP rights unprotected and open to exploitation.

One of these areas is Copyright Law. While copyright protection is automatic upon creation of an artistic work, it is only afforded for 70 years after the death of the author. Once this time period has passed, the copyrighted work becomes available in the public domain.

For Indigenous people, the ownership of artistic works is ongoing. Rock art is an example of how Australian Copyright Law can hurt Indigenous people. If someone copies the rock art and distributes it, they then own the image, despite it belonging to First Nations People and holding significant cultural meaning for thousands of years. When people use Indigenous words or designs without consent or consultation it can be detrimental to an Indigenous community or person. (SOURCE: ABC NEWS 2020).

It’s important to respect and value Indigenous culture and artistic works.

Unfortunately there are many cases of copyright infringement or other legal issues when it comes to Indigenous People’s artwork. Here are some real life examples of cases that have made headlines in the past for this reason;

The Polish Hotel

Aboriginal artist Bibi Barba discovered two artworks from her Desert Flowers series had been replicated by an interior designer in a Polish Hotel without her permission.

Ms Barba was quoted by ABC News as saying “her desert flowers represented “women’s business” in a contemporary abstract rendition” and was “also her personal story. Her visual storytelling uses knowledge and motifs passed down from her grandmother.”

An online search led to Ms Barba discovering the photos featured throughout the Eclipse Hotel in Poland. The caption read “Desert Flowers, inspired by Bibi Barba” with her designs used on bar tops, table tops, wall panelling, and the carpets.

Ms Barba pursued contacting the hotel and designer with offers of reparation which were declined. The designer denied she was infringing copyright on the basis that Aboriginal art is thousands of years old and is not owned by anyone.

For more information, read more here  (please note, the article is a few years old) and more here.

The Underwear Company

Earlier this year, underwear company Berlei held a “Pink Bra Project Design” competition. One of the winning designs incorporated Indigenous elements and was created by a non-Indigenous artist. Berlei later apologised for selecting the design without verifying if it was created by an Indigenous artist and removed it from the competition. For their full statement and more information, head to this article here.

The Aboriginal Flag

The Aboriginal flag is recognised as one of Australia’s official flags under the Flags Act 1953, however, unlike most official flags around the world it’s not owned by the government and there are copyright issues affecting its use. The Aboriginal flag was designed by Aboriginal artist Harold Thomas in 1971, originally for his people’s civil rights movement. Mr. Thomas retains the full copyright for the flag – a status that was clarified by a legal battle in the 1990s – and he has leased reproduction rights to different companies over the years.

In 2018 Mr. Thomas signed a deal with WAM Clothing (a non-Indigenous owned business) giving the company exclusive global rights to use the flag on clothing, physical media and digital media. Many organisations, including Indigenous groups, must pay for the right to use the flag on clothing. This led to a campaign called ‘Free The Flag’ organised by a Gunditjmara woman named Laura Thompson after she received a Cease & Desist letter in the mail from WAM Clothing for selling merchandise featuring the Aboriginal flag. Ms. Thompson believes a non-indigenous business should not hold a monopoly over use of the flag and that viable channels for new licensing agreements, especially those for Aboriginal organisations and businesses, must be created. The ‘Free The Flag’ campaign has received wide spread support across Australia, including from many high profile personalities (you can find out more on the Free The Flag campaign here). The Australian Football League and other sports clubs have also decided to stop paying for rights to use the flag on clothing.

Use of the Aboriginal Flag is a delicate and sensitive matter with the government committed to bringing about a resolution that respects Mr. Thomas as the artist of the flag as well as the rights, enterprise and opportunity of all Australians.

So how can Australians respect and honour ICIP?

Terri Janke and Company detail ways we can all respect and honour ICIP & copyright with their True Tracks Principles®️. Head to their website:

www.terrijanke.com.au

for more information.