Keeping cultures alive: Archives and Indigenous cultural and intellectual property rights Terri Janke Interdisciplinary Workshop, Australian Society of Archivists Annual Conference: Archives and Indigenous Human Rights: towards an understanding of the archival and recordkeeping implications of Australian and international human rights for Indigenous Australians 12 October 2010 3/10/2015 Terri Janke & Company 1 Introduction and background of Indigenous human rights Terri Janke & Company 2 Universal Declaration of Human Rights 1948 (UDHR) • Article 27 states: 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he (sic) is the author.’ Terri Janke & Company 3 Indigenous human rights • 1993 International Year of World Indigenous People • Decade of World Indigenous People • Working Group on Indigenous Population and the Permanent Forum on Indigenous issues • The United Nation’s Declaration on the Rights of Indigenous Peoples 2007 Terri Janke & Company 4 My lecture: 1. Examination of Indigenous cultural and intellectual property rights framework with reference to Indigenous human rights documents and WIPO work, and copyright law 2. Applying rights to the archival sector discussion of past and developing practices, and make suggestions for future practice. Terri Janke & Company 5 PART ONE The right to culture: Indigenous cultural and intellectual property rights Terri Janke & Company 6 Our Culture Our Future (1999) • • Report on Indigenous cultural and intellectual property rights. 115 Recommendations – legal and non-legal. Terri Janke & Company 7 Indigenous cultural and intellectual property Indigenous Cultural and intellectual property is Indigenous peoples’ rights to their heritage. “The heritage of Indigenous peoples is comprised of all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or territory.” Terri Janke & Company 8 Languages Scientific, agricultural and ecological knowledge Spiritual knowledge Literary, Performing and Artistic Works Cultural Property Indigenous Ancestral Remains Documentation of Indigenous Peoples’ Heritage Immovable Cultural Property Source: Our Culture: Our Future 1999 9 1. The right to own and control ICIP 2. The right of prior informed consent 3. The right to be recognised as the primary guardians and interpreters of culture 4. The right of full and proper attribution 5. The right of integrity – the right to protect the cultural spirit of a cultural item 6. The right to secret/sacred material 7. The right to share benefits for authorised use 8. The right to control recordings. Terri Janke & Company 10 Declaration on the Rights of Indigenous Peoples • Article 15 provides: • Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information. Terri Janke & Company 11 Declaration on the rights of Indigenous people Article 31 states: 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with Indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights. Terri Janke & Company 12 World Intellectual Property Organisation WIPO Inter-Government Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore for: – Access to genetic resources and benefit sharing; – the protection of traditional knowledge, innovations and creativity; and – the protection of expressions of folklore. Two important draft guidelines:1. traditional cultural expression and 2. traditional knowledge. Terri Janke & Company 13 UNESCO Conventions • 2003 Convention for the Safeguarding the Intangible Cultural Heritage – The Convention’s focus is on inventory and creating lists. • 2005 UN Convention on the Protection and Promotion of the Diversity of Cultural Expression (Australia is a signatory) – gives recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, Terri Janke &values Company and meaning 14 Convention on Biological Diversity (1993) • Article 8(j)- encourages member states to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities…and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and practices.” 15 The current status of copyright and beyond • The legal framework with dealing with ICIP in the has its limitation with intellectual property laws and copyright • The application of copyright in case law : – Indigenous artists have copyright to works that follow pre-existing clan designs – The copyright owner and artists or works that incorporate traditional ritual knowledge has fiduciary obligations to clan to deal with that work consistently with customary law. Terri Janke & Company 16 Bulun Bulun v R & T Textiles Fiduciary duty owed by artist to clan This relationship imposed the obligation on Johnny Bulun Bulun not to ‘exploit the artistic work in a way that is contrary to the law and customs of the Ganalbingu people, and, in the event of infringement by a third party, to take reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work Magpie Geese and Water Lilies at the Waterhole ©Johnny Bulun Bulun, Ganalbingu clan Terri Janke & Company 17 Brandl case study • Rock Art from Badmardi Clan copied on t-shirts • Source: Aboriginal Paintings in Western and Central Arnhem Land, Temporal Sequences and Elements of Style in Cadell and Deaf Adder Creek Art , Aboriginal Studies Press, 1973 Terri Janke & Company 18 Summary Part 1 • Indigenous Cultural and Intellectual Property rights are seen as important rights for Indigenous people to be managed with reference to Indigenous cultural laws and protocols. • The growing international human rights law, and copyright developments domestically set new challenges for archival practices. Terri Janke & Company 19 PART TWO Archives: steps towards recognition of ICIP rights Terri Janke & Company 20 Captives of the Archives • Indigenous people were the subjects of the record and not the owners. They were seen as captives of the archives that stored much information, knowledge and intellectual property of Indigenous people have been recorded by anthropologists, archaeologists, researchers, ethnobotanists, government workers and many other third party users Terri Janke & Company 21 ALRC Report on Archives Act • Aboriginal and Torres Strait Islander people have had a significant but troubled relationship with recordkeeping by governments, churches and other organisations and individuals. Much of the written history of Indigenous people and communities over the past two centuries has been documented by Europeans in records over which Indigenous people had, and often still have, little or no control. At best, many of these records now seem intrusive and patronising. At worst, they can be cruel, malicious and misleading. • Yet the records created by Europeans are also of great importance to Indigenous people. For communities which had no tradition of written recordkeeping and which were subject to fierce external pressures and dislocation, the European records provide vital evidence on issues such as land rights and the reunification of families from whom children were removed forcibly. Terri Janke & Company 22 The Archives Act 1993 • defines a record as widely to include any recording information in any form. • Record means a document, or an object, in any form (including any electronic form) that is, or has been, kept by reason of: (a) (b) any information or matter that it contains of that can be obtained from it; or its connection with any event, person, circumstance or thing. Terri Janke & Company 23 Who owns records? • Records – written files by government employees, forms filed in by Indigenous people, letters, and now electronic data • The intangible ownership – the intellectual property, would be owned by the copyright owner, depending on the complex ownership rules, and any written contracts or employment arrangements. Terri Janke & Company 24 ALRC Review on Archives Act: • Many Indigenous people feel that it is unjust that records of great sensitivity and importance to them should be owned by non Indigenous organisations and people. The records are often held far away from the communities to which they relate. Terri Janke & Company 25 Royal Commission into Aboriginal Deaths in Custody • Recommendation 53 of the Royal Commission recommended access to all government archival records to pertaining to the family and community histories of Aboriginal people to re-establish community and family links with those people from whom they were separated as a result of past policies of government Terri Janke & Company 26 Dealing with sacred/secret materials • The Aboriginal and Torres Strait Islander Libraries and Research Network Protocols (the ATSILRN protocols) set out a useful three part key step process for handling of secret, sacred or sensitive material by libraries, archives and information services: – (1) identifying materials in collections; – (2) determining appropriate policies and – (3) strict observance of these policies in day to day management. • Full consultation. • A national secret and sacred materials database. Terri Janke & Company 27 Who owns recordings of cultural expression? • Indigenous people were not the record maker for many of the records taken, at least pre-2000. • Songs and stories on tape, film and images of people, their homelands were taken by photographers, filmmakers and recordists • Physical materials and copyright belongs to the record maker, mostly nonIndigenous. Terri Janke & Company 28 Shortfalls in copyright protection:• Material form requirement in copyright laws does not protect oral stories or performance traditionally passed on • Expression is protected not underlying idea • 70 years duration for protection (50 years for government created and first published) then free for all to use (no moral rights when © period ends) • No communal rights for communities. www.terrijanke.com.au Deposit agreement and terms • When an item is deposited in an archive, the person who donated the archival materials signs a deposit agreement, which incorporates the terms of access and use of the materials. Terri Janke & Company 30 Barclay’s Taonga Film Deposit Agreement • T o recognise special nature of rights Maori participants in film had to their culture, Barclay developed a Taonga Film Deposit Agreement, so that the spirit of the intention to protect the image would remain intact from year to year and generation to generation • it would be the people at some future time to work out and assert the detail, whenever and wherever it was necessary in their time. • Mana Tuturu: Māori treasures and intellectual property right. Terri Janke & Company 31 Ian Dunlop –Film Australia • Ian Dunlop, the Australian Ethnographic Filmmaker, entered into a MoU for ethnographic film he deposited with Film Australia. He named families and contact details, so that the future users could seek permissions and clearances with next generations. • details on the context of uses to be made of the film, guided by the fundamental principle of cultural maintenance. Terri Janke & Company 32 AIATSIS Audio-Visual policy 10.3.2 Access to the collections a) The rights of the legal copyright owner will be respected. The Audiovisual Archive also recognises the rights of Indigenous communities and individuals, who are the owners of most of the knowledge contained in the collections. Every attempt will be made to provide access to the collections in accordance with the wishes of the copyright owner(s) and Indigenous owner(s). b) Copies of material will only be provided for publication purposes if the requestor has consulted with the relevant Indigenous community or individual(s) and has received written permission to proceed, even in such cases where the copyright owner has approved publication. www.terrijanke.com.au Consulting on new uses – In Living Memory • The principle of free and prior informed consent is ongoing. • Issues for photograph records use: – The display of deceased Indigenous people may offend Indigenous audiences. – What if you can’t identify the people in the photographs? – Who do you consult with? Terri Janke & Company 34 In living memory – State Records of NSW • Photo: Studio portrait of Linda Fernando: reproduced with permission of George Rose, Walgett; and the approval of the NSW Department of Aboriginal Affairs. Terri Janke & Company 35 Indigenous people as creators of records • Now with access to new technology, and forms of recording culture: – Language recordings and resources – arts centre records – ATSI organisations management records – Aboriginal Medical Service records and Health Research – field data collected by Aboriginal rangers in caring for country. Terri Janke & Company 36 Research practice, ethics and authorship • Research practices encourages consultation and reference to protocols and ethical guidelines: – Australian Institute of Aboriginal and Torres Strait Islander Studies’ Guidelines for Ethical Research in Indigenous Studies – the National Health and Medical Research Council Ethics. • Defining methodology, ownership and future use are all factors that are still to be based on firmer considerations of prior informed consent. Terri Janke & Company 37 Writing up Indigenous research • Indigenous cultural knowledge holders may bring skill, labour and effort that equates to an author contribution. • The individual researcher though is the one that brings their skills, technical knowledge and writing skills. So working together must be the focus. Terri Janke & Company 38 The National Policy Framework for Aboriginal and Torres Strait Islander Library Services and Collections (Nakata, 2005) • recognizes a one its principles, that Australian Indigenous knowledge, intellectual and cultural property rights, and protocols are components fundamental to developing collections and services that are respectful of the public and private dimensions of Aboriginal and Torres Strait Islander materials Terri Janke & Company 39 National Indigenous Knowledge Centre (Huggins and team) • An Indigenous Knowledge Centre (IKC) could be somewhere that Indigenous cultural knowledge is kept safe to pass on to future generations. An IKC could be a place where Indigenous culture and knowledge is showcased to the wider community. An IKC could be a repository for community knowledge, a place where knowledge can grow, and a place for twoway cultural learning to occur. Terri Janke & Company 40 Why do we need a National Indigenous Cultural Authority? 1. 2. 3. 4. 5. 6. EDUCATION: Educate Indigenous artists, creators and communities on IP and ICIP and awareness raising of value of ICIP generally CAPACITY BUILDING: developing IP and knowledge management and negotiation skills PRIOR INFORMED CONSENT: to ensure that the use of Indigenous cultural and intellectual property (in terms of tradition-based creativity and innovation) takes place with the prior informed consent of the traditional owners BENEFIT SHARING: to ensure the sharing of benefits derived from the use of ICIP with Indigenous people ADVOCACY: A collective Indigenous voice to promote ICIP rights – currently there is no independent national body promotes ICIP rights INVIGORATE CULTURAL PRODUCTION: to permit tradition-based creativity and innovation. Terri Janke & Company 41 Conclusion: ICIP rights are a human rights framework for archives • Indigenous human rights are developing momentum in the international arena. How will they be interpreting in domestic law and practice? • The right of free prior informed consent, integrity, attribution, benefit sharing & control of the record are ICIP rights. • International development promote collaborative project, and consent practices, and consultation with living Indigenous communities. • Keeping track of rights will become important. • A National Indigenous Knowledge Centre could address issues relating to lack of access, and interpretation, and guardianship. • A National Indigenous Cultural Authority develop standards for appropriate use including royalties, cultural integrity and Terri Janke & Company 42 attribution.