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
12 October 2010
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Introduction and background of
Indigenous human rights
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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.’
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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
• The United Nation’s Declaration on the
Rights of Indigenous Peoples 2007
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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.
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The right to culture: Indigenous
cultural and intellectual property rights
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Our Culture Our Future (1999)
Report on Indigenous
cultural and intellectual
property rights.
115 Recommendations –
legal and non-legal.
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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
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agricultural and
Spiritual knowledge
Performing and
Artistic Works
Ancestral Remains
Documentation of
Indigenous Peoples’
Immovable Cultural
Source: Our Culture: Our Future 1999
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.
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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.
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Declaration on the rights of
Indigenous people
Article 31 states:
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.
In conjunction with Indigenous peoples, States shall take effective
measures to recognise and protect the exercise of these rights.
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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.
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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
– gives recognition to the distinctive nature of
cultural activities, goods and services as
vehicles of identity,
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Company and meaning
Convention on Biological Diversity
• 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.”
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.
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Bulun Bulun v R & T Textiles
duty owed by artist to
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
©Johnny Bulun Bulun, Ganalbingu clan
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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
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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.
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Archives: steps towards recognition of
ICIP rights
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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
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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.
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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:
any information or matter that it
contains of that can be obtained from it; or
its connection with any event, person,
circumstance or thing.
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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.
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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.
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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
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Dealing with sacred/secret
• 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
• Full consultation.
• A national secret and sacred materials database.
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Who owns recordings of cultural
• 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.
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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.
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.
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Barclay’s Taonga Film Deposit
• 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.
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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
• details on the context of uses to be made
of the film, guided by the fundamental
principle of cultural maintenance.
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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.
Consulting on new uses – In Living
• 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
– Who do you consult with?
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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.
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Indigenous people as creators of
• 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
– field data collected by Aboriginal rangers in caring for
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Research practice, ethics and
• 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
• Defining methodology, ownership and future
use are all factors that are still to be based on
firmer considerations of prior informed consent.
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Writing up Indigenous research
• Indigenous cultural
knowledge holders may
bring skill, labour and effort
that equates to an author
• The individual researcher
though is the one that
brings their skills, technical
knowledge and writing
skills. So working together
must be the focus.
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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
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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.
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Why do we need a National
Indigenous Cultural Authority?
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.
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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
• A National Indigenous Cultural Authority develop standards
for appropriate use including royalties, cultural integrity and
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