Who owns research?
Intellectual Property in Native Title Materials
Terri Janke
24 June 2015
Intellectual Property & Native Title Research
Native title materials and Intellectual Property
What is Indigenous Cultural and Intellectual
Property (ICIP)?
Ethical standards and protocols
for IP management and ICIP recognition
Intellectual Property & Native Title Research
Anthropologists, Native Title
Reports & Intellectual Property
Intellectual Property & Native Title
The role of anthropologists
• Collect information to form the opinion on
• Intermediaries
• Independent expert witnesses
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Intellectual Property
Intellectual property protects products of the mind
- economic rights
- - limited in time.
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Copyright basics
1. Copyright protects original works in material form as soon
as they are created.
2. The expression is protected not the underlying ideas.
3. The author is the person who creates the material form.
4. The general rule is that the author is the creator and
copyright owner.
5. Employers owns copyright of works created by employees.
6. Copyright can be assigned and licensed under contract.
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Intellectual Property & Native Title
Copyright in sound recordings and films
• Copyright in sound recordings made of folklore,
without payment, will be jointly owned by the
maker and speaker/performer.
• Copyright in the film is owned by the maker.
• Performers have rights to control the making the
record. Consent is required, but can be implied.
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Intellectual Property & Native Title
Copyright duration
• 70 years after the death of the author for
• 70 years after the publication, for subject
matter other than works.
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Intellectual Property & Native Title
Moral rights
• Creators have the moral rights of:
– attribution
– right against false attribution.
– Right of Integrity.
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Communal copyright
Case study: Bulun Bulun v R & T Textiles
• The artist, as copyright owner, owed
a fiduciary (special) duty to the clan
to look after the copyright in his
artwork because it included clan
owned traditional ritual knowledge.
Fabric copying
Magpie Geese and Water Lilies at the
Waterhole ©Johnny Bulun Bulun,
Ganalbingu clan
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Confidential information: Case Study
Foster v Mountford (1976)
• The law of confidential information was used to stop the
wide publication of a book containing Pitjantjatjara men’s
sacred knowledge.
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Intellectual Property & Native Title
What is Indigenous Cultural and
Intellectual Property (ICIP)?
Intellectual Property & Native Title
Our Culture, Our Future
Indigenous cultural and intellectual property rights are
Indigenous peoples rights to their cultural heritage.
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Intellectual Property & Native Title
Free prior informed consent
Cultural integrity
Respecting cultural beliefs
Benefit Sharing
ICIP Rights
Recognition of value of ICIP
Self determination
Recognition as primary guardians
and interpreters
Protect against derogatory use
Attribution and acknowledgement
as source of the ICIP
Individuals contributing and
groups/clans who own TK
Uses according to customary laws,
cultural practices eg: respect for
restricted materials
Fair payment for use of knowledge
and cultural expression
Intellectual Property & Native Title
Intellectual Property
Indigenous Cultural and
Intellectual Property
Expression protected
Material form
Styles or underlying theme
Oral and performance
Economic rights – except
for moral rights ©
Cultural rights
Assignable rights
Handed down as cultural
Limited in time
Rights continue in
Intellectual Property & Native Title
Declaration on the Rights of Indigenous People
Article 31(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.
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World Intellectual Property Organisation (WIPO)
Inter-Government Committee on Intellectual Property and
Genetic Resources, Traditional Cultural Expressions and
Traditional Knowledge have drafted provisions.
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Ethical standards and protocols
for IP management and ICIP
Intellectual Property & Native Title
Australian Anthropological Society
Code of Ethics
• IP issues in Section 3.7:
– ‘It should be recognised that research participants may have a
contractual and/or legal interests in data, recordings and
– Copyright clearances for audio and video recordings.
• Section 3.2:
– Confidential information not to be revealed without consent. (3.2)
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True Tracks: Protocols
Protocols are the leading industry practice for
successful Indigenous engagement
Protocols are effective and respectful frameworks for using
ICIP and for engaging with Indigenous people and
Protocols go beyond the law to respect Indigenous cultural
Protocols encourage ethical conduct and promote
interaction based on good faith and mutual respect.
Intellectual Property & Native Title
True Tracks Protocols
2. Self determination
3. Consent and consultation
4. Interpretation
5. Cultural integrity
6. Secrecy and privacy
7. Attribution
8. Benefit sharing
9. Maintaining Indigenous culture
10. Recognition and protection
Intellectual Property & Native Title
Research protocols
• Indigenous Research – AIATSIS Guidelines for
Ethical Research in Australian Indigenous
• Libraries: Aboriginal and Torres Strait Islander
Libraries and Research Network Protocols.
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Records: Deepening Histories of Place
Community Consent
Individual Consent
Recognises right of Knowledge holders and TK
communities to control the recording of cultural
customs and expressions, and the particular
language which may be intrinsic to cultural
identity, knowledge, skill and teaching of culture.
Copyright Consent
Access materials in
archives Consent
Individual Consent
Under 18
Deepening Histories of Place Project, Coordinated by National Film & Sound
Archive & Australian National University.
Research protocols: Kimberley Land Council
• KLC’s Research, Ethics and Access Committee developed an ICIP framework
including a research protocol, policy and contract for approved research on
• http://uploads.klc.org.au/2012/05/KLC_IP_TK_Policy_V1_final1.pdf
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Access and Use to Records subject to
community consultation and consent
Source: http://aiatsis.gov.au/sites/default/files/docs/collectionsand-library/access-and-use-policy-aiatsis-collection.pdf
Issues for return of materials
• Privacy
• People have passed away who to give materials to
• How the information will impact individuals and the
group (sensitivities)
• Digitisation and access by others
• Observation of cultural beliefs and customary laws
• Copyright
Intellectual Property & Native Title
Scenario – future publication #1
Betty, an anthropologist, was employed by the Cape East Land
Council to prepare a connection report for the Bilya Native Title
She interviewed Norma, a Bilya traditional owner, who provide
important cultural information.
She recorded Norma on her sound file and also filmed her on
country talking about plant knowledge.
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Intellectual Property & Native Title
Scenario – future publication #2
10 years later, Betty has left Cape East Land Council and is living in
Melbourne working at the university. Norma has passed on.
Betty publishes a book about Bilya culture using information she
gathered when doing the Bilya Native claim. She puts the sound file
on the university’s website, and uses the film of Norma in an
associated documentary. Norma’s family or the community don’t
know about the book or the film. The Cape East Land Council have
heard about it, but don’t have any resources to take up the issue.
What IP and ICIP issues arise?
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Intellectual Property & Native Title
Concluding Comments
• Who owns research?
– Legal copyright ownership
• Depends on the facts
• Look at copyright law to consider copyright ownership
• Is there a contract that says who owns copyright or gets license
• Bulun Bulun Fiduciary Duty
• Consider copyright ownership of collected materials
– Indigenous cultural and intellectual property ownership
• Art 31 UN DRIP: Indigenous people’s rights to protect, maintain and control
• ICIP protocols to recognise ICIP rights
• Use contracts, law and protocols to recognise ICIP
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Intellectual Property & Native Title
Thank you for listening
Contact us:
Terri Janke and Company
PO Box 780
Rosebery NSW 1445
Ph: 02 9693 2577
Email: terri@terrijanke.com.au