Protection of Traditional Culture and Folklore
Professor of Law
University of Queensland
From our point of view, we say – you have come as invaders, you have tried to destroy our culture, you have built your fortunes upon the lands and bodies of our people, and now . . . want a share in picking out the bones of what you regard as a dead past. We say it is our past, our culture and heritage and forms part of our present life. As such it is ours to share on our terms.
Copyright law is believed to offer important protection for the rights of Indigenous peoples. Yet as this short paper will demonstrate, a significant amount of Indigenous cultural material and folklore does not meet the criteria for Australia’s intellectual property laws.
Protection of folklore is necessary to ensure the lasting survival of Indigenous people. Folklore helps Indigenous communities to preserve their cultural identity and pride. Folklore also functions as social cement to help maintain cultural identity and cohesion.
Folklore embraces conceptual and creative aspects: customs, songs, pageantry, traditional visual designs and crafts, myths, legends, languages, body painting, rock painting, ground painting, music, drama, dance, religious ceremonies, rituals, technical skill, architecture, and herbal and medicinal knowledge.Meaning of Folklore
Folklore is tradition-based and reflects Indigenous communities’ cultural and social identity. It manifests the collective wisdom and culture of Indigenous peoples. It is usually imparted orally, visually, by imitation, or in performance. Another notable feature of folklore is that it is living heritage and it evolves continuously. "Folk" refers to a group of people unified by a linking factor such as common occupation, language, or religion, who possess their own unique traditions. "Lore" refers to a body of traditional facts or beliefs; it includes doctrines, precepts, and ordinances.
There is a wide-scale reproduction and imitation of Aboriginal designs by non-Aboriginal commercial interests. This raises serious concerns among Aboriginal people regarding the potential loss of authenticity and homogeneity of their works.
Non-exclusive rights are a peculiar feature of Aboriginal customary law that is not readily compatible with the Western notion of exclusive rights under the copyright system. Copyright law is founded on the underlying premise of individual property rights and individual creativity. Western culture extols the value of the individual above and beyond that of the benefit derived from the collective good. In contrast, a clan or group framework operates in Aboriginal society to govern social and legal relationships.
Aboriginal people fear that unfettered and prolonged appropriation of their unique artistic styles and customary traits will eventually lead to destruction and/or debasement of their culture.Protection of Economic Interests
Use of Aboriginal designs by non-Aboriginal entrepreneurs is widely prevalent in art and the tourist industry. Domestic and foreign tourists crave to acquire Aboriginal paintings, artifacts, music, etc. Naturally, Aboriginal communities from whom these works emanate expect prior authorization and compensation.Appropriate Protection
Three factors seem to limit the efficacy of the current copyright system to provide adequate protection to Aboriginal cultural and intellectual property rights. First, there is the requirement of originality – the work must originate from the author and not be copied from another work. However, in the case of Aboriginal art, the work’s value lies not in its originality or individuality but in its conformity to tradition.  Second, under the copyright law, a work must exist in writing or some other material form in order to be protected by copyright. However, many Aboriginal works exist in the oral tradition, and hence it is not possible to give them a fixed form. Finally, the term of copyright protection poses a problem because most Aboriginal works are very old and are therefore considered to have fallen in the free-for-all basket, i.e., the public domain.
Current Legal Protection
The Copyright Act 1968 (Australia) confers exclusive proprietary rights. Basically, it upholds individual ownership. The Act confers purely economic rights. As yet, the law confers no moral-rights protection. While the Act does not discriminate against Aboriginal works, the latter fall outside the parameters of copyright as currently defined. For example, the Act does not protect cultural material such as rock art and works that are not in material form, e.g., body or sand painting.Judicial Recognition of Aboriginal Customary Laws
Foster v. Mountford
This case involved sale of a book written by anthropologist Dr. Mountford. The book contained an Aboriginal group's sacred knowledge divulged to the anthropologist thirty-five years ago by tribal leaders. The court banned the book because the publication was considered to have been in breach of confidence.
Bulun Bulun v. Nejlam Investments and Others 
This was the first high-profile copyright action involving reproduction of an Aboriginal artist's painting on T-shirts. The case was settled out of court for $150,000, thus sending warning signals to the commercial world that Indigenous works in traditional styles may qualify for protection under the Australian copyright law.
Yumbulul v. Aboriginal Artists Agency Ltd. 
This case involved alleged reproduction of an Aboriginal art work, Morning Star Pole, on $10 currency notes by the Reserve Bank of Australia. The action against the Reserve Bank was settled by agreement. However, the action against the agent who had acted for the Aboriginal artist was unsuccessful because the judge refused to accept that the artist had misunderstood the nature of the document he had signed giving permission for the reproduction of his design. Be that as it may, this decision marked an important judicial milestone in the application of the Copyright Act 1968 to Indigenous artistic works. The court accepted that the Pole was an original artistic work in which copyright subsisted, and that the Aboriginal artist was the owner of the copyright in it. The Federal Court's dicta also pointed to the need to recognize Aboriginal customary law dealing with ancestral designs, especially notions of communal ownership. As noted by one commentator, the proceedings did much to stimulate the debate about appropriate protection for Aboriginal art, especially the inadequacies that exist in the law. 
Bancroft v. Dolina Fashion Group Pty. Ltd. 
This case involved dresses with an "Aboriginal look." The print supplied by the fabric maker was allegedly a direct copy of an Aboriginal painting. The case was settled out of court. The defendant destroyed the remaining stock of the fabric.
Mabo v. State of Queensland (No. 2) 
In this path-breaking decision, the High Court of Australia recognized that, under Australian common law, Indigenous rights in land survived European occupation unless the Crown had made an express appropriation of those rights. This decision can be interpreted and extended to encompass intellectual property rights on the same footing as land rights.  Arguably, this recognition of customary law has added much impetus to the concept of a separate body of copyright law that recognizes the unique position of Australia’s Aboriginal people within a different construct. As one commentator points out:
If the interests of Aboriginal artists are recognised on the terms of Aboriginal law, rather than only when they fit within the alien legal categories of the Anglo-Australian legal system, then an important step will have been taken towards a reconciliation between the “enlightenment” and the “dreaming” traditions which co-exist on the Australian continent. 
Milpurrurru v. Indofurn Pty. Ltd. and Others 
This decision has been referred to as the "Mini-Mabo" for intellectual property rights. The case involved reproduction of artistic works on carpets. The court held that the unauthorized reproduction caused a breach of copyright. More importantly, customary Aboriginal laws were taken into account in quantifying the damages, which had been suffered. This decision demonstrated a sensitive and flexible approach of the court:
The court recognized the difficulty in applying the Western copyright regime to Indigenous peoples. This litigation brought to the fore the fact that the Western legal system and the Aboriginal customary laws are two conflicting legal systems. The latter emphasize group ownership and community involvement in decision-making, whereas the Anglo-Saxon legal system focuses on individual ownership and personal rights.
Bulun Bulun and Another v. R & T Textiles Pty. Ltd.
In this case, the elders of the Ganalbingu people from Arnhem Land in the Northern Territory tried unsuccessfully to have communal title in their ritual knowledge and art work recognized and protected by the Australian law. The Federal Court held that the copyright law did not confer group ownership or communal title in an artistic work. However, the judge stated that there was a fiduciary relationship between the artist (Bulun Bulun) and his people, which gave rise to fiduciary obligations on the part of the artist. This finding was based on the obligations of the artist under the laws and customs of the Ganalbingu people. But this did not mean that the Aboriginal laws and customs were part of the Australian law. What it meant was that the Australian legal system treated Aboriginal laws and customs as part of the “factual matrix” which characterized the relationship as one of mutual trust and confidence.
Viability of Copyright Protection
A prerequisite for copyright is that a work must be original. Yet many Indigenous artists draw upon their cultural heritage by painting pre-existing clan designs, which have been handed down for generations. Again, for copyright to vest under the Copyright Act, there must be an identifiable author. Yet because of the nature of Indigenous cultural expressions, such a person is not easily identified and, therefore, cannot be protected. These requirements of authorship and ownership under the copyright system are thus incompatible with group or collective ownership.
The “originality” requirement is another barrier. Folklore draws upon pre-existing tradition: sacred restricted ancestral designs must be replicated precisely. By the copyright yardstick, the condition of originality is not met. However, note that in Yumbulul,  originality was acknowledged explicitly: "there is no doubt that the pole was an original artistic work.”
To obtain copyright protection, the work must be recorded or written in a permanent or tangible form; non-permanent forms of cultural expression, such as dance, song, and the performance of a story do not meet the requirement. Consequently, oral tradition is not protected, and the Indigenous community can only seek protection against the reproduction of that oral tradition through the breach of confidence action. Furthermore, once the oral tradition has been formulated into a material form, the author then gains exclusive rights under the Copyright Act 1968 regardless of whether or not the author is an Indigenous person or comes from the Indigenous community. What's more, copyright law does not recognize the Indigenous customary rules which restrain reproduction of Indigenous arts and cultural materials. Since folklore exists practically in collective and individual memories, it does not have any material form. Copyright protects the form and not the substance, so traditional themes and artistic styles and techniques may not get protection.
Duration of protection under the copyright system is grossly inadequate. Ancestral designs are intrinsically perpetual in nature.
The Designs Act 1906 also offers only limited protection for Indigenous cultural and intellectual property rights because (i) traditional rights to Indigenous designs are perpetual; (ii) design protection is for commercial interests; (iii) Indigenous law is concerned with communal rights rather than individual ownership, and (iv) the costs of protecting all designs belonging to an Indigenous community would be too great.
Indigenous knowledge regarding scientific, pharmaceutical, and agricultural processes and products is generally unpatentable because under the Patent Act 1990, there are stringent requirements regarding novelty and inventive ingenuity that have to be met. Furthermore, the invention would not be considered novel due to the need for a prior art base; the invention must involve an inventive step when compared with the art base; and the high cost of patenting, around A$14,000, would often exclude Indigenous communities.
Indigenous peoples are able to register their Indigenous words, symbols, and motifs under the Trade Marks Act 1995. Yet many Indigenous communities would be loath to do so because the trademark applies to the registered owner, who has monopoly control, not the collective group.
In addition, the Cultural Heritage Act is generally inadequate because it does not recognize many rights Indigenous people consider important in maintaining their culture. This is firstly because the focus of cultural heritage laws is on tangible material, such as objects, sites, and areas. Intangible materials, such as stories, dreaming tracks, and songs, are not protected. Secondly, the focus is on historical and scientific value rather than cultural and spiritual value. Thirdly, past heritage is considered more important to protect than living heritage. Lastly, the Indigenous participation in the decision-making process is usually limited; a government minister usually decides when to act to protect. However, there has recently been a turnaround concerning the focus of Indigenous cultural heritage legislation, with the development of cultural heritage agreements and the restoration of fishing, hunting, and gathering rights in some states and territories.
While the Australian Constitution allows the Commonwealth to make special laws with respect to people of race, the copyright law is not always appropriate to protecting Indigenous rights because of its focus on economic and individual rights rather than on communal and personal rights. The Australian legal system appears not to recognize communal ownership and instead focuses on individual ownership. Most countries throughout the world also focus on individual rather than communal ownership, resulting in an unequal representation of Indigenous peoples with regards to copyright laws.
Currently, a few measures directed at Indigenous cultural and intellectual property rights protection are being formulated on an administrative and management level. These include setting up a collecting society for collecting royalties for Indigenous artists and creators, funding a national label of authenticity for Indigenous art, and developing material transfer agreements and bio-prospecting licenses. Other protocols and guidelines recently adopted by the Commonwealth include self-determination for the return of Indigenous ancestral remains and sacred objects. Likewise, museums have implemented guidelines and protocols for the digitization of Indigenous objects.
Protection of Intangible Cultural Heritage
UNESCO’s Convention Concerning the Protection of the World Cultural and Natural Heritage of 1972 divided cultural heritage into monuments, protected buildings, and protected cultural sites, with the overall criterion for protection being “outstanding universal value.” However, this preoccupation with the protection of physical things has meant that no thought is being given to the protection of intangible cultural heritage. It is therefore heartening to note that the recent report of the Australian Copyright Law Review Committee on the Simplification of the Copyright Act 1968 has recommended abolition the requirement of “material form” in copyrightable subject matter.
Proposal for Reform
The Australian Working Party of 1981 recommended a special legislation, Aboriginal Folklore Act, which should provide for the following:
The report suggested a mechanism for the examination by the Aboriginal Folklore Board of proposed uses of items of folklore by non-customary users on a case-by-case basis. These recommendations have been collecting dust.
In most parts of the world, there are no specific laws to protect traditional knowledge and expressions of Indigenous culture. Consequently, almost all Indigenous communities have been forced to become secretive and, where possible, to turn to traditional customary laws to safeguard their culture and knowledge from indiscriminate exploitation and subjugation by the dominant Western culture. It is strongly recommended that UNESCO should rally behind Indigenous peoples of the world by adopting a common approach so that their special needs could be represented at domestic, regional, and international levels.
As this brief paper indicates, appropriation of traditional knowledge and expressions of Indigenous cultures is rapidly reaching pandemic proportions. There is a wide dissemination of Indigenous cultural expressions without authorization and recompense to the traditional owners. Also, with the gradual establishment of museums and cultural centers and increased public awareness, there are serious issues emerging which involve repatriation of cultural objects. While on the one hand, easy access to modern technology (e.g., television, computers) has made Indigenous communities more aware of their cultural heritage and traditional knowledge, on the other, the same technology has accelerated the means by which non-Indigenous users can appropriate cultural items and traditional knowledge for commercial exploitation (e.g., digitization of traditional images). Another area of great concern is Indigenous knowledge of plants and medical treatments. Examples abound of cases where plants from the Indigenous societies are being patented by multinational enterprises and marketed as pharmaceuticals. Many of these plants have enormous emotional and economic importance for Indigenous peoples including use for ceremonies, healing, and traditional farming.
In sum, the current intellectual-property regime is unsuited to give adequate protection to traditional knowledge and expressions of Indigenous culture because it focuses on individual rather than communal rights. Moreover, the primary, if not the sole, objective of the Western intellectual property system is to protect economic rather than cultural interests. As one commentator has put it succinctly: "European law is based on the individual." 
Furthermore, the copyright mould does not fit the traditional works well because of their antiquity. In any case, until recently, there was a tendency to trivialize the expressions of Indigenous culture (e.g., Aboriginal art, music, dance, and myths), perhaps a carry-over of the colonization era. The culture of denigrating Indigenous customs and traditions presumably on the ground that they did not match with the modern "civilized" societies’ values and standards meant that no thought was given to accommodating the needs and aspirations of Indigenous creativity. I believe that this notion is reflected in the TRIPS Agreement, which is completely oblivious to protection of Indigenous cultural knowledge and resources.
 Ros Langford, “Our Heritage – Your Playground” (1983) 16 Australian Archaeology 1 at 6.
 See C. O’Brien, “Protecting Secret Sacred Designs – Indigenous Culture and Intellectual Property Law” (1997) 2 Media and Arts Law Review 57 at 65.
(1976) 29 FLR 233.
 Unreported, Federal Court of Australia, Darwin (NTG 3 of 1989).
 (1991) 21 IPR 481.
 C.Golvan, “Aboriginal Art and the Protection of Indigenous Cultural Rights” (1992) 56 Aboriginal Law Bulletin 5 at 7.
 (Unreported, Federal Court of Australia, 12 December 1991).
 (1992) 66 ALJR 408.
See further, K. Puri, “Copyright Protection for Australian Aborigines in the Light of Mabo” in Stephenson and Ratnapala (eds.), Mabo: A Judicial Revolution (University of Queensland Press, 1993) at 132.
 S. Gray, “Enlightenment or Dreaming? Attempting to reconcile Aboriginal Art and European Law”  Law Institute Journal 47.
 (1994) 30 IPR 209.
 (1998) 41 IPR 513.
 Yumbulul v. Aboriginal Artists Agency Ltd., note 6, above.
A. Seeger, in Borrowed Power: Essays on Cultural Appropriation (eds. B. Ziff and P. Rao (Rutgers University Press, New Jersey, 1997) at 55.p