The 1989 UNESCO Recommendation and
Aboriginal and Torres Strait Islander Peoples'
Intellectual Property Rights

Submitted by
Commissioner Preston Thomas, representing
The Aboriginal and Torres Strait Islander Commission
Prepared by
Indigenous Cultural and Intellectual Property Task Force
Australia

Introduction

The 1989 UNESCO Recommendation is a document with high aspirations, one that presents an important opportunity to consider elaborating an international instrument to protect intangible cultural heritage. Depending on the way it is developed, and the eventual form it assumes, this type of instrument could also provide a basis for the development of national laws recognizing the rights of Indigenous peoples to control their cultural heritage. As yet these rights find relatively little expression in most jurisdictions.

This paper considers the 1989 Recommendation from the perspective of Australia’s Aboriginal and Torres Strait Islander peoples. It explores the potential of the current Recommendation to provide for the kinds of legislative reform that will be necessary for effective recognition and protection of the cultural and intellectual property rights of Indigenous Australians. A recent review of Indigenous cultural and intellectual property rights in Australia (in a comprehensive report-in-progress called Our Culture, Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights) indicates a need to consider wide-ranging reforms, including the introduction of sui generis laws.

The Aboriginal and Torres Strait Islander Commission (ATSIC) presented a paper to the Symposium on Traditional Knowledge held in Noumea, 15-19 February 1999, that outlined the work in progress – mostly drawing on the above-mentioned report Our Culture, Our Future -- to consider what reforms are necessary to provide better protection for Indigenous cultural and intellectual property rights.

The report Our Culture, Our Future and the summary presented to the Noumea symposium detailed some of the developments in Australia to protect Indigenous intellectual property rights. These include the development of an Authenticity Label to identify the community of origin for Indigenous artworks, and the consideration of reforms to copyright and other intellectual property laws. ATSIC is working closely with government interdepartmental committees to pursue these developments.

The present paper seeks to complement the one we presented to the Noumea symposium. It also builds on that paper to explore ways, based on the Australian experience, in which the 1989 Recommendation might be elaborated to accommodate some of the elements that are necessary to provide effective protection for Indigenous cultural and intellectual property rights.

In particular, ATSIC is keen to explore ways to develop a system that enables Aboriginal and Torres Strait Islander peoples to control decision-making in regard to the protection and uses of their cultural heritage, including its intangible components.

The discussion in this paper also seeks to reinforce the Indigenous views presented to the UNESCO-WIPO World Forum on the Protection of Folklore in Phuket, Thailand, 8-10 April 1997, and the UNESCO Symposium on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands held in Noumea, New Caledonia, 15-19 February 1999.

The Relationship between the 1989 Recommendation
and Other International Developments

The 1989 Recommendation is not an instrument specifically for Indigenous peoples. However, given that it offers the elements of an instrument that is focused on the protection of intangible cultural heritage and expressions (defined in the Recommendation as “folklore”) of peoples in general, Indigenous peoples clearly look to this development as an opportunity to produce an international instrument that can also protect their distinct rights in cultural heritage.

International instruments that provide for the protection of intangible cultural heritage are few. Rarer still are instruments that provide specifically for Indigenous peoples” heritage in the fullest sense. To consider how the UNESCO Recommendation might achieve this, the need to ensure consistency between the Recommendation and other developing international instruments and standards must be addressed. These instruments and standards include:

The further development of the UNESCO Recommendation should also have regard to the growing body of Indigenous statements such as the Mataatua Declaration.

Before providing comments on the Recommendation, it is useful to briefly review some of the characteristics of the cultural heritage of Aboriginal and Torres Strait Islander peoples.

Australian Indigenous Peoples” Traditional Culture

Indigenous culture is expressed in different ways. Australian Indigenous peoples have many and diverse cultures. These cultures comprise a living heritage, an evolving, adapting, and dynamic tradition, and they are expressed through a diverse array of forms. These include not only song, dance, story, and artistic expressions; they also include medicinal, therapeutic, and healing practices, food procurement and preparation, and the use of plants and animals for everyday life as well as for ceremonial and ritual purposes.

Indigenous culture is holistic: it does not separate tangible from intangible. To Australian Indigenous peoples, the distinction between tangible and intangible is a false one. Intangible heritage cannot exist without tangible heritage and vice versa. Both are integral parts of cultural heritage. Although the focus of the 1989 Recommendation is on the intangible component, it is critical to ensure that there is sufficient regard given to the interrelationships between intangible and tangible expressions.

What Is to Be Protected: “Intellectual Property,”
“Traditional Culture,” “Folklore,” or “Heritage”?

An important consideration in the Recommendation is the definition of the subject matter said to constitute “folklore,” especially the terminology used to do this.

Australian Indigenous peoples emphasize the interrelationships between their artistic expressions and their cultural knowledge relevant to the conservation and sustainable use of biological diversity. Some arguments support the use of the term Indigenous “intellectual property” to refer to all these elements of culture. According to a United Nations paper, Indigenous intellectual property comprises “(a) folklore and crafts, (b) biodiversity, and (c) Indigenous knowledge.” [1] Alternatively, as Erica-Irene Daes suggests, the term “cultural heritage” may be more appropriate. [2]

Is “Folklore” an Appropriate Term?

The term “folklore” derives from a European context and has also been adopted by some anthropologists who have applied it to developing nations such as those in Africa. The term has been used to refer to customs and traditions of village “folk.” The term as used in the UNESCO and WIPO discussions gives primacy to “artistic” expressions based in oral traditions and performances.

The use of this term is not appropriate to describe the living heritage of Indigenous peoples. It trivializes the significance that Indigenous peoples place on their intangible heritage as an integral part of their cosmology. It also places an unwarranted emphasis on artistic expressions to the detriment of the other elements of culture such as ecological knowledge and does not sufficiently emphasize the holistic nature of this heritage. [3] This paper will use the terms “cultural and intellectual property,” “cultural heritage,” and “cultural expressions” instead of “folklore.”

Also to be considered in elaborating standards to protect Indigenous intangible heritage is the importance of customary law. Indigenous customary law may be defined “both as a body of rules backed by sanctions and as a set of dispute resolution mechanisms." [4] A comprehensive report by the Australian Law Reform Commission in 1986 considered the extent to which the legal system might contemplate recognition of Aboriginal and Torres Strait Islander customary law. That report included a proposal for an Aboriginal Customary Laws (Recognition) Bill.

Since Indigenous cultural and intellectual property is defined, managed, and controlled in accordance with customary law, it may be argued that the development of effective standards should focus on recognizing and protecting customary laws in the first instance – on the assumption that recognition and protection of intangible heritage can flow from that as a consequence.

Aboriginal and Torres Strait Islander Peoples” Cultural Expressions

Based in oral transmission and sanctioned by customary codes, the control and management of Indigenous peoples” cultural expressions are determined by complex systems of group rights and interests that derive their authority from ancestral traditions rooted in an ancient cosmology known as the Dreaming. Flowing from the Dreaming, intricate knowledge systems link designs and images with cultural, ceremonial, and ritual performances. Knowledge of the locations, properties, and uses of flora and fauna, and the secret and sacred knowledge of sites, places, and objects vital to the maintenance and renewal of cosmology also form elements of these systems.

Exploitation of Indigenous Cultural and Intellectual Property

Maintaining the integrity of their cultural heritage is vital to Indigenous peoples” identity and self-determination. However, when the many and diverse expressions of cultural heritage are documented, recorded, or fixed in sound, film, or video recordings, art works, and published materials, they fall prey to misuse and exploitation. This presents a dilemma: the “fixation” of cultural expressions offers a means of preserving and creating awareness about them, but at the same time, it unfortunately creates opportunities for exploitation and unauthorized uses. There are increasing incidences of exploitation of all forms of Indigenous cultural heritage, including ecological and biological knowledge.

Among the ways and means of safeguarding cultural heritage, an instrument would need to provide effective measures to prevent misuse and exploitation. It is not sufficient, however, to prevent exploitation; there should also be effective measures to provide for compensation in cases where there has been exploitation and misuse, and appropriate mechanisms to enforce criminal or other sanctions where exploitation has occurred. Perhaps most important is the need for Indigenous peoples” control over their own cultural heritage.

Beyond Intellectual Property Laws: Towards a Sui Generis Approach

In the Australian legal context, much discussion about Indigenous intellectual property rights is conducted within a framework of existing intellectual property laws – particularly copyright. However, it is now commonly accepted that intellectual property laws do not offer a sufficient basis for the effective protection of full Indigenous rights in cultural heritage, including intangible components and traditional knowledge. Intellectual property laws do not protect the communal rights of Indigenous peoples, nor do they allow for protection in perpetuity. Intellectual property laws are based on individual rights and emphasize economic over cultural rights. These laws focus on a single, identifiable creator or author, whereas in Indigenous communities, rights and interests in intellectual creations are more diffuse. They are distributed and managed throughout the community in complex ways according to ritual, socio-political, familial, and affinal relationships.

Appropriate reforms to copyright, patent, trademark, and design laws must, of course, be vigorously pursued. Test cases pursued through the courts also provide an important avenue for extending the capacity for existing laws to protect Indigenous cultural and intellectual property rights. Possible reforms should be pursued through native title, land, heritage, and other laws as well as within copyright laws. However, the basis for an approach to protecting Indigenous cultural heritage in its fullest expression may best be pursued through the development of a sui generis system that empowers local communities and appropriate traditional groups to control decision-making about protection and use of their cultural and intellectual property. [5]

A sui generis system should provide for protection and for appropriately sanctioned uses of Indigenous cultural heritage. If elements of cultural heritage are authorized by the owners of this heritage for use by the wider community, there will need to be measures to provide for the equitable return of benefits to the group or community. This in turn will require an appropriate body to be identified or established that determines group rights in ownership and control over cultural heritage, and which decides the types and levels of benefit-sharing (or compensation) and how these are to be distributed within the group or community. A sui generis system will, therefore, need to establish administrative processes that can achieve these objectives. A possible structure might involve a series of cascading local and regional tribunals managed by a central administrative body. This notion is discussed further below.

Attempts at Recognition and Reform

There have been some attempts in Australia to address the problem of misuse and exploitation of Indigenous cultural heritage. A growing body of cases illustrates some of the ways in which the Australian legal system has sought to deal with notions of Indigenous rights in land, heritage, and culture. These are summarized in the Appendix. [6]

In addition, as noted earlier, the government is currently considering a report commissioned by ATSIC called Our Culture, Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights. ATSIC is working with the government through an interdepartmental committee to explore ways in which the many recommendations of that report might be implemented. Among the many areas being pursued to achieve better protection for Indigenous intellectual property is the development of a Label of Authenticity that will identify the community of origin for Indigenous works of art.

Although there is a growing body of court cases, decisions, reports, and inquiries, much of the discussion is contained within the framework of existing intellectual property laws. While many of these reports, inquiries, and court cases have – either implicitly or explicitly – drawn attention to the need to contemplate a new, sui generis approach, there have been very few attempts to design such an alternative system. In 1981, a Working Party established to explore this subject presented its report to the government. The 1981 Report of the Working Party on the Protection of Aboriginal Folklore proposed a new legislative system based on what it presented as an “Aboriginal Folklore Act.” The report acknowledged the problems in the use of the term “folklore,” but nonetheless proposed a model that offers some potential for use within the current debate.

The “Aboriginal Folklore Act” would establish a system for determining the control and use of “folklore.” This system would provide for an Aboriginal Folklore Board representative of Indigenous communities to advise the Minister and for a Commissioner for Aboriginal Folklore who would have responsibility for administering the system. [7] The report has not yet been implemented. [8]

The model proposed in that 1981 report remains, in our estimation, a useful basis for the design of an alternative to intellectual property rights systems. In the present-day context, however, such a centralized system may not be appropriate. The 1981 model could be adapted to provide for decentralized community decision making based on local group autonomy. It may be possible to conceive of a system of cascading tribunals at local and regional levels with a national administrative body. Existing structures and processes for administering land-rights and native-title laws could be explored for their capacity to provide the kind of control over decision-making for intellectual property advocated here. Copyright-type collecting societies could also be considered as possible structures for administering group rights in Indigenous cultural and intellectual property.

Concluding Suggestions: The 1989 Recommendation and Australian Indigenous Peoples” Cultural and Intellectual Property Rights

ATSIC recognizes that the 1989 UNESCO Recommendation is a document with high aspirations, and that, as such, any development of an enforceable instrument is likely to be a long way off. Notwithstanding this, and given both the complexities of establishing an effective system for recognition and protection of Indigenous intellectual property rights and the relatively slow pace of reform, it is important to grasp any opportunity that might arise to develop a global, sui generis approach to protect traditional culture. The Recommendation could be elaborated to grow from a predominantly copyright-based concept towards a model law for empowering communities to control their group rights in cultural and intellectual property, and a concept of “cultural heritage” as a holistic, complete system of intangible and tangible heritage. [9]

To achieve the kinds of protection and recognition of Indigenous rights outlined in this paper, the following revisions to the Recommendation are suggested.

  1. Elaborate and develop the Recommendation further as a Convention or other enforceable instrument.
  2. Include in that Convention or instrument obligations on signatory countries to implement it effectively.
  3. Replace the term “folklore” with a more appropriate term such as “cultural and intellectual property” or “cultural heritage.”
  4. Expand the definition of “folklore” to include traditional scientific and ecological knowledge relevant to natural and cultural resources and to traditional territory.

Suggestions for elaborating and strengthening copyright-related elements of the present text:

  1. Ensure that folklore is protected in perpetuity.
  2. Ensure that the protection of folklore does not require folklore to be in fixed form.
  3. Ensure that measures are incorporated to (a) prevent the intentional destruction or distortion of folklore, (b) prohibit wrongful attribution of the source of folklore material, and (c) provide protection for sacred and secret materials.
  4. Consider incorporating criminal sanctions for unlawful use of folklore and appropriate mechanisms to enforce such sanctions.
  5. Ensure consistency with existing copyright and other intellectual property laws.

Suggestions for potential development of the Recommendation as a sui generis model law for empowering community rights in intellectual and cultural property and traditional knowledge:

  1. Include provisions to establish an administrative structure.
  2. Include provisions to establish a competent authority to administer the instrument.
  3. Include provisions to monitor and report on progress in implementing the instrument.
  4. Provide a means to ensure an appropriate and equitable return of benefits to the owners of folklore resulting from its commercial use.
  5. Ensure that the protection of folklore does not in any way restrict its continued development – through customary or traditional uses and innovations – within the communities from which it originates.

Bibliography

Bell, Robin. 1985. Protection of Aboriginal Folklore: Or, Do They Dust Reports? Aboriginal Law Bulletin 17, reproduced from UNESCO Review 10:17-19.

Commonwealth of Australia. 1981. Report of the Working Party on the Protection of Aboriginal Folklore. Canberra: Department of Home Affairs and Environment.

Davis, Michael. 1996. Competing Knowledges: Indigenous Knowledge Systems and Western Scientific Discourses. Paper presented to Science and Other Knowledge Traditions Conference, 23-27 August, at James Cook University, Cairns, Australia.

Hardie, Martin. 1998. The Bulun Bulun Case. Indigenous Law Bulletin (November): 24-26.

Janke, Terri. 1997. UNESCO-WIPO World Forum on the Protection of Folklore. Art, Antiquity and Law 2(4):405-17.

MacDonald, Ian. 1997. Protecting Indigenous Intellectual Property Rights: A Copyright Perspective. Sydney: Australian Copyright Council (Discusses Bulun Bulun 1988).

McIntyre, Greg. Brief Summary of Mirriuwung-Gajerrong Decision. Native Title News 3(12):194-96.

Posey, Darrell, and Graham Dutfield. 1996. Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities. Ottawa: International Development Research Centre.

United Nations Economic and Social Council. 1992. Intellectual Property of Indigenous Peoples: Concise Report of the Secretary-General. E/CN.4/Sub.2/1992/30 (6 July 1992).

_____. 1993. Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples. By Erica-Irene Daes, Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations, E/CN.4/Sub.2/1993/28 (28 July 1993).

Weiner, Janice. 1987. Protection of Folklore: A Political and Legal Challenge. International Review of Industrial Property and Copyright Law 18 (1-6):57-92.

Appendix

Some Australian Cases Concerning Indigenous Land, Heritage and Culture

Foster v. Mountford 1976.

This decision upheld the rights of a community to prevent the publication of a book that included photographs and descriptions of secret ceremonies. The information in the book had been divulged in confidence to the author, and the book’s publication constituted a breach of that confidence.

Milirrpum v. Nabalco 1971.

This landmark case failed to uphold Aboriginal peoples” connections to land as proprietary rights, but it did accept Aboriginal customary law as a “system of law.”

Bulun Bulun 1988, Yumbulul v. Reserve Bank 1991, Milpurrurru v. Indofurn 1995, Bulun Bulun v. R & T Textiles, 3 Sept 1998.

These cases have generally extended the capacity for the Copyright Act 1968 to protect the interests of Indigenous artists. In the most recent of these, Bulun Bulun 1998, the decision linked intellectual property rights in art works to the rights of a group (such as a clan group) to claim copyright.

Mabo v. State of Queensland (No 2), 1992.

Known as the Mabo decision, this landmark decision recognized, within the common law of Australia, the existence of a system of Indigenous customary land tenure known as native title. It overturned the notion that Australia at the time of European occupation was a terra nullius, or unoccupied land. The precise nature of the content of native title – including whether this includes cultural and intellectual property rights – has yet to be tested (but see below regarding Ben Ward).

Ben Ward & Ors v. State of Western Australia, 24 Nov 1998.

This determination regarding native title upheld a number of rights, including, significantly, the right of the claimant group to control cultural knowledge. This case establishes a precedent for intellectual property related rights which flow from native title, or which are elements of the enjoyment of native-title rights. [10]

Notes



[1] United Nations Economic and Social Council, “Intellectual Property of Indigenous Peoples: Concise Report of the Secretary-General,” E/CN.4/Sub.2/1992/30, 6 July 1992.

[2] United Nations Economic and Social Council, “Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples,” by Erica-Irene Daes, Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities and Chairperson of the Working Group on Indigenous Populations, E/CN.4/Sub.2/1993/28, 28 July 1993, esp. p. 9.

[3] See, for example, Michael Davis, “Competing Knowledges: Indigenous Knowledge Systems and Western Scientific Discourses.” Paper presented at Science and Other Knowledge Traditions Conference, 23-27 August 1996, at James Cook University, Cairns.

[4] The Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No. 31 (Canberra: Australian Government Publishing Service, 1986) 32, citing Diane Bell.

[5] There is an extensive and growing body of works that explore this subject, but see, for example, Darrell Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (Ottawa: International Development Research Centre, 1996).

[6] For a summary of most of these see for example Ian MacDonald, Protecting Indigenous Intellectual Property Rights: A Copyright Perspective (Sydney: Australian Copyright Council, March 1997). For a discussion of Bulun Bulun 1998 see Martin Hardie, “The Bulun Bulun Case,” Indigenous Law Bulletin (November 1998):24-26.

[7] Commonwealth of Australia, Report of the Working Party on the Protection of Aboriginal Folklore, Department of Home Affairs and Environment, Canberra, December 1981.

[8] Robin Bell, “Protection of Aboriginal Folklore: Or, Do They Dust Reports?” Aboriginal Law Bulletin, December 1985 (reproduced from UNESCO Review 10 (1985):17-19.

[9] This section draws on Terri Janke, “UNESCO-WIPO World Forum on the Protection of Folklore,” Art, Antiquity and Law, vol. 2, issue 4 (December 1997): 05-17.

[10] For a brief summary of this case see Greg McIntyre, “Brief Summary of Mirriuwung-Gajerrong Decision,” Native Title News, 3 (12):194-96.