ALRC issues paper: Indigenous IP and copyright exceptions

Last week the Australian Law Reform Commission released their much-anticipated Issues Paper for the Inquiry into Copyright and the Digital Economy. The Paper, the first formal publication of the 18 month Inquiry, poses 55 questions for anyone and everyone using, creating, accessing (or trying to access) copyright content in the online age. The 55 questions cover a range of copyright issues, from internet activities, cloud computing and private copying to mash-ups and remixes, orphan works and use of content by cultural institutions, and invite thoughtful discussion as to how to best shape our future copyright framework.

Among the 55 questions raised in the ALRC issues paper, question 22 asks ‘what copyright issues may arise from the digitisation of Indigenous works by libraries and archives?’. This is something the ADA hasn’t focussed on too much in the past, and we thought we’d use the blog as an opportunity to look at the special considerations surround provision of access to and use of culturally significant works.

The use of indigenous works by Australian cultural institutions must be accompanied by careful consideration and consultation on a broader range of issues than copyright alone. Our members in the cultural sector have highlighted consideration of indigenous IP as part of their rights management workflows in day to day practices.

While recognition of indigenous intellectual property rights has been steadily increasing since the mid 1960s, it’s accepted by most commentators that traditional western intellectual property laws do not offer adequate protection to indigenous peoples in respect of their cultural output and artefacts. Issues of communal and community ownership and multiple layers of intellectual and creative input into a work are difficult to reconcile with ideas of individual property rights, and the limited duration of copyright (even at 70 years after death which can feel like an eternity!) ingrained in the western tradition. Tensions around commodification of indigenous intellectual property can run high, and there are countless examples of past exploitation. The issue also raises fascinating questions about the nature of cultural, and even national, identity.

The types of works that are included in indigenous intellectual property are as broad as the definition of ‘works’ in the act. It’s not just about Aboriginal art or artistic expressions, or even, more recently, patents in biodiversity resources. There are very important indigenous copyright considerations to be taken into account when dealing with recorded material, both past and present, such as films, photographs, and even written histories. Understandably, the goal of preserving indigenous cultures for future generations is hugely important. However, issues of ownership, access, and control are crucial considerations. Indigenous communities may not want to expose sensitive cultural material to the wider public. Even more care needs to be taken when one group of owners decide to provide greater access to a part of their cultural heritage, and another group with equal claim oppose this, as has happened earlier this year in relation to the Songlines project. IP Australia are currently undertaking consultation into further directions for the protection of indigenous intellectual property, and you can read an excellent response to their call for feedback by leading advocate in the field Terri Janke, and her intern, Peter Dawson here.

Libraries, archives, and cultural institutions, therefore, must consider more than just copyright law in making uses of indigenous material. This will largely involve consultation with communities, and there is now a strong tradition of protocols that augment the legal guidelines in the area. As Dr Jane Anderson reflected in 2005,

In recognizing that Indigenous cultural material is not all of one kind, and that there are a range of politics over who can speak for material, as well as who can access certain kinds of material, libraries and  archives have had  to invent certain processes that work as a compliment to current legislation. In some instances these processes contradict legal notions of fair use and  public domain, but the institution makes a decision in this regard on a case by case basis, and  this decision is informed  by ethical considerations in regards to the process of rebalancing rights of access and control to Indigenous people.

This means that even if an institution decides they may provide public access to an indigenous work through a specific library exception, fair dealing, or even because the material is in the public domain, they will engage in these further processes to obtain cultural clearance to use the work. Such considerations may even arise when an individual artist as the copyright holder in a work gives permission for use of the work, either by an institution, or commercially, but the wider community claims ownership of the cultural material contained in the work. In the case of Bulun Bulun v R & T Textiles the court recognised that an artist owes a fiduciary obligation to his or her clan to ensure that work was used consistently with customary obligations.

At the same time as western copyright law must be augmented to ensure that indigenous intellectual property and cultural rights are respected by cultural and collecting institutions, its failure to adapt to the digital age can also create difficulties for indigenous communities wishing to access their cultural heritage. With the remoteness of many indigenous communities, digitisation is and will be the primary way that these communities can access material that relates to their cultural heritage. The rollout of the NBN will mean that remote and rural communities will have better access to the internet than ever before. As the current Act sits, however, it is very unclear that the current libraries and archives exceptions and even the educational exceptions would facilitate any larger scale digitisation to provide online access to indigenous cultural material held in library and archival collections, even once the institution has consulted with the community and is following protocols. 

The ADA is pleased to see that the ALRC issues paper specifically addresses these issues, and we look forward to learning more about our members’ experiences in this area through consultation over the next months. 

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