24 June Who owns research? Intellectual Property in Native Title Materials Terri Janke

1 2 3 Native title materials and Intellectual Property What is Indigenous Cultural and Intellectual Property (ICIP)? Ethical standards and protocols for IP management and ICIP recognition 2 Intellectual Property & Native Title Research

Anthropologists, Native Title Reports & Intellectual Property 1 3 Intellectual Property & Native Title Research

Collect information to form the opinion on connection Intermediaries Independent expert witnesses Terri Janke & Company 4 Intellectual Property & Native Title The role of anthropologists

Intellectual Property 5 Intellectual property protects products of the mind -economic rights -- limited in time.

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. Terri Janke & Company 6 Intellectual Property & Native Title Copyright basics

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. Terri Janke & Company 7 Intellectual Property & Native Title Copyright in sound recordings and films

70 years after the death of the author for works. 70 years after the publication, for subject matter other than works. Terri Janke & Company 8 Intellectual Property & Native Title Copyright duration

Creators have the moral rights of: – attribution – right against false attribution. – Right of Integrity. Terri Janke & Company 9 Intellectual Property & Native Title Moral rights

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 10

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. Terri Janke & Company 11 Intellectual Property & Native Title Confidential information: Case Study

What is Indigenous Cultural and Intellectual Property (ICIP)? 2 12 Intellectual Property & Native Title

Our Culture, Our Future 13 Indigenous cultural and intellectual property rights are Indigenous peoples rights to their cultural heritage. Intellectual Property & Native Title

14 Intellectual Property & Native Title

PrincipleICIP Rights Free prior informed consentRecognition of value of ICIP Self determination Cultural integrity Recognition as primary guardians and interpreters Protect against derogatory use Attribution Attribution and acknowledgement as source of the ICIP Individuals contributing and groups/clans who own TK Respecting cultural beliefs Uses according to customary laws, cultural practices eg: respect for restricted materials Benefit SharingFair payment for use of knowledge and cultural expression 15 Intellectual Property & Native Title

16 Intellectual Property & Native Title Intellectual PropertyIndigenous Cultural and Intellectual Property Expression protected Material form Styles or underlying theme important Oral and performance IndividualCommunal Economic rights – except for moral rights © Cultural rights Assignable rightsHanded down as cultural practice Limited in timeRights continue in perpetuity

Declaration on the Rights of Indigenous People 17 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. Intellectual Property & Native Title

World Intellectual Property Organisation (WIPO) 18 Inter-Government Committee on Intellectual Property and Genetic Resources, Traditional Cultural Expressions and Traditional Knowledge have drafted provisions. Intellectual Property & Native Title

Ethical standards and protocols for IP management and ICIP recognition 3 19 Intellectual Property & Native Title

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 publications….’ – Copyright clearances for audio and video recordings. Section 3.2: – Confidential information not to be revealed without consent. (3.2) Terri Janke & Company 20 Intellectual Property & Native Title Australian Anthropological Society Code of Ethics

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 communities. Protocols go beyond the law to respect Indigenous cultural differences. Protocols encourage ethical conduct and promote interaction based on good faith and mutual respect. 21

1.Respect 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 True Tracks Protocols 22 Intellectual Property & Native Title

Indigenous Research – AIATSIS Guidelines for Ethical Research in Australian Indigenous Studies. AIS.pdf AIS.pdf Libraries: Aboriginal and Torres Strait Islander Libraries and Research Network Protocols. Research protocols 23 Intellectual Property & Native Title

Records: Deepening Histories of Place Protocols Individual Consent Form Individual Consent Under 18 Copyright Consent Form Access materials in archives Consent Form Community Consent Form 24 Deepening Histories of Place Project, Coordinated by National Film & Sound Archive & Australian National University. 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. Intellectual Property & Native Title

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 ICIP. 25

Access and Use to Records subject to community consultation and consent 26 Source: and-library/access-and-use-policy-aiatsis-collection.pdf Intellectual Property & Native Title

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 27

Betty, an anthropologist, was employed by the Cape East Land Council to prepare a connection report for the Bilya Native Title claim. 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. Terri Janke & Company 28 Intellectual Property & Native Title Scenario – future publication #1

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? Terri Janke & Company 29 Intellectual Property & Native Title Scenario – future publication #2

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 Terri Janke & Company 30 Intellectual Property & Native Title Concluding Comments

Contact us: Terri Janke and Company PO Box 780 Rosebery NSW 1445 Ph: Thank you for listening Intellectual Property & Native Title