By Aisha Collins
In the 2019-2020 financial year, international tourists visiting Australia spent more than $78 million on Indigenous-style artwork [1]. A draft report on Aboriginal and Torres Strait Islander Visual Arts and Crafts, developed in response to the 2018 Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples, found that up to 75% of Indigenous-style products sold in Australia are fake[2]. Inauthentic Indigenous-style arts, imagery and consumer products that are sold with no connection to Aboriginal and Torres Strait Islander creators results in both direct and indirect economic, cultural, and social harm to Indigenous peoples and communities. These products disrespect and misrepresent culture [3], and deprive Aboriginal and Torres Strait Islander artists of income by misleading customers and undermining public confidence in the market.
Despite a number of proposed international frameworks drafted to encourage Indigenous Cultural and Intellectual Property (ICIP) protections within existing Intellectual Property (IP) frameworks, Australian IP laws remain limited when it comes to protecting Indigenous ICIP. A dissonance between colonial perceptions of property and ownership with Indigenous understandings of custodianship and shared cultural responsibility has been regarded as a significant limitation to the scope of protection available for ICIP in Australia. These gaps mean that unless Aboriginal and Torres Strait Islander people can fulfil the requirements of the colonial Intellectual Property regime, such as copyright law, their ICIP rights are unprotected and vulnerable to exploitation.
It would be remiss, however, to assume that cultural dissonance remains the only roadblock to incorporating comprehensive ICIP protections within Australia’s IP regime. The need to protect Indigenous knowledge and cultural expressions is an imperative being faced by jurisdictions across the world, as globalisation renders ICIP more and more vulnerable to commercial exploitation and appropriation. As we will see through exploring Kenya’s IP regime, incorporating concepts of communal and perpetual custodianship is neither unheard of, nor impossible. It therefore remains that, in a tale as old as colonisation, the problem lies with the absence of sufficient attempt to reconcile Australia’s legal regimes to be inclusive of such concepts.
But first: What is ICIP?
ICIP is a multifaceted concept encapsulating Traditional Knowledge (TK) [4], Traditional Cultural Expression (TCE), and “all resources and knowledge systems developed by First Nations peoples as part of their identity, law, lore and culture” [5]. TCE can further be defined as “any form of artistic and literary expression, tangible and/or intangible, in which traditional culture and knowledge are embodied” [6]. Various international organisations, including WIPO and UNESCO, have recognized the importance of protecting ICIP. Subject to the respective IP regimes of different jurisdictions, ICIP is offered a certain degree of protection under areas of IP law including Copyright, Performer’s Right, Patent Right and sui generis IP laws.
Protections available to ICIP through Australian copyright law.
When seeking to protect ICIP through copyright law, many deficiencies within Australia’s current IP regime have become apparent. Issues arise regarding concepts of collective ownership and authorship, the copyright law requirement of originality and an identifiable author, as well as requirements for IP to be expressed in a material form and the limited duration of protection copyright offers. Each of these copyright law concepts will now briefly be explored in turn:
A. Ownership
In conventional intellectual property regimes, copyright is vested in the individual owner of the IP. Copyright is a proprietary right which affords holders the right not to exploit their materials, and is thereby something that can also be traded. There is a presumption held within contemporary IP regimes that Copyright will be infringed, providing a means through which the copyright owner can receive returns and compensation for their creation(s) [7]. As such, the likely exploitation of this copyright serves as a motivation for establishing IP rights in and of itself. This does not so much offer proactive protection to prevent IP from being misappropriated, but allows copyright holders to access compensation once it has been. Not only might this vesting of copyright in an identifiable author be incompatible with Indigenous notions of community-vested custodianship of TK[8], but we can also see how this assumed motivation for seeking copyright protection is at odds with a desire to protect ICIP from being exploited in the first place.
In John Bulun Bulun & Anor v. R & T Textiles Pty Ltd (1998) (Bulun Bulun), Von Doussa J explored that s35(2) of the Copyright Act 1968 (Cth) (‘the Act’) “effectively precludes” any notion of group ownership of IP for an artistic work if the group does not accord with the definition of “joint ownership” per s10(1) of the Act [9], which is insufficient to accommodate communal custodianship of Indigenous holders of TK. Further, the court seemed aware of its own inability to reconcile the colonial law with what it recognised as obligations Mr Bulun Bulun owed to the Ganalbingu people under traditional custom, which could only be recognised as a “fiduciary responsibility” to protect the Traditional Knowledge he expressed in his artistic work, as opposed to binding law.
B. Duration, authorship, and originality
The inability of Australia’s current IP regime to recognise a community-vested IP right is directly tied to another issue undermining the protection of ICIP – the duration of Copyright. While there is some variation depending on the type of work, copyright in Australia generally lasts 70 years after the death of the creator, or after the first year of publication[10]. There are no current means endorsed by the court to grant perpetual copyright protection, which would recognise the enduring nature of ICIP. The requirement of an identifiable author to qualify for copyright also presents fundamental challenges for protecting ICIP, as TK and TCE are communally and continually developed, and the pool of contributors to this ICIP predate any requirement to identify creators under present colonial law. Identifiable authorship is therefore a difficult threshold to meet for TCE in Indigenous communities world-wide[11]. For many of the same reasons, the copyright law requirements for the novelty and originality of a work in order to qualify for protection are equally challenging.
C. Material form requirement – the Expression / Idea Dichotomy
The material form requirement dictates that only specific expressions of ideas in the form of a material work will be protected as IP, rather than the idea itself. This dichotomy is a foundational tenet of copyright law, but severely limits the capacity for ICIP to be eligible for protection. TK that has been cultivated and communicated through oral traditions will thereby not be eligible for protection under copyright law [12]. Conversely, as was the case in Bulun Bulun, TK expressed visually through artwork will be protected under copyright law. However, it is the individual artist who will be vested with the copyright, rather than a collective legal recognition offered to all custodians of the knowledge expressed in the artwork. Another implication of this material form requirement is that non-Indigenous people are able to commercially exploit TCE and Indigenous art styles to produce their own art, which will in turn be eligible for protection under copyright as original works [13], despite misappropriating the ICIP of Aboriginal and Torres Strait Islander peoples.
IP regime in Australia: conclusion
The current Australian IP regime remains inadequate to provide protection for Indigenous knowledge and cultural practices. In particular, the facets of Australian copyright law which render it ill-suited to protect ICIP include the material form and originality requirements, as well as the lack of recognition of the perpetual and communally-vested nature of ICIP. In the absence of a top-down legislative approach to protecting ICIP, the onus of protecting Indigenous knowledge and cultural expressions is largely being fronted as a non-enforceable endeavour by individual organisations[14]. In 2022 the Australian Government conducted a study exploring the potential of stand-alone legislation to offer protection to Indigenous Knowledge[15]. The study concluded that both Indigenous and non-Indigenous stakeholders consulted during the study expressed support for stand-alone legislation to better adapt Australia’s IP regime to protect ICIP. While this remains a potential next step, indication of an intent to implement such legislation is yet to be seen from the government.
Protections available to ICIP in Kenya
On the other hand, and on the other side of the world, Kenya is miles ahead of Australia when it comes to incorporating legislative protections for ICIP. At a regional scale in Africa, The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (‘the Swakopmund Protocol’)[16], within the framework of the African Regional Intellectual Property Organisation, has been used alongside international IP model laws as a basis for policy and legislation protecting TK and TCE.
The Swakopmund protocol recognises the need to protect TK for the preservation of traditional culture, and cites the protection of TK custodians from the infringement of their IP rights, and the prevention of misappropriation and unlawful exploitation of ICIP as its’ primary purpose. While several African countries have enacted legislation adhering to some components of this protocol [17], Kenya remains the only country in Africa to have adopted a specific IP regime on TK and TCE [18].
An amendment to the Kenyan constitution in the wake of the Swakopmund Protocol requires the state to protect the IP rights of the TK custodians in Kenya.[19] Stemming from this constitutional obligation, the National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions (‘the Kenyan Policy’) was adopted by the government in 2009 [20], establishing a sui generis (unique, or ‘of its own kind’) IP regime wherein TK and TCE are afforded more protection.
The Kenyan Policy was largely driven by the misappropriation of TCE and TK held by the Maasai people of Kenya and Tanzania [21]. After TK of the Maasai were used to develop successful foreign shoe brands using “Maasai barefoot technology”[22], the Maasai people pioneered the national IP policy shift in Kenya by advocating for a right to receive returns from products marketed with their name and image. This resulted in the creation of the Maasai Intellectual Property Initiative Trust (MIPIT), the body responsible for representing the interests of Maasai TK and TCE in legal procedures involving IP [23].
Introducing protections for TK and TCE through the Kenyan Policy largely necessitated a setting aside of the criteria previously used to justify protection under the conventional IP system. S6 of the Kenyan Policy provides for instances where IP protection will extend to TK, including criteria that the TK is “either individually or collectively generated [24], is distinctly associated with or belongs to a community [25], and is integral to the cultural identity of a community that is recognized as holding the knowledge through a form of custodianship [26]”.
This sui generis approach can be seen to be at odds with contemporary notions of the requirements for ownership and identifiable authorship that we see in the Australian IP regime. Additionally, the Kenyan Policy also confronts the incompatibility of traditional IP regimes with fixed term protection, extending the duration of protection offered to TK and TCE to be perpetual, as long as the criteria provided for in s6 of the act qualifying the TK and TCE for protection remain intact [27]. In this sense, Kenya’s IP regime provides both proactive and reactive protection to ICIP.
Additionally, anyone seeking to use TCE from an Indigenous group or community in Kenya for commercial purposes is required to first obtain the authority to do so from the Kenya Copyright Board [28]. This prevents non-Indigenous people or outsiders from the community from appropriating the TK which, as a result of not satisfying the material form requirement of Kenya’s IP regime, may not otherwise be protected by copyright. This protective approach empowers Indigenous communities to promote and control the way their TK is used and prevents people outside of the community from acquiring IP rights over TK and TCE[29].
In this way, the IP policy adopted by Kenya protects Indigenous groups, such as the Maasai, from exploitation. It also provides for a degree of self-determination, empowering Indigenous communities to control and govern the use of their ICIP by establishing a new IP right that can be vested in the community, as opposed to the individual.
IP regimes in Australia and Kenya: conclusion.
The current IP regime in Kenya models a proactive approach to safeguarding ICIP, while retaining the aspects of a contemporary IP regime that allows ICIP holders to profit and receive returns when their TK and TCE is used commercially. This can be contrasted with Australia’s IP regime which, under copyright law, provides only reactive protection to ICIP. Even once ICIP has been misappropriated or misused, custodians of TK and TCE in Australia face significant roadblocks to receiving copyright protection which would allow them to profit from the use of their ICIP.
In their 2022 study into the exploitation of ICIP, the Australian Government identified
a need to implement legislation reforming our IP regime to protect the knowledge of our continent’s First Peoples. Kenya’s example provides a valuable starting point. Expanding our legal understanding of authorship to be inclusive of the enduring and community-vested nature of Indigenous Knowledge is one valuable lesson Australia can learn from Kenya’s approach; which would help to address the difficulties faced when trying to satisfy the identifiable author requirement for copyright protection. Australia could also follow Kenya’s example of implementing a protective approval granting process for ‘Indigenous style’ art and consumer products through consultation with the custodians of this ICIP. This would prevent the exploitation of TK and TCE by non-Indigenous creators, even in instances where ICIP is not granted copyright protection as a result of not meeting the material form requirement.
There’s many things Australia could do to protect Aboriginal and Torres Strait Islander creators and communities from having their traditional knowledge and cultural expressions exploited and misappropriated. Now that the need for reforming our IP regime to do so has been recognised, this author is of the opinion that the remaining question is not ‘what is there to be done?’, but ‘what are we waiting for?’.
Endnotes
Australian Government Productivity Commission. (2022) Aboriginal and Torres Strait Islander visual arts and crafts - Study report.
House of Representatives Standing Committee on Indigenous Affairs. (2018) Report on the impact of inauthentic art and craft in the style of First Nations peoples.
Ibid.
As defined by Word Intellectual Property Organisation (WIPO). https://www.wipo.int/tk/en/folklore/.
Ibid.
Kearney, Jean, Aurora Intern, and Janke, Terri, 2018, Rights to Culture: Indigenous Culture and Intellectual Property (ICIP), Copyright and Protocols
Githaiga, Joseph, "Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge" [1998] MurdochUeJlLaw 13; (1998) 5(2) Murdoch University Electronic Journal of Law
Puri, Kamal, "Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action"(1995) Intellectual Property Journal, 293, p310.
Hardie, Martin, The Bulun Bulun Case: John Bulun Bulun & Anor v. R & T Textiles Pty Ltd (1998). 4(16) Indigenous Law Bulletin 24, 1998.
Copyright Act 1968 (cth), S 33.
Mogos, Abiyot. 2021. “REVITILIZING INTELLECTUAL PROPERTY RIGHT PROTECTION FOR TRADITIONAL KNOWLEDGE AND CULTURAL EXPRESSION IN ETHIOPIA: A LESSON FROM KENYA.” Oromia Law Journal 10 (1): 120-159.
Puri, Kamal, N8 p315.
Gray, Stephen, "Aboriginal Designs and Copyright: Can the Australian Common Law expand to meet Aboriginal Demands?", (1991) 9 (4) Copyright Reporter, 8, at 15.
Melbourne University, “How to protect Indigenous Knowledge and creative IP from exploitation”, 2023. available at;https://study.unimelb.edu.au/study-with-us/professional-development/blog/how-to-protect-indigenous-knowledge-and-creative-ip-from-exploitation.
Delwyn Everard, Boyd Blackwell and Tim Acker, commissioned by IP Australia: Scoping study on standalone legislation to protect and commercialise Indigenous knowledge, 2022.
SWAKOPMUND PROTOCOL ON THE PROTECTION OF TRADITIONAL KNOWLEDGE AND EXPRESSIONS OF FOLKLORE, ARIPO Swakopmund, Namibia 2010.
Paul K. Challenges in the African Region to Protecting Traditional Knowledge, Genetic Resources and Folklore, available at: https://communitylegalresources. files. wordpress.com/2014/04/challenges-in-the-african-region-to-protecting-traditional-knowledge.pdf
Ibid.
The Constitution of Kenya, 2010 (n18) art 69(1)(c) & (e).
National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, Government of Kenya, July 2009. (The Kenyan Policy).
n19, art 11(3)(a),
Brindle, M, & Florman, N, ‘The Maasai Intellectual Property Initiative: a 20th-century model for turning assets into income’. Journal of Fair Trade, 2(2), 2021, 5–12.
Ibid.
The Kenyan Policy, n20, S6 (b).
Ibid, S6 (C).
Ibid, S6 (D).
The Kenyan Policy, n20, Arts 13 & 17.
Kenya Copyright Board, ‘A Guide to Copyright In Kenya’, p 9, available at: https://copyright.go.ke/sites/default/files/downloads/A%20Guide%20to%20Copyright%20in%20Kenya%202018%202PRESS0.pdf
The Kenyan Policy, n20, Art 8.
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