Samantha Josephwas a solicitor at Arts Law from January 2004 to September 2006. Erin Mackay was a law student at the University of New South Wales who completed a placement program at Arts Law.
The Commonwealth Government has recently said it will introduce a Copyright Amendment (Indigenous Communal Moral Rights) Bill (ICMR Bill). Currently, there is no legal protection afforded to Indigenous communities to prevent unauthorised and derogatory treatment of works and films that draw on traditional customs or beliefs.
In 2003 the Government released a draft ICMR Bill that extended moral rights protection to Indigenous community ownership in individual artists’ expression of traditional knowledge. Arts Law thought this Bill actually made it too difficult for communities to secure these rights and so made submissions to the Government.
Arts Law has not been shown the 2006 version of the Bill, nor has it received confirmation from the Government as to whether its concerns over the 2003 Bill have been addressed in the new version. Arts Law therefore has some doubts whether the new Bill will actually give Indigenous communities the protection that it promises.
What are moral rights?
There are three types of moral rights currently recognised in Australian law. Individual artists have the right to be attributed for their work. Artists also have the right not to be falsely attributed for their work. The third moral right is the right of integrity, which means that an artist has the right to object to derogatory treatment of their work that prejudices their honour or reputation. These moral rights are already part of Australian law and must be respected unless an individual artist consents to not being named or the infringement of these rights is reasonable in the circumstances.
The idea behind the ICMR Bill is to extend moral rights laws to cover and protect the interests of communities, not just individual artists.
What types of things Indigenous communities have moral rights in?
Literary, artistic, dramatic and musical works as well as films in which copyright subsists may be subject to ICMR protection. However, the 2003 ICMR Bill did not protect works where copyright has expired, nor did it protect elements of Indigenous culture and intellectual property (ICIP) in which copyright does not exist. For example, the 2003 Bill would not have provided protection over some rock paintings or unrecorded oral histories.
Further, under the 2003 Bill, protected works would not have included sound recordings. This is an important issue for Indigenous communities because ICIP is often recorded and preserved as sound recordings. Arts Law believes these recordings should be given ICMR protection.
What are the proposed conditions for ICMR protection?
In the 2003 Bill, five conditions needed to be met before ICMR would arise. These were that:
- the work must be ‘made’;
- the work must draw on the traditions, beliefs, observances or customs of the community;
- the work must be covered by an agreement between the author and the community;
- the Indigenous community’s connection with the work must be acknowledged (notice is shown on the work); and
- the written notice of consent must have been obtained by the author (or their representative) from everyone with an interest in the work.
Arts Law supports the first two conditions listed above and in 2003 notified the Government that in Arts Law’s opinion fulfilment of these two conditions alone should give rise to ICMR protection. As there has been no suggestion that the remaining three conditions have been changed in the new Bill, Arts Law believes that the following issues should be reconsidered.
Requiring the signing of an agreement for rights to arise is inconsistent with the moral rights protection already given to individuals, as well as general copyright law, which both provide automatic rights as soon as a work is created. Further, the agreement system is voluntary and the author of a work may choose not to seek an agreement with the Indigenous community.
Acknowledgment of community’s connection
While a community’s connection to the work should be acknowledged, this should not be a condition necessary for ICMR to arise.
In relation to the fifth condition, the term ‘interest’ is not defined in the ICMR Bill. If the intention of the Bill is that consent be obtained from all members of the community with a ‘cultural or traditional interest’ in the work, this needs to be stated so that this condition is not contrary to the interests of Indigenous communities.
If consent is to be granted for infringement of ICMR, it should be granted by an authorised member of an Indigenous community.
Duration of ICMR is linked to copyright. Arts Law suggests that ICMR should exist until such a time as no person is recognised as a custodian to the ICIP.
Defences to infringement
The 2003 ICMR Bill provided a defence of reasonableness. However, if the intention of the ICMR Bill was to consider the reasonableness of the efforts of the infringer in consulting the community, this should be more clearly stated. The new ICMR Bill should introduce a two-step reasonableness test that considers whether the person claiming that infringement was reasonable knew, or ought to have known” that ICMR subsists in the work.
Also, the 2003 ICMR Bill allowed certain treatment of works to occur without infringing ICMR, including the destruction of movable work if adequate notice is provided to enable removal of the work. The notice periods proposed by the 2003 ICMR Bill were too short.
The way forward
Arts Law argues that these aspects of the ICMR Bill, including the fact that conditions needed to be met before the first dealing with a work, shifts the balance away from Indigenous communities in favour of purchasers and users of Indigenous cultural material. Arts Law would welcome proper consultations by Government with Indigenous communities on the new ICMR Bill prior to it being introduced into Parliament.