11 July

WIPO presentation by Patricia Adjei 2007

Indigenous and Local Communities’ Concerns and Experiences in Protecting their Traditional Knowledge and Cultural Expressions

Presented by Patricia Adjei, Indigenous solicitor, Arts Law Centre of Australia on July 3rd 2007 at the WIPO Conference.

I am a proud Torres Strait Islander and African woman from Australia. My family originates from Mabuiag Island which one of the western islands in the Torres Strait. The Torres Strait Islands are far northern islands of Australia.
My father is from the proud and powerful Ashanti tribe in Ghana, West Africa.

I am the Indigenous Solicitor for the Arts Law Centre of Australia’s Artists in the Black service.

On behalf of the Arts Law Centre of Australia and our Artists in the Black service, I would like to thank you for the opportunity to participate on this expert panel preceding the 11th session of the Intergovernmental Committee (IGC).

All references to Indigenous people in this presentation refer to Aboriginal and First Nations People.

The Arts Law Centre of Australia is a not-for-profit, national community legal centre, established in 1983, which provides low and no cost legal services to artists and arts organizations across all areas of arts practice. The contributions of Australia’s Indigenous communities, particularly those engaged in artistic practices, are central and fundamental to Australia’s cultural identity. And yet, in a shameful paradox, these very same communities are often economically, socially and legally marginalised by virtue of disenfranchisement and dislocation.

Arts Law established its Artists in the Black service in 2004 to provide legal services, education and advocacy for Indigenous artists and arts organizations. The Artists in the Black service travels to remote and regional Indigenous communities throughout Australia and has extensive contact with Indigenous artists and communities around the country. However we note that we are a service organization and do not purport to speak on behalf of all Indigenous Australians. The service is run by me and an Aboriginal Liaison Officer with the support of the other staff at the Arts Law Centre of Australia.

As far as we are aware, this is the only dedicated free legal service for Indigenous artists and arts organisations in the world, committed to the protection of traditional cultural expressions (TCE) and traditional knowledge (TK). We would welcome contact with any other organisation providing equivalent services.

Overview of Presentation

As Artists in the Black are newcomers to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) process, we will outline our grass roots experience of Australia’s ability and willingness to protect Indigenous traditional knowledge and cultural expressions to the expert panel. This empirical evidence clearly demonstrates the efficacy of the protections afforded by existing legal frameworks in Australia as well as their shortcomings. As with most arts practices, copyright, moral rights and contract law give rise to the most common legal issues faced by Indigenous artists and arts organizations. However, legal protections against misappropriation and misuse of traditional knowledge and cultural expressions also include trade practices or consumer protection laws, the tort of passing off and heritage laws. In the first case, the law that regulates trade practices has at its core the protection of consumers rather than the protection of Indigenous culture and intellectual property. Given Artists in the Black’s mandate, I will not be addressing the issues of genetic resources.

The Artists in the Black service tackles the challenges of protecting Indigenous Australian traditional knowledge and cultural expressions from a grass roots level. We do this through education, the production of publications, advocacy at local, national and international levels and representing Indigenous artists on a case by case basis. In our view, one of the most effective grass roots mechanisms for the protection of rights to Indigenous traditional knowledge and cultural expressions under Australian law, is created by the adoption of appropriate protocols in legally binding contracts. However, we view this as a starting point in protection rather than a panacea or universal solution.

As I will discuss, we are not convinced that Western governments have demonstrated sufficient leadership in the protection of Indigenous traditional knowledge and cultural expressions. We are firmly of the view that leadership at an international level, including the work of this WIPO IGC, is essential in motivating Member States to take action at a national level. It is also critical for the identification of benchmark standards and principles which transcend domestic political interests and privilege the rights of the world’s Indigenous peoples.

Nature of traditional knowledge and cultural expressions in Australia

1. For most Indigenous Australians, Traditional Knowledge and Traditional Cultural Expressions are inseparable

We appreciate the value for WIPO of separating definitions, principles and policies in relation to traditional knowledge and traditional cultural expressions respectively. However, in our experience, for Indigenous Australians traditional knowledge and traditional cultural expressions are so closely related that they are inseparable. This notion is clearly explained by Aboriginal Art expert and former Curator of Aboriginal and Torres Strait Islander Art at the National Gallery of Australia, Wally Caruana, in his seminal text Aboriginal Art (1993, 2nd Ed. 2003):

It is by the acquisition of knowledge, not material possessions, that one attains status in Aboriginal culture. Art is an expression of knowledge, and hence a statement of authority. Through the use of ancestrally inherited designs, artists assert their identity and their rights and responsibilities. They also define relationships between individuals and groups, and affirm their connections to the land and the Ancestral Realm. (emphasis added)

In this statement, Caruana clearly shows that traditional cultural expressions are the vehicles for the assertion of rights and responsibilities. In this way, traditional cultural expressions operate as legal texts containing customary law and to the extent that Indigenous customary law is a form of traditional knowledge, traditional knowledge and traditional cultural expressions are inseparable.

2. Indigenous knowledge and cultural expressions are only protected by governments until it becomes politically expedient not to do so.

2.1. The damage to rock art sites on the Burrup Peninsula in Western Australia illustrates the failure of the existing legal framework to protect Indigenous traditional knowledge and cultural expressions. The Burrup Peninsula, is the largest body of rock art in the world. It is listed on the World Monuments Fund’s 100 Most Endangered Sites and up to one million rock art images exist in the area. It is estimated that since 1963 almost one quarter of the rock art has been destroyed and up to a third of the sites are at risk of destruction by planned industrial expansions.

The practice of Australian Indigenous rock art is the oldest known continuously practiced art form in the world. It has been described as “the only source of evidence for Aboriginal art predating the collection of Aboriginal objects by European observers” and demonstrates “strong continuities in its essential forms and structure throughout the entire continent.” In many instances, works are over-painted by traditional custodians in an effort to preserve them. Frequently, there is no single identifiable artist and many of the works date back thousands of years. For these reasons, copyright and moral rights, which operate only in relation to identifiable individual rights owners with rights of specific, limited durations, fail to protect the destruction of these sites.

Whilst Australia has in place legislation to protect material of significance to Indigenous communities , from the experiences on the Burrup Peninsular it is clear that the existing framework is insufficient. In February 2007 The Australian newspaper reported that “scraped and smashed rocks, with carvings visible on some surfaces” lay in piles several metres high following development work by the gas processing plant.

The removal and destruction of the rock art on the Burrup Peninsular is occurring with approval under the cultural heritage laws. The resource company has successfully applied to the government authority to remove or destroy Aboriginal sites or objects. It is for these reasons that stronger protection of Aboriginal traditional knowledge and cultural expressions is required.

2.2 .Secondly, in June 2007 the Australian Senate Standing Committee on Environment, Communications, Information Technology and the Arts (Committee) released a Report entitled Indigenous Art – Securing the Future. The Report followed an enquiry into to unethical and illegal practices and irregularities in the Australian Indigenous art and craft sector. It involved submissions from both Indigenous & non-Indigenous individuals and organisations throughout Australia .

The Report notes that while the sector generates somewhere between $AU300-500 million per year, little economic benefit reaches artists and their communities. It recognises that existing legal regimes do not adequately safeguard the integrity of Australian Indigenous visual arts and craft sector. It recommends that government takes action to bridge the gaps that are threatening the sector. The report claims that $AU25 million over five years is needed to develop industry infrastructure.

Despite requests made by many of those who made submissions and gave evidence before the Committee, the Report failed to recommend stringent regulation of galleries and dealers. Further, the Committee stated that it did not see the importance or economic benefit of introducing a resale royalty (droit de suit) scheme to remunerate artists.

However, the Report does highlight the need for sui generis legislation for indigenous culture and intellectual property to counter the gaps in the current intellectual property regime.

3. The quest for Indigenous Communal Moral Rights in Australia

It has long been recognised in Australia at government and non-government levels that existing intellectual property regimes do not adequately address collective community custodianship of traditional knowledge and cultural expressions. In an effort to bridge the gap, government has attempted to formulate a draft statutory definition of Indigenous Communal Moral Rights (or ICMR) into the Australian Copyright Act 1968 (Cth). This policy suggests that government is more willing to tackle protection of traditional knowledge and cultural expressions through its existing intellectual property regimes, rather than the creation of sui generis legislation. While Arts Law supports the introduction of sui generis legislation for the protection of traditional knowledge and cultural expressions in Australia, it commends the government’s ICMR initiative.

However, the process has fallen far short of the stated aims of ICMR protection on two fundamental fronts and accordingly, progress on this critical issue has stalled. First, the process by which the draft legislation for regulation and protection of ICMR has involved limited consultation with Indigenous interest groups. Secondly, at a substantive level, unlike moral rights or droits d'auteur which attach to a creator immediately upon the creation of work, the draft ICMR regime requires that a number of pre-conditions be satisfied before Indigenous Communal Moral Rights arise. Pre-conditions which place the onus on communities to prove their claims to ICMR are more likely to hinder the protection of ICMR than encourage it. The status quo is that the draft legislation is on hold and has yet to be tabled and debated by the Australian parliament.

It is for this reason that Arts Law recommends that the WIPO IGC act cautiously when considering the introduction of pre-conditions to protection which require the registration of traditional knowledge and cultural expressions or impose an onerous burden of proof on Indigenous communities. Such measures have the potential to reduce the protection of traditional knowledge and cultural expressions, rather than enhance it.

4. Artist in the Black Case Studies

4.1.FATSIL Agreements

In the early days of Artists in the Black we were asked by a national Indigenous language organisation, the Federation of Aboriginal and Torres Strait Islander Languages, (FATSIL) to develop a template contract that Australian Indigenous communities could use for projects which involved using their Indigenous languages.

Some of key issues coming out of consultations with Indigenous communities, academics, linguists and educators which were subsequently incorporated into the template agreements were:

1. Respect for, and attribution of, the traditional knowledge and cultural expressions of the community in the language.
2. Clear identification of ownership of the project materials developed.
3. Payment of, and other benefit –sharing with, the community whose traditional knowledge and cultural expressions are being used.
4. Control by the community of uses that could be made of the project materials developed.
5. Requirement to observe protocols when working with the community.

A protocol document was also developed as part of this project which was used alongside the agreement and was incorporated into the agreement. The three agreements developed as well as the protocol document are now freely available on the websites of both the Arts Law Centre of Australia https://www.artslaw.com.au and FATSIL http://www.fatsil.org/guides.htm.

4.2.Misappropriation case studies

I will highlight two Artists in the Black casework matters that illustrate misappropriation of traditional knowledge and cultural expressions.

4.2.1.The case of Bardayal (Lofty) Nadjamerrek AO

Arts Law together with the pro-bono assistance of a Sydney legal firm, is acting in a copyright infringement matter concerning the work of Bardayal (Lofty) Nadjamerrek AO, one of the most senior and well respected artists and elders of Western Arnhem Land in the Northern Territory of Australia. The Oxford Companion to Aboriginal Art and Culture describes Mr. Nadjamerrek as one of the foremost exponents of the x-ray style of bark painting. This case involves the sale of an unauthorised reproduction of one of the artist’s paintings on the Australian Ebay website. In addition, the webpage falsely stated that the artist would receive a royalty from the sale of the work.

Arts Law has taken on this case on the grounds that without pro bono assistance, the artist’s rights to his traditional cultural expression would not be protected. The case highlights the ease with which existing intellectual property rights can be infringed causing cultural harm to Indigenous artists in the age of e-commerce and digital reproduction. The difficulties Indigenous people face accessing justice do nothing to deter the infringement and exploitation of cultural expressions. Enhanced protection of Indigenous traditional knowledge and cultural expressions is essential to create an environment which deters this type of infringement and exploitation.


4.2.2. Commercial Gallery Copyright Infringement

The second example involves a commercial gallery owner who paid an Indigenous artist to reproduce another Indigenous artist’s artwork. The artist whose work was copied saw the infringing artwork on sale in a tourist shop. The original artwork sold to the gallery owner was also being sold online with an incorrect background story which is culturally inappropriate for the artist and her community. This matter demonstrates how many gallery owners do not understand the connection and importance of the traditional stories which underlie the artwork. Our client was extremely distressed by the harm and shame resulting from the inclusion of the incorrect story with the work as she claims it has affected her reputation as a traditional artist. The infringing gallery owner is refusing to admit that they infringed her copyright. This reinforces the need for protection of traditional cultural expressions at a national level.

Barriers encountered by Artists in the Black

I have found that many barriers exist in terms of Indigenous artists being able to protect their own traditional cultural expressions through contract and protocols.

First, as many artists are not equipped with business or legal knowledge, they do not consider protecting their traditional knowledge and cultural expressions until after the exploitation has occurred. Artists tend to be focused on the creative side of their work so they don’t think to have an agreement in writing when dealing with their work.

Also, many Indigenous artists who request legal advice often simply want an apology for the cultural harm that has been inflicted on their community and do not want any monetary compensation. This reflects the importance of protecting traditional knowledge and cultural expressions which overrides any economic consideration. This statement does not apply to all, but I have seen this occur with many artists.

Thirdly, many Indigenous artists have language barriers as English may be their third or fourth language. These artists tend to agree on things orally and don’t write the terms and conditions down in an agreement. For example, I have recently advised a freelance dancer who did not have a written agreement with the organisation she was working for. Then the organisation continued to use her traditional dances without permission. The result is that both the performer and the traditional cultural expression are exploited. Had there been a written agreement, it would have been easy to pursue the matter and possibly litigate if the organisation refused to comply with the artist’s demands. I have seen this scenario happen many times which is why it is important to reemphasize the need for Indigenous artists to protect their traditional cultural expressions with written contracts.

Fourthly, many Indigenous artists already face major social and economic disadvantages. So when Indigenous artists do business, a lot of the time, there is unequal bargaining power as many artists are struggling and need to accept any work even if it means that their TCE may be exploited.

Needs and Expectations for the Protection of Indigenous traditional knowledge and cultural expressions

In light of the language and access to justice barriers described above, Arts Law is concerned that any protection regime formulated by the WIPO IGC not be so onerous that Indigenous people dismiss it as “white fella law”. It would be a travesty if Indigenous people remain disenfranchised by the very regulation which should actually be empowering them. As noted above, a system requiring registration of traditional knowledge and cultural expressions or placing a heavy burden of proof on Indigenous people to assert ownership over traditional knowledge and cultural expressions is more likely to hinder protection rather than enhance it.

Furthermore Arts Law is concerned about the WIPO IGC’s proposal to enshrine exceptions to the requirement for prior consent before third parties are permitted to use traditional knowledge and cultural expressions, particularly if such use involves commercialization. Arts Law is firmly of the view that the need for consent and consultation apply to works that may have entered the public domain.

While we recognise that the WIPO IGC process is slow, finalization of the working documents in issue is important. In view of the limitations of protection of traditional knowledge and cultural expressions at a national level, international leadership is required in the form of a treaty, convention or some other protection and enforcement regime.
Artists in the Black support the development of an international treaty for the protection of traditional knowledge and cultural expressions; provided, the process involves appropriate consultation with Indigenous communities. Artists in the Black is willing to participate in future proposals for an international convention with Indigenous communities.

Closing Statement

In closing, I would like to thank WIPO and the IGC for inviting me to participate on this Indigenous panel. It has been a great opportunity to discuss some of the issues that are still happening in Australia amongst Indigenous art communities.