Performing arts
Introduction
• b
e recognised as the primary guardians
and interpreters of their cultures
• authorise or refuse to authorise the
commercial use of Indigenous cultural
and intellectual property according to
customary law
• maintain the secrecy of Indigenous
knowledge and other cultural practices
• full and proper attribution
• control the recording of cultural customs
and expressions, as well as the particular
language that may be intrinsic to cultural
identity, knowledge, skill, and teaching
of culture.
For a full list of rights see Our culture: our
future – report on Australian Indigenous
cultural and intellectual property rights.7
Current protection of heritage
Australia’s current legal framework provides
limited recognition and protection of Indigenous
heritage rights. Our culture: our future
recommended significant changes to legislation,
policy and procedures. The Australian
Government has not yet responded formally
to these recommendations.
However, there are proposals to amend the
Copyright Act 1968 (Cth) to recognise
Indigenous communal moral rights. In the
absence of laws that protect Indigenous cultural
and intellectual property, much of the rights’
recognition has been done at an industry and
practitioner level, through the development of
protocols and use of contracts to support the
cultural rights of Indigenous people.
Across the world, Indigenous people continue
to call for rights at a national and international
level. Indigenous people are developing
statements and declarations, which assert their
ownership and associated rights to Indigenous
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cultural heritage. These statements and
declarations are a means of giving the world
notice of the rights of Indigenous people.
They also set standards and develop an
Indigenous discourse that will ensure
that Indigenous people’s cultural heritage
is respected and protected over time.
These rights are given international recognition
in the United Nations Declaration on the Rights
of Indigenous Peoples. Article 31 states:
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.
2. In conjunction with Indigenous peoples, States
shall take effective measures to recognise
and protect the exercise of these rights.8
The Mataatua Declaration on Indigenous
Cultural and Intellectual Property Rights urges
Indigenous people to ‘develop a code of ethics
which external users must observe when
recording (visual, audio, written) their traditional
and customary knowledge’.9
Draft Principles and Guidelines for the Protection
of the Heritage of Indigenous People (1993),
adopted by the former Aboriginal and Torres
Strait Islander Commission’s Indigenous
Reference Group in 1997,10 state: ‘Artists,
writers and performers should refrain from
incorporating elements derived from
Indigenous heritage into their works without the
informed consent of the Indigenous owners’.
Performing arts
Introduction
In January 2002, the World Intellectual Property
Organisation’s International Forum, Intellectual
Property and Traditional Knowledge: Our Identity,
Our Future, held in Muscat, Oman, adopted
a declaration recognising that ‘traditional
knowledge plays a vital role in building bridges
between civilisations and cultures, in creating
wealth and in promoting the human dignity and
cultural identity of traditional communities’.11
Internationally, the World Intellectual Property
Organisation (WIPO) has established an
intergovernmental committee (IGC) on
intellectual property and genetic resources,
traditional knowledge and folklore to discuss
intellectual property issues that arise in the
context of:
• access to genetic resources and
benefit-sharing
• protection of traditional knowledge,
innovations and creativity
• protection of expressions of folklore.12
Based on its extensive international, regional
and national experience and on input from
different countries, the WIPO IGC developed
two important documents, which outline
policy and legal options for traditional cultural
expression and knowledge. These are:
(i) the protection of traditional cultural
expressions/expressions of folklore;
draft objectives and principles13
(ii) the protection of traditional knowledge;
draft objectives and principles.14
The latest WIPO provisions for the protection of
traditional cultural expressions (TCEs) suggest
three layers of protection tailored to different
forms of cultural expression. It says TCEs of
particular religious and cultural significance
should be noted in a public register so there is
certainty as to which are protected and for
whose benefit. The items in the register would
be afforded a form of protection similar to that
given by intellectual property rights legislation.
09
It recommends in Article 3, that when TCEs
have been registered or notified, there shall be
adequate and effective legal and practical
measures to ensure that the relevant community
can prevent certain acts taking place without
its free, prior and informed consent.
With TCEs other than words, signs and names,
these acts include:
• the reproduction, publication, adaptation and
communication to the public and adaptation
of its traditional cultural expressions
• any use of traditional cultural expression which
does not acknowledge in an appropriate way
the community as the source
• any distortions, mutilations or other
modification of or inappropriate action in
relation to the traditional cultural expression
• the acquisition or exercise of intellectual
property rights over the traditional cultural
expression adaptations of them.15
Regionally, a model law for protecting
traditional knowledge in the Pacific was drafted
and completed in July 2002. The Pacific
Regional Framework for the Protection of
Traditional Knowledge and Expression of
Culture establishes ‘traditional cultural rights’
for traditional owners of traditional knowledge
and expression of culture.16 The prior and
informed consent of the traditional owners is
required to:
• reproduce or publish the traditional
knowledge or expressions of culture
• perform or display the traditional knowledge
or expressions of culture in public
• make available online or electronically
transmit to the public (whether over a path or
a combination of paths, or both) traditional
knowledge or expression of culture
• use the traditional knowledge or expression
of culture in any other form.