Indigenous Cultural IP – new topic on Practical Guidance Intellectual Property

By Delwyn Everard, Principal, Everard Advisory and Rebecca Simpson, Legal Writer, LexisNexis^® Practical Guidance Intellectual Property

Australia’s Aboriginal and Torres Strait Islander people have been calling for stronger measures to recognise, protect, and maintain all aspects of their culture and heritage.

Globally, there is growing recognition of ‘Indigenous Cultural Intellectual Property’ or ‘ICIP’ which is the term used to describe the fundamental human rights of the world’s Indigenous Peoples to manage and control their tangible and intangible cultural heritage. In Australia, limited protection is available under intellectual property and other laws; however, this protection is piecemeal and ad hoc, and there are many gaps.

The 2021 NAIDOC theme “Healing Country” was about making significant and lasting change which included the relationship that Australia has with Aboriginal and Torres Strait Islander Peoples. This includes greater protections for their cultural heritage from exploitation and respecting the culture and values of Aboriginal and Torres Strait Islander Peoples equally to the cultures and values of all Australians. Indigenous Cultural IP is an important aspect of the culture and values of Aboriginal and Torres Strait Islander Peoples.

For stronger measures to be put into place in Australia and elsewhere, we need more conversations around ICIP. To enable these conversations, and in line with the theme for NAIDOC Week 2021, “Healing Country”, our Legal Writer worked with industry experts to develop a new topic, Indigenous Cultural IP, for Practical Guidance Intellectual Property.

With the theme for NAIDOC Week 2022 being “Get Up! Stand Up! Show Up!”, the importance of amplifying the voice of Indigenous Peoples is highlighted more than ever. To engage in this discussion effectively, whether you are in government, part of the academic department, a student or in practice, you need to understand the interaction between Indigenous Cultural Intellectual Property and the protection of IP more generally in Australia.

The new topic provides an outline of the fundamentals of Indigenous Cultural IP, how it is protected in Australia and developments towards protection in Australia and internationally. While reaching international consensus on how nations should protect ICIP is difficult, there is growing awareness of the value and importance of protecting Indigenous cultural heritage. This has led to the development of protocols and best practice guides which attempt to safeguard ICIP.

Domestically, the Australian Government has committed to shared decision-making with Aboriginal and Torres Strait Islander people. The government is investigating policies to improve protection for ICIP. This includes initiatives such as IP Australia’s Indigenous Knowledge Consultation and the Indigenous Knowledge Working Group being chaired by IP Australia. Also, a number of industry codes or protocols have been established which either directly or indirectly contribute to improved protection for ICIP in Australia. The guidance includes a discussion of the law reform proposals and a selection of the industry codes or protocols that are established and being investigated in order to develop the protection of ICIP in Australia.

The improvement in community attitude is illustrated by the purchase of the copyright in the Aboriginal Flag by the Commonwealth government on 25 January 2022. The Aboriginal Flag will now be managed in a similar manner to the Australian National Flag, where its use is free.

The protection offered by each of Copyright, Trademarks and Patents is also discussed, as well as reforms to each system to address gaps in protection under Australian law.

The topic also discusses Indigenous Cultural IP ethical collaboration processes, being case studies that reflect the nature of protection, respect, consultation and consent, benefit sharing and attribution of ICIP from the relevant First Nations communities as it is not fully protected under Australian law.

The authors are Delwyn Everard, Principal of Everard Advisory, and Patricia Adjei, Head of First Nations arts and culture, Australia Council for the Arts. Delwyn works extensively with Indigenous artists and art centres in remote Australia and advises business and government institutions on the protection of traditional knowledge and cultural expression. She is also a module advisor for PG IP.  Patricia is a Wuthathi, Mabuiag Islander and Ghanaian woman from Warrane/Sydney. She is also a 2018 Churchill fellowship recipient, investigating the practical application of laws in the USA and Panama that protect Indigenous cultural rights.

For more information about understanding Indigenous Cultural Intellectual Property within our Practical Guidance Intellectual Property Module contact us below.