Protecting First Nations Intellectual Property

Protocols have been written to assist with cross-cultural collaborations across industries, making it possible for First Nations people to work in culturally safe environments. The cultural rights of First Nations people, includes respecting their respective knowledge, cultural items and practices. First Peoples Editor, Carissa Lee Godwin, investigates how the latest iteration of the Australia Council’s Protocols for using First Nations Cultural and Intellectual Property in the Arts protects culturally sacred objects and practices of First Nations people.

Photo by Alessia Francischiello on Unsplash

Dr. Terri Janke and company, in collaboration with Australia Council for the Arts staff, created the third edition of this protocol guide. Terri Janke is Meriam/Wuthathi woman, Solicitor Director of her company. and an international authority on Indigenous Cultural and Intellectual Property. Protocols for using First Nations Cultural and Intellectual Property in the Arts is one of many publications this company has authored in the field of practice protocols with First Nations people, more of which can be found in APO’s First Peoples & Public Policy Collection. Although this protocol guide has been primarily written to support Australia Council for the Arts’ funded projects, it is also relevant to anyone working in the Indigenous arts sector.

Key findings

The purpose of this protocol guide is to present the reader with the legal and ethical considerations that need to be taken when considering the use of Indigenous cultural materials in arts and/or cultural projects. Resources such as symbols, songs, dances, performances or rituals. Although First Nations artists can have their works protected by copyright, there are often no legal rights around reproduction, use, and currently, no law preventing misappropriation of cultural materials. 

  1. Indigenous Cultural and Intellectual Property’ or ‘ICIP’ refers to all aspects of Indigenous peoples’ cultural heritage. This includes, but is not limited to: cultural knowledges, cultural performances, cultural objects, human remains and tissues, secret and sacred material and documentation of Indigenous peoples’ heritage in all forms of media.
  2. With regards to ICIP, Indigenous peoples have the right to own and control ICIP, and be recognised as the primary guardians and interpreters of their respective cultures. This includes authorising or choosing to refuse to authorise the commercial use of their Intellectual Property.
  3. Australia’s current legal framework provides limited recognition and protection of ICIP rights. Because there is no Australian law established specifically to protect ICIP, Indigenous people and communities rely on existing laws – including Intellectual Property laws – and enforce their rights and to protect parts of ICIP. 

Key recommendations

A main thread throughout this protocol guide is the necessity to not only respectfully use First Nations cultural materials, but to maintain a deep respect for First Nations people and their life experiences. It also needs to be acknowledged that First Nations people are diverse, coming from different Mobs, creative practices, languages and ways of life, and each respective Mob needs to be represented in a way that works for them.

  1. Non-Indigenous collaborators who wish to work with Indigenous artists, should do so throughout the entire project, from development to completion. The First Nations people in these creative partnerships might need to liaise between cultural groups in order to shape the development of the project in a way that the respective First Nations community/s deem appropriate.
  2. Cultural safety needs to be established in these creative partnerships. This can be achieved through conducting cultural awareness training for people and organisations who work with First Nations people and communities. It is also beneficial to have policies and protocols in place that assist with Indigenous engagement, look after Indigenous staff members in organisations and maintain a culturally safe work environment.
  3. Interpretation and context need to be taken into consideration when approaching culturally significant materials. Examples of this include looking at the story or message the potential project might put out into the world about First Nations culture, people and communities, and what perspectives are being taken into account. There needs to be substantial consideration taken about how this work will affect the First Nations language group or community it is based on, whether it is empowering, or if it might reinforce negative stereotypes. It is essential to always consult with the affected people and communities to make sure that interpretations of ICIP are appropriate. 

The protocol guide also alerts the reader to the fact that First Nations people and communities might decide not to engage or not want to participate in any kind of partnership, and that is their right. It could be for a number of reasons, including the requirement to maintain secrecy of Indigenous knowledge and other cultural practices, or that they simply do not want to. And as the protocol states: “No means no.”

Far-reaching benefits

The importance of communication, consultation and consent in creative partnerships with First Nations people is iterated and reiterated throughout this resource. The protocol guide provides case studies across various arts industries that show how implementation of protocols can work. These case studies highlight the importance of reciprocal practices when pursuing creative partnerships with First Nations artists. There are beneficial experiences such as assisting with cultural and language revivals, receiving positive feedback from First Nations communities who were happy to see their stories on stage, and organisations such as Magabala supporting self-determination of First Nations people by providing employment and training, and ensuring that collaborative projects are Indigenous-led. The use of protocols such as these can set the stage for future collaboration with First Nations people in a way that is beneficial to them and their respective communities. Cross-cultural partnerships can be an opportunity for First Nations people to share and develop their cultural languages, practices and histories to future generations, and hopefully inspire non-Indigenous people to honour and respect First Nations cultural resources, and the communities and people who protect them.

About the First Peoples & Public Policy Collection

This article was first published by the Australia and New Zealand School of Government (ANZSOG). ANZSOG works in partnership with Analysis & Policy Observatory (APO) to increase knowledge of Indigenous culture and history. This partnership includes support for the First Peoples & Public Policy Collection on APO, launched at ANZSOG’s Reimagining Public Administration conference in February 2019.

The First Peoples & Public Policy Collection is curated from a broad selection of key Indigenous policy topics, and provides a valuable resource on Indigenous affairs, with a focus on diverse Indigenous voices.

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