DRAFT

Intellectual Property Issues and Aboriginal Cultural Knowledge

The following information is a guide to some of the legal and protocol issues that
might arise when working with Aboriginal people and Aboriginal Cultural
Knowledge. It is intended to raise some of the issues, but cannot canvas all
possibilities.

This guide and the links do not constitute legal advice and should not be relied
upon as such. The guide is provided solely for educational and informational
purposes. If you need legal advice on any of the issues raised here you should
consult a solicitor. Some contacts for legal advice are listed below.

What is Aboriginal Cultural Knowledge?

What is Aboriginal Heritage?
What are some of the characteristics of Aboriginal Cultural Knowledge?
What is copyright?
Who owns copyright?
When does copyright arise?
What rights do copyright owners have?
What kinds of uses can be made?
What law regulates copyright?
How long does copyright last?
Copyright ownership and Aboriginal Cultural Knowledge
Can Aboriginal People still use their Aboriginal Cultural Knowledge?
How can that be prevented? Some suggestions:
What is a patent?
What law regulates patents?
When is a patent granted?
How long does a patent last?
Is there a fee for a patent application?
Patents and Aboriginal Cultural Knowledge
Could Aboriginal People be restricted in the use of their Aboriginal
Cultural Knowledge by patents?
What kinds of issues should teachers and Aboriginal Educations
Assistants consider?
Some hypotheticals
Principles for Guidelines or Protocols
The Australian Copyright Council
The Arts Law Centre of Australia

What is Aboriginal Cultural Knowledge?

Aboriginal Cultural Knowledge is knowledge relating to the cultural practices of

Aboriginal people.

Another way of describing Aboriginal Cultural Knowledge is knowledge relating to

Aboriginal people’s heritage.

What is Aboriginal Heritage?

“Heritage consists of the intangible ad tangible aspects of the whole body of

cultural practices, resources and knowledge systems that have been developed,
nurtured and refined (and continues to the developed nurtured and refined) by
Indigenous people and passed on by Indigenous people as part of expressing

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their cultural identity.” This definition was formulated by Terri Janke and
published in her book, Our Culture: Our Future page 11.

The United Nations Report of the Seminar on the Draft Principles and Guidelines
for the Protection of the Heritage of Indigenous People by the Chairperson-
Rapporteur: Mrs. Erica-Irene Daes (Geneva, 28 February - 1 March 2000)
describes heritage as:

12. The heritage of indigenous peoples has a collective character and is

comprised of all objects, sites and knowledge including languages, the nature
or use of which has been transmitted from generation to generation, and
which is regarded as pertaining to a particular people or its territory of
traditional natural use. The heritage of indigenous peoples also includes
objects, sites, knowledge and literary or artistic creation of that people which
may be created or rediscovered in the future based upon their heritage.

13. The heritage of indigenous peoples includes all moveable cultural property
as defined by the relevant conventions of UNESCO; all kinds of literary and
artistic creation such as music, dance, song, ceremonies, symbols and
designs, narratives and poetry and all forms of documentation of and by
indigenous peoples; all kinds of scientific, agricultural, technical, medicinal,
biodiversity-related and ecological knowledge, including innovations based
upon that knowledge, cultigens, remedies, medicines and the use of flora and
fauna; human remains; immoveable cultural property such as sacred sites of
cultural, natural and historical significance and burials.

14. Every element of an indigenous peoples' heritage has owners, which may
be the whole people, a particular family or clan, an association or community,
or individuals, who have been specially taught or initiated to be such
custodians. The owners of heritage must be determined in accordance with
indigenous peoples' own customs, laws and practices.

What are some of the characteristics of Aboriginal Cultural Knowledge?

 Aboriginal Cultural Knowledge has been held and passed on by Aboriginal

people for thousands of years. It changes and develops as Aboriginal
culture changes and develops.
 Aboriginal Cultural Knowledge is sometimes owned communally by a
family, clan or group.
 Aboriginal Cultural Knowledge is often held by a particular custodian in the
family or clan.
 Aboriginal Cultural Knowledge may be passed on by the holders of the
knowledge according to particular rules. These rules are sometimes
referred to as customary law.
 Aboriginal Cultural Knowledge is often learned and taught by talking and
listening, rather than reading and writing. Aboriginal Cultural Knowledge is
often not written down or recorded by the people who teach it or learn it.

What is copyright?

Copyright is a form of protection for the original expression of ideas. Copyright

does not protect ideas, styles, techniques, information, slogans, names or words.
It protects the original expression of the ideas.

So, when ideas including knowledge, songs, stories, poems, dances or music are
written, taped, painted, drawn or filmed for the first time copyright subsists
(exists) in the expression of the ideas.

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Copyright automatically protects original works of art, literature, music, films,

broadcasts and computer programs from copying and certain other uses.

Copyright is free.

Who owns copyright?

The author of a literary, dramatic, musical or artistic work is the owner of any
copyright subsisting in the work, except in certain circumstances. These include
circumstances where the work is made in the course of employment. In that case
the employer is generally the copyright owner. This can be changed if the author
and the employer have made an agreement or contract that states a different
arrangement.

When does copyright arise?

Material which is protected by copyright gains that protection from the time it is
first written down, painted or drawn, filmed or tape recorded.

What rights do copyright owners have?

Copyright owners have the exclusive right to give permission to use their works
for a number of purposes and to charge a fee for the use. This arrangement is
generally written in a license or agreement.

What kinds of uses can be made?

Copyright owners have the right to license others in regard to copying the work,
performing it in public, broadcasting it, publishing it and making an adaptation of
the work. Rights vary according to the nature of the work. For instance, copyright
owners of literary, dramatic and musical works can authorise the reproduction in
material form, publication, performance, communication to the public (including
broadcasting and posting on the internet) and adaptation. Copyright owners of
artistic work can authorise the reproduction in material form, publication and
communication of the work to the public (generally on the internet). Copyright owners of
sounds recordings and films have other associated rights.

What law regulates copyright?

The Copyright Act 1968 (Cth)

How long does copyright last?

Copyright in artistic and literary works generally lasts for 50 years after the death
of the author, or for fifty years after the year the work was first published.

Where a literary, dramatic or musical work is published after the death of the
author, copyright lasts for 50 years after the fist publication.

Copyright in films and sound recordings lasts for 50 years from the year they
were first published. And copyright in broadcasts lasts for 50 years after the
broadcast was made.

Copyright ownership and Aboriginal Cultural Knowledge

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Because the copyright belongs to the person or company who creates the original
expression, copyright belongs to the person or company who wrote, taped,
painted, drew or filmed the Aboriginal Cultural Knowledge.

In some cases this has meant that the copyright in Aboriginal Cultural Knowledge
published in a report, book, tape recording, film or other form belongs to
companies and institutions such as a university, an anthropologist or others who
record and publish Aboriginal Cultural Knowledge.

This may not always reflect the wishes or cultural obligations of the Aboriginal
Cultural Knowledge holders.

One example of this occurred in the case of Foster v Mountford (1976) 29 FLR In
this case the anthropologist, Dr Mountford had worked with the Pitantjatjara
community collecting anthropological data. The community disclosed significant
information to him. When this information was to be published in a book, Nomads
of the Australia Desert, the Pitantjatjara Council took legal action to restrain the
publication. Because the Pitantjatjara did not write the book, they did not own the
copyright and brought an action for breach of confidence. The judge agreed that
continuing publication of the book would reveal secrets to people should not know
them, ad that this would create serious social harm to the Pitantjatjara.

Can Aboriginal People still use their Aboriginal Cultural Knowledge?

If an institution, company or individual becomes the copyright owner of the

expression of Aboriginal Cultural Knowledge, such as a book, film or tape
recording, Aboriginal people can still use that knowledge in many ways.
Aboriginal Cultural Knowledge holders can still pass on their stories and
knowledge.

But, if Aboriginal Cultural Knowledge holders are not the copyright owner of the
report, book, film or tape recording they have little control over the ways in which
the material is stored, accessed, preserved, disseminated or used including
futures uses such as the internet and technologies yet to be developed.
The Aboriginal Cultural Knowledge could be used in a manner which is offensive
or other wise distressing to the Aboriginal Knowledge holder. It that occurs it
might be difficult to ere may be little that can be done.

How can that be prevented? Some suggestions:

 Provide good information and advice about copyright for Aboriginal

Cultural Knowledge holders and the people who work with them.

 Draft an agreement or contract which vest copyright in the Aboriginal

Cultural Knowledge holder.

 Adopt practices set out in Protocols and Guidelines.

 Disclose only information that is already well known or that can be widely
disseminated.

What is a patent?

A patent is a right granted for any device, substance, method or process, which is
new, inventive and useful.

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A patent is legally enforceable and gives the owner the exclusive right to
commercially exploit the invention for the life of the patent.

What law regulates patents?

The Patents Act 1990 (Cth)

When is a patent granted?

An application must be made for a patent. Patent applications are examined to
make sure that they meet the necessary legal requirements.

Patents give effective protection if you have invented new technology that will
lead to a product, composition or process with significant long-term commercial
gain.

How long does a patent last?

A standard patent lasts for 20 years.

Is there a fee for a patent application?

A fee must be paid to apply for a patent, a fee to have the application examined
and regular fees to maintain the patent if the application is successful.

Patents and Aboriginal Cultural Knowledge

International Experience

The San are the Indigenous people of southern Africa. The San have used the
Hoodia gordonii succulent (Hoodia cactus) as an appetite suppressant while
hunting for thousands of years while hunting. In the 1960s in South Africa, the
South African Council for Scientific Research (CSR) undertook research into the
Hoodia gordonii succulent and patented the active ingredient P57, as an appetite
suppressant. The CSR subsequently licensed use of the patent to major
pharmaceutical companies for commercial development of appetite suppressant
drugs.

The San sought acknowledgement of their contribution of their knowledge and

their rights to that knowledge. They have signed a memorandum of
understanding with CSR and have entered into benefit-sharing arrangements.

For more information see http://www.san.org.za/wimsa/ar2002_3/annualrep10.htm

Australia

The Smokebush [Conospermum] grows in the coastal areas between Geraldton

and Esperance in Western Australia. Indigenous people from this region have
traditionally used Smokebush for healing. Fourmile (now Marrie) reports that in
the 1960s, the Western Australian Government granted the US National Cancer
Institute a licence to collect plants for screening purposes. In 1981, specimens of
the Smokebush plant were sent to the National Cancer Institute to test for the
presence of cancer-fighting properties.

The specimens were found to be ineffective, but were held in storage until the
late 1980s when they were tested again in the quest to find a cure for AIDS. Out
of 7 000 plants screened from around the world, the Smokebush was one of only
four plants found to contain the active property Conocurovone, which laboratory

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tests showed could destroy the HIV virus in low concentrations. This 'discovery'
was subsequently patented. The US National Cancer Institute has since awarded
Amrad, a Victorian pharmaceutical company, an exclusive world wide licence to
develop the patent.

Could Aboriginal People be restricted in the use of their Aboriginal

Cultural Knowledge by patents?

One example is the use of the active ingredient of smokebush, a plant widely
used by Aboriginal people in Western Australia.

“Under amendments to the Conservation and Land Management Act 1984 (WA) in
1985 and the National Parks and Wildlife Act (WA), the Western Australian
Minister of the Environment has the power to grant exclusive rights to Western
Australian flora and forest species for research purposes. In the early 1990s, the
Western Australian Government also awarded Amrad the rights to the Smokebush
species, to develop an anti-AIDS drug ... Amrad paid $1.5 million to the WA
government to secure access to Smokebush and related species ... if
Conocurovone is successfully commercialised, the WA government will recoup
royalties of $100 million per year by 2002.

Indigenous people are concerned that they have not received any
acknowledgment, financial or otherwise, for their role in having first discovered
the healing properties of Smokebush. According to the Centre for Indigenous
History and the Arts (WA):

The current legislation disregards the potential intellectual property rights that
Indigenous peoples in WA have in flora on their lands. Furthermore, multinational
drug companies could be sold exclusive rights to entire species of flora,
preventing anyone from using these species for any other purpose without the
consent of the companies.

Indigenous peoples in WA face the possibility of being prevented from using any
of the flora which is the subject of an exclusive agreement.”

It is therefore vital that any reform of the intellectual and cultural property laws
include provisions for the recognition of Indigenous peoples as the native title
owners of all the biological resources of the flora and fauna that are on their
lands.” Terri Janke (OCOF) (get permission)

What kinds of issues should teachers and Aboriginal Educations

Assistants consider?

Are you anticipating using Aboriginal Cultural Knowledge in your class? If so, the
following questions can provide a guide to respectful use:

Who will own copyright in the material I produce?

If you are not sure, contact the Legal Services Directorate, NSW Department of
Education and Training, and seek their advice.

What if the Department of Employment and Training will own copyright?

The principle of Free Prior Informed Consent (FPIC) requires that the Aboriginal
Cultural Knowledge holders must be fully informed about the project and their
legal rights, before the project begins, and their consent must be voluntarily

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provided before the project starts. If the Department will be the copyright owner
it is essential that the Aboriginal Cultural Knowledge holders are informed of their
legal rights of all proposed and anticipated uses of their material. The Aboriginal
Knowledge holders should be given an opportunity to make their own enquiries,
consent, decline, or make alternative proposals.

What if the Aboriginal Knowledge Holders Do Not Agree to the Department of

Education and Training Owning the Copyright?

An agreement can be drafted to vest copyright in the Aboriginal Cultural

Knowledge holders, and licensing the Department to use the material under
terms agreed by both parties.

Some hypotheticals

 Copyright Ownership and Future Uses

A teacher in a rural high school develops a resource which includes Aboriginal

cultural knowledge of fishing practices. There was considerable consultation
between you and the Aboriginal Cultural Knowledge holders and a verbal
agreement was reached that the information would be printed out as a handout
for the class only. The teacher retires a few years later. A new teacher comes
along and is very excited to find the resource. The new teacher decides to put the
resource online. The Aboriginal Knowledge holders are extremely upset. But they
do not own the copyright because no proper agreement was reached to ensure
their ownership, and no mechanism was put in place to limit future uses if the
resource.

 Patents and Aboriginal Cultural Knowledge

A teacher in a school is fascinated by Aboriginal Cultural Knowledge about

medicinal uses of plants. The teacher invites members of the Aboriginal
community to talk to the class about medicinal uses of plants. The teacher
produces small booklet from discussions, and makes arrangements to vest the
copyright with the Aboriginal Cultural Knowledge holders. Some time later a
university researcher arrives in the area, conducting research into the properties
of local plant species. The teacher shows the researcher the booklet. The
researcher is very interested in information on the properties of one particular
plant which is used for soothing skin irritations and includes it in his report. Some
years later, a company markets an ointment which features extracts from the
plant. Some members of the Aboriginal community are concerned that their
Aboriginal Cultural Knowledge has been ripped off. They are not sure how they
can prove the company used their Knowledge, but they look into it. In the course
of investigating the links between the company, the researcher and their booklet,
the community found that the active ingredient of the plant, a method for its
extraction and for combining it with other substances has been patented.

Principles for Guidelines or Protocols – from the ATSIASB Artform Protocol

Guides

• Respect
• Indigenous Control
• Communication, consultation and consent
• Interpretation, integrity and authenticity
• Secrecy and Confidentiality
• Attribution

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• Proper Returns
• Continuing Cultures
• Recognition and Protection

Artform Protocol Guides , written by Terri Janke and Robynne Quiggin, published
by the Aboriginal and Torres Strait Islander Arts Board of the Australia Council for
the Arts. These Protocol Guides are only available online now at:
http://www.ozco.gov.au/arts_resources/publications

The Australian Copyright Council http://www.copyright.org.au/index.htm

Is an independent non-profit organisation that provides information, publications

and advice on copyright issues. The website has a lot of information on specific
copyright issues. If the information on the web site does not answer your
question, you can write to or email (info@copyright.org.au) the Australian
Copyright Council for information on a specific issue. The Australian Copyright
Council will try to respond to written enquiries within 3 days, but it may take up
to a week. You may also contact them by telephone on Mondays and
Wednesdays, 9 am to midday and 2 pm to 5 pm (Sydney time). As they receive a
large number of telephone calls, you may be asked to wait, or to call back, but
they will help you with your inquiry. The Australian Copyright Council also
conduct training workshops.

The Arts Law Centre of Australia http://www.artslaw.com.au/

Is the national community legal centre for the arts. Arts Law gives preliminary
advice and information to artists and arts organisations across all artforms on a
wide range of arts related legal and business matters including contracts,
copyright, business names and structures, defamation, insurance and
employment. Arts Law's legal officers provide telephone legal advice from
Tuesday to Friday in two sessions a day: 9:30am-12:30pm and 2:00pm-5:00pm
EST. Initial telephone advice is free and can be accessed by callers outside the
Sydney metropolitan area on our tollfree number by dialling 1800 221 457.

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