2ND EDITION
Protocols for producing Indigenous Australian writing Writing Australia Council for the Arts 372 Elizabeth Street, Surry Hills NSW 2010 PO Box 788, Strawberry Hills NSW 2012 ABN 38 392 626 187
Telephone +61 2 9215 9000 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 Email [email protected] www.australiacouncil.gov.au Writing 01 Contents
Australia Council for the Arts Introduction 2 How long does copyright protect 372 Elizabeth Street, Surry Hills NSW 2010 literary works? 24 Using this guide 3 PO Box 788, Strawberry Hills NSW 2012 What is the public domain? 24 What are protocols? 4 ABN 38 392 626 187 What are moral rights? 24 What is Indigenous writing? 4 Telephone +61 2 9215 9000 Indigenous communal moral rights 25 Special nature of Indigenous writing 5 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 Licensing 25 Individual stories and communally Email [email protected] Licensing for publication 26 www.australiacouncil.gov.au owned stories 6 Collaborative Indigenous literary works 6 Managing copyright to protect This publication is available online Indigenous studies 6 your interests 27 at
Introduction The five guides in the suite are: In Australia, Indigenous heritage comprises all Indigenous cultural consultant with relevant As an Aboriginal writer I am constantly aware • Media arts objects, sites and knowledge transmitted from knowledge and experience. of literature being the ‘little sister’ to other • Music generation to generation. Indigenous people Reading this guide from cover to cover is an artforms like visual arts, theatre, music and have a living heritage. Their connection with the • Performing arts important and highly recommended first step. dance. The ‘little sister’ syndrome exists land, water, animals, plants and other people largely due to the fact that literature is a • Visual arts is an expression of cultural heritage. Writing, The introduction defines protocols as used in this relatively new artform for Aboriginal people, • Writing. performing, music, the visual arts, and media guide, and looks at the special characteristics of arts are some of the mediums for transmitting Australia’s Indigenous writing. visual and performing arts being part of They are relevant to anyone working in or with Indigenous cultural heritage. our culture since the beginning of time. the Indigenous arts sector, including: The Indigenous heritage section gives an overview We have now mastered the same language • Indigenous and non-Indigenous artists As primary guardians and interpreters of the issues that inform the development of of their cultures, Indigenous people have Indigenous protocols. It explores the complexity that was once used against us – describing • people working within related fields of well-established protocols for interacting of Indigenous Australia, and the potential impact us as barbaric and savage – and we have Indigenous artform practice empowered ourselves to tell our stories, with their cultural material. New situations on the planning of a writing project. It also charts • Australian and state/territory in our styles, for our people. also require cultural protocols. international initiatives for the protection of 1 government agencies Indigenous cultural and intellectual property rights. Dr Anita Heiss Although each guide in the suite addresses • industry agencies and peak organisations Even though publishing has only become cultural protocols specific to an artform, the The principles and protocols section examines • galleries, museums and arts centres accessible to Indigenous writers in the past 50 same underlying principles are common to each. the nine principles that support the protection years, literature is a vital part of Indigenous • educational and training institutions of Indigenous cultural heritage. It includes We hope Indigenous people, and those working valuable information on protocols specific to culture. For Indigenous Australians, writing is • Indigenous and targeted mainstream media. with them, will be inspired and encouraged to use largely about expressing cultural belonging the use of cultural heritage material in writing The protocol guides endorse Indigenous cultural these principles as a framework for developing practice. A number of case studies and and identity. However, it goes beyond that. and intellectual property rights – the rights of protocols appropriate to their specific projects, When writing about their Indigenous cultures, commentaries from Indigenous writers identify Indigenous people to own and control their language groups, regions and communities. pitfalls and offer readers valuable advice. Indigenous writers are custodians of culture, cultural heritage. These rights are confirmed in with obligations as well as privileges. We also hope the guides will spark debate The guide contains general information and the 2006 United Nations Declaration of the and that additional protocols will be developed 2 advice on the main laws in Australia governing As part of their practice, Indigenous writers Rights of Indigenous Peoples, which says across artforms. take on responsibilities as educators, Indigenous peoples have the right to practice the use and reproduction of arts and cultural informants and conveyors of the diversity of and revitalize their cultural traditions and Send any comments about this guide or any expression. For this second edition, we have Aboriginal and Torres Strait Islander cultures. customs. ‘This includes the right to maintain, suggestions for improvement to the Australia integrated copyright, licensing and royalty Writing encompasses several obligations for protect and develop the past, present and future Council for the Arts: information into the principles and protocols section. So one section of the guide deals with Indigenous authors and these may bring about manifestations of their cultures, such as Executive Director attribution and copyright and another with conflict in the creation and publication of their archaeological and historical sites, artefacts, Aboriginal and Torres Strait Islander arts proper returns and royalties. literary works. This guide examines some of designs, ceremonies, technologies and visual Australia Council for the Arts these issues. and performing arts and literature.’ PO Box 788, Strawberry Hills NSW 2012 The implementation section summarises some This guide is one of five protocol guides In Our culture, our future3: Terri Janke [email protected] of the key points and provides a checklist for produced by the Australia Council for the Arts, recommended significant changes to laws, applying protocols to a writing project. Using this guide which clearly spell out clearly the legal as well policy and procedures to protect Indigenous There is also a list of contacts and a bibliography This guide is designed to be an initial point of as the ethical and moral considerations for cultural knowledge and expression. to use as starting points to access relevant reference in planning a work with Indigenous the use of Indigenous cultural material. It is The Australian Government has yet to people and information. designed to help writers and people involved make a determination on this matter. writers, or using Indigenous cultural material. with them do the right thing. When you need specific advice on the cultural issues of a particular group, we recommend you speak to people in authority, or engage an Writing 04 Writing 05 Introduction Introduction
What are protocols? This guide identifies many specific protocols, Special nature of Indigenous writing Dr Anita Heiss’ historical novel for teenagers Who Protocols are appropriate ways of using which can be applied or adapted by writers, The story is the most powerful thing on earth am I? The diary of Mary Talence, Sydney 1937 6 Indigenous cultural material, and interacting publishers, arts organisations, cultural institutions because it will last as long as there are two to Glenys Ward’s autobiography Wandering Girl7 with Indigenous people and Indigenous and others working with Indigenous literature. people left on it. And when there is only one on life at the Wandering Mission in Western communities. They encourage ethical conduct It also aims to identify issues arising from the she will whisper these stories to remind herself Australia. Kim Scott’s Benang: From the heart 8 and promote interaction based on good faith interaction between Indigenous cultural concerns of what has been lost and, in that way, she deals with issues that include identity. She says: and mutual respect. and the law protecting the rights of authors. will have the company of her ancestors. There are many reasons to write. I partly write Bruce Pascoe5 Responsible use of Indigenous cultural The Australian legal system incorporates some to think things through in the form of a story, knowledge and expression will ensure that but not all of these concerns. Knowledge, history and other cultural information and to seek a deep communication with the future and the past; attempting to understand Indigenous cultures are maintained and While protocols differ from legal obligations, have been orally transmitted through many protected so they can be passed on to Indigenous generations. Now, Indigenous my own ancestors, and attempting to this guide outlines the current copyright law communicate with integrity to both present future generations. framework. The process of following the writing has an important place in the transmission of Aboriginal and Torres Straits Islander cultures. and future readers among my people. It is important to recognise the diversity and protocols supports the recognition of Indigenous Kim Scott9 complexity of the many different Indigenous heritage rights. It encourages culturally Some of the reasons Indigenous writers put cultures in Australia. Ways of dealing with issues appropriate working practices, and promotes pen to paper include: Indigenous writers also pen poems, stories and novels on themes that are not solely about and cultural material may differ from community communication between all Australians with • facilitating ongoing transmission of information to community. There are also many different an interest in Indigenous literature. Indigenous issues. For instance, Aboriginal poet • providing reading materials for protocols across the diversity of urban, rural Dennis McDermott’s poetry anthology Dorothy’s These protocols are accepted and used by Indigenous readers and remote communities. Skin includes themes of identity, working life, and many Indigenous writers. They have also been • recording community histories also growing up in the 1950s10, Jared Thomas’ Indigenous protocols arise from value systems used for several Indigenous writing projects. • recording oral histories/life stories Sweet guy is a novel about male coming of age and cultural principles developed within and Writing guides are recommended by the 11 • fostering community ownership of stories built around surfing and university life. Norm across communities over time. Agreeing to Australian Society of Authors and have been Newlin writes poetry inspired by love.12 comply with the accepted protocols of other endorsed by the Copyright Agency Limited. • reclaiming and maintaining culture cultural groups promotes interaction based • reclaiming and maintaining language Writing and oral stories, like other aspects of Non-Indigenous writers have also used them Indigenous heritage, often stem from a social and on good faith and mutual respect, thus when writing about Indigenous people and • entertainment encouraging ethical conduct.4 cultural base. In some cases, stories may relate their cultures. • healing individuals and communities to a group or groups of Indigenous people where While it is not possible to prescribe (for example relating stories of the one author cannot be singled out from group What is Indigenous writing? universal rules for engaging with Indigenous Stolen Generation) ownership. The Painters of the Wagilag Sisters Indigenous writing in an Australian context artists and their communities, there are some • providing an authentic voice in Australian story13 is an example of a culturally based story refers to the written word and text produced by fundamental principles within which to conduct writing and the literary scene that has ancient origins and spans a number of respectful work. Aboriginal and Torres Strait Islander people. • educating the broader community about language groups. Indigenous writing crosses a range of The protocols outlined in this guide are shaped Indigenous issues Indigenous Australians are concerned that genres including: by nine principles. The protocols are, by • educating Indigenous communities on local there is no respect for their Indigenous cultural definition, ways of applying these principles. • short stories and national Indigenous issues. knowledge, stories and other expression in the For example, a cultural protocol to implement • novels/novellas Over the past 20 years, the development of wider cultural environment. the underlying principle of respect is to • non-fiction, including essays and opinions Indigenous writing has resulted in a range of The current legal framework does not promote acknowledge the Indigenous custodians of • poetry works on contemporary themes including or protect the rights of Indigenous people – country at the site of each spoken word • autobiography/biography Indigenous issues and topics, such as the particularly to own and control representation performance, launch or literary event; and in Stolen Generation, living in the era of Aboriginal • community and oral histories and dissemination of their stories, knowledge the acknowledgment of a published text protection, and Indigenous identity. Indigenous and other cultural expression.14 about a specific Indigenous country. • children’s books. books on the Stolen Generation range from Writing 06 Writing 07 Introduction Introduction
A further concern is the passing on of stories of Aboriginal and Torres Strait Islander and Indigenous knowledge to outsiders. Studies’ Guidelines for Ethical Research in They told me many things I hadn’t known, maintained regular contact with his friends In Indigenous communities, the telling of stories Indigenous Studies.16 or hadn’t realised the significance of – an in northern Queensland. On completing the is a right given to particular and qualified example would be the ‘yam daisies’. novel, Miller sent the entire manuscript to individuals. The re-telling of those stories by Non-Indigenous writers writing on I’d had no idea from my reading in ‘Bo’ for feedback. Approval of the text was unqualified outsiders may be offensive to Indigenous themes non-Indigenous sources that they were granted over the phone and all those customary law beliefs. Indigenous people and their cultures have been a staple in the Darug diet, and how the represented in the novel are reported to be depicted widely in Australian literature. Some of Europeans dug them up as weeds and delighted with the final product. On the advice Individual stories and communally what has been written about Indigenous people replaced them with corn. Knowing about of producers, ‘Bo’ is also currently a consultant owned stories has served to develop stereotypes that do not them made sense of what happened in the making of the movie based on the book. Indigenous writers may draw from their traditions adequately reflect the diversity of Indigenous on those river flats. and beliefs and cultures. Writers also develop people and their culture. Writers need to be Melissa Lucashenko, an Indigenous writer, Indigenous heritage their own individual contribution, which is based aware of these issues about the use of and John Maynard, an Indigenous historian, Indigenous writing is an important means of on their own artistic endeavours. In this respect, Indigenous cultural and intellectual property were generous enough to read the book expressing Indigenous heritage – past, present literature does not embody Indigenous cultural within their works. Attention must be paid to in draft form and tactfully pointed out and future. Indigenous heritage, enshrined in and intellectual property or heritage in a strict the cultural accuracy of using Indigenous several big mistakes I’d made (eg having Indigenous cultural and intellectual rights, is sense. For straight-out individual artistic projects knowledge, cultural information and stories. Darug play didgeridoos in 1816). As well discussed at length in Our culture: our future.22 these protocols are a guide only. Their main Questions of authenticity and appropriate cultural as picking up areas of my ignorance like The literary and publishing sector can adopt a focus is where writing draws from existing protocols require thought when writing down that, they reassured me about the value cultural information. Indigenous cultural information. ‘best practice’ approach by encouraging respect of what I was doing. I’d been anxious that for the cultures of Indigenous Australians. Non-Indigenous writers who cover Indigenous with a non-Indigenous world-view I might, Collaborative Indigenous It can do this by acknowledging their innate themes in their works are also advised to even with the best of intentions, have value, their difference from other cultures, literary works 21 consider these protocols. Two recent works been offensive or disrespectful. Indigenous writers and storytellers also and by respecting Indigenous ownership by non-Indigenous authors are worth noting: collaborate with non-Indigenous writers to Case study: Journey to the and control of Indigenous heritage. The Secret River17 by Kate Grenville and produce literary works. For example, Jandamarra Stone Country Journey to the Stone Country18 by Alex Miller. All Indigenous artists are responsible for and the Bunuba Resistance and Woman from Before Alex Miller began writing his Miles safeguarding cultural knowledge and expression. Nowhere15 are works written by a collaboration Franklin award-winning novel Journey to the They need to ensure that Indigenous cultures, of non-Indigenous and Indigenous writers. It is Case study: The Secret River Stone Country, he was invited by his friend both in the past and today, are protected and accepted by industry that such 50:50 by Kate Grenville and the main character of the novel ‘Bo’ maintained in their works. In this way, these collaborative efforts can be defined as Indigenous In the process of writing The Secret River,19 (fictionalised name), to visit his homelands. cultures can be passed on to future generations. writing; however, the Indigenous author should a book about early contact relations Miller was then given the story by ‘Bo and There are many Aboriginal and Torres Strait ultimately have the discretion to decide if the book between Indigenous and non-Indigenous Annabelle’ (whose relationship the novel is Islander cultures. These cultures have developed is to be categorised as ‘Indigenous writing’. Australians, Kate Grenville was mindful of based on), and it was suggested that he over thousands of years and have been passed her depiction of Indigenous Australians write the book. Miller did so with the down from generation to generation. Despite Indigenous studies and the events and places that were the understanding that he’d only publish the the enormous impact of the invasion in 1788, Much literature is produced by Indigenous and subject of the book.20 novel if they were completely happy with Indigenous cultures have continued to develop. non-Indigenous researchers, academics and how the country and people were portrayed. Grenville discusses the process: commentators about Indigenous topics and Miller’s research and understanding of An Indigenous person’s connection to I approached the Darug descendents Indigenous culture. These literary works fall into Indigenous lives was based on a friendship Indigenous heritage is expressed in contemporary diffidently because I knew that I was asking the genre of ‘Indigenous studies’. This guide may with Indigenous people and spending time life through his or her relationship with land, them to talk about traumatic events in also be useful for researchers and academics on country with ‘Bo and Annabelle’. When waterways, animals and plants, and his or her their peoples’ past, but I was overwhelmed when writing and publishing the results of their he returned to his home in Victoria he relationships with other people. research. Refer also to the Australian Institute by the generosity of their response. Writing 08 Writing 09 Introduction Introduction
Aboriginal and Torres Strait Islander people over time, ensure that Indigenous people’s intergovernmental committee on intellectual have a well developed and complex web of • authorise or refuse to authorise the cultural heritage is respected and protected. property and genetic resources, traditional relationships based on family ties, language commercial use of Indigenous cultural knowledge and folklore to discuss intellectual In mid-2006, they were given international group affiliations, and community, organisational and intellectual property according to property issues that arise in the context of: recognition when the United Nations and government structures. A range of authority customary law Declaration of the Rights of Indigenous • access to genetic resources and structures exists across urban, regional and benefit sharing • maintain the secrecy of Indigenous Peoples,24 was passed. Article 31 states: remote communities. It is important to knowledge and other cultural practices • protection of traditional knowledge, 1. Indigenous peoples have the right to acknowledge the complexity of Indigenous • full and proper attribution innovations and creativity Australia when negotiating the use of Indigenous maintain, control, protect and develop their • control the recording of cultural customs • protection of expressions of folklore. heritage material for a writing project. cultural heritage, traditional knowledge and and expressions, as well as the particular traditional cultural expressions, as well as Based on its extensive international, regional The process of following the protocols not language that may be intrinsic to cultural the manifestations of their sciences, and national experience and on input from only supports Indigenous heritage rights, identity, knowledge, skill, and teaching technologies and cultures, including human different countries, the WIPO intergovernmental but also promotes diversity and new initiatives of culture. and genetic resources, seeds, medicines, committee developed two important documents, in Indigenous literature with culturally which outline policy options and legal options For a full list of rights, see Our culture: knowledge of the properties of fauna and appropriate outcomes. for traditional cultural expression and knowledge. our future.23 flora, oral traditions, literatures, designs, sports and traditional games and visual and These are: Our culture: our future performing arts. They also have the right to (i) The protection of traditional cultural Indigenous cultural and intellectual property Current protection of heritage maintain, control, protect and develop their expressions/expressions of folklore; Australia’s current legal framework provides 28 rights refer to Indigenous people’s rights to intellectual property over such cultural Draft objectives and principles limited recognition and protection of these their cultural heritage. Heritage comprises all heritage, traditional knowledge, and (ii) The protection of traditional knowledge; rights. Our culture: our future recommended 29 objects, sites and knowledge – the nature traditional cultural expressions. Draft objectives and principles. significant changes to legislation, policy and or use of which has been transmitted or procedures. As yet there has been no formal 2. In conjunction with Indigenous peoples, States The latest WIPO provisions for the protection of continues to be transmitted from generation traditional cultural expressions (TCEs) suggest response to these recommendations from the shall take effective measures to recognize to generation, and which is regarded as 25 three layers of protection tailored to different Australian Government. However, there are and protect the exercise of these rights. pertaining to a particular Indigenous group forms of cultural expression. It says TCEs of proposals to amend the Copyright Act 1968 to The Mataatua Declaration on Indigenous or its territory. particular religious and cultural significance recognise Indigenous communal moral rights. Cultural and Intellectual Property Rights, in should be noted in a public register so there is Indigenous people’s heritage is a living These have not yet been debated in Parliament. Article 1.3, urges Indigenous people to ‘develop certainty as to which are protected and for heritage and includes objects, knowledge, In the absence of laws, much of the rights a code of ethics which external users must whose benefit. The items in the register would artistic, literary, musical and performance recognition has been done at an industry and observe when recording (visual, audio, written) be afforded a form of protection similar to that works, which may be created now or in practitioner level, through the development their traditional and customary knowledge’.26 given by intellectual property rights legislation. the future, and based on that heritage. of protocols and use of contracts to support The former Aboriginal and Torres Strait Islander It recommends in Article 3, that when TCEs the cultural rights of Indigenous people. Indigenous cultural and intellectual Commission’s Indigenous Reference Group have been registered or notified, there shall be property rights include the right to: Across the world, Indigenous people continue adopted the Draft Principles and Guidelines adequate and effective legal and practical • own and control Indigenous cultural and to call for rights at a national and international for the Protection of the Heritage of Indigenous measures to ensure that the relevant community intellectual property level. Indigenous people are developing People (1993) in 1997.27 Article 39 states: can prevent certain acts taking place without statements and declarations that assert their its free, prior and informed consent. • ensure that any means of protecting Artists, writers and performers should refrain ownership and associated rights to Indigenous Indigenous cultural and intellectual from incorporating elements derived from With TCEs other than words, signs and names, cultural heritage. property is based on the principle of Indigenous heritage into their works without the these acts include: self-determination These statements and declarations are a informed consent of the Indigenous owners. • the reproduction, publication, adaptation and communication to the public and adaptation • be recognised as the primary guardians means of giving the world notice of the rights Internationally, the World Intellectual Property of its traditional cultural expressions and interpreters of their cultures of Indigenous people. They also set standards Organisation (WIPO) has established an and develop an Indigenous discourse that will, Writing 10 Writing 11 Introduction Principles and protocols
• any use of traditional cultural expression Principles and protocols knows, hears, smells, takes notice, takes care, which does not acknowledge in an appropriate is sorry or happy. Country is not a generalised way the community as the source The principles outlined below are a framework or undifferentiated type of place, such as for respecting Indigenous heritage: • any distortions, mutilations or other one might indicate with terms like ‘spending modification of or inappropriate action in 1. Respect a day in the country’ or ‘going up the relation to the traditional cultural expression 2. Indigenous control country’. Rather, country is a living entity with a yesterday, today and tomorrow, with a • the acquisition or exercise of intellectual 3. Communication, consultation and consent consciousness, and a will toward life. Because property rights over the traditional cultural 4. Interpretation, integrity and authenticity of this richness, country is home, and peace; expression adaptations of them.30 5. Secrecy and confidentiality nourishment for body, mind, and spirit; Regionally, a model law for protecting traditional 6. Attribution and copyright heart’s ease.32 knowledge in the Pacific was drafted and 7. Proper returns and royalties completed in July 2002. The Pacific Regional When organising a book launch or literary event 8. Continuing cultures Framework for the Protection of Traditional of state or national significance, it is respectful to Knowledge and Expression of Culture 9. Recognition and protection. invite a representative of the traditional owners to attend and give a ‘welcome to country’ address. establishes ‘traditional cultural rights’ for In the following pages, under each of these traditional owners of traditional knowledge and principles, we have suggested protocols A ‘welcome to country’ is an address given by expression of culture.31 for using Indigenous cultural material, and an Indigenous custodian of the land, included in the official opening of events. As a matter of The prior and informed consent of the traditional interacting with Indigenous writers and cultural protocol, large cultural events like writers’ owners is required to: Indigenous communities. festivals or conferences, should invite an • reproduce or publish the traditional knowledge 1. Respect Indigenous custodian or representative of or expressions of culture Respectful use of Indigenous cultural material, the traditional landowner group to provide • perform or display the traditional knowledge including stories, traditional knowledge and a ‘welcome to country’. Alternatively, an or expressions of culture in public information about life experience, is a basic Indigenous person of prominence or an elder • make available online or electronically principle. It is important to consider this when who has lived in the area and contributed to transmit to the public (whether over a path or developing Indigenous literary works for the Indigenous community may also be asked a combination of paths, or both) traditional publication and wide dissemination. to acknowledge country if they are not in a knowledge or expression of culture position to welcome. Acknowledgment of country • use the traditional knowledge or expression Indigenous Australians, the Aboriginal and Torres It is respectful for others speaking officially to of culture in any other form. Strait Islander people, are the original inhabitants also acknowledge country and custodians at of Australia. As such they have a strong link to the site of each spoken word performance, country, meaning the totality of life and the spirit book launch, storytelling or literary event, and in of the particular area of land they and their the acknowledgment of a published text about ancestors inhabited. a specific Indigenous country. The master of ceremonies, the publisher or the author could do In Nourishing Terrains, Deborah Bird Rose says: this by way of an introductory acknowledgment.33 Country in Aboriginal English is not only a common noun but also a proper noun. People Seek advice from the Indigenous community talk about country in the same way that they on the preferred manner of acknowledgment, would talk about a person: they speak to and the relevant groups to be acknowledged. country, sing to country, visit country, worry about country, feel sorry for country, and long for country. People say that country Writing 12 Writing 13 Principles and protocols Principles and protocols
Representation • elders and custodians of relevant Indigenous • a declaration that they are of Aboriginal or Representation of Indigenous cultures should knowledge once the copyright period language groups Torres Strait Islander descent, identify and reflect Indigenous cultural values and respect expires. For example, ancient Greek • Indigenous language centres are accepted as such in the community stories, fairytales and Bible stories are customary laws. • Indigenous publishing houses in which they live. all re-told in many different ways and It is respectful to write and speak about The Australia Council’s current practice languages by writers of varying cultural • the Australian Institute of Aboriginal and Indigenous cultures in a manner preferred by Torres Strait Islander Studies requires all Indigenous participants to provide backgrounds. those cultures, avoiding inappropriate or outdated • Aboriginal land councils a letter of support confirming their Aboriginal Using knowledge as part of the general or Torres Strait Islander identity from an terms and perspectives. It is important to consult • Office of Indigenous Policy Coordination with relevant groups about preferred language spread of ideas is a concept that often sits Indigenous organisation.35 • Torres Strait Regional Authority and terms. at odds with Indigenous notions of holding • Island Coordinating Council Discuss copyright ownership at the outset. The and disseminating knowledge. It is a right following factors may be relevant in discussions: Accepting diversity given to people based on their standing in • Indigenous unit of the Australian There is great diversity of experience and cultural an Indigenous society. Film Commission • nature of the commission context within Indigenous communities. • Indigenous theatre companies • nature of subject matter Indigenous writing reflects this diversity in the • whether it is a collaboration genre, subject matter and cultural setting the 2. Indigenous control • Indigenous media organisations Indigenous writer might choose. Indigenous people have the right to • Indigenous curatorial staff at local keeping • fees for services. self-determination in their cultural affairs and places, state and national galleries, People working in the literary field are Working with communities the expression of their cultural material. There museums and libraries. In some writing projects, where the writer has encouraged to foster diversity of expression are many ways in which this right can be in Indigenous writing. It is also prudent to involve Indigenous people worked closely with a community or group and respected in the development and production in all stages of writing projects, including the book is accepted for publication, the writer Living cultures of literary works. Indigenous writers, community members, acknowledges this contribution by sharing a Indigenous cultures are living and evolving entities, One significant way is to discuss how Indigenous storytellers and editors. Some contact percentage of the royalties. The writer and a not simply historical phenomena. Contemporary control over a project will be exercised. This information for Indigenous professionals can representative community organisation might also be found in the Black Book,34 available online stories of Indigenous lives and experiences raises the issue of who can represent language jointly own the copyright in the book. For example, at
protocols. If the non-Indigenous writer doesn’t In researching for this project we consulted context or use different words, creating Recording oral stories know any Indigenous people to consult Indigenous writers about communication, copyright in another form. Traditionally, Indigenous stories have been transmitted orally and passed on through the with then that is a great reason to abandon consultation and consent issues. Some protocols It is also possible for a writer to include or 36 generations via the art of storytelling. Committing the project. identified by Indigenous writers as important to write about creation stories without following the communication, consultation and consent these stories to material form now creates a Kim Scott discusses issues within the the correct Indigenous protocol of seeking process include: copyright interest in the expression of the story. consultation process: permission from the people in authority. • the need to identify relevant people with In the past, there have been instances where It’s difficult to know how to consult adequately whom to discuss the intended publication If the writing of creation stories involves the non-Indigenous individuals have worked with in many instances. So there’s great need for verbatim transcription of an oral story from Indigenous people to record their language • when interviewing informants take good notes; trust. And the authority is given by genealogical specific informants, then permission, attribution group and creation stories. Copyright attaches if they provide photographs, recordings, news descent, by ‘connection’ to community and ownership of material should always to the written expression, so the non-Indigenous 37 clippings and other materials, these should and place, and by the validation of elders. be recognised. person who wrote down the language group or be looked after and returned as soon as they creation story was recognised as the sole writer Non-Indigenous writers should consult and have served their purpose Should non-Aboriginal writers be writing seek consent where use of Indigenous cultural and copyright owner. Indigenous people see • keep appropriate/relevant Indigenous people Aboriginal creation stories? This issue is material and histories are made fictional. ownership of stories and information differently, informed and advised, and where possible, discussed by Dr Anita Heiss in Writing about Here is a hypothetical example to consider: not as something an individual can posses, provide regular updates Indigenous Australia: Some issues to consider An Aboriginal community has lost their lands, and protocols to follow: a discussion paper.41 but as elements of culture that are owned • when the first draft or work has been the old people massacred, and the children Some Indigenous writers and community communally and passed down. completed, take it back to the Indigenous removed from their mothers... Should people strongly believe that only Indigenous Copyright does not protect oral stories, as the people you consulted for approval and non-Indigenous people assume they can write people should write about creation stories.42 requirement of material form is not met. Hence, confirmation of facts carte blanche about this without consultation? The best approach for a writer in this situation people writing about what you said will have Consideration must be given to the effects • be flexible with time and understand that the is to get prior permission from the relevant a copyright interest in the written form as they on the Aboriginal community if the story is consultation process may be lengthy. Do not Indigenous custodians of creation stories and express it because they put in their own skill published and individual Indigenous names expect to have a reply to a question in a day once obtained, involve them in the process of and labour to transfer the oral story to the written are mentioned.38 or a week. Each community will need time to writing, editing and publication. form. You may not be able to stop them writing consider and consult. your ideas, unless you told them in confidence. Jackie Huggins advises non-Indigenous writers Pat Mamanyjun Torres notes that the process when consulting and seeking consent: Creation stories If you told them in confidence, and they knew Creation stories or Indigenous Dreaming Histories she went through to publish The Story of Crow it was confidential, you may be able to stop One word of caution though – don’t expect – referred to by different Indigenous groups in 1987 required continual dialogue with the them publishing your ideas by taking an action Aboriginal people to easily welcome you into as the Jukurrpa, Bugari or Altjeringa40 – are custodians of the story. She says: in breach of confidential information.44 their world. Some of us will be more open and During my initial research period, approval important to Indigenous cultures. The ability to capture these oral stories via tolerant than others. There is a long history was obtained from Auntie Magdalene for the sound recording introduces issues relating to of violence, mistrust, guilt and fear that It is protocol to consult with cultural custodians future publication of this material in a book the dissemination and ownership of the resulting cannot be erased overnight. Know when you of a story and other community members. format so that children could learn about recording. This is because copyright in the are becoming an intruder rather than an There may also be one or more groups that our culture. At all times throughout the recording is separate from copyright in the accomplice. Do some homework first. Read have custodianship of a story. Consultation development of the material her approval spoken word. The person who makes the books, watch films, and do Aboriginal studies with, and consent from each identified group was sought for the working drafts and recording is recognised as the copyright owner courses. You should never expect Aboriginal should be sought. Be prepared to reconsider eventually the finished product.43 people to do all the education because it’s your project if consensus cannot be reached. of the sound recording45 unless it is a recording unfair and a personal drain... If there is trust, Under copyright law, it is not an infringement to Many Indigenous writers make draft copies of a ‘performance’. available, before publication, to the relevant respect and genuine interest, one will possibly refer to another writer’s work. Creation stories From January 1, 2006, performers will share Indigenous people and family members get past the first encounter and continue that are published have copyright protecting copyright in sound recordings of their 39 for comment. a dialogue. the expression. However, it is possible for performances. Performances can include a writer to adapt a story, tell it in a different Writing 16 Writing 17 Principles and protocols Principles and protocols
expressions of folklore46 (which could include The following questions arise: 4. Interpretation, integrity Indigenous cultural material). This allows scope • Who is in control of the representation Case study: Woman from Nowhere – and authenticity for exercising some control over the use of of the story? Hazel McKellar/Kerry McCallum recordings of performances of oral stories. The life story of an Indigenous woman, the It is important for Indigenous culture that the • Is there anything sensitive that needs to be However, these general law provisions can be late Hazel McKellar,48 was written in book interpretation, integrity and authenticity of a removed from the story – particularly in overturned by written agreement, and it is form by Dr Kerry McCallum.49 The writing story is maintained. This means that Indigenous relation to events and cultural beliefs that often the practice for performer’s releases to of Woman from Nowhere involved people will need to be consulted on how involve other people? determine the ownership of copyright in a several stages: Indigenous heritage is presented. recording. When agreeing to take part in Firstly, McCallum was approached by Interpretation recording of oral stories, it is a good idea for Case study: Writing lives McKellar and given tapes of her talking Interpretation refers to how cultural material storytellers to discuss the copyright issue An Indigenous woman worked with a is presented. This includes the perspective and to request a copy of the recording for about her life. McCallum typed these up playwright to create a play about her life. given and the language used in relation to their records. before the two women met face-to-face. The woman orally related her life story to cultural heritage and the medium in which Protecting oral stories from the playwright who took notes. The oral The second stage involved them meeting. it is reproduced. unauthorised copying transmission of the story does not McCallum interviewed McKellar to find out Magabala Books suggests the following way of constitute material form, which is created more details of her life, and discussed the In the past, Indigenous cultural material protecting rights when a story is first recorded: when the notes are made. The playwright proposed format. Letters also were sent to has been subject to interpretation by non- Indigenous people. Today, as Indigenous Most Aboriginal stories are part of an oral used the notes as a basis to develop a plot. and from the two women because McKellar did not have a phone. people seek to re-assert and reclaim control tradition and have never been written down. He skilfully wrote more words and interpreted If someone wishes to record a story (by writing over their cultural heritage material, Indigenous the woman’s words into a framework Next McCallum wrote up the manuscript. interpretation of the material is a way of it down or taping it) then the recorder could suitable for production as a performance. ‘I converted her oral story into a readable claim to be the copyright owner of the enhancing the cultural significance of the work. After completion, there was a discussion format. This involved taking out repetition, material because they are the one who has about who owned copyright. The Indigenous putting things in order and placing Indigenous people should be given the written it down. A way to control this would woman had a legitimate claim to copyright information in chapters to focus the story.’ opportunity to interpret and present their be for the storyteller to argue that, as the own cultures. story is theirs, the recorder should assign in in the play, given she had provided notes The final stage involved McCallum reading writing the copyright back to the storyteller, and the details on her life. However, the the whole book out loud to McKellar. ‘This Some important questions to consider about who can then license the recorder to use the playwright was also arguably entitled to took a couple of days. Hazel corrected interpretation are: material in certain specified ways, such as for some copyright interest given he had things, and made changes where I had • How will your writing affect the Indigenous research or for linguistic work.47 skilfully developed text and a framework gone off on a tangent, and so that the book group it is based on? for her story. Sensitivity of content was still her work.’ • Does it empower them? Be aware of gender division of responsibility and In the end the parties agreed that the The copyright in the book, published by • Does it expose confidential or personal knowledge in many Indigenous communities. Indigenous woman should own copyright, Magabala Books, belongs to McKellar and sensitive material? Sensitive content such as secret and sacred however both should share royalties and and has now been passed on to a family • Does it reinforce negative stereotypes? material or gender-based works may require be jointly attributed as authors. In this way, member. McCallum is attributed as the special communication procedures. These Use of terminology the resulting play was a collaborative work. writer, as follows: procedures should first be ascertained. Writers are encouraged to examine the This example illustrates how copyright law Consultation may take time depending on the ‘Woman from Nowhere – Hazel McKellar terminology used in Indigenous writing. For can affect the rights of Indigenous people sensitivity of the material. as told to Kerry McCallum.’ instance, Pat Mamanyjun Torres notes instead of to important cultural stories. However, using ‘Dreamtime’ (a Westernised construction) Writing life stories these problems can be avoided if issues for creation stories, Indigenous language words In writing life stories of Indigenous people it is are discussed at the outset and included should be used such as Jukurrpa, Bugari important to respect the rights of the subject in written agreements. in terms of ownership and approval over the and Altjeringa.50 representation of the story. Writing 18 Writing 19 Principles and protocols Principles and protocols
The following references provide guidelines The Australian Society of Authors (ASA) concerns that non-Indigenous editors often on the appropriate use of grammar and recommends the introduction of a labelling misunderstand the content of their manuscripts, Case study: Jandamarra and the terminology in relation to Indigenous people: system that would allow readers to know when and often alter language and style to cater Bunuba Resistance • Jackie Huggins, in her article Respect v books are written primarily by Indigenous for a mainstream non-Indigenous audience. The book Jandamarra and the Bunuba 60 Political Correctness provides some guidance. authors, and when they are a collaboration Some issues include: Resistance , published by Magabala Books For example, she states that ‘a’ is for apple, with non-Indigenous writers. • editing of ‘Aboriginal English’ to make in 1995, was written by Howard Pederson agile, anger, another, address and alphabet, it grammatically correct or to make it with custodian, Banjo Woorunmurra. The book accounts the resistance of the Bunuba but not for Aboriginal.51 Case study: My Own Sweet Time ‘High English’ people and relates a history which was In the 1990s, Leon Carmen, a non- • There is a list of suitable terms in the Australian • drawing plots and themes towards previously untold. Copyright is shared by Indigenous taxi driver confessed to having Society of Authors’ paper, Writing about westernised concepts of storytelling Pederson, a non-Indigenous writer and 52 written the book My Own Sweet Time, Indigenous Australia by Dr Anita Heiss. and morals Woorunmurra. Sandra Phillips, an Indigenous under the name of Wanda Koolmatrie, • The Style manual for authors, editors and • editing sensitive material. editor, edited the book. an Indigenous woman descended from printers sets out guidelines for the non- Sometimes people will share something very discriminatory portrayal of Aboriginal and the Pitjantjatara people in South Australia. sensitive, but that doesn’t mean they want it Publishing Torres Strait Islander people.53 The book was previously assumed to be an autobiography. As Dr Anita Heiss notes, included in a publication. Other times Mainstream publishing companies are Research the incident ‘raised issues and problems someone may share a story which is very publishing more Indigenous writers; however, In the past, Indigenous people have complained for Aboriginal authors including increased sad and indicate that they want this story there are few mainstream houses with extensive that Indigenous culture has been portrayed surveillance of Aboriginality in the publishing published, but after some thought change Indigenous lists. According to Willa McDonald: falsely in texts. It is important to make sure industry, in particular, the introduction their minds. Such decisions must be For Indigenous writing to be accepted by writing is based on sound research and facts of the Proof of Aboriginality form in respected. This is why it’s important to have white publishers, it usually needs to be that are credible. The Australian Institute of Publishing Agreements’.54 an editing process that allows lots of time for written in a way that is understandable by Aboriginal and Torres Strait Islander Studies consultation so that people can really think mainstream white Australians. The written Dr Anita Heiss considers authors (AIATSIS) is a useful starting point for research. about what they want to say without feeling word is part of white culture, and comes with appropriating Aboriginality do so for their pressured to commit to something they may rules about grammar, spelling and structure. Its premises are in Canberra and it also has a own benefit.55 Such actions have angered later regret. Everything is sifted through white filters.61 website with a catalogue of library resources at many Indigenous writers and the Indigenous 58
issues that are not applicable to Indigenous illustrators and says it is important to work adopted this practice,65 as has Aboriginal Pitjantjatjara people revealed tribal sites and interpretation of works – for example, an closely with the author in children’s book or Studies Press. The following example is items of deep cultural and religious significance in-house style of punctuation and grammar. story-based designs. She advocates ‘extra from the book, Love against the Law, to the anthropologist. Mountford recorded the care and attention to detail’ to ensure that The Autobiographies of Tex and Nelly Camfoo, information and later wrote a book, Nomads of Publishers should make relevant inquiries to Indigenous books have appropriate illustrations published by Aboriginal Studies Press: the Australian Desert, which was distributed for ensure a writer who is promoted and marketed and authentic product.64 sale in the Northern Territory. as ‘Indigenous’ is an Indigenous Australian. Readers should be aware that if members of An Indigenous person is a person of Aboriginal Selecting cover images some Aboriginal communities see the names The book contained information that was of and Torres Strait Islander descent, who The selection of artistic works for book covers or images of the deceased, particularly their deep religious and cultural significance to the identifies as Aboriginal or Torres Strait Islander may need consultation with the author and relatives, they may be distressed. Before using Pitjantjatjara men. The information was shown and is accepted as such by the community. other relevant people. It is important to ensure this book in such communities, the wishes to have been given to Mountford in confidence. of senior members should be established The Pitjantjatjara people were concerned that A sensitive issue is whether Indigenous writers the cover image is culturally appropriate and and their advice taken on appropriate continued publication of the book in the Northern should compromise their cultural integrity during not exploitative. procedures and safeguards.66 Territory could cause serious disruption to their the editorial and publishing process to get their The use of traditional designs and motifs culture and society – should the book come into work published. Indigenous writers state that (Mimis and Wandjinas, for instance) raises The deceased’s family or community needs to the hands of the uninitiated: women and children. while some publishing companies are sensitive issues for protecting Indigenous heritage. be consulted so that the appropriate protocols The court allowed them an injunction to stop to Indigenous manuscripts, there is a tendency are observed. One author noted the draft cover layout for her the sale of the book in the Northern Territory. to edit for genre and mainstream audiences. work included a Wandjina, a cultural being from Secret and sacred material Clearly, copyright in the book would have Publishers are encouraged to broaden their the Kimberley depicted in art and rock art The reproduction or unauthorised use of secret belonged to Mountford. The claim was based understanding and appreciation of works that from that area. Neither the author nor the story and sacred material may be a transgression of on an action for breach of confidence. That is, lie outside of the mainstream view of literary was related to the Kimberley or the Wandjina. Indigenous law. the researcher had known the confidential production. The publishing process must This caused her embarrassment because, ‘Secret and sacred’ refers to information or nature of the information and the detriment it be a mutual process of collaboration between if the book had been published with the material that, under customary law, is: may cause to the informant’s society, yet still the author and the editor.63 Wandjina on the cover, it could have offended • made available only to the initiated published it. Therefore the Pitjantjatjara were the cultural custodians of the images. There are few Indigenous publishing houses granted equitable relief to stop dissemination She was fortunate the publisher had sought • used for a particular purpose catering for the increasing number of new and of the book where women, children and her prior approval – the image on the cover • used at a particular time emerging Indigenous writers seeking publication. uninitiated people might find it. was changed to a more appropriate one. The current houses are Magabala Books • information or material that can only be seen This example illustrates the effect that (Broome), Aboriginal Studies Press (Canberra) and heard by particular language group 5. Secrecy and confidentiality publishing sacred or secret material may have and IAD Press (Alice Springs). The following areas members (such as men or women or people Some Indigenous cultural material is not suitable on Indigenous cultures. In order to respect the are highlighted for consideration when publishing. with certain knowledge). for wide dissemination on the grounds of secrecy cultural sensitivities associated with sacred and The publication of sacred and secret material Web publishing and confidentiality. It is the responsibility of the secret information, the wider publication of this raises sensitive issues for Indigenous people. Indigenous people are often concerned about writer, and those working on writing projects, material should be restricted. Some people question whether it is at all the publication of Indigenous heritage on the to discuss any restrictions on use with the appropriate to publish sensitive material in a Personal privacy internet. This is because of the digital nature relevant Indigenous groups. Some issues to manner where it can be disseminated widely. The personal privacy of Indigenous people of the form presented and the ease of copying. be aware of are discussed below. should be respected. Personal and confidential Before publishing material online, discussions One example that highlights concerns in this Representation of deceased people information must not be disclosed without with Indigenous people are recommended. area is the case of Foster v Mountford 67 The reproduction of names and images of permission from all Indigenous people affected involving the issue of published secret and Illustrating Indigenous books deceased people in books may be offensive to by the disclosure. sacred material collected in research. Charles Visual elements are integral to many Indigenous Indigenous beliefs. Some Indigenous publishers Mountford undertook a field trip in 1940 into stories. Sam Cook, an Indigenous illustrator, have adopted the use of special warnings remote areas of the Northern Territory. The has developed a database of Indigenous where necessary. For instance, IAD Press has Writing 22 Writing 23 Principles and protocols Principles and protocols
Ask the individual, community or relatives use, the purpose of the agreement, the nature unless an alternative arrangement is agreed of the individual for permission. Observe close Case study: The Rain Flower of the rights granted and the period of time the to in writing. For example, if you are employed consultation and consent throughout Drawing from her strong community agreement will last. as a researcher for an organisation and write the process. knowledge of the Yuin nation, Mary Duroux a book as part of your paid employment, it is Copyright owners need to think about who will wrote The Rain Flower,69 a book about likely that the copyright will be held by the Disclosure of personal information about an control their copyright after their death. Another Australian night and day animals living in the organisation. If the work is commissioned Indigenous person who has passed away should issue to consider is who will continue to receive bush. The story describes the journey to and the writer is an independent contractor, also be cleared with family and community. any royalties. find the rain flower in one spring when the the copyright will remain with the writer. rain doesn’t come. This section provides some general copyright 6. Attribution and copyright • The Australian Government can assert information for authors. For specific legal Indigenous people should be attributed for She notes in her book ‘In The Rain Flower copyright to works produced under its advice we recommend consulting a lawyer. use of their cultural heritage material in stories. Mary Duroux has used cultural knowledge direction and control. However, if a writer In many instances in the past, and even passed on to her through her elders as the There are no special provisions for the receives a government grant from the today, Indigenous people have been used as basis for this story. It is not a traditional story’.70 protection of Indigenous cultural and intellectual Australia Council, for instance, the copyright informants for research, evaluations and theses. property under the Copyright Act. will belong to the author. Today, Indigenous people are seeking greater Individual and community contributors How does copyright protect writing? Importantly, for copyright to exist, an individual acknowledgment than being recognised as Under the moral rights provisions of the Copyright It is not necessary to register for protection of author or group of authors must be identifiable. Act, the right of attribution is recognised for mere informants. They seek the right to be copyright. Copyright protects literary, artistic, With Indigenous cultural expression some creators. However, it is recommended that acknowledged as owners of this knowledge musical and dramatic works as soon as they stories have been passed down through many contributors also be attributed for their role in and information. They also seek to have a are created in a material form. This means that generations. An individual author may not be the development of a literary work. It is also greater share in benefits generated from the a work must exist in a permanent and tangible able to be identified, and indeed may not exist, important to attribute the cultural source of a 71 use of their cultural stories. form. For example, copyright would exist in a because much Indigenous cultural expression story. For example, a story originating from a book’s unpublished manuscript as a literary work. is owned communally. particular language group should be attributed Case study: Home Copyright protects the expression but not the in each and every publication. While individual authors of a work are recognised Larissa Behrendt in her novel Home writes underlying idea. In the case of writing this is the as copyright holders by the Act, communal about Candice Brecht, a young city-based What is copyright? 72 written expression and, with recordings, in the ownership of Indigenous heritage such as lawyer who visits her ancestral country Copyright is a form of legal protection that recorded form. Indigenous traditional knowledge, language group designs or language group for the first time with her father. Candice is provides the author or creator of a work with dance, designs and stories that are orally or knowledge is not recognised. Protection of much a descendant of the Eualeyai people (as is the right to utilise it and prevent others from ephemerally transmitted are not protected of this material is therefore not guaranteed. the author) and in 1918 her grandmother capitalising on it without his or her permission. under the standard copyright laws. What rights do copyright owners have? Garibooli was abducted. The Copyright Act is the main law in Australia Who owns copyright? Copyright owners have the right to earn money The story retraces the family history re- that governs the use, production and As the person who records the work in a from the use and copying of their literary work. establishing the connection. Behrendt dissemination of original artistic works. Copyright material form, the writer is generally recognised The copyright owner of a literary work has the references Eualeyai stories and in the protects literary, artistic, dramatic and musical as the copyright owner of a literary work. For exclusive right to do all or any of the following: acknowledgment Behrendt makes clear works, sound recordings and films. Rights are instance, the copyright in the poem ‘Journey’, • reproduce the work in a material form attribution of this as follows: provided to authors under the Act. written by Terri Janke, is owned by her although • publish the work The stories of the Eualeyai that appear It is important for Indigenous authors to develop published in the anthology Untreated: Poems here belong, as they always have, to the an understanding of copyright so they can by Black Writers. The publisher, in this example • perform the work in public Eualeyai people. I heard these stories negotiate rights to their literary works under licence. IAD Press, owns the copyright in the collection. • communicate the work to the public from my father.68 Authors can license other people to reproduce There are some notable exceptions to the • make an adaptation of the work their work under an agreement. This agreement general rule of ownership: • do any of the above in relation to an adapted will include certain terms such as the fee for • An employer will own the copyright to works literary work.73 produced under a contract of employment Writing 24 Writing 25 Principles and protocols Principles and protocols
Collaborative works How long does copyright protect 2. The right not to have work falsely attributed works and films drawn from a traditional base,83 Under the Copyright Act, a ‘work of joint literary works? to another author if before the first dealing of the work or film, ownership’ refers to a work resulting from Before 2006, the duration of copyright in literary Authors can take action against parties there is a voluntary agreement between the collaboration of two or more authors and works was 50 years after the death of the author. who falsely attribute others as the creators the creator of the work or film, and the where each author’s contribution is equal From January 1, 2006, the copyright term was of their works. Indigenous community.84 There must also be to the contribution of the other authors.74 extended to 70 years after the death of the 3. The right of integrity acknowledgement of the Indigenous community’s author.77 If copyright in a literary work expired 85 The author must contribute to the work by way of Authors can take action against parties who association with the work. Further, all interest before January 1, 2006, it is in the public domain effort, skill and labour. It is not enough to inspire treat or alter their works in an inappropriate holders in the work (ie copyright owners) and may be freely used. All literary works in need to have consented to the ICMRs existing or make suggestions. In this interpretation, way, causing harm to the author’s reputation.80 copyright after January 1, 2006 are now protected in the work or film. the custodians of cultural stories will generally This may, for instance, be a work that is edited for 70 years after the death of the author. not be recognised as the legal copyright owner or altered in a way considered inappropriate ICMRs would exist for the term of the of an Indigenous literary work that depicts Copyright only protects works for a limited to the writer.81 There will be no infringement copyright period. language group creation stories. period and therefore assumes that some forms of the moral right of integrity if inappropriate An Indigenous community that has Indigenous of Indigenous art and cultural expression are in treatment or other action was reasonable.82 Each author of a work of joint authorship owns communal moral rights in respect of a work may the public domain and are free for all to use copyright in the resulting work.75 This means Prior to making any significant alterations to, exercise those rights only through an individual and exploit. that each author must obtain the consent of or adaptations of, a literary work, it is important who is the authorised representative in respect the others before exercising any of their rights What is the public domain? to get the consent of the author in writing. of the work. This authorised representative may under copyright. For example, if an author Once copyright lapses the work is said to be in be recognised by the community according to The potential for the Moral Rights Amendments wants to license the rights to reproduce a the public domain. The law no longer prevents its cultural practices, or may be appointed by to increase copyright protection for Indigenous collaborative work to another party, he or she anyone from accessing and exploiting the the community, according to decision-making writers has not been fully explored. One must get the consent of all the authors who material. For example, old stories that are out of processes.86 important point about moral rights is that they The proposed regime incorporates participated in the collaboration. copyright can be reproduced without the consent are individuals’ rights. There is still no legal defences and consents. of the copyright owner. Indigenous people’s Communal ownership versus recognition of communal ownership of The ICMR regime is not yet law, and many right to culture exists in perpetuity. To respect joint ownership Indigenous cultural material. commentators have criticised the model as Indigenous cultural heritage, it may be necessary In Bulun Bulun & M* v R & T Textiles,76 the court being overly complex. Further consultation to get permission to use Indigenous stories even Indigenous communal moral rights decided that artistic works containing Indigenous with Indigenous creators and communities though, legally, they are in the public domain. Existing moral rights are individuals’ rights only. ‘traditional ritual knowledge,’ handed down The communal nature of Indigenous cultural has been recommended. through generations and governed by Aboriginal What are moral rights? material and the right of an Indigenous language Licensing laws, are not works of joint ownership. Although The Moral Rights Amendments to the group to protect and guard against issues Copyright is personal property and can be under Aboriginal laws the entire community may Copyright Act were introduced in December of misinformed source or integrity are not assigned and licensed including by way of have an interest in the particular work, and the 2000 and provide some new ways to challenge recognised. In December 2003, the Australian purpose, place (territory), or time period.87 designs and knowledge within the work, copyright inappropriate treatment of Indigenous literary Government drafted proposed amendments to Rights can be split and dealt with in a range does not recognise the group as the owners. works. These new laws provide the following the Copyright Act for Indigenous Communal Moral of categories. A grant of a right comprising the rights to authors: The individual artist is recognised as the Rights (ICMRs). The Exposure Draft proposed copyright of a work is referred to as a licence. copyright owner and may have a special 1. The right to be attributed as the author the introduction of Indigenous communal moral A licence is a grant of rights in intellectual obligation to the language group to deal with The author of a work has the right to be rights for copyright works and films. property. To do, or to authorise the doing of, the copyright in the work, in ways that are identified as the author where his or her work The model first proposed in 2005 introduces any act comprised in the copyright in a work, consistent with Indigenous law. Depending is reproduced in material form, published, ICMRs to exist alongside individual moral film or sound recording without the licence on the circumstances, this obligation may be performed, adapted, or communicated to rights. It was proposed that the ICMRs would of the copyright owner is an infringement of enforceable in the court. The nature of this the public.78 Authors can require their names be exercisable independently of the individual copyright.88 A licensing agreement is made relationship may also extend to knowledge be clearly and prominently reproduced author’s moral rights. ICMRs would exist in when the copyright owner enters into a in the written form. alongside all reproductions of their works.79 Writing 26 Writing 27 Principles and protocols Principles and protocols
contract with another person to authorise use assigning away their rights instead of It may be appropriate to seek advice from a of the copyright material. By entering into a alternatively licensing use of their work. Case study: Aboriginal Studies Press suitable practitioner on the appropriate wording – dispute resolution clause for the copyright notice. publishing agreement with a publisher, an Publishing contracts The Aboriginal Studies Press has a dispute author is giving a licence to the publisher to Publishers offer authors a publishing contract, The following is an example of a copyright resolution clause in its publishing contract, reproduce their literary work, and make it which is an agreement to reproduce and notice for a literary work: which provides that the author and the into a book. There will also be terms relating publish a literary work. The contract may publisher must notify each other of a Butterfly song © Terri Janke, 2005* to other rights, such as digital rights. include terms such as: dispute, and hold good faith discussions *The date of creation or the date the work Licensing for publication • licensed rights – the author’s grant of rights to try to resolve it. If a dispute cannot be was first published. The publisher of a literary work will need to publish and sell the literary work resolved it will be put to mediation before The Arts Law Centre recommends the following permission from the writer to publish their work. • royalties – Australian Society of Authors any action can be taken in a court of law.89 Some points to consider are: traditional custodian notice in artworks with (ASA) Minimum Standards are encouraged traditional knowledge: • Written contracts are preferred to oral • territory – which countries, for instance, Managing copyright to protect agreements. The images in this artwork embody traditional will be the subject of the right to reproduce your interests ritual knowledge of the (name) community. • Indigenous authors should be given the • term – length of time the publisher has the As copyright exists as soon as a work is created, It was created with the consent of the opportunity to consider contracts and obtain rights to the literary work. it is not a legal requirement to register copyright. custodians of the community. Dealing with proper legal advice. However, certain precautionary practices can any part of the images for any purpose that • The contract should be explained to The ASA publishes two comprehensive provide good warning to potential infringers books that provide useful information on has not been authorised by the custodians is Indigenous authors and, if necessary, a and notify them of where to get prior a serious breach of the customary law of the publishing contracts: permission to copy. translator be used to explain the major issues (name) community, and may also breach the of the contract. • Australian Book Contracts (3rd ed), Barbara It is important to keep good records of your Copyright Act 1968 Jefferies et al., Keesing Press, Sydney works. It is a good idea to write your story • Appropriate royalties should be paid to For enquiries about permitted reproduction • Between the Lines: A Legal Guide for Writers down, or type it into your computer. the author. of these images, contact (community name) • If the work is to be altered or adapted for mass and Illustrators (2004), Lynne Spender Label all reproductions of the work clearly with production, authors should be given the The ASA also operates a Contract Advisory the following information: The copyright for this anthology is noted as follows: opportunity to approve or otherwise reject Service that is funded through the the Australia • title of the paper, novel or short story © Collection IAD Press, 2001. the alteration or adaptation of their work. Council’s literature board. • writer or author It is a good idea to seek legal advice on The Arts Law Centre of Australia has a free • date created The following is an example of a notice for copyright licensing issues. information service for members, and hosts • copyright owners language group-owned traditional stories: Assigning copyright ‘Artists in the Black’, an advice service for • cultural group or language group, if applicable. Traditional story: Torres Strait Islands Copyright can also be assigned. This means that Indigenous artists and writers, employing an This version: © A. Murray, 2002. This version Indigenous solicitor and an Indigenous When authorising others to reproduce your works is made with the permission of the language you give your copyright to someone else. They make sure that you use written agreements information officer. group. It may not be reproduced in any form become the copyright owner and can authorise and keep records of the rights you have granted, without the permission of the writer and the others to reproduce your literary work. Copyright It is recommended that legal advice be sought and where your works have been published. language group concerned. is usually assigned under written agreement. on each contract. Some terms that Indigenous Ask for copies of any journals or anthologies Once assigned, the author relinquishes authors should aim to include for better that reproduce your work. For more information on recommended copyright in his or her literary work. recognition of Indigenous cultural issues are: Copyright notice copyright wording for publications, see the 90 Where possible, Indigenous authors should • cultural integrity You should also include a copyright notice. Style manual for authors, editors and printers. retain the copyright in their works so they can • attribution of communities (where applicable) A copyright notice provides information about maintain control over reproduction. • dispute resolution clauses. acceptable uses and includes details about contacting the copyright owner for consent to It is important for Indigenous authors to check use in other material. agreements and make sure they are not Writing 28 Writing 29 Principles and protocols Principles and protocols
Moral rights notice • judicial proceedings or a report of judicial Educational Lending Right the entire work. Others allow commercial uses If your work is to be distributed in New Zealand proceedings, or for the purpose of the giving Educational Lending Right (ELR) is an Australian and allow the music to be used for sampling. and Britain, it is also a good idea to include of professional advice by a legal practitioner.94 Government cultural program administered In general all Creative Commons licences a notice asserting your moral rights: by the Department of the Environment, Water, require that the author or person granting the Crown use of literary work Heritage and the Arts. The Australian licence be attributed.100 The creator(s) assert their moral rights. The Crown may use a copyright work without Government has made $44 million available permission of the copyright owner where the Creative Commons licences may not require you When is copyright infringed? to support the scheme for the years 2004–05 use made is ‘for the services of the Crown’. to give up your copyright. However by signing It is an infringement of copyright to copy or deal to 2007–08. ELR makes payments to eligible The author is still entitled to payment for use a Creative Commons licence you may allow with a copyright work without the consent of the Australian creators and publishers whose and the government must contact him or her such wide use of your work that you lose a lot copyright owner. books are held in educational lending libraries.96 as soon as possible to negotiate this. of control over the way it is used. This could This scheme complements the PLR. A person will infringe copyright in a literary work also cause serious problems if you later want Library copying if he or she publishes, adapts, reproduces the For information on guidelines, visit
7. Proper returns and royalties Copyright Agency Limited Screenrights has also created
Australian Society of Authors For more information about ASA, The paper discusses the issue of non-Indigenous Australian society and culture. The paper outlines The Australian Society of Authors (ASA) is the visit
Implementation • Indigenous worldviews and customary laws • Non-Indigenous writers should consider • If adapting oral stories and using true accounts should be respected in contemporary artistic whether they should be reinterpreting creation for novels, consent should be sought from The protocols in this guide are flexible. You can and cultural life. stories, or whether they should rather find an the person who is telling the story, elders use them to further develop protocols for your appropriate Indigenous person to tell and and/or other persons in authority. writing project, program or practice, Indigenous Publishing stories and ideas record the story. • Ensure that all collected materials such as language group, region, or community. The effects of a published Indigenous story • Identify appropriate information and authority photographs, recordings, copies of stories, This section tells you how to implement – whether sacred, closed or general – should bodies to discuss ideas for literary works – CD-ROMs, books, radio interviews and the protocols. be discussed prior to publication. Once publicly for example, language centres or Indigenous newspaper clippings are returned to the released, it is difficult to chart how a story might It provides a checklist of points to consider when publishing houses if the idea involves original informant and/or family and community. developing protocols for an Indigenous writing be embraced, adopted and ingrained. adaptation or translation of a creation story. project, or in your own practice. It summarises Recording oral stories 4. Interpretation, integrity the preceding sections and also offers some 2. Indigenous control and authenticity Indigenous people have the right to control the • Consult with Indigenous people, family different and more specific information. members, Indigenous organisations and • Consult with Indigenous people about use and expression of their cultural heritage. other individuals relevant to the project. the integrity and authenticity of their 1. Respect When working with Indigenous people: • Make draft copies available before publication Indigenous heritage. People working in Indigenous writing are • Discuss the use of Indigenous cultural heritage and allow relevant Indigenous people and • Indigenous individuals and communities encouraged to respect that: material with Indigenous people in authority. family members to comment on drafts. should have control over how their cultural • Indigenous Australians, the Aboriginal and • Involve Indigenous people in all stages of • Be aware that the inclusion of personal material is presented. Torres Strait Islander people, are the original writing projects, including Indigenous writers, material may be sensitive. • Make sure the writing is based on sound inhabitants of Australia. community members, storytellers and editors. • Consider who should own copyright in the research and that facts are credible. • It is important to seek consent from and published story. Where the work closely Interpretation acknowledge the Indigenous country and 3. Communication, consultation follows the words of the Indigenous storyteller, • Consider reasons for writing or commissioning custodians at the site of each spoken word and consent copyright ownership should be recognised a work. Reflect on whose perspectives of performance, launch or literary event, • Consult with Indigenous people on the use and as belonging to that person. Aboriginality are being represented. and in the acknowledgment of a published representation of their Indigenous heritage. • Be responsible for your representation of text about a specific Indigenous country. • Discuss how tapes or recordings of the orally • Prior to use, inform Indigenous people about related story will be used after the project. Indigenous cultures. Consider the following: • Indigenous people have the right to own and the implications of consent. Ensure copies are given to the relevant people. – How will your writing affect the Indigenous control their heritage – including Indigenous group it is based on? body painting, stories, songs, dances, • Consultation should address the communal • Discuss copyright and clear publication nature of Indigenous cultural expression. rights with relevant people. – Does it empower Indigenous people? images, traditional knowledge and other – Does it expose confidential, personal and/ forms of cultural expression. • Allow sufficient time for consultation. Each Writing life stories or sensitive material? • Indigenous cultures are living cultures. community will need a reasonable period of • If you are writing about living people, it is – Does it reinforce negative stereotypes? • The diversity of Indigenous culture should be time to consider and consult within their important to get their consent and work closely – Have you used appropriate terminology? communities. Do not expect to have a reply with them. Talk about copyright and intellectual acknowledged. Culture varies from country • The cover and illustrations of the book property issues. If it is primarily their story (for to country and from language groups. to a question in a day or a week. should be checked by the author to ensure example, if transcribed from tapes), then the • Indigenous people have the right to choose Creation stories life story subject should own copyright. they are authentic and not culturally offensive their own representatives. • Speak to elders and other people in authority to other Indigenous groups. • If it is a collaboration (for example, where the about using creation stories. It is not • The cultural contribution of Indigenous writer has brought his or her skill to the work), Editing people to writing should be valued, acceptable to source material from other then there may be some scope for • Indigenous individuals and communities acknowledged and remunerated. books without considering the rights of sharing copyright. should have the final approval on how the Indigenous people. • Local community protocols and protocols • If writing about a deceased person, speak to written form of their cultural material is associated with a specific work should • Seek permission prior to writing or re-telling the family or language group representatives presented. Reasonable time should be given always be respected and observed. Indigenous creation stories. to seek their permission and consult on for checking drafts. issues of representation. Writing 36 Writing 37 Implementation Implementation
• Once approval is given, any future editing 5. Secrecy and confidentiality Copyright that draw from a traditional base. There is should be checked again with the relevant • The right of Indigenous people to keep • The author is generally the copyright owner already voluntary agreement that Indigenous Indigenous people. secret and sacred their cultural knowledge of a literary work. Exceptions include an communal moral rights exist in a work. should be respected. • The use of Indigenous people as writers and author who is an employee under a contract • When reproducing and publishing literary editors of manuscripts, books and reports • Indigenous people have the right to of service. works, it is necessary to get copyright about Indigenous cultural material maintain confidentiality about aspects • The work must be original and must be clearance from the author. of their personal and cultural affairs. is encouraged. reduced to material form. • Writers and publishers are encouraged to • In many Indigenous communities, the Publishing • To be original, for the purpose of copyright use written agreements. reproduction of deceased people’s names • Publishers should not assume that traditional protection, the author must have applied and images in books is offensive to Indigenous • A person will infringe copyright in a literary Indigenous stories are free to be exploited. sufficient skill, labour and judgment to create work if he or she does any of the following beliefs. Consult with the deceased’s family or the work. It is necessary to consult with relevant community so that the appropriate protocols without permission from the copyright owner: Indigenous people for permission. If agreed, are observed. • Authors do not need to register for – publishes the work publishers and collecting societies should copyright protection. • Secret and sacred material refers to information – reproduces the work in material form negotiate with Indigenous people on that is restricted under customary laws. • The copyright owner of a literary work has – adapts the work appropriate royalties for use. • The publication of secret and sacred material the exclusive right to: – communicates the work to the public. • Publishers should make relevant inquiries to may be a transgression of Indigenous law. – reproduce the work in a material form • Statutory exceptions include the purposes of ensure a writer who is promoted and marketed – publish the work • Some people question whether it is at all criticism or review, and incidental filming. as ‘Indigenous’ is an Indigenous Australian. – perform the work in public appropriate to publish sensitive material in • Under the educational statutory licensing – communicate the work to the public • Written contracts conforming to the a form that can be disseminated widely. schemes, authors may be entitled to royalties – make an adaptation of the work Australian Society of Authors’ minimum • The personal privacy of Indigenous people for use of their works. Copyright Agency Ltd – do any of the above in relation to an standards are encouraged. should be respected. (CAL) and Screenrights collect and distribute adapted literary work. • Indigenous writers should be given the • Personal and confidential information must royalties to author and screenwriter members. • Copyright in literary works lasts for 70 years opportunity to consider contracts and obtain not be disclosed without permission from all proper legal advice. Indigenous people affected by the disclosure. after the death of the author. 7. Proper returns and royalties • The publishing contract should be explained • It is the responsibility of those putting • Ideas and themes are generally not protected. • Indigenous people have the right to receive to Indigenous writers and, if necessary, together writing projects to discuss any It is the expression that is protected. proper returns for their contribution and the a translator should be used to explain the restrictions on use of the information with • The Indigenous author who incorporates use of their cultural material, including major issues of the contract. relevant Indigenous people and groups. traditional ritual knowledge in his or her work copyright and royalties. • Special attention should be paid to clearing has a special obligation to the language • Make sure fees or other benefits are negotiated any suggestions or changes made through 6. Attribution and copyright group when exercising copyright in the work. with the informers, storytellers, writers and the editorial process. Attribution • The author has moral rights to his or her any relevant traditional custodians. • Indigenous people should be given proper • When selecting illustrations for the cover, literary work. This includes the right of • The issue of copyright ownership of the credit or appropriate acknowledgment for consult with the Indigenous author, artist and integrity and attribution. material form of cultural expression should their role in the development and use of be discussed up-front. other Indigenous people to check the cultural Indigenous cultural material. There are proposals to introduce Indigenous appropriateness of the image. • Indigenous people have the right to control the • Indigenous people should be attributed communal moral rights into the Copyright Act, commercial exploitation of their cultural material. • Where possible, an Indigenous artist should for the use of their cultural heritage material which will give Indigenous communities the be commissioned to illustrate the publication, in stories. right of attribution and integrity issues for works • Indigenous people have the right to share in or the work of an Indigenous artist should • Ensure that proper attribution is given to the the benefits from any commercialisation of be licensed for use for a fee. For appropriate writer and the source community, or other their cultural material. rates refer to Viscopy. relevant Indigenous people. • Check whether benefits other than royalties are sought by or due to Indigenous people. Writing 38 Writing 39 Implementation References
• Make sure you register relevant work with References 13 W Caruana and Nigel Lendon, The painters CAL or other collecting societies so you can of the Wagilag sisters story, University of benefit from royalties. 1 A Heiss, Appropriating our black voice, Washington Press, 1997. Network News, Queensland Community 14 T Janke, Our culture: our future…, op. cit. 8. Continuing cultures Arts Network, no.1,1998, pp30–33. Indigenous cultures are dynamic and evolving, 2 United Nations General Assembly, United 15 H McKellar as told to Kerry McCallum, and the protocols within each group and Nations Declaration on the Rights of Woman from nowhere, Magabala Books, community will also change. Consultation is Indigenous Peoples, United Nations Broome, WA, 1997. a continuous process. Documents, Human Rights Council, 16 Australian Institute of Aboriginal and Torres • Consider cultural protocols and include these A/HRC/1/l/3 29 June 2006. Strait Islander Studies, Guidelines for in any future licence agreements for use of 3 T Janke, Our culture: our future – report on Ethical Research in Indigenous Studies, the work. Australian Indigenous cultural and intellectual May 2000. • Indigenous people have a responsibility to property rights, M Frankel and Company 17 K Grenville, The Secret River, Text ensure that the practice and transmission of for Australian Institute of Aboriginal and Publishing, Melbourne, 2005. Indigenous cultural expression is continued Torres Strait Islander Studies and the 18 A Miller, Journey to the Stone Country, for the benefit of future generations. Aboriginal and Torres Strait Islander Allen & Unwin, 2003 Commission, Sydney, 1998. 19 K Grenville, The Secret River, Text 9. Recognition and protection 4 D Mellor, email to Terri Janke & Company, Publishing, Melbourne, 2005. • Indigenous people have the right to 2 June 2002. protection of their Indigenous heritage. 20 K Grenville with Arnold Zable, Melbourne 5 B Pascoe, ‘Write No Appeasement’, Kaltja • The Indigenous author should own copyright Writers Festival, 27 August 2005. in his or her literary work, giving him or her Now – Indigenous Arts Australia, Wakefield 21 K Grenville, email to Terri Janke, Terri control of reproduction and dissemination of Press in association with the National Janke & Company Pty Ltd, 19 April 2006. the work. Aboriginal Cultural Institute – Tandanya, 2001, p146. 22 T Janke, Our culture: our future…op. cit. 6 A Heiss, Who am I? The diary of Mary 2 3 i b i d . Talence, Sydney 1937, Scholastics, Sydney, 2001. 24 United Nations General Assembly, United Nations Declaration on the Rights of 7 G Ward, Wandering girl, Magabala Books, Indigenous Peoples, United Nations Broome, 1998. Documents, Human Rights Council, 8 K Scott, Benang: from the heart, Fremantle A/HRC/1/l/3 29 June 2006. Arts Centre Press, Fremantle, 1998. 2 5 i b i d . 9 K Scott, email to Terri Janke & Company, 26 The Mataatua Declaration was developed 27 June 2001. at the First International Conference on the 10 D McDermott, Dorothy’s skin, Five Islands Cultural and Intellectual Property Rights Press, Wollongong, 2003 of Indigenous Peoples, 12–18 June 1993, at Whakatane, Aotearoa, New Zealand. 11 J Thomas, Sweet guy, IAD Press, A full text of the Declaration is cited in Alice Springs, 2005 T Janke, Our culture: our future…, 12 N Newlin, My Worimi lovesong dreaming: op.cit. pp 306–310. the love poems, Fast Books, Sydney, 1997 Writing 40 Writing 41 References References
27 EI Daes, Final Report on the Protection of 33 D Mellor & T Janke, (ed), Valuing art, 44 This is what happened in the case of 58 S Morgan, email to Terri Janke & Company, the Heritage of Indigenous Peoples, United respecting culture: Protocols for working Foster v Mountford (1977) 14 ALR 71, August 2001. Nations Document E/CN.4 Sub.2/1995/26. with the Australian Indigenous visual arts where Pitjantjatjara men took action 59 J Arms, Australia Council paper referenced The full text, as adopted and elaborated on and craft sector, National Association for against the publication of a book in A Heiss’, Editing Aboriginal Writing by ATSIC’s Indigenous Reference Group, the Visual Arts (NAVA), Sydney, 2001, p13. containing sacred men’s material. (Chapter 3), ‘Dhuuluu-Yala (talk straight): is cited in T Janke, Our culture: our future, 34 Australian Film Commission, The Black 45 Section 97 and 22 of the Copyright Act Publishing Aboriginal Writing in Australia’, pp 273–277. See also EI Daes, Study of the Book, (2nd ed), Blackfella Films, 1968 (Cth). PhD thesis, University of Western Sydney, Protection of the Cultural and Intellectual Sydney, 2005. Nepean, 2001. Property of Indigenous Peoples, United 46 Section 84 of the Copyright Act 1968 (Cth) 35 Registered under the Aboriginal Councils 60 H Pedersen with Banjo Woorunmurra, Nations Economic and Social Council, 47 C Golvan, B Sims and J Walsh, A Basic and Associations Act 1976 (Cth) or other Jandamarra and the Bunuba Resistance, Geneva, 1993. Guide to Copyright, Magabala Books, relevant legislation. Magabala Books, Broome, 1995. 28 World Intellectual Property Organisation, Broome, Western Australia, 1997, p16. 36 B Pascoe, email to Terri Janke & Company, 61 W McDonald, ‘Tricky Business, Whites on Intergovernmental Committee on Intellectual 48 Deceased 2003, however Hazel McKellar 15 June 2001. Black Territory’, Australian Author, vol 29, Property and Genetic Resources, Traditional was alive when the book was published Issue 1, Autumn 1997, p14. Knowledge and Folklore, The protection 37 K Scott, email to Terri Janke & Company, in 1997. of traditional cultural expressions/ 27 June 2001. 62 J Cooper, H Molnar, C Morris and M Colbert, expressions of folklore; Draft objectives 49 H McKellar, op. cit. 38 M Lucashenko, email to Terri Janke & Research Report ‘To tell my story: a study and principles, WIPO/GRTKF/IC/10/4. 50 P Mamanyjun Torres, ‘About the Word Company, 14 August 2001. of practicing professional Indigenous 29 World Intellectual Property Organisation, Dreamtime: An Aboriginal Woman’s writers of Australia’, Australia Council for Intergovernmental Committee on Intellectual 39 J Huggins, ‘Respect v Political Correctness’, Perspective – P Mamanyjun Torres’, the Arts, 2000, p41. Property and Genetic Resources, Traditional Australian Author, published by the Dreaming On-Line, January 2000. Australian Society of Authors, Spring 1994, 63 S Phillips, telephone conversation with Knowledge and Folklore, The protection 51 J Huggins, ‘Respect v Political Correctness’, vol. 26, no.3, p12. Terri Janke, September 2001. of traditional knowledge; Draft objectives op. cit. and principles, WIPO/GRTKF/IC/10/5, 2 40 P Mamanyjun Torres, email to Terri Janke 64 S Cook is referenced in Sandra Phillips, 52 A Heiss, ‘Writing about Indigenous October 2006. & Company, 27 September 2001. A Child’s Dreaming – Looking at Illustrated Australia…’, op. cit. Indigenous Stories for Children, Kaltja Now 30 World Intellectual Property Organisation, 41 A Heiss, ‘Writing About Indigenous 53 C Pirie et al. Style manual for authors, – Indigenous Arts Australia, Wakefield Press Intergovernmental Committee on Intellectual Australia: Some Issues to Consider and editors and printers, 6th edn, in association with the National Aboriginal Property and Genetic Resources, Traditional Protocols to Follow: A Discussion Paper’, Commonwealth of Australia, Canberra, Cultural Institute – Tandanya, 2001, p149. Knowledge and Folklore, The protection of Australian Author, published by the 2002, p413. traditional cultural expression/expression Australian Society of Authors, online at 65 J Douglas, Talkin’ Straight, Message Stick of folklore; Draft objectives and principles, www.asauthors.org/lib/pdf/Heiss_Writing_ 54 A Heiss, Dhuuluu-Yala To Talk Straight: event at Sydney Opera House, 27 May 2001. WIPO/GRTKF/IC/10/4, Article 3, p19. About_Indigenous_Australia.pdf, viewed Publishing Indigenous literature, Aboriginal 66 T Camfoo and N Camfoo, ed. G Cowlishaw, Studies Press, Canberra, 2003, p2. 31 Section 6 of the Model Law for the 30 May 2007. Love Against the Law: The Autobiographies Protection of Traditional Knowledge and 42 J Huggins, ‘Respect v Political 55 A Heiss, ‘Appropriating our Black Voice’, of Tex and Nelly Camfoo, Aboriginal Expressions of Culture, South Pacific Correctness’, op. cit. Network News, Queensland Community Studies Press, 2000. Community, Noumea, 2002. Arts, March 1998, p31. 43 P Mamanyjun Torres, ‘Interested in writing 67 Foster v Mountford (1997) 14 ALR 71. 32 DB Rose, Nourishing Terrains, Australian about Indigenous Australians?’, Australian 56 S Morgan, email to Terri Janke & Company, 68 L Behrendt, Home, University of Queensland Heritage Commission, Canberra, 1996. Author, published by the Australian Society August 2001. Press, St Lucia QLD, 2004, p319 www.ahc.gov.au/publications/generalpubs of Authors, Spring 1994, vol. 26, no. 3, p24. 57 M Hughes, ‘An Issue of Authenticity: Editing 69 M Duroux, The rain flower, Aboriginal /nourishing/index.html#foreword Texts by Aboriginal Writers’, Southerly, Studies Press, Canberra, 2005 vol 58, no 2, Winter 1998, pp48-58. 70 ibid. Writing 42 Writing 43 References Bibliography and resources
71 A Heiss, Australian Copyright vs. 86 T Janke, ‘The moral of the story: the condition that the author or licensor is Bibliography and Indigenous Intellectual and Cultural Indigenous communal moral rights’, Bulletin, attributed, and that if the material is reused Property Rights, discussion paper, #3/05, ISSN #1440-477pp1, 2, 7 & 8. or distributed, the licence conditions are resources Australian Society of Authors, Sydney, made clear to other users.’ Creative 87 Section 196(2) of the Copyright Act 1968 A number of documents have been viewed 9 April 2002, www.asauthors.org/. Commons Deed. http://creativecommons. (Cth). produced in recent years to meet the needs org/licenses/by/2.5/, viewed 30 May 2007. 72 Sections 31(1)(a)(i) and (b)(i) of the of particular communities, organisations, 88 Section 36 and 101 of the Copyright Act Copyright Act 1968 (Cth). 101 Creative Commons, http://wiki. industries and situations. The following are 1968 (Cth). creativecommons.org/FAQ, viewed useful guides. 73 Indigenous works are not easily divided 89 R Black, Publisher, Aboriginal Studies 30 May 2007. into categories of contemporary or Bonney C, ‘The facts about copyright’, Koori Mail, Press, email to Terri Janke & Company, traditional, despite common perceptions. 102 Screenrights website www.screen.org/ 15 May 2002. 21 April 2006. In this guide, ‘traditional’ refers to works rightsholders/index.php Bostock L, The Greater Perspective: Protocol that have drawn from a pre-existing 90 C Pirie op. cit. 103 Australian Society of Authors website and Guidelines for the Production of Film and cultural base. 91 Section 40 of the Copyright Act 1968 (Cth). www.asauthors.org/ Television on Aboriginal and Torres Strait 74 Section 31of the Copyright Act 1968 (Cth). Islander Communities, Special Broadcasting 92 Section 41 of the Copyright Act 1968 (Cth). 104 ibid. Services, 2nd edn, 1997. 75 Section 10 of the Copyright Act 1968 (Cth). 93 Section 42 of the Copyright Act 1968 (Cth). 105 A Heiss, ‘Writing about Indigenous Byrne A, Garwood A, Moorcroft H and Barries 76 Section 35 of the Copyright Act 1968 (Cth). 94 Section 43 of the Copyright Act 1968 (Cth). Australia…’, op cit. A, Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and 77 Section 33 of the Copyright Act 1968 (Cth). 95 Section 49 of the Copyright Act 1968 (Cth). 106 L Spender, ‘Aboriginal and Torres Strait Islander Writing’, Australian Author, Information Services, Aboriginal and Torres 78 Section 33 of the Copyright Act 1968 (Cth). 96 Department of Communications Technology vol. 26, no. 3, Spring 1994, p10. Strait Islander Library and Information 79 Section 194(1) of the Copyright Act 1968 and the Arts Information website: www. Resources Network. dcita.gov.au/arts_culture/arts/lending-rights 107 S Wyndham, ‘The Mystery of Marlo (Cth). Crayford M et al., Connections Indigenous viewed 22 February 2006 Morgan Down Under’, The Australian 80 Section 194AA of the Copyright Act 1968 Magazine, 29-30 October 1994, cultures and the Australian National Maritime (Cth). 97 Department of Communications Technology pp 26–28. Museum, Australian National Maritime and the Arts Information website: www. Museum, Sydney, 2005. 81 Section 195AJ of the Copyright Act 1968 dcita.gov.au/arts_culture/arts/lending-rights 108 R Eggington, Message Stick: A Report (Cth). Continuing Cultures: Ongoing Responsibilities: viewed 22 February 2006 of Mutant Message Down Under, Principles and guidelines for Australian 82 Section 195AS of the Copyright Act 1968 Dumbartung Aboriginal Corporation, 98 Creative Commons, http:// museums working with Aboriginal and Torres (Cth). Bounuh Wongee, 1995. creativecommons.org/about/legal, viewed Strait Islander cultural heritage, Museums 83 Drawn from a traditional base means that 30 May 2007. 109 NSW Ministry for the Arts, Guidelines 2007, Australia, 2005. the work or film must be drawn from the Cultural Grants 2007, Fellowships, 99 Australian Copyright Council, visit www. Cooper S and Janke T, ‘Code to boost ethical ‘particular body of traditions, observances, Scholarships and Awards 2006-2007, copyright.org.au/pdf/acc/infosheets_pdf/ standards in the sale of Indigenous art’, customs and beliefs held in common by Sydney, pp115–118. g094.htm, and the Australasian Performing Indigenous Law Bulletin, August/September, the Indigenous community’. Rights Association (APRA) visit www.apra. 2006, Vol 6, Issue 21. 84 A community is defined loosely and can com.au/writers/forms_and_guidelines/ Everett J et al., Respecting cultures working include an individual, family, language creative_commons.asp. with the Tasmanian Aboriginal community and group or community group. 100 Creative Commons, ‘Some Creative Aboriginal artists, Arts Tasmania, 2004. 85 Clauses 195AZZL and 195AZZM, Draft Commons licences allow users of the Heiss A, Dhuuluu-Yala To Talk Straight: Copyright Amendment (Indigenous music to copy, distribute, display, and Publishing Indigenous Literature, Aboriginal Communal Moral Rights) Bill 2003 perform the work, make derivative works Studies Press, Canberra, 2003. and make commercial use of the work on Writing 44 Writing 45 Bibliography and resources Contacts
Indigenous Arts Protocol: A Guide, devised Mina mir lo ilan man – Proper communication Contacts Arts Queensland by Indigenous Arts Reference Group,109 New with Torres Strait Islander people, produced GPO Box 1436 South Wales Ministry for the Arts, 1998. in conjunction with protocols for consultation Brisbane Qld 4001 and negotiation with Aboriginal people by Tel: (07) 3224 4896 Janke T, Code of Practice for Galleries and ARTS POLICY AND FUNDING the Queensland Government, Department Toll free: 1800 175 531 Retailers of Indigenous Art, commissioned by Australia Council for the Arts – Aboriginal of Aboriginal and Torres Strait Islander Policy Fax: (07) 3224 4077 the City of Melbourne, May 2006 (unpublished). and Torres Strait Islander arts board and Development, Brisbane, 1998. Email: [email protected] PO Box 788 Janke T, Issues Paper: Towards a Protocol for Web: www.arts.qld.gov.au Museums Australia, Taking the Time – Filmmakers Working with Indigenous Content Strawberry Hills NSW 2012 Museums and Galleries, Cultural Protocols and Indigenous Communities, Australian Tel: (02) 9215 9065 Arts Queensland (Regional office) and Communities, A Resource Guide, Film Commission, Sydney, February 2003. Toll Free: 1800 226 912 PO Box 5300 Museums Australia Inc. (Qld), 1998. Fax: (02) 9215 9061 Janke T, Media cultures: protocols for Cairns Qld 4870 Myer R, Report of the contemporary visual Email: [email protected] producing Indigenous Australian media, Tel: (07) 4048 1411 arts and craft inquiry, Commonwealth of Web: www.australiacouncil.gov.au Australia Council for the Arts, Sydney, 2002. Fax: (07) 4048 1410 Australia, 2002, more commonly referred Email: [email protected] Janke T, Our culture: our future – Report on to as The Myer Report. Web: www.arts.qld.gov.au Australian Indigenous Cultural and Intellectual STATE AND TERRITORY ARTS AGENICES National Association for the Visual Arts (NAVA), Property Rights, Michael Frankel & Company The code of practice for the Australian visual Arts NSW Arts SA for Australian Institute of Aboriginal and Torres arts and craft sector, The visual arts industry PO Box A226 GPO Box 2308 Strait Islander Studies, and the Aboriginal and guidelines research project, NAVA, Sydney, 2001. Sydney South NSW 1235 Adelaide SA 5001 Torres Strait Islander Commission, Sydney, 1998. Tel: (02) 9228 5533 Tel: (08) 8463 5444 Pirie C, Greig J and Snooks L, Style manual Janke T, ‘The moral of the story: Indigenous Toll free (NSW): 1800 358 594 Fax: (08) 8463 5420 for authors, editors and printers, 6th ed, communal moral rights’, Bulletin, #3/05, ISSN Fax: (02) 9228 4722 Email: [email protected] Commonwealth of Australia, Canberra, 2002. #14 40 - 477. Email: [email protected] Web: www.arts.sa.gov.au Web: www.arts.nsw.gov.au Kemp R, Media Release, Additional funds for Arts Tasmania (Hobart) Australia Business Arts Foundation, 3 August Arts NT (Darwin and the Top End) GPO Box 771 2006. Available at http://www.minister.dcita. GPO Box 1774 Hobart Tas. 7001 gov.au/kemp/media Darwin NT 0801 Tel: (03) 6233 7308 McCausland S, ‘Protecting communal interests Tel: (08) 8999 8981 Toll free: 1800 247 308 in Indigenous artworks after the Bulun Bulun Fax: (08) 8999 8949 Fax: (03) 6233 5555 case’, Indigenous Law Bulletin, July 1999. Toll free: 1800 678 237 Email: [email protected] Email: [email protected] Web: www.arts.tas.gov.au Mellor D and Janke T, (ed), Valuing art, Web: www.nt.gov.au respecting culture: Protocols for working with Arts Tasmania (Launceston) the Australian Indigenous visual arts and craft Arts NT (Central Australia PO Box 1186 sector, National Association for the Visual Arts and the Barkly) Launceston Tas. 7250 (NAVA), Sydney, 2001. PO Box 3521 Tel: (03) 6336 2349 Alice Springs NT 0871 Fax: (03) 6334 1131 Tel: (08) 8951 1190 Email: [email protected] Fax: (08) 8951 1161 Web: www.arts.tas.gov.au Email: [email protected] Web: www.nt.gov.au Writing 46 Writing 47 Contacts Contacts
Arts Victoria COPYRIGHT COLLECTING SOCIETIES Magabala Books Island Coordinating Council Private Bag No. 1 PO Box 668 PO Box 501 Australasian Performing South Melbourne Vic. 3205 Broome WA 6725 Thursday Island Qld 4875 Right Association Tel: (03) 9954 5000 Tel: (08) 9192 1991 Tel: (07) 4069 1446 Locked Bag 3665 Toll free: 1800 134 894 Fax: (08) 9193 5254 Fax: (07) 4069 1868 St Leonards NSW 1590 Fax: (03) 9686 6186 Email: [email protected] Tel: (02) 9935 7900 Email: [email protected] Web: www.magabala.com Torres Strait Islander Media Association Fax: (02) 9935 7999 Web: www.arts.vic.gov.au PO Box 385 Email: [email protected] Aboriginal Studies Press Thursday Island Qld 4875 Web: www.apra.com.au Department of Culture and the Arts GPO Box 553 Tel: (07) 4069 1524 PO Box 8349 Canberra ACT 2601 Fax: (07) 4069 1884 Copyright Agency Limited Perth Business Centre WA 6849 Tel: (02) 6246 1183 Email: [email protected] Level 15, 233 Castlereagh Street Tel: (08) 9224 7300 Fax: (02) 6261 4288 Sydney NSW 2000 Fax: (08) 9224 7301 Email: [email protected] Torres Strait Regional Authority Tel: (02) 9394 7600 Email: [email protected] Web: www.aiatsis.gov.au PO Box 261 Fax: (02) 9394 7601 Web: www.dca.wa.gov.au Thursday Island Qld 4875 Email: [email protected] Tel: (07) 4069 0700 Web: www.copyright.com.au INDIGENOUS ORGANISATIONS Toll free: 1800 079 093 COPYRIGHT AND LEGAL Fax: (07) 4069 1879 Screenrights Australian Institute for Aboriginal Email: [email protected] Arts Law Centre of Australia PO Box 1248 and Torres Strait Islander Studies Web: www.tsra.gov.au The Gunnery Neutral Bay NSW 2089 GPO Box 553 43–51 Cowper Wharf Road Tel: (02) 9904 0133 Canberra ACT 2601 Woolloomooloo NSW 2011 Tel: (02) 6246 1111 Fax: (02) 9904 0498 LITERARY ORGANISATIONS Tel: (02) 9356 2566 Email: [email protected] Fax: (02) 6261 4285 Toll free: 1800 221 457 Web: www.screenrights.org Email: [email protected] Australian Society of Authors Fax: (02) 9358 6475 Web: www.aiatsis.gov.au PO Box 1566 Email: [email protected] Viscopy Strawberry Hills NSW 2012 Web: www.artslaw.com.au 45 Crown Street Gadigal Information Service Tel: (02) 9318 0877 Woolloomooloo NSW 2011 PO Box 966 Fax: (02) 9318 0530 Australian Copyright Council Tel: (02) 9368 0933 Strawberry Hills NSW 2012 Email: [email protected] PO Box 1986 Fax: (02) 9368 0899 Tel: (02) 9564 5090 Web: www.asauthors.org Strawberry Hills NSW 2012 Email: [email protected] Fax: (02) 9564 5450 Tel: (02) 8815 9777 Web: www.viscopy.com.au Email: [email protected] University of Queensland Press Fax: (02) 8815 9799 Web: www.gadigal.org.au PO Box 6042 Email: [email protected] St Lucia, Qld 4067 Web: www.copyright.org.au INDIGENOUS PUBLISHERS Goolarri Media Enterprises Tel: 07 3365 2127 PO Box 2708 Fax: 07 3365 7579 Institute of Aboriginal Development Press Broome WA 6725 Email: [email protected] PO Box 2531 Tel: (08) 9192 1325 Web: www.uqp.uq.edu.au Alice Springs NT 0870 Fax: (08) 9193 6407 Tel: (08) 8951 1311 Email: [email protected] Fax: (08) 8953 1884 Web: www.gme.com.au Email: [email protected] Web: www.iad.edu.au/press Writing 48 Acknowledgements
Acknowledgements Terri Janke and Company would like to acknowledge the input and guidance of Dr Anita Heiss as peer reviewer in editing this guide in 2006. In 2002, Dr Anita Heiss undertook the task of peer reviewing this document and provided her thesis for our reading. Terri Janke of Terri Janke and Company and Robynne Quiggin of Vincent-Quiggin Consulting undertook the second edition edit in 2006. We are grateful to the Australian Society of Authors whose Indigenous Protocols were sourced for writing this guide. We also thank Helen Zilko whose contribution as editor assisted in creating the original suite of five protocol guides in 2002. We acknowledge the contribution of the following people: • Rhonda Black, Aboriginal Studies Press • Penelope Lee, Aboriginal Studies Press • Jose Borghino, Australian Society of Authors • Jared Thomas, Australian Society of Authors • Jill Dimond, Australian Society of Authors • Sally Morgan, Centre for Indigenous History and the Arts • Copyright Agency Limited • Michael Fraser, Copyright Agency Limited • Josie Douglas, IAD Press • Magabala Books • Georgia Blain, Screenrights • Kate Grenville, author • Melissa Lucashenko, author • Pat Mamanyjun Torres, author • Dr Kerry McCallum, author • Alex Miller, author • Bruce Pascoe, author • Sandra Phillips, editor • Leah Purcell, performer • Kim Scott, author • Bain Stewart, manager • Alexis Wright, author • Past and present members and staff of the Australia Council’s Aboriginal and Torres Strait Islander arts board and section • Gail Cork, former manager of the Australia Council’s literature section