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Standing Committee on Indigenous Affairs

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Standing Committee on Indigenous Affairs STANDING COMMITTEE ON INDIGENOUS AFFAIRS Growing presence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise for sale across Australia CHAIR, Mrs Sudmalis, asked the following questions at a public hearing on 2 March 2018: CHAIR: You're addressing the fact that in non-Indigenous culture IP is predominantly for an individual, whereas in Indigenous culture that is done differently, where the IP rights belong to a collective, so it's a different strata of rules and regs, and that's what you're trying to establish? Mr Bourke: The traditional knowledge and the stories and culture belong to the community rather than to particular individuals who can then protect it. CHAIR: It makes it very difficult. Mr Bourke: That's right. CHAIR: How do you think you could best move this forward to help educate both the consumer and the producers on how to differentiate their products? We asked the last group to come back with something similar about the next steps forward. Has your group considered the next steps? Mr Bourke: A specific solution to the problem we have identified? CHAIR: Yes. It's quite nebulous at the moment and there are so many different factors coming in, but from the perspective of IP, what are the best actions your organisation think should be included as recommendations? Mr Bourke: As I mentioned, we've engaged some consultants to look at and develop those issues so we can get an overall picture of the scope of the issues affecting Indigenous IP and culture. The issues that your committee is looking at are one part of that, but there are a number of other issues in the IP system as well. We're hoping to publish a paper on that in the next month or two, and then we're talking with our colleagues from other agencies about going out and consulting with Indigenous stakeholders on some of the aspects that are specific to the work IP Australia does. That's looking at a program of work over the next year or so. CHAIR: It might be interesting to get a copy of that paper that you're about to publish, if you wouldn't mind sending that through to the committee. Mr Bourke gave the following response: Indigenous Knowledge: Issues for protection and management Discussion Paper Terri Janke and Company Pty Ltd Indigenous Knowledge: Issues for protection and management Terri Janke and Company Discussion Paper IP Australia & the Department of Industry, Innovation and Science Indigenous Knowledge: Issues for protection and management Discussion Paper Contents Executive Summary ................................................................................................................................ 7 Glossary ................................................................................................................................................ 11 Introduction............................................................................................................................................ 15 1. What is Indigenous Knowledge? ....................................................................................................... 17 1.1 Terminology........................................................................................................................... 17 1.2 Characteristics of Indigenous Knowledge ............................................................................. 18 1.2.1 Identity and Value Systems ........................................................................................... 18 1.2.2 Traditional ...................................................................................................................... 20 1.2.3 Customary laws ............................................................................................................. 20 1.2.4 Getting consent: authority systems ............................................................................... 21 1.2.5 Summary of characteristics ........................................................................................... 23 1.3 Indigenous peoples’ rights to Indigenous Knowledge ........................................................... 24 1.4 Value of Indigenous Knowledge............................................................................................ 27 2. Misappropriation of Indigenous Arts and Crafts ............................................................................ 29 2.1 Discussion ............................................................................................................................. 29 2.1.1 Unauthorised copying and reproduction ....................................................................... 29 2.1.2 Non-Indigenous artists marketing works as ‘Indigenous’ .............................................. 34 2.1.3 Imitation Indigenous souvenirs and imported mass-produced craft ............................. 36 2.1.4 Unequal leverage of Aboriginal artists and unfair contracts ......................................... 40 2.1.5 Alteration and debasement of works ............................................................................. 41 2.1.6 Aboriginal and Torres Strait Islander artists appropriating styles ................................. 42 2.2 Identified Gaps ...................................................................................................................... 42 2.2.1 Indigenous clan groups cannot control reproduction of Traditional Cultural Expressions 42 2.2.2 Indigenous clan groups cannot stop derogatory treatment of Indigenous cultural expression ..................................................................................................................................... 43 2.2.3 Imitation mass-produced souvenir art from overseas without recourse ....................... 43 1 Indigenous Knowledge: Issues for protection and management Discussion Paper 2.2.4 Misappropriation occurring overseas ............................................................................ 44 2.3 Options .................................................................................................................................. 44 2.3.1 Enhanced access to legal and business advice ........................................................... 44 2.3.2 Greater use of trade marks and branding ..................................................................... 44 2.3.3 Education and awareness ............................................................................................. 46 2.3.4 Make protocols enforceable .......................................................................................... 46 2.3.5 Establishing Indigenous cultural authority organisations .............................................. 48 2.3.6 Legislative prohibition .................................................................................................... 48 3. Misuse of Indigenous languages and clan names ........................................................................ 50 3.1 Discussion ............................................................................................................................. 51 3.1.1 Indigenous language revitalisation ................................................................................ 51 3.1.2 Place names with Indigenous words ............................................................................. 53 3.1.3 Commercial use of Indigenous words ........................................................................... 53 3.1.4 Use of clan and group names ....................................................................................... 56 3.2 Options .................................................................................................................................. 57 3.2.1 Protocols for using Indigenous names and words ........................................................ 57 3.2.2 Establishing an Indigenous Advisory Committee in IP Australia .................................. 58 3.2.3 Tools and Training for Trade Mark Examiners .............................................................. 58 3.2.4 Amending the Trade Marks Examiners Manual to protect Indigenous Knowledge ...... 58 3.2.5 Increasing Indigenous employment in IP Australia ....................................................... 59 3.2.6 Specific Indigenous language legislation ...................................................................... 59 4. Recording Indigenous Knowledge and managing legacy recordings ........................................... 60 4.1 Discussion ............................................................................................................................. 60 4.1.1 Free prior and informed consent when making recordings ........................................... 60 4.1.2 Controlling future use of recordings .............................................................................. 61 4.1.3 Representations of Indigenous people on film and media ............................................ 62 4.1.4 Managing Access and Use of Legacy Recordings ....................................................... 63 2 Indigenous Knowledge: Issues for protection and management Discussion Paper 4.1.5 Digitisation and databases ............................................................................................ 65 4.2 Options .................................................................................................................................. 66 4.2.1 Practical Tools for Recording Projects .........................................................................
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