2ND EDITION Protocols for producing Indigenous Australian media arts Media arts 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 Media arts 01 Contents Australia Council for the Arts Introduction 2 Reproducing works 26 372 Elizabeth Street, Surry Hills NSW 2010 Accessing archival audio-visual material 26 Using this guide 3 PO Box 788, Strawberry Hills NSW 2012 Licensing the use of works 26 What are protocols? 3 ABN 38 392 626 187 Assigning copyright versus licensing 26 What is media art? 4 Telephone +61 2 9215 9000 What are Indigenous communal The special nature of Indigenous media art 5 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 moral rights? 27 Indigenous heritage 7 Email [email protected] Managing copyright to protect Current protection of heritage 8 www.australiacouncil.gov.au your interests 28 This publication is available online Copyright notice 28 at www.australiacouncil.gov.au Principles and protocols Moral rights notice 29 © Australia Council 2007 Respect 10 When is copyright infringed? 29 First published 2002, edited and revised 2007. This work Acknowledgement of country 10 Fair dealing provisions 29 is copyright. Apart from any use as permitted under the Accepting diversity 11 Crown use of artworks 30 Copyright Act 1968, no part may be reproduced by Representation 11 any process without prior written permission from the Library copying 30 Australia Council for the Arts. Requests and inquiries Living cultures 11 Educational copying 30 concerning reproduction and rights should be addressed Indigenous control 11 Further copyright information 30 to the Director Marketing and Communication, Australia Engaging Indigenous contributors 12 Proper returns and royalties 31 Council for the Arts, PO Box 788, Strawberry Hills NSW Communication, consultation and consent 13 2012 Australia or to [email protected]. Copyright collecting societies 32 Collaborating with other artists 14 Continuing cultures 33 ISBN 978-1-920784-36-2 Commissioning Indigenous artists 14 Recognition and protection 33 Design Bright Red Oranges Interpretation, integrity and authenticity 14 Print e2e managment pty ltd Cover Christian Bumbarra Thompson, Emotional CD-ROM and database works 15 Implementation Striptease 2003. Image courtesy of the artist Adapting materials 15 1. Respect 34 and Gallery Gabrielle Pizzi. Adaptation of works 16 Indigenous design element: 2. Indigenous control 34 Traditional motifs 16 joorroo, Darrell Sibosado 2002 3. Communication, consultation Photographs 16 and consent 35 Indigenous imagery 17 4. Interpretation, integrity and authenticity 36 Indigenous songs 18 5. Secrecy and confidentiality 36 Film footage 18 6. Attribution and copyright 36 Internet publishing 20 Attribution 37 Secrecy and confidentiality 21 Copyright 37 Representation of deceased people 21 The Australia Council respects Indigenous 7. Proper returns and royalties 37 Secret and sacred material 22 communities and culture. Readers should be 8. Continuing cultures 38 aware that this protocol guide may contain Personal privacy 22 9. Recognition and protection 38 references to members of the Indigenous Attribution and copyright 22 References 39 community who have passed away. What is copyright? 22 Bibliography 43 Requirements of copyright 23 Contacts 44 Copyright exceptions 23 IMportant Notice Acknowledgements 48 The information included in this guide is How long does copyright last? 23 current as at September 2007. This document What rights do copyright owners have? 23 was first published under the title ‘New Reproduction right 24 Media Cultures’ in 2002. This guide provides general advice only. It is not intended to be Collaborative works 24 legal advice. If you have a particular legal Communal ownership versus issue, we recommend that you seek joint ownership 25 independent legal advice from a suitably What are moral rights? 25 qualified legal practitioner. Media art protection 25 Media arts 02 Media arts 03 Introduction Introduction Introduction • Indigenous and non-Indigenous artists Although each guide in the suite addresses The principles and protocols section examines • people working within related fields cultural protocols specific to an artform, the the nine principles that support the protection of Australia’s unique Indigenous artistic and of Indigenous artform practice same underlying principles are common to each. Indigenous cultural heritage. It includes valuable cultural expression is rooted in thousands of • Australian and state/territory We hope Indigenous people, and those working information on protocols specific to the use of years of heritage and continuing practice. government agencies with them, will be inspired and encouraged to cultural heritage material in media arts practice. When the Musée du Quai Branly opened in Paris • industry agencies and peak organisations use the principles as a framework for developing A number of case studies and commentaries in 2006, visitors were spellbound by the immense protocols appropriate to their specific projects, from Indigenous media artists identify pitfalls • galleries, museums and arts centres power of the vast collection of Australian language groups, regions and communities. and offer readers valuable advice. • educational and training institutions Indigenous artworks, including special landmark We also hope the guides will spark debate The guide also contains general information and • Indigenous and targeted mainstream media. commissions on the ceilings and façade and that additional protocols will be developed advice on the main laws in Australia governing by eight of Australia’s best known Indigenous The protocol guides endorse Indigenous cultural across artforms. the use and reproduction of arts and cultural contemporary artists. In May 2007, Emily and intellectual property rights – the rights Send any comments about this guide or any expression. For this second edition, we have Kngwarreye’s Earth’s Creation was sold at auction of Indigenous people to own and control their suggestions for improvement to the Australia integrated copyright, licensing and royalty for more than $1 million, the highest price ever cultural heritage. These rights are confirmed Council for the Arts: information into the principles and protocols for a painting by a female artist in Australia. in the 2006 United Nations Declaration of the section. So one section deals with attribution Rights of Indigenous Peoples1, which says Executive Director While works by individual artists such as these and copyright and another with proper returns Indigenous people have the right to practice Aboriginal and Torres Strait Islander arts and royalties. are protected by copyright, there are often no and revitalise their cultural traditions and Australia Council for the Arts legal rights around the broader reproduction customs. ‘This includes the right to maintain, PO Box 788 The implementation section summarises some and use of Indigenous cultural heritage material. protect and develop the past, present and Strawberry Hills NSW 2012 of the key points and provides a checklist for Australia does not yet have a law that prevents future manifestations of their cultures, such [email protected] applying protocols to a media arts project. alteration, distortion or misuse of traditional as archaeological and historical sites, artefacts, We have also included a list of contacts symbols, songs, dances, performances or rituals designs, ceremonies, technologies and Using this guide and references to access relevant people that may be part of the heritage of particular visual and performing arts and literature.’ This guide is designed to be an initial point of Indigenous language groups. and information. In Our culture: our future 2, Terri Janke reference in planning a work of media art with That is where the Australia Council for the Arts’ recommended significant changes to laws, Indigenous media art practitioners, or using Indigenous cultural material in such a work. What are protocols? protocol guides come in. The five guides in the policy and procedures to protect Indigenous When you need specific advice on the cultural In 1997, when media art was an emerging field, suite spell out clearly the legal as well as the cultural knowledge and expression. many Indigenous commentators noted the The Australian Government has yet to issues of a particular group, we recommend ethical and moral considerations for the use of potential for that artform to reproduce and deal make a determination on this matter. you speak to people in authority or engage Indigenous cultural material. They can help people an Indigenous cultural consultant with relevant with Indigenous cultural content in unprecedented to do the right thing. In Australia, Indigenous heritage comprises all knowledge and experience. ways. Indigenous artists and communities were These guides recognise that in Indigenous objects, sites and knowledge transmitted from keen to participate, however, media art allowed generation to generation. Indigenous people Reading this guide from cover to cover is an Australian communities the artist is a custodian important and highly recommended first step. Indigenous cultural material to be copied, digitised of culture, with obligations as well as privileges. have a living heritage. Their connection