Indigenous Cultural and Intellectual Property

The term Indigenous Cultural and Intellectual Property (ICIP) refers to Indigenous peoples’ rights over their traditional culture, knowledge and heritage in all forms that may take. ICIP may include:

• writing (books, articles, poems)
• music (recorded or performed)
• performances (e.g. dance, ceremonies)
• artistic work (e.g. painting, carving)
• languages (documented/recorded or orally transmitted)
• tangible cultural property (e.g. sacred sites, burial grounds)
• intangible cultural property (e.g. oral tradition, traditional knowledge)
• ancestral remains and genetic material
• documentation of Indigenous peoples’ heritage in all forms (e.g. reports, films, sound recordings)

(Arts Law, 2011; Kearney et al, 2018)

Australian copyright law does not have specific provisions for ICIP, and there are gaps in the law that can leave ICIP vulnerable to exploitation. Here are the main issues:

• Copyright only protects intellectual property that exists in a material form. This describes material that is documented, recorded or captured in some way. This means that material that is orally transmitted (or performed without being recorded in some way) is not protected by copyright.
• Copyright ownership tends to be centred on individual ownership and demonstration of “intellectual effort”. ICIP may be community or collectively owned, developed, and passed down through many generations.
• Copyright protection has a limited timeframe. The typical duration of copyright protection is 70 years after the creator’s death. As Indigenous peoples have cultural traditions and creations that span thousands of years, this timeframe is very limited in comparison.

(Kearney et al, 2018)

• Curtin’s Intellectual Property Policy provides guidance on ownership of ICIP by Curtin employees.

• In her book True tracks: Respecting Indigenous knowledge and culture (2021), Dr Terri Janke provides guidelines on ways to engage with ICIP that respect the needs of Indigenous people.

• Dr Janke also co-authored the Protocols for using First Nations Cultural and Intellectual Property in the Arts, which provides guidance for creative practitioners, particularly those who have received grants from Australia Council for the Arts.

• The AIATSIS Code of Ethics for Aboriginal and Torres Strait Islander Research also contain guidance on how to use ICIP appropriately for research purposes.

• Local Contexts is a global initiative that supports Indigenous sovereignty over cultural knowledge by use of Traditional Knowledge and Biocultural Labels. The Labels allow communities to express conditions and protocols for using, sharing and circulating ICIP. See examples of how the Labels are being used by Indigenous communities around the world.