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Verified Authentic: Ensuring Respectful Use of Indigenous Cultural and Intellectual Property
Why is this topic relevant? | Indigenous cultural and intellectual property (ICIP) refers to the rights Aboriginal and Torres Strait Islander Peoples have in their cultural knowledge and expression. In December 2022, the Productivity Commission published its report into Aboriginal and Torres Strait Islander Visual Arts and Crafts (Report). The Report found that sales of Indigenous visual arts and crafts – authentic and inauthentic – reached $250 million dollars in 2019-2020, and it recommended that new cultural rights legislation be introduced to address gaps in current Australian IP law. |
What legislation is considered in this episode? | Copyright Act 1968 (Cth) |
What cases are considered in this episode? | Milpurrurru, G. v Indofurn P/L [1994] FCA 975; 130 ALR 659 (the Carpet Case)
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What are the main points? |
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What are the practical takeaways? |
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Show notes | Productivity Commission, Aboriginal and Torres Strait Islander Visual Arts and Crafts Study Report (2022) |
David Turner = DT; Stephanie Parkin = SP
David Turner: | In December 2022, the Productivity Commission published its report into Aboriginal and Torres Strait Islander visual arts and crafts. That report found that sales of Indigenous visual arts and crafts – authentic and inauthentic – reached the value of $250 million in the financial year ending 30 June 2020. And it recommended that new cultural rights legislation be introduced to address gaps in the current Australian IP landscape. Now, Indigenous cultural and intellectual property – we’ll be referring to this throughout the episode as ICIP refers to the rights Aboriginal and Torres Strait Islander peoples have in their cultural knowledge and expression. Joining us today is Stephanie Parkin, co-founder and principal of Parallax Legal, a Queensland based law firm specialising in the space, and she’s joining us to share her insight and experience in Indigenous cultural and intellectual property. Stephanie and Parallax’s work aims to help organisations and individuals identify, use, and manage intellectual property, including the respectful use of ICIP. Stephanie, thanks so much for joining me today on Hearsay. |
Stephanie Parkin: | Thank you very much for having me. It’s really great to be here. |
DT: | Now, before we jump into this topic around ICIP, tell us a little bit about yourself and your work and how you came to found Parallax Legal. |
SP: | Yeah, sure. Before I begin, I would like to acknowledge the traditional owners of the land upon which I’m dialing in from today, and that’s the Jagera and Turrbal people of the Meanjin or Brisbane region. So, I’d like to acknowledge them and acknowledge that I’m a visitor on their country and acknowledge their continuing connection to their lands and also their ancestors as well. And I think acknowledgments like that, even just to be thinking about ICIP and protocols and the topics that we’re talking about here today, an acknowledgment or welcome like that is really key to respectful use of information and materials and ensuring that we’re doing things in a proper way. So, before I get into the talk, I’d just like to make that known, and it’s really tied to everything that we’re going to be speaking about today. |
DT: | Thank you for that, Stephanie. And for my part, I’d like to acknowledge the Gadigal people of the Eora nation, the traditional owners of the land that I’m recording from today. And that really is such a great point to make about what we’re going to be talking about and is an important part of respectful use of ICIP, as you said. So, tell us a little bit about the work that you’re doing at Parallax Legal every day. |
SP: | So, the work that I do at Parallax Legal every day is very much tied to who I am as well and the people that I come from. So, I belong to the Quandamooka people of North Stradbroke Island, which a lot of people know as Straddie. It’s a beautiful place to go to; where people have their holidays. So, my people are from Quandamooka and the Morton Bay region, so we are saltwater people. All of my family continue to live on North Stradbroke island in the community there. My mother was born in the Aboriginal community there at One Mile. All of my family, my parents, brothers and sister, uncles and aunts and cousins all continue to live there. I’m back and forth, so I live in Brisbane, and I travel back and forth to the island. And I’m very fortunate that I’m able to still have my family and community so close to me and still be able to do the things that I’ve been able to do to date, being connected to the city and the opportunities that arise from living in this area, too. So, I would like to acknowledge my family over there. We come from a big mob of different groups over there in one way or another connected to each other through bloodlines or marriage. And a lot of my family has come down through the Delaney and Martin lines over there. So, I would just like to acknowledge them and my families over there. And again, it is important, I think, to help give context to the work that we do at Parallax and give context to the why and why that is important to know where we come from and know how that actually influences what we do on a day-to-day basis in the types of clients that we work with, in the work that we do. I just like to acknowledge them. And I suppose when I think about how I got to where I am now, it is a journey. Like everything, everyone’s got their own journey and story. I think going through school, primary school and high school, there was always a sense of the injustice that our people were experiencing in different areas of our society and communities. And I think initially I’d wanted to be a teacher, or a nurse and I think about those types of careers as well as service to other people. And I suppose in some ways being a lawyer is also. So, I went through high school, I did legal studies in high school, and I was encouraged by the legal studies teacher at the time to think about applying for a law degree, law and justice degree at QUT – Queensland University of Technology – here in Brisbane. So that’s what I did. I went ahead and found it to be a really interesting degree, I think not only the law aspect, but also justice. I thought; the justice degree in criminology, while I don’t practice in that now, it gives a really interesting insight into society and gives us context to the law that we’re applying as well. So, after coming out of QUT and university, I ended up working at McCullough Robertson Lawyers here in Brisbane and was there for about six years initially in their litigation team, but then moved into their intellectual property and general sort of commercial team. And it was really at that point in time, I could see how intellectual property could be applied not only to all different sectors in our society, but also how it could be applied and used in relation to our communities and how intellectual property at that time that, as I understood it, how it could be used in a way that could help our people manage their rights and protect their cultural materials as well. So, after a certain point of time, I left the firm because I felt like it was time for me to explore that area of ICIP, if you like, more broadly. Went back to QUT and completed a Masters by Research. And at that time there was an inquiry going on into the issues of fake Aboriginal art and craft in the souvenir market. So, I completed my thesis on that topic. During that time, I was also doing work for the copyright agency, got involved with boards like the Indigenous Art Code, also the local museum board back on the island. And once I came to finish my thesis, I was ready to get back into practice because I did miss it and I wanted to apply this knowledge that I had then learned back into practice. And I had been thinking for quite some time that I would do it solo. I was happy to go out solo and open up my own practice and I was ready to do it. Then I got a call one day from a person called Cassie Lang, and I know Cassie. Cassie is now my co-founder and business partner at Parallax Legal. We had both went to QUT at a similar time. She was a few years ahead of me in the law degree and we obviously kept in touch over many years. The sort of circle of Aboriginal and Torres Islander lawyers in Brisbane is quite small. So, we all know what each other is getting up to and had followed our careers, each other’s careers in one way or another. And then Cassie had also been thinking about a change in her career and where she was going and heard that I was thinking about going out and solo. And she said; “well, why don’t we do it together”? So, I said; “great, what an awesome idea”. And so, we did it. So that’s how we came to establish Parallax Legal. I think you could say that the stars certainly aligned with Cassie and I joining forces at the right time. So that’s how we came to be. |
DT: | Great bit of serendipity there. Or kismet maybe. |
SP: | Yeah, absolutely. It really was. It was just the timing of everything. And we had thought about it for quite some time previously before actually taking the jump and of course, as lawyers wanting everything to be perfect before we actually took the leap. But you soon find out that business is a little bit different to the legal work that we do. So, we just had to start. And so, we started. And I think one of the interesting things about us starting was being really clear on initially what we were going to call ourselves, Parallax Legal. Neither of us had heard of the name Parallax before we started. We’d spoken to many people over many months about our name and because everything that we do, we feel has meaning and it’s got something connected to it, so we wanted to make sure that our name also meant something and that it wasn’t disconnected to us as people. So, after talking to many people and one person in particular was listening to what we were saying really deeply because we were saying we want to be able to describe the work that we do; work for our Aboriginal and Torres Strait Islander communities, want to make sure that their rights and interests are recognised and protected, looked after. But we also want to make sure that those who they’re engaging with, be it government at all levels, corporations or other big business, also know how to do the right thing as well because we want to work with both. And so, the work is about bringing perspectives together in a lot of ways; two different ends. And the name Parallax, which we found out from those discussions, one of the terms was based in astronomy and it’s looking at the same thing from two different points of view. And we thought, “wow, that perfectly describes the work that we do”. So hence Parallax Legal. |
DT: | What a perfect description. Now let’s dive in and I want to start with a bit of an example because this might help some of our listeners unfamiliar with the space start thinking about it. And that’s the acquisition of the copyright in the Australian Aboriginal flag. Looking back now, about 15 months. So, what happened there in early 2022 and who owned the copyright before? Because I think it would surprise some listeners to know that it kind of wasn’t in the public domain. |
SP: | That’s right. So, I think the Aboriginal Flag example, it’s a good example because it touches on many different layers and complexities. And I think overall what that situation demonstrates is the tension that exists between existing laws, intellectual property, copyright laws that are based on Western notions of exclusive use and use for a particular period of time and to monopolise things for a particular period of time. That tension, as opposed to community’s expectations of how something like the Flag, which in a lot of ways has transformed into a cultural asset of our people, and the expectations of community to use that asset in a way from a community standpoint. And there’s tension there. The two don’t always see eye to eye. So, the story of the Aboriginal Flag, again, it’s a long story in itself with many challenges and issues along the way. So, the Aboriginal Flag was designed by an Aboriginal man by the name of Harold Thomas. And Harold Thomas has been recognised as the copyright owner of the flag – so as the creator of the flag. And the Flag first made its appearance in events such as rallies in Canberra in the early seventies. The Flag was used at that time and continues to be used as a demonstration of rights that our people will continue to seek and the protection and recognition of some of those rights. So, Harold Thomas is recognised as a copyright owner. It was created, it’s been used over many years by our people and communities all across Australia in many different forms since that time. As I mentioned, it’s used at our rallies, it’s flown at different places, people have Flags hanging up in their houses, it’s there at our funerals. It is this symbol that has so many different impacts to all of us in one ways but it’s something that I think unifies us as well. And so, for many years, there were licensing agreements in place that Harold Thomas – as the copyright owner – entered into, and there were some agreements in place. For example, there’s an exclusive license for the company that actually produces the actual flag and banners. So, the formal production and manufacturer of that work, there’s an exclusive license agreement in place for that company to do that, and that’s still ongoing to this day. Then there was another license agreement that was in place. An exclusive agreement in place for the manufacture of merchandising and other products on T-shirts which after a certain amount of time that exclusive licensee had started to enforce the copyright that it had under that exclusive license against others in the community who might not have been using it in a way that was in line with those rights. So, there was an enforcement that actually started to occur. And once that occurred, there was obviously a bit of tension in the community around other organisations being, I suppose, questioned, around their use of the Aboriginal Flag after being able to use it for so long in a certain particular way. So, there was obviously – and listeners have probably been aware of it – there was a lot of media attention around the Flag because again, it was the rights of the copyright holder, Mr. Harold Thomas, and he was well within his rights from a legal point of view, to enter into those arrangements. But the way in which those licensees, one in particular, was acting to enforce those rights against others in the community, that really was the issue that caused a lot of tension in the community more broadly. So after a lot of media attention and community really calling for action, there was an inquiry, parliamentary inquiry, into the use of the Aboriginal Flag and to see if there were ways in which Flag could be used which respected the rights of Mr. Harold Thomas as the copyright owner, but also allowed the community to be able to use the Flag in the way that it expected to be able to use them. The inquiry was conducted, a lot of people turned up to the inquiry, talking about the issues and how they felt about the flag and their expectations of how the flag should be used, recommendations were delivered. And then sometime after that, the Commonwealth Government entered into negotiations with Harold Thomas as a copyright owner and also the exclusive licensees who were then tied up in this arrangement. Also, they were obviously confidential negotiations that took place after a period of time. We heard through the media that the Commonwealth government had in fact purchased the copyright for an undisclosed sum from Mr. Harold Thomas as the copyright owner. So that’s why now the Commonwealth currently owns copyright in the Aboriginal Flag, which now means that similar to other flags, it now means that anyone can use it, even for commercial purposes. But the exclusive license for the manufacturers of the flag still remains in place. So, the net has been broadened out so that people can use it. It means Aboriginal artists can use it, Aboriginal communities can use it, health services, but it also means non-Indigenous people can use it as well and also make money off of it. So that’s how we’ve got to the end result of the Commonwealth ultimately becoming the copyright owner of the Aboriginal Flag, which is quite a different and unique scenario, I think, for most flags and how they become Commonwealth owned flags. Like, you compare that to the Torres Strait Island flag, which was developed out of a competition and design that was made, but from the very beginning, there was an agreement that the Commonwealth would have some control over that flag in addition to the local council up there as well. So that was always established from the beginning. That’s why the Aboriginal flag as a comparison is really quite unique and different in that way. |
DT: | Yeah, absolutely. TIP: The Torres Strait Islander Flag was designed by a local of Thursday Island and submitted to a competition run by a Queensland statutory body known as the Island Co-ordinating Council in 1992. In 1995 it was proclaimed a flag of Australia by the then Governor General William Hayden. And I think that point you made around the freedom to use that intellectual property, though, recognising that there are both culturally specific uses of it and also the potential for it to be used in a less than culturally sensitive way is probably a good intro to really defining a term that we’ve both used a couple of times in this episode, which is Indigenous cultural and intellectual property. We’ve referred to it a few times, but we haven’t really defined it. So can you give us a little bit of a definition of what Indigenous cultural and intellectual property is? |
SP: | Yes, I can. And there’s probably a formal definition of it and then also an informal sort of thought and understanding and context of what ICIP means. So, from the formal point of view. So, the World Intellectual Property Organisation – WIPO – they have a formal definition also around traditional knowledge, which is a form of ICIP. So ICIP really is around the knowledge that has been generated from Aboriginal Torres Strait Islander people that’s connected to a particular place or country and that has been passed down through the generations connected to that place. And so ICIP then comes from a certain source. It’s passed down through the generations, and it’s connected to things like information about seasons, information about land management, different styles of artwork and cultural expressions, and the stories that are connected to cultural expressions. And this type of information then, is very specific to that particular group. So, an example of this would be there’s information – and I’ll use my example of where I come from – the Quandamooka people. So, information about how lakes were created over there, we have creation stories about how our lakes were created and how different parts of the island were created, and that comes from our ancestors. And the information that has been passed down through the generations that’s connected to us specifically and then takes form in different ways. So, people might use that information now about creation stories to inform their arts practice. So, in a physical sense, there’s a creation story around that and how that’s expressed in a physical form. So ICIP is very much about that information that’s passed down from generation to generation. It’s tied to our spiritual identity of the community or people that you come from and gives you that identity. So ICIP now can take form in many different contexts and areas. So traditional knowledge is one form of ICIP, as I mentioned. So, again, I’ll use the example from over on the island. Mum tells me that when a certain flower is blooming, it means that the mullets are ready to be coming up from down south and to be caught by our people. That’s an example of traditional knowledge. And that traditional knowledge comes down – my mother told me, her mother told her, and the generations above. And the source of that information comes from our people living totally connected to each other, into everything on these lands, connected to the lands and waters and the whole environment around them and the skills of observation. So, our people observing everything around them, knowing that when a certain flower blooms, many generations and years, this type of information would have been generated. It means that the fish are now coming, the mullets are now coming, they’re running, and you better get ready, go out on the beach and get ready to catch them. And then that information translating down generation to generation and forming a part of who we are and understanding of who we are, the people that we come from. Traditional knowledge now is also really important around the uses of different plants and trees for medicinal purposes, which is now becoming more important with going hand in hand with science and creating new medicines. And the combination between traditional knowledge now and science is really powerful. So, it’s a long-winded way of saying, in my view of ICIP, it really is that valuable knowledge that has come from our ancestors that is passed down and informs a lot of the ways in which we view the world, see the world, have connections with each other, our relationships with our elders. A knowledge of waterways, seasons, animal movements. And it’s very much all encompassing, which I think more and more people in contemporary society are learning that it can be not only a valuable asset in terms of a financial point of view, but also that it can help all of us in this society in the way that we live and treat each other. |
DT: | As you were giving that description. What struck me from a legal perspective is that there’s some overlap in terms of your definition with the way we might define our sort of traditional categories of intellectual property around copyright, which protects the expression, but not the ideas themselves. Trademarks, patents, designs, plant breeders rights, all these sorts of defined categories. But some of those categories apply to the definition you gave, and then others would really sit beyond it. Can you tell me a little bit about the interaction between ICIP and our kind of traditional Western concept of IP, and where the kind of shortcomings are. |
SP: | Sure, and there are shortcomings, there’s many. And I think that’s the starting base for all of these discussions around reform that we’re hearing about now. And I think the need for reform because of the deficiencies in our existing laws has been one that has been ongoing for a long time, decades long before I’ve been involved in doing what I’m doing now. People like Terri Janke and others in the industry have long pushed for reform and specific recognition of ICIP because it is so unique. So, if we compare that to systems of the copyright legislation – again, copyright legislation recognises original works, usually by one or two people. There’s a strict limitation on how the rights that can be used when you are recognised as a copyright owner, there’s also limitations on the time period. You’re only going to get copyright protection for a certain period of time, and then it goes into the public domain, as we know, free for all, for everyone to use. Again, these are all notions that are based on people being able to innovate and encourage innovation and the exploitation of ideas for progressing society, if you will, and for economic return and benefit. So, when you look at intellectual property from that point of view, you can see how the origins of intellectual property and all of those categories of intellectual property that you’ve mentioned were fit for purpose for that. So, on that basis, those existing laws do not correspond with ICIP. So, some of the differences that ICIP is grounded in, those thousands of generations, thousands of years of knowledge and information, as I said, that’s been handed down. And when we’re talking about protection of time period – that’s ongoing, there is no limit to protection in that way. Sometimes there’s communal ownership and contribution of these works or information as well, not just recognised as one or two. So that tension exists. So, there’s ways in which I think the Copyright Act can be used by artists, let’s say, for example, or writers in this space, Aboriginal and Torres Strait Islander creatives up to a certain point. So, within the limits of the Copyright Act things there might be remedies or actions that can be taken into account. But again, because these pieces of legislation were not designed specifically with the rights of Aboriginal Torres Strait Islander people in mind, they’re not actually going to work. And it’s like square peg, round hole. And that’s the challenge that we have in the work that we do. And because those gaps exist, all of our agreements that we enter into negotiations, policies, protocols become really important in plugging all those gaps that currently exist. Now, there’s commitments from government that ICIP legislation is something that they’re committed to. But until that time actually occurs, things like free prior informed consent, entering into negotiations of good faith, making sure your agreements are addressing all of those issues become really important while the law is still trying to catch up. |
DT: | Yeah, absolutely. What you’re really describing in terms of using the existing frameworks of the intellectual property landscape to protect ICIP is that new expression is protected in the sense that if an Indigenous artist creates a new work based on that traditional knowledge, then that new work is protected because of its newness. But it’s the cultural appropriation of the traditional knowledge that’s unprotected at the moment. |
SP: | That’s right. The existing laws are obviously deficient at this point in time, and there’s been a fair few proposals that have been put forward to address those gaps. And I think you’re right, really. I mean, it is about protecting the new work that’s created, but also that underlying value of the work which really sits in the information and stories and knowledge that informs the work, the physical expression of the work. |
DT: | And the Productivity Commission has made a recommendation in its report that’s the report on Aboriginal and Torres Strait Islander Visual Arts and Crafts that I mentioned at the top of the episode I wanted to get your view on this, Stephanie. The Productivity Commission recommended that there should be a new cause of action that specifies that a traditional owner’s rights are infringed if a person uses a cultural asset to create a cultural expression like a piece of art or craft without the authorisation of the traditional owner. TIP: That recommendation that David has just mentioned can be found at Recommendation 6.1 of the Report. It says: And the recommended mechanism of action would be that new cause of action that David mentioned. We’ll leave a link to the full report in the show notes. So, we have kind of these three sort of new concepts to the traditional IP landscape in that recommendation. The idea of a cultural asset, which I think is the traditional knowledge that we’re talking about, and then a cultural expression, the kind of new work based on that. And then the idea of traditional ownership of those cultural assets, which presently doesn’t have that sort of legal recognition. What do you think about that Productivity Commission recommendation? |
SP: | It’s positive that there is thought around what a new model addressing these issues around ICIP, and cultural rights would look at, so I think that is one of the stronger recommendations that have come out of the productivity Commission’s report. I think even before we jump into that, it’s just important to note where the Productivity Commission came from. And that came out of the previous parliamentary inquiry into the issue of fake art, which came out of Fake Art Harms Culture campaign in 2016, which really came out of Aboriginal and Torres Strait Islander artists going into shops or seeing shelves of product stacked with fake art, essentially. So, this is where it’s come from. So, I think that’s important to note also. So, where these concepts are talking about now, where they’ve actually come from. And they’ve actually come from the people, because Aboriginal Toast Islander artists, many know about this issue of fake art or exploitation of cultural rights from the 60s onwards, our people have known about this and have been talking about reform and change. Not just talking about it, but pushing for reform and change, all those levels of government. So, it’s been an ongoing battle in that respect, which I think for a lot of Aboriginal and Torres Strait Islander people, this ongoing push for recognition of rights is not just in relation to these rights and we’re seeing those big conversations play out right now nationally. So just to put the Productivity Commission report and recommendations in context, that really came out of a standing push for reform, which then triggered the inquiry, which then the Productivity Commission was a recommendation of the inquiry. So that’s how that came about. The Productivity Commission, I think, covered a lot of ground because it is an important thing to understand the value of the market, but also to understand the cultural impacts as well, which the market also has a lot of control over as well. So, in terms of this cultural rights model, for protection of rights more broadly, I think one initial observation is that the rights really are related to visual arts in that respect as well. So, it’s just contained to that aspect. And I think, as we discussed already, cultural rights in ICIP are a lot broader than just visual arts. So that’s probably one observation out of it. I do understand that the proposed model is a recognition of those rights that do exist, so that traditional owners have a right to their cultural assets. They have a right to give authorisation for others to use those cultural assets. And that where the infringement will occur, is where someone has used that cultural right, being an artwork, symbol or design without the proper authorisation of the traditional owner. And then if that occurs or is established, part of it being established would be that the traditional owner who’s connected that cultural asset would have the right then to pursue that infringement. I think that also raises some questions around enforcement. So again, like the Copyright Act, you could say in a similar way to the Copyright Act, there’s no need to register copyright here in Australia. They’ve applied a similar lens to this cultural rights legislation as well. So, it’d be an automatic right, no need or requirement for the traditional owner to register. So that right exists. I think some of the problems or challenges rather that might exist is around the enforcement of those rights. And again, we see that even from a copyright perspective, you might have the right and you’ve got the ability to enforce the right. But actually, following having the time, capacity and money to actually enforce that right is another story. So, again, when I think about this model, I think some of those issues would still exist. And I think if we’re talking about some of our own people as well, some of those challenges around accessibility would actually be more great as well. So, the ability for our people to engage with lawyers, with the courts knowing who to go to, these might seem like simple things that all of us take for granted day to day, but there are a lot of our people in our communities that I think would have challenges in being able to enforce that right. So, it’s less of, I think, a legal sort of analysis of it. I think it’s good that we’re talking about it. It needs to happen. Rights do need to be recognised and enforced because it also tells us that those things are valued when there’s laws in place around that these things are valued, and they are worthy of recognition and protection. So that’s a good thing. But I also have a little bit of apprehension about the ability to enforce, and that’s a whole other issue. |
DT: | Absolutely. And that is, as you say, a problem with kind of any legal protection, including the existing legal protections that there’s extremely limited access to those in practice, in real life, Parallax Legal is doing some great work in that space, but at scale, at a nationwide level, that really needs to be addressed. And I think that’s true across the entire Australian community. The Productivity Commission produced a remarkable report a number of years ago about up to 85% of Australian, unmet Australian legal demand being unmet by the private profession. And that’s especially true for the Aboriginal and Torres Strait Islander community. You said before that really this call for reform came out of a grassroots concern of Indigenous artists seeing their work appropriated in a commercial way or seeing fake art that had that imitated authentic Aboriginal art being appropriated in a commercial way. And I think that’s the way a lot of people who are maybe not familiar with this space day to day see Indigenous cultural intellectual property come up in the sense of disputes about the use by non-Indigenous corporations or businesses of Indigenous artwork. And I imagine you must see these sorts of disputes or controversies all the time. There’s a lot of work around licensing and proper use of this intellectual property, but it’s probably more eye catching, and I’m sure it happens often, is the disputes about it. So do you have any examples that you’ve seen in your practice where there has been infringement and how you approach that? |
SP: | You’re absolutely right. There’s a lot of work in this space and particularly around the exploitation of ICIP in all forms. But I think probably one of the more recent ones that comes to mind is the exploitation of Aboriginal art under a licensing arrangement that did exist for that. I have assisted an artist with working through with an organisation. So, I think a lot of this exploitation does occur in the licensing space and whether that’s unfair payment, so the payment doesn’t actually reflect the use or the reproduction of it or whether it’s use that has gone beyond the initial agreement, which in the example that I’m thinking about, an Aboriginal artist created work. And there was initial agreement, although it was verbal. And I suppose that’s the first mistake that occurred, verbal agreement for a local council to use Aboriginal art of this artist in a particular way, it was going to be reproduced on certain materials, like print materials that were existing for the clients. And there was an agreement there and the artist was happy for that to occur. However, unbeknownst to the artist, that work was then reproduced on a whole range of other different parts of council and that included things on banners and letterheads and uniforms, if you like, so on branding on different parts of council’s brand and things that they were doing so outside of the scope of what was initially agreed. So, when I’m advising the artists on this sort of point of view, it was very much about, okay, well, a written agreement should have been the first step in addressing this type of action and then also getting the uses really clear up front and not just doing it for free. Actually, demanding and requiring payment for the use of your work and being really clear around the scope what is included in the scope and what’s not. Example, the artist was obviously very distressed, of course, because the artwork was used in a way that he didn’t think or understood that it was going to be used, but not just of the artwork. It was the story that was connected to the artwork and for it to be seen splashed around and all these other uses that he was not aware of, I suppose the cultural harm or the internal harm or impact. That caused him, as an artist, seeing this work out there more broadly than he had initially thought I would say was even more harmful to him rather than the copyright infringement that did occur. So, I think that’s also a really different point of distinction as well. And when others are dealing with Aboriginal and Torres Strait Islander cultural materials and works, it’s not just about the work itself because as I’ve described earlier, where that ICIP actually comes from. It’s not plucked out of thin air. It’s not something that’s just made up. It comes from somewhere really important and significant to a lot of our people from those generations before us. And it requires a different level of thinking and different approach to it. So, with that example, we eventually got there in the end. There was an agreement put in place, and there was things that have to be removed and taken down. But we got there in the end, and there was a good resolution. Part of that work is also about educating the other people that we’re dealing with on the other side as to why it’s important to do these things. There’s a process, just like businesses and governments and all have their own process and ways of doing things. So do Aboriginal Torres Strait Islander people with the use of their cultural materials, information, artwork. There’s a whole process that sits around the use of that work. And so, it’s about making sure that any agreements that we create, that there’s room for both of those processes to be recognised. And that takes time. As I said, it takes education and not just the legal agreements, but the understanding that occurs with that as well. |
DT: | That’s such an evocative example for a whole range of reasons. One, because I think it demonstrates that there are limitations to the existing intellectual property framework and the completely different ways of thinking about what’s valuable about intellectual property. And also, because I imagine that the infringing party there wasn’t infringing in a malicious way but was probably uninformed about the extent of the harm that was happening there. And I have to say it would not have occurred to me at all that it would be the story that sits underlying the artwork that in our traditional conception of copyright wouldn’t be protected because it’s the expression of the idea, not the idea, that’s protected in the traditional conception of copyright. That would be the thing that really harmed the artist, that really caused more harm than the infringement of the copyright, which is the expression of the idea in the form of the art. So, it’s this example that draws out the distinction between IP and ICIP. It draws out the limitations in the current copyright framework, and it draws out what might be driving the behaviour of infringing parties who aren’t acting maliciously, but maybe aren’t understanding the level of harm or the things that they need to think about when using Aboriginal artwork in a commercial context. So, what can non-Indigenous people, people like myself, who wouldn’t have appreciated that the story there is really the harm that’s being done, appropriating the story? What could non-Indigenous people do to understand Indigenous knowledge and cultural heritage? And how can they better build awareness, especially within our profession, within the community of lawyers? |
SP: | Totally agree with all of those observations. And it’s very interesting space in having to navigate all of the time. And I think you’re right – a lot of the time, it isn’t malicious. Of course, you get the odd ones where they are, definitely, but it is sometimes around the lack of education of how things should be done. So, I think initially I would say when you’re approaching or wanting to use an artist’s work or knowledge or information to come with it, knowing that you’ll probably be challenged on a different way of doing business or engaging with or interacting with the Aboriginal and Torres Strait Islander person or native title body or corporation, whoever it is you’re dealing with, they are going to have their own protocols and processes and ways of engaging with you and allowing your use of that work. As I say, that is because sometimes the artists themselves might have the right to tell the story. They might have been given consent to do that from someone else in the community who actually owns a story. So, there’s a level of consent or authorisation that sometimes comes from other people within the community. And that means that that artist not only has the obligation to ensure that their work is represented in a respectful way, not only for themselves, but because we owe that obligation to the rest of our community from which we come from as well. So, when you look at it from that point of view, it means that there are going to be different ways of doing things. And that means things like time. I think time is a really important aspect to be thinking about for members of a profession. I know time is very important for all of us and everything that we do on a day-to-day basis. But I think when dealing with Aboriginal and Torres Strait Islander artists in particular, allowing time for consideration of the terms, allowing the artists to or ensuring that the artist has access to independent legal advice, ensuring that the agreements cover off on potentially different payment structures, upfront fees, licensing fees that take into account not only the proper uses, but also the status of that artist and where they come from, their own reputation. And also ensuring that your agreements are really clear on the use of ICIP. So, if there is something around the ICIP that the artwork should be named in a particular way, it shouldn’t be used in this format. You can’t change the colors here because it’s connected to a particular style. You can’t crop it from this point of view because it’s going to cut across a story that’s connected to the artwork in that way. So, allowing ICIP to form part of your contract. So just in the same way that you’d think about copyright in a licensing agreement, start to think about ICIP in the same way when you’re dealing with Aboriginal and Torres Strait Islander people, because that will draw out the proper and respectful use of that work as well. And also, to ensure that there’s good engagement. Like, I’m talking about things that are in the agreement there, but we are relational people. So having the time to meet with the artist or community before putting down the terms of a contract. Get to know who they are. Get to know them as an artist, as a person, the community they come from. Spend the time not even necessarily talking about the agreement or the project that you might want to work with them on. Get to know them as people. That also builds trust, good relationship building that’s really important to our communities. And again, that’s one of the ways in which we engage, building those strong, respectful relationships. So that’s even before you get to the legal agreement to understand there’s different ways of engagement. |
DT: | Absolutely. And I think a lot of that is it’s not so much thinking about the legal issues in a different way. I think there’s definitely a need to do that. But it is, as you said, thinking about the process in a different way. And I really like what you said around time. I think time is often the driver for why we define our processes. And it’s not a very good driver for designing a good process, is it? Because you tend to just do everything as quickly as possible and if it’s fast and efficient, then great, it’s the best process for the job. But I think what you’re really saying there is that to do this right, it takes time. And you might need to slow your traditional or your typical process down so that you can develop that relationship of trust with the artist, with the owner of the traditional rights or the copyrights and approach that in a respectful way. |
SP: | I was just going to say, I totally agree with you there. And time really cannot be underestimated. And we know time can really also come into factor when we have weeks like NAIDOC week coming up, Reconciliation Week, all of these weeks where a lot of organisations and probably clients of listeners want to engage with an artist or use material. So, making sure you’ve got time set out, not just getting in touch with people, an artist the week before, something that you’d like to launch. So being prepared for that. And I think also in the lead up to the Olympic Games, we’re already seeing an increased interest in Aboriginal art knowledge materials, the way in which our museums and galleries collect. People want to know that artworks and information has been bought or licensed in a way that’s respectful to the artists and that artists get paid. We’re seeing more and more of that now that the public are asking questions left, right and center. They’re asking questions of gallery owners about; “is the artist getting paid for this”? And that’s a good thing. It means that consumers are engaged in the process as well. So, there is that pressure from that to make sure that things are done right. And as I said in the lead up to the Olympics, the demand for our people’s art and information and presence and involvement in these things is only going to increase. And I think we owe it not only to the artists, but to all of us and the nation and who we are and what we value as Australians to do this properly. And the way you do it properly is, with respect, time, proper engagement and payment budgets, very important. |
DT: | Absolutely. Well, Stephanie, we’re nearly out of time, but I always like to end our episodes with a bit of a tip for law students or young legal professionals who are looking to get into this field, who are looking to do a bit more work in the field we’re talking about. And that today is ICIP. So, Stephanie, if there were someone listening who wants to do some work in this area, who wants to get started, how would you suggest they start working in this area? |
SP: | Well, firstly, I would say yes, because there is a lot of work and a lot of need. So, it’s great that you’re thinking about going into this area. I think, importantly for me, what I would suggest for people wanting to get into this area is to know your history and to know why this is important. Because if you understand the history of this country and if you understand why exploitation has occurred and the drivers of exploitation, colonial drivers of exploitation of people, land, waters, knowledge, information across the board, if you understand how that has applied here to Aboriginal and Torres Strait Islander people, you can understand why ICIP and reform is needed. Without that understanding, it’s difficult to understand the why. Why we do this work is because we know what it’s like when it’s not done properly. So, I would say, first, know your history and know why this practice exists and know that the communities that have strongly spoken out for ICIP protection and read up on some of the early cases around this issue as well. The Carpets Case was an early case in the 90s, so start there. Knowing history is really important because that gives you guidance and direction as to why you’re doing what you do on a day-to-day basis. |
DT: | That’s such a great point. And I think often when I ask that question, I get a practical tip about where to start working in this area. But what I love about your answer, Stephanie, is that it’s about the purpose of the work. And too often we don’t think about the purpose of what we do. We think about just getting the work done or getting into that field because we find it interesting or we think we might like it, or we think it might give us status and we don’t think about the purpose of it. I love that you’ve really brought that to the fore, so thank you so much for joining me today on Hearsay. |
SP: | Thank you. |
RD: | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our special guest, Stephanie Parkin from Parallax Legal, for being a part of it. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive or professional skills unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. Hearsay is recorded on the lands of the Gadigal People of the Eora nation and we would like to pay our respects to elders past and present. Thanks for listening and see you all on the next episode of Hearsay! |
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