A Submission on Indigenous Intellectual Property to the House of Representatives Standing Committee on Indigenous Affairs and the Museums Galleries Australia - Indigenous Roadmap Project

<b>Executive Summary</b>\ud \ud There is a long history of legal, political, and ethical debate in respect of the problem of misappropriation of Indigenous intellectual property in Australia. There has been perennial public policy inquiries into the topic of Indigenous intellectual property – although there has been only a partial and mixed array of responses.\ud \ud I would comment that the Australian experience has been a mixed one. It is true that von Doussa J of the Federal Court of Australia has shown judicial innovation in a number of cases – most notably, the “Carpets” case, and the “Bulun Bulun” decision. However, there have been limits to the extent of judicial innovation in Australia – as illustrated by the refusal of the High Court of Australia to recognise the linkage between native title rights and traditional knowledge in the case of Ward v Western Australia. The case law has demonstrated that there is a need for a more fundamental legislative reform of laws with respect to traditional knowledge in Australia.\ud \ud Unfortunately, the Australian Parliament has thus far failed to heed many of the recommendations of Terri Janke’s landmark report, Our Culture, Our Future from the 1990s.\ud \ud The Howard Conservative Government did not fully realise its policy plans in respect of the protection of traditional knowledge. A Federal bill on the recognition of communal moral rights in respect of copyright works created by Indigenous communities has not been implemented. Thus far, there have only been piecemeal reforms. The authenticity trade marks scheme, which was set up in 2000, has collapsed. The Federal access to genetic resources scheme does make reference to native title rights; but only provides limited remedies for non-compliance with the regime. The Queensland access to genetic resources regime fails to adequately address the issue of the protection of traditional knowledge.\ud \ud The Rudd Labor Federal Government passed a right of resale – which would have the potential to benefit Indigenous artists and communities. However, instead of taking legislative action, it instead passed a code of conduct in respect of Indigenous art.\ud \ud The Gillard Labor Federal Government passed plain packaging of tobacco products – which incidentally has been of benefit in addressing tobacco consumption in Indigenous communities.\ud \ud The Andrews Victorian Government has passed some innovative Indigenous cultural heritage laws – which are designed to address some of the gaps and limitations in respect of Australian Indigenous intellectual property.\ud \ud There are certainly policy opportunities for the Turnbull Government and the current Australian Parliament to provide further protection in respect of Indigenous intellectual property. The Prime Minister Malcolm Turnbull has certainly shown an interest in boosting Indigenous entrepreneurship and business during his tenure. A number of his Ministers have grappled with the issue of Indigenous intellectual property and fake art.\ud \ud Australian Aboriginal and Torres Strait Islander communities have been promoting the need for greater legislative protection of Indigenous Intellectual Property. \ud \ud There has been international recognition of Indigenous intellectual property as part of the United Nations Declaration on the Rights of Indigenous Peoples 2007. \ud \ud In 2017, there have been a number of contemporary debates over Indigenous intellectual property. There has thankfully been a resolution of long-standing debate over the copyright ownership of the work of Albert Namatjira. There has also been controversy over Driller Jet Armstrong using Wandjina images without permission of the cultural custodians. There has been debate over high-end fashion company Chanel releasing boomerangs. The House of Representatives Standing Committee on Indigenous Affairs has called an inquiry into the persistent problem of fake art. Internationally, the Supreme Court of the United States ruling on trade mark law and the First Amendment has had flow on consequences for the treatment of derogatory trade marks about Indigenous communities in the United States. \ud \ud <b>Recommendation 1</b>\ud \ud <i>International Law</i>\ud \ud It is the tenth anniversary of the UN Declaration on the Rights of Indigenous Peoples 2007. Nation states – including Australia – could do more to implement the articles relating to the protection of Indigenous intellectual property. Moreover, at an international level, there is a need to progress stalled discussions on an international agreement on Indigenous intellectual property in WIPO. The WTO could play a more significant role in the protection of Indigenous Intellectual Property. Moreover, the language on the protection of Traditional Knowledge under the Convention on Biological Diversity 1992 needs to be translated into effective action.\ud \ud <b>Recommendation 2</b>\ud \ud <i>Copyright Law</i>\ud \ud Building upon the ‘Bulun Bulun’ decision, Australian copyright law should recognise communal ownership of Indigenous cultural works.\ud \ud <b>Recommendation 3</b>\ud \ud <i>Moral Rights</i>\ud \ud During the debate over the introduction of moral rights in 2000, there was discussion about the need for better protection of Indigenous cultural works, and recognition of communal ownership. Further reforms of moral rights should consider dealing with such matters.\ud \ud <b>Recommendation 4</b>\ud \ud <i>Performers’ Rights</i>\ud \ud As a result of implementing international WIPO agreements, Australia provides some protection of performers’ rights under copyright law. There is a need to review whether Australia’s regime provides adequate and sufficient protection of Indigenous performers.\ud \ud <b>Recommendation 5</b>\ud \ud <i>Right of Resale for Visual Artists</i>\ud \ud There is a need to review the conservative model for the right of resale for visual artists in Australia to determine whether the regime is meeting its aims and objectives. In particular, it should be evaluated whether the scheme has provided adequate benefits for Indigenous artists and their families. There could be further scope to strengthen the right of resale for visual artists in Australia – particularly in light of the High Court of Australia rulings on constitutional law and intellectual property.\ud \ud <b>Recommendation 6</b>\ud \ud <i>Consumer Law</i>\ud \ud The ACCC has taken action under Australian consumer law in respect of misleading and deceptive conduct and representations made about Indigenous art and craft. In the cases that it has intervened in, the ACCC has been effective. However, there has been concerns whether the regulator has been able to cope with the systematic nature of the problem. The Hon. Bob Katter has proposed the Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (Cth). Thought should be given to giving the ACCC further resources in order to engage in comprehensive action in respect of misleading and deceptive conduct relating to Indigenous art and craft.\ud \ud <b>Recommendation 7</b>\ud \ud <i>Trade Mark Law</i>\ud \ud Australia’s authenticity marks scheme was a failure. Nonetheless, trade mark law can play a useful role particularly in respect of protecting Indigenous businesses and entrepreneurs. There is a need for IP Australia to play an active role in policing the trade marks register for any deceptive marks relating to Indigenous culture.\ud \ud <b>Recommendation 8</b>\ud \ud <i>Plain Packaging of Tobacco Products</i>\ud \ud Plain packaging of tobacco measures has proven to be an effective tobacco control measure – including for Indigenous communities. The Federal Minister Ken Wyatt has been pursuing various public health measures in order to close the gaps in respect of Indigenous healthcare, and to reduce tobacco consumption.\ud \ud <b>Recommendation 9</b>\ud \ud <i>Geographical Indications</i>\ud \ud There has been an academic discussion about how geographical indications may be employed to protect Indigenous linkages between place and culture.\ud \ud <b>Recommendation 10</b>\ud \ud <i>Designs Law</i>\ud \ud The work of Professor Maree Sainsbury has highlighted that there has been instances of misleading design registrations relating to Indigenous culture. IP Australia needs to take action in respect of the designs register in such matters.\ud \ud <b>Recommendation 11</b>\ud \ud <i>Patent Law</i>\ud \ud The recent High Court of Australia decision in Myriad is an important precedent in respect of patentable subject matter in Australia. There is a need for IP Australia to take into account Indigenous knowledge as prior art when making determinations in respect of patent threshold standards – such as novelty, inventive step, and utility. There has been considerable policy discussion about the relationship between patent law, disclosure, informed consent and benefit-sharing in relation to Indigenous genetic resources. \ud \ud <b>Recommendation 12</b>\ud \ud <i>Plant Breeders’ Rights</i>\ud \ud Much like in the patent regime, IP Australia needs to take into account Indigenous knowledge in respect of determinations of distinctiveness, uniformity, and stability, when assessing plant breeders’ rights applications.\ud \ud <b>Recommendation 13</b>\ud \ud <i>Access to Genetic Resources</i>\ud \ud Australia has a fragmented federal and state system of regimes in respect of access to genetic resources. There is a lack of consistency and harmony between the systems – particularly in respect of the treatment of Traditional Knowledge and Indigenous intellectual property. There should be a review to determine whether there has been benefits passed onto Indigenous communities through the biodiscovery regimes – both Federal and State.\ud \ud <b>Recommendation 14</b>\ud \ud <i>Confidential Information</i>\ud \ud Confidential information and trade secrets have been employed successfully in the past by Indigenous communities in Australia in disputes over Indigenous intellectual property.\ud \ud <b>Recommendation 15</b>\ud \ud <i>Privacy</i>\ud \ud In one of its inquiries into privacy, the Australian Law Reform Commission recommended that ‘The Office of the Privacy Commissioner should encourage and assist agencies and organisations to develop and publish protocols, in consultation with Indigenous groups and representatives, to address the particular privacy needs of Indigenous groups. The Australian Government should undertake an inquiry to consider whether legal recognition and protection of Indigenous cultural rights is required and, if so, the form such recognition and protection should take.’ The Australian Law Reform Commission has also recommended the creation of a statutory cause of action in respect of serious invasions of privacy. That could be useful for Indigenous communities.\ud \ud <b>Recommendation 16</b>\ud \ud <i>Cultural Heritage</i>\ud \ud In 2016, Victoria passed the Aboriginal Heritage Amendment Act 2016 (Vic) to provide protection for tangible and intangible cultural heritage. Under the new provisions in the act, a group of traditional owners or native title holders can apply to have a piece of intangible heritage included on the Aboriginal heritage register. \ud \ud Aboriginal Intangible Heritage means any knowledge of/or expression of Aboriginal tradition, including: oral and expressions (including language, songs and stories); performing arts (vocal and instrumental music, dance and performance); social practices, rituals and festive events; knowledge and practices concerning nature and the universe (including environmental and ecological knowledge) and/or visual arts and craftsmanship (skills and knowledge involved in their production). The legislation then makes it an offence to knowingly use any registered Aboriginal intangible heritage for commercial purposes without consent from the ownership group, with penalties of up to $280,000 for an individual or $1.5m for a corporation. It will be worthwhile monitoring this regime in operation. If this system is effective, it could be a useful model to emulate by other Australian Governments.\ud \ud <b>Recommendation 17</b>\ud \ud <i>Native Title</i>\ud \ud The Connection to Country: Review of the Native Title Act 1993 (Cth) [2015] ALRC 126 (p 262-270) reconsidered the relationship between intellectual property and native title:\ud \ud “The decision in Ward HCA, and its approach to cultural knowledge, predates key international developments, including UNDRIP. Contemporary understanding of connection to country is being shaped by a growing body of academic and anthropological literature which is not reflected in the current state of the law.\ud \ud Terri Janke has pointed to a ‘paradox’ where cultural material is used in native title claims as evidence of continuing connection, but where cultural knowledge is not recognised as a native title right.\ud \ud In summary, the ALRC has raised the potential for a native title right to protect cultural knowledge and for cultural knowledge to be considered in relation to rights to be exercised for any purpose, including commercial purposes. The ALRC does not have a concluded view on whether this would be a desirable development, but has identified the need for an in-depth inquiry that can assess the legal and policy issues.”\ud \ud <b>Recommendation 18</b>\ud \ud <i>Indigenous Cultural Authority</i>\ud \ud Terri Janke has called for the establishment of an Indigenous Cultural Authority in order to provide a co-ordinated institutional response to the protection, enforcement, and exploitation of Indigenous intellectual property. Such a regime would provide institutional support for the array of codes and protocols for the protection of Indigenous intellectual property in Australia