How to protect Indigenous Knowledge and creative IP from exploitation
Safeguarding Indigenous Knowledge and creative IP is pivotal for sustaining, reclaiming, and rejuvenating Indigenous culture.
As the oldest living continuous culture on earth, Indigenous Australians have a rich cultural heritage of traditional practices, customs, and knowledge systems.
Indigenous cultural and intellectual property (ICIP) refers to the rights of Indigenous Australians to this heritage – both the tangible (cultural objects, artwork, designs) and the intangible (knowledge, storytelling, techniques). ICIP also includes secret and sacred material, and the documentation of Aboriginal peoples’ heritage in all forms of media – books, films, music, and digital databases.
But how does this fit in with existing Intellectual Property laws? Well, Australian IP Laws will protect some – but not all – forms of Indigenous IP. For example, IP laws protect an individual piece of art or design but not the traditional method (such as dot painting) used to create it.
These laws reflect a Western understanding of individual ownership, where property is attributed to a single person or company. This differs from Indigenous customary law, which recognises that the whole community shares ownership over cultural knowledge.
Indigenous scholar and activist Dr Aileen Moreton-Robinson argues that Indigenous Knowledges are “unspeakable things” – in that they challenge dominant Western colonial interpretations of knowledge, ownership, and value. Indigenous Knowledge is passed down from generation to generation in the form of oral storytelling, song lines, art and other mediums that aren’t always recognised by IP laws. Categorising culture like this is itself a Western tendency, and Indigenous Knowledge systems are made up of much more holistic and complex interrelationships.
What is IP protection for Indigenous Knowledge?
Gaps in existing legislation fail to acknowledge and protect these knowledge systems developed and nurtured by Indigenous people for thousands of years.
A lack of legal protections leaves them vulnerable to exploitation – like the production and sale of fake Indigenous art, the misuse of the Aboriginal flag, and companies profiting off Indigenous Knowledge without acknowledging or compensating the traditional owners and producers of that knowledge.
So, what can be done about it? To ensure the preservation and continuation of ICIP, it is vital to recognise Indigenous people as the primary guardians and interpreters of their cultures, and to observe their right to be given full and proper attribution for and ownership over their heritage.
If you are seeking to engage with ICIP in your work (or art), you can do so ethically and avoid the misuse, appropriation and exploitation of Indigenous art, music, symbolism, language, and knowledge. Protocols, resources, courses and guidelines developed by and with Indigenous People offer effective strategies to ethically engage with Indigenous Knowledge and IP – and to protect it from exploitation.
How is Indigenous Cultural and creative IP exploited?
Indigenous cultural and creative IP is exploited both nationally and internationally.
A draft report developed by the Productivity Commission on Aboriginal and Torres Strait Islander visual arts and crafts found that two in three Indigenous-style products, souvenirs or digital imagery sold in Australia are fake, with no connection to, or benefit for, Aboriginal and Torres Strait Islander people.
The report found international tourists spent more than $78 million on Indigenous-style artwork in the 2019–20 financial year – up to 75% of which is not produced by Indigenous Australians.
The sale of fake art is one of the more obvious examples of how ICIP is exploited. Other examples include the exploitation of Indigenous Ecological Knowledge (IEK), which refers to Aboriginal and Torres Strait Islander peoples’ deep knowledge of Country, including the native plants and animals that coexist with them and the stories, songs, language, techniques, and knowledge associated with them.
Australia has a long history of exploiting IEK through commercialising native plants and animals and the knowledge associated with them without consent, attribution or benefit-sharing with Indigenous people and communities. For example, the 2020 Australian native foods and botanicals market study estimated that the Australian native food industry is worth $21 million annually – but Aboriginal enterprises only make up 15% of these producers.
Why is it important to protect Indigenous cultural and intellectual property?
The misuse and exploitation of Indigenous cultural and creative IP results in direct and indirect economic, social, and cultural harm to Indigenous people.
The Indigenous artist, activist and Yolngu leader, Dr B Marika AO said: “Our art is our resource; it belongs to us. We use it in a ceremonial context; it is a resource for our survival. If control of that resource is taken away from us, we cannot meet our cultural obligations; we cannot use it for our families’ benefit.”
Inauthentic arts and crafts that misappropriate Indigenous culture, stories, imagery, knowledge and heritage undermine the importance of this knowledge to Indigenous Australians.
They deny the traditional custodians of the associated economic benefit and disadvantage businesses that operate in a culturally responsible way. Acknowledging and protecting Indigenous cultural and creative IP is key to the continuation and regeneration of Indigenous cultural expression and knowledge.
What are effective methods and strategies being used to protect Indigenous Cultural and Creative IP?
Internationally, efforts are being made to formulate a treaty where traditional knowledge and indigenous cultural expression will have their own intellectual property law that integrates into existing IP frameworks.
In Australia, numerous bodies are advocating for the protection of Indigenous IP. The Productivity Commission recommended the introduction of a mandatory disclosure requirement for "Indigenous-style products" that are not made by a First Nations artist or that are reproduced under licence.
Cultural institutions may want to formulate their own positions and policies on working with ICIP to demonstrate they are a culturally safe organisation. On an individual level, a good place to start is by listening to and learning from Indigenous practitioners directly and via self-education.
Let’s take a look at a few of these resources in a bit more detail.
Resources to support the protection of ICIP:
- Creative Australia’s (formerly Australia Council for the Arts) Protocols for using First Nations Intellectual and Cultural Property in the Arts is a resource for cultural organisations seeking pathways for collaboration and creation of Indigenous artwork. The document places importance on communication, consultation, and consent in creative partnerships with First Nations artists.
- Local Contexts is a resource that provides culturally appropriate conditions and frameworks for sharing historical, contemporary, and future collections of cultural heritage and Indigenous data, offering tools such as the Traditional Knowledge (TK) and Biocultural (BC) Labels to increase cultural awareness in digital databases and archives.
- IP Australia provides information about utilising existing IP laws to protect Indigenous Knowledge, and offers free calls to the Yarnline for advice on understanding Indigenous Knowledge and how IP can protect it. IP Australia also released a report regarding the protection of Indigenous Knowledge in the intellectual property system that proposed an Indigenous Advisory Panel for applications involving Indigenous Knowledge and IP.
- The University of Melbourne’s range of online Melbourne MicroCerts includes Lawful Relations with Indigenous People. This course is particularly valuable for organisations that must ensure their staff gain a stronger understanding of treaty processes and the skills needed to respectfully engage with Indigenous knowledge.
Cultural awareness is key
Western perceptions of property, knowledge and ownership don’t always translate to Indigenous notions of cultural ownership, meaning existing systems fail to protect Indigenous Knowledge, and respect for Indigenous Knowledge and creative IP must be upheld.
Indigenous Australians have an inherent right to their cultural heritage, and anyone seeking to engage with Indigenous Knowledge and cultural expressions should not only have an understanding of what constitutes ICIP, but play a part in protecting, safeguarding and revitalising it so that this knowledge can continue to be produced and sustained.
Want to develop your cultural competence? As well as courses in Indigenous engagement, The University of Melbourne’s online micro-credentials in cultural, ethical, and emotional awareness support career advancement in diverse fields through continuous professional development.