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What is Indigenous Cultural Intellectual Property?

Indigenous Cultural and Intellectual Property (generally known as ICIP) refers to the rights that Indigenous people have, or want to have, to protect their traditional knowledge and culture. Sometimes the words Cultural Heritage or Indigenous Knowledge (IK) are used to mean the same thing. This includes past traditions as well as new knowledge and cultural expressions. 

ICIP protection is based on customary laws which are not recognised by Australian law, however some ICIP can be protected. 

Anindilyakwa Arts artists of Groote Eylandt, in collaboration with Aly de Groot and Anna Reynolds, image by Dylan Buckee

Indigenous Cultural and Intellectual Property includes:

  • Traditional knowledge (scientific, agricultural, technical and ecological knowledge, ritual knowledge)
  • Traditional cultural expression (stories, designs and symbols, literature and language)
  • Performances (ceremonies, dance and song)
  • Cultural objects (including, but not limited to arts, crafts, ceramics, jewellery, weapons, tools, visual arts, photographs, textiles, contemporary art practices)
  • Human remains and tissues
  • The secret and sacred material and information (including sacred/historically significant sites and burial grounds)
  • Documentation of Indigenous peoples’ heritage in all forms of media such as films, photographs, artistic works, books, reports and records taken by others, sound recordings and digital databases

Source: Protocols for using First Nations Cultural and Intellectual Property in the Arts, The Australia Council for the Arts

The Principles for Respecting ICIP

ICIP is based on the idea self-determination. It includes the following rights: 

  • to protect traditional knowledge and sacred cultural material
  • to ensure that traditional laws and customary obligations are respected and the community’s permission is obtained
  • to be paid for use of ICIP where appropriate
  • to full and proper attribution or naming of the community connected with the ICIP
  • to prevent use of ICIP which is inconsistent with traditional laws and which may be insulting, offensive and misleading in all media
  • to control the recording of cultural customs and expressions, and language which may be essential to cultural identity, knowledge, skill and teaching about Indigenous culture.

Source: Arts Law’s Information Sheet, Indigenous Cultural Intellectual Property

    Does Australian law protect ICIP? 

    Australian intellectual property (IP) laws protect some forms of ICIP.

    If you are creating something new, unique and innovative, and using Indigenous Culture as a basis, IP protection may be available for that creation. For example, a new artwork or unique business logo which incorporates ICIP will be protected by copyright laws. 

    In Australia, IP law protects:

    • Musical, dramatic, literary and artistic works which are protected by the Copyright Act 1968 (Cth) such as paintings, craftworks, sound recordings, films and books. More on Copyright here
    • Moral rights of individual artists. 
    • Designs

    2019 From Country to Couture, Julie Shaw, MAARA Collective x Bula’bula Aboriginal Arts Corporation, MAARA Collection. Photo by Dylan Buckee

    Australian laws do not protect many aspects of ICIP, such as:

    • The underlying idea or information that is put into a work, for example the story told in a painting
    • An artistic style, method or technique such as cross hatching or dot painting techniques
    • Traditional languages
    • Performances such as dance and music which have not been recorded or written down
    • Products or processes based on traditional knowledge handed down over many generations such as traditional medicines or methods (for example, traditional methods of weaving)

    Source: Arts Law’s Information Sheet, Indigenous Cultural Intellectual Property

    Exercise

    • Think of two examples of Intellectual Property that have been derived from Indigenous Cultural Intellectual Property
    • Do you think that the examples you have come up with above would be able to be protected under Australian Law?
    • Which type of Intellectual Property rights are able to protect the ICIP you have identified?