PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215 9065 ... · complex web of relationships in...

..Aboriginal and Torres Strait Islander Arts Board, Australia CouncilPO Box 788Strawberry Hills NSW 2012Tel: (02) 9215 9065Toll Free: 1800 226 912Fax: (02) 9215 9061Email: [email protected]

ISBN: 0 642 47241 6 Performing Cultures: Protocols for Producing Indigenous Australian Performing Arts

cultures. P E R F O R M I N G . . . . .Protocols for Producing Indigenous Australian

Performing Arts

An initiative of the Aboriginal and Torres Strait

Islander Arts Board of the Australia Council

contentsIntroduction 1

Using the Performing Cultures guide 2What are protocols? 2What is Indigenous performance? 3Special nature of Indigenous performance 4

Indigenous heritage 5Current protection of heritage 6

Drama principles and protocols 8Respect 8

Acknowledgment of country 8Representation 8Accepting diversity 9Living cultures 9

Indigenous control 9Communication, consultation and consent 9

Time frames for consultation and consent 12Complexity of the consultation process 12Consultation issues for contemporary creators 13

Interpretation, integrity and authenticity 13Interpretation 13

Development of a dramatic work 13Performance of a dramatic work 14

Integrity 14Authenticity 14

Secrecy and confidentiality 15Representation of deceased people 15Secret and sacred materials 15Personal privacy 16

Attribution 16Proper returns 16

Wages and conditions 16Royalties 16

Continuing cultures 17Recognition and protection 17

Dance principles and protocols 18Respect 18

Acknowledgment of country 18Representation 18Accepting diversity 19Living cultures 19

Indigenous control 19Communication, consultation and consent 20

Duration of consultation on performances 20Caution with consultation 20

Interpretation, integrity and authenticity 21Interpretation 21Integrity 21Authenticity 21Interpretation, integrity and authenticity when recording 21

Secrecy and confidentiality 22Representation of deceased people 22Secret and sacred materials 22Personal privacy 22

Attribution 22Proper returns 23Continuing cultures 23Recognition and protection 23

Common issues 26Welcome to country 26Fees and employment conditions 26Festival performances 27Resources 28

Copyright 29What is copyright? 29How does copyright protect performance? 29

Originality 30Copyright protects the expression of the idea 30How is performance reduced to material form 31Who owns copyright? 31Copyright exceptions 31

Collaborative works 31Communal ownership vs. joint ownership 32

What rights do copyright owners have? 32How long does copyright last? 32What is the public domain? 32Rights of performers 33

Recording performances 33What are moral rights? 34Managing copyright to protect your interests 35

Copyright notice 35Moral rights notice 36

IMPORTANT NOTICE - The information included in this guide is current as at Sydney, May 2002. This guide provides general advice only. It is not intended to be legal advice. If you have a particular legalissue, we recommend that you seek independent legal advice from a suitably qualified legal practitioner.

© Commonwealth of Australia 2002

Writer:Robynne QuigginSolicitorTerri Janke & CompanyEntertainment, Cultural Heritage and Media Lawyers and Consultants

Peer Review:Wesley Enoch

Design & Typesetting: L&L Design & Production

Artwork: joorroo, Darrell Sibosado, 2002Photography: Fiona Prince, 2002

. . .

I N T R O D U C T I O N - 1

introduction

Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the original owners andinhabitants of Australia.

In Indigenous cultures the artist is a custodian ofculture, with obligations as well as privileges.

Indigenous people’s right to own and control theircultural heritage is known as ‘Indigenous culturaland intellectual property rights’. The term is used inOur Culture: Our Future1 to refer to those rights asthey are developing within international law. Since1998, when Our Culture: Our Future was firstpublished, the term ‘Indigenous heritage rights’ hasgained more favour in the international arena. Inthe Performing Cultures guide we use ‘Indigenousheritage’ to refer to these rights.

Indigenous heritage comprises all objects, sites and knowledge transmitted from generation togeneration. Indigenous people’s heritage is a livingheritage. An Indigenous person’s connection withthe land, water, animals, plants and other people isan expression of cultural heritage. Writing,performing, song, the visual arts and more recently,new media, are ways of transmitting Indigenouscultural heritage.

As primary guardians and interpreters of theircultures, Indigenous people have well-establishedprotocols for interacting with their cultural material.New situations also require cultural protocols.

Performing Cultures guides the reader through manyof these protocols.

Performing Cultures is one in a series of fiveIndigenous protocol guides published by theAustralia Council’s Aboriginal and Torres StraitIslander Arts Board. The guides reflect thecomplexity of Indigenous Australian culture, andprovide information and advice on respectingIndigenous cultural heritage. Although each of theguides address cultural protocols specific to anIndigenous artform, they are shaped by the sameunderlying principles – the backbone of theprotocols. The five guides in the series are:

• Writing Cultures

• Performing Cultures (Drama/Dance)

• Visual Cultures

• Song Cultures

• New Media Cultures

The Indigenous protocol guides will have relevancefor everyone working in or with the Indigenous artssector, including:

• Indigenous and non-Indigenous artists

• People working within related fields ofIndigenous artform practice

• Federal and state government departments

• Industry agencies and peak organisations

• Galleries, museums and arts centres

• Educational and training institutions

• Indigenous media and targeted mainstream media

When is copyright infringed? 36Fair dealings provisions 36Crown use of artworks 36Library copying 36Educational copying 37

Further copyright information 37Copyright collecting societies 37

Follow up 40Appyling protocols 40Respect 40Indigenous control 41Communication, consultation and consent 41

Communication 41Consultation 41Consent 41

Interpretation, integrity and authenticity 42Interpretation 42Integrity 42Authenticity 42

Secrecy and confidentiality 42Secrecy 42Confidentiality 42

Attribution 42Proper returns 43Continuing cultures 43Recognition and protection 43Common issues 43

Welcome to country 43Fees and employment 43Festival performances 43

Copyright 44Dramatic and dance works 44Recording dramatic and dance works 45Copyright infringement 45

References 46

Bibliography 49

Contacts 51

Acknowledgments 55

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We hope Indigenous people, and those workingwith Indigenous people, will be inspired to use the principles as a framework for developingprotocols appropriate to their specific drama anddance projects, language groups, regions, clansand communities.

We also hope the guides will spark debate andthat additional protocols will be developed acrossartforms. Your comments and ideas can beforwarded to [email protected] or Director, Aboriginal and Torres Strait Islander Arts, Australia Council, PO Box 788, Strawberry Hills NSW 2012.

Using the Performing Cultures guide

Performing Cultures is written as a first point ofreference in the planning of a work with Indigenouspractitioners or using Indigenous cultural material.When you need specific advice on the culturalissues of a particular group, we recommend thatyou either speak to people in authority, or engagean Indigenous cultural consultant with relevantknowledge and experience.

The Introduction defines protocols as used in thisguide, and looks at the special nature of Indigenousperforming arts.

The next section, Indigenous Heritage, is animportant overview of the issues that inform thedevelopment of Indigenous protocols. It looks at thecomplex web of relationships in IndigenousAustralia, and how this might impact on theplanning of a drama or dance project. It also chartsinternational initiatives for the protection ofIndigenous cultural and intellectual property rights.The key sections, Drama Principles and Protocolsand Dance Principles and Protocols, present nineprinciples we have developed to support theprotection of Indigenous cultural heritage.

There is valuable information on protocols specific to the use of cultural heritage material indrama and dance practice. A number of casestudies and commentaries from Indigenousperforming arts practitioners identify pitfalls andoffer advice.

A further section, Common Issues, covers fees andemployment conditions, festival performances andthe ‘welcome to country’ protocol which arecommon to both dance and drama. You will alsofind information here on a number of other protocoldocuments produced in recent years.

The Copyright section contains general informationand advice on the main law in Australia governingthe use and reproduction of the performing arts andcultural expression.

Follow up provides a checklist of key points toconsider when developing protocols for aperforming arts project. It offers different and morespecific information than the preceding sections.We therefore suggest you use the points outlinedhere in the context of the dance or drama andcopyright sections before developing a checklist foryour own project or practice.

We have also included a list of Contacts to beused as starting points for accessing relevantpeople and information.

What are protocols?

It ’s easy to get caught up in following the pathof least resistance. We have to go with what ’simportant, not what ’s easy.2

Wesley Enoch, Indigenous theatre director

Protocols are appropriate ways of using Indigenouscultural material, and interacting with Indigenouspeople and their communities. Protocols encourageethical conduct and promote interaction based ongood faith and mutual respect.

Indigenous protocols arise from value systems andcultural principles developed within and acrosscommunities over time.

It is important to note the diversity and complexity ofthe many different Indigenous cultures in Australia.Ways of dealing with issues and cultural materialmay differ from community to community. There arealso many different protocols across the diversity ofurban, rural and remote communities.

While it is not possible to prescribe universal rulesfor working with Indigenous performers and theircommunities, there are some fundamental principleswithin which to conduct respectful work.

The protocols outlined in Performing Cultures areshaped by nine principles. The protocols are, by definition, ways of actioning these principles. For example, a cultural protocol to action theunderlying principle of respect is to acknowledgethe Indigenous custodians of country at the site ofeach performance or event.

Performing Cultures identifies many specificprotocols which can be applied or adapted bywriters, producers, directors, choreographers,dramaturgs, dancers, performers, designers, eventmanagers, arts organisations and others working inthe performing arts.

Performing Cultures also aims to formally identifyissues arising from the interaction betweenIndigenous cultural concerns and the law protectingthe rights of artists. The Australian legal systemincorporates some but not all of these concerns.

While protocols differ from legal obligations, thisguide outlines the current copyright law framework.The process of following the protocols supports the recognition of Indigenous heritage rights. It encourages culturally appropriate workingpractices, and promotes communication between all Australians with an interest in the Indigenousperforming arts.

What is Indigenous performance?

Indigenous performance is an important part ofIndigenous culture – ceremony, storytelling,celebration, mourning, coming together and tellingof events in Indigenous people’s lives, both pastand present.

Indigenous performance is not easily divided intocategories of traditional and contemporary. In thisguide ‘traditional’ refers to works that are drawnfrom a pre-existing cultural base.

Indigenous performance refers to

• acting

• dancing

• dramaturgy

• directing

that is carried out primarily by Indigenous Australianpeople , or is based on the cultural expression ofIndigenous Australian people.

Indigenous performance draws on and embraces afull range of dramatic styles and forms including:

• street theatre

• improvisation

• readings

• ceremony

• dance performance

• dramatic performance

• festivals

Indigenous performance is generally a collaborativeprocess with Indigenous and non-Indigenousperformers, writers, directors, dramaturgs andproduction specialists working together.

A performance may incorporate many differentartforms. Some of these artforms, including music,design and the published version of a play, arecovered in other protocol guides in this series.

. . .

. . .

I N D I G E N O U S H E R I T A G E - 5

Indigenousheritage

The Indigenous performing arts are an importantmeans of expressing Indigenous heritage – past,present and future.

Indigenous heritage, enshrined in Indigenouscultural and intellectual rights, is discussed at lengthin Our Culture: Our Future.3

The performing arts sector can adopt a ‘bestpractice’ approach by encouraging respect for thecultures of Indigenous Australians. It can do this byacknowledging their innate value, their differencefrom other cultures, and by respecting Indigenousownership and control of Indigenous heritage.

All Indigenous artists are responsible forsafeguarding cultural knowledge and expression.They need to ensure that Indigenous cultures, bothin the past and today, are protected andmaintained in their works. In this way these culturescan be passed on to future generations.

There is not one, but many Aboriginal or Torres StraitIslander cultures. These cultures have developed overthousands of years and have been passed downfrom generation to generation. Despite the enormousimpact of the invasion in 1788, Indigenous cultureshave continued to develop. A person’s connection toIndigenous heritage is expressed in contemporary

life through his or her relationship with land,waterways, animals and plants, and his or herrelationships with other people.

Aboriginal and Torres Strait Islander people have a well developed and complex web of relationshipsbased on family ties, clan belonging, languagegroup affiliations and community, organisation and government structures. A range of authoritystructures exists across urban, regional and remotecommunities. It is important to acknowledge thecomplexity of Indigenous Australia when negotiatingthe use of Indigenous heritage for a performing arts project.

Indigenous Australians are concerned that there is no respect for their Indigenous culturalknowledge, stories and other cultural expression inthe wider Australian cultural landscape. Concernsinclude the current legal framework that does notpromote or protect the rights of Indigenous people – particularly to own and control representation anddissemination of their stories, knowledge and othercultural expression.4

The process of following the protocols not onlysupports Indigenous heritage rights, but alsopromotes diversity and new initiatives in theperforming arts, and culturally appropriate outcomes.

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Special nature of Indigenous performance

Indigenous performance has an important place inthe transmission of Indigenous culture. It has beena primary means of:

• renewing and teaching law and culture

• ceremony

• storytelling

• preserving language

• entertainment

• recording and expressing personal experiences

• recording and expressing common Indigenous Australian experiences

• telling Indigenous experience to the wider community

• celebrating

• showcasing and sharing Indigenous experiences

Performing Cultures outlines the current legalframework in relation to performing arts. Whileprotocols for Indigenous performing arts differ fromlegal obligations, it is important to include both legaland cultural obligations in an effort to guide thereader towards developing best practice.

Performance is essentially a collaborative process.Only a few dramatic works are completely soloproductions. This raises many issues for Indigenousperformers in the use of cultural heritage andappropriate production of their work. Some issues ofconcern include:

• Who has the right to use Indigenouscultural material?

• Who has the right to speak for the owners ofIndigenous cultural material?

• What is proper treatment of Indigenous culturalmaterial including creation stories, ceremonialdances and other forms?

• How is Indigenous performance properly attributed?

• Should sensitive material be referred to andif so, how?

• How should real people and real events be dealtwith in performance?

Many other important issues are dealt with insubsequent chapters.

The Draft Declaration on the Rights of IndigenousPeoples states, in Article 29:

Indigenous peoples are entitled to therecognition of the full ownership, control andprotection of their cultural and intellectualproperty. They have the right to specialmeasures to control, develop and protect theirsciences, technologies and culturalmanifestations, including human and othergenetic resources, seeds, medicines,knowledge of the properties of fauna andflora, oral traditions, literatures, designs andvisual and performing arts.6

The Mataatua Declaration on Indigenous Culturaland Intellectual Property Rights, in Article 8, urgesIndigenous people to ‘develop a code of ethicswhich external users must observe when recording(visual, audio, written) their traditional andcustomary knowledge’.7

Draft Principles and Guidelines for the Protection ofthe Heritage of Indigenous People (1993) wereadopted by ATSIC’s Indigenous Reference Groupin1997.8 Article 39 states:

Artists, writers and performers should refrainfrom incorporating elements derived fromIndigenous heritage into their works without theinformed consent of the Indigenous owners.

In January 2002, the World Intellectual PropertyOrganisation’s International Forum, IntellectualProperty and Traditional Knowledge: Our Identity,Our Future, held in Muscat, Oman, adopted aDeclaration recognising that ‘traditional knowledgeplays a vital role in building bridges betweencivilizations and cultures, in creating wealth and inpromoting the human dignity and cultural identity oftraditional communities’.9

Internationally, the World Intellectual PropertyOrganisation has established an intergovernmentalcommittee on intellectual property and geneticresources, traditional knowledge and folklore todiscuss intellectual property issues that arise in thecontext of:

• access to genetic resources and benefit-sharing

• protection of traditional knowledge, innovationsand creativity

• protection of expressions of folklore.10

Regionally, a model law for protecting traditionalknowledge in the Pacific was drafted andcompleted in July 2002. The Pacific RegionalFramework for the Protection of TraditionalKnowledge and Expression of Culture establishes‘traditional cultural rights’ for traditional owners oftraditional knowledge and expression of culture.11

The prior and informed consent of the traditionalowners is required to:

• reproduce or publish the traditional knowledgeor expressions of culture

• perform or display the traditional knowledge orexpressions of culture in public

• make available online or electronically transmitto the public (whether over a path or acombination of paths, or both) traditionalknowledge or expression of culture

• use the traditional knowledge or expression ofculture in any other form.

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Our Culture: Our Future

Indigenous cultural and intellectualproperty rights refers to Indigenouspeople’s cultural heritage.

Heritage comprises all objects, sites andknowledge – the written nature or usewhich has been transmitted orcontinues to be transmitted fromgeneration to generation, and which isregarded as pertaining to a particularIndigenous group or its territory.

Indigenous people’s heritage is a livingheritage and includes objects,knowledge, artistic, literary, musical andperformance works, which may becreated now or in the future, and basedon that heritage.

Indigenous cultural and intellectualproperty rights includes the right to:

• own and control Indigenous culturaland intellectual property

• ensure that any means of protectingIndigenous cultural and intellectualproperty is based on the principle ofself-determination

• be recognised as the primaryguardians and interpreters of theircultures

• authorise or refuse to authorise thecommercial use of Indigenouscultural and intellectual propertyaccording to customary law

• maintain the secrecy of Indigenousknowledge and other cultural practices

• full and proper attribution

• control the recording of culturalcustoms and expressions, theparticular language which may beintrinsic to cultural identity,knowledge, skill, and teachingof culture.

For a full list of rights seeOur Culture: Our Future 5

Current protection of heritage

Australia’s current legal framework provides limited recognition and protection of these rights.Our Culture: Our Future recommended significantchanges to legislation, policy and procedures. As yet there has been no formal response to theserecommendations from the Australian government.Much of the rights recognition has been done at anindustry and practitioner level, through thedevelopment of protocols and use of contracts tosupport the cultural rights of Indigenous people.

Across the world, Indigenous people continue tocall for rights at a national and international level.Indigenous people are developing statements anddeclarations which assert their ownership andassociated rights to Indigenous cultural heritage.These statements and declarations are a means ofgiving the world notice of the rights of Indigenouspeople. They also set standards and develop anIndigenous discourse that will, over time, ensure thatIndigenous people’s cultural heritage is respectedand protected.

. . .

P R I N C I P L E S A N D P R O T O C O L S - 9

Accepting diversity

The Indigenous dramatic arts reflect the diversity ofexperience and cultural context within Indigenouscommunities. It is important for those working in the dramatic arts and their audiences to respect the diversity of contributions of Indigenousperformers, writers, directors, dramaturgs and otherIndigenous contributors.

Living cultures

Indigenous cultures are living and evolving entities,not simply historical phenomena.

Developing a dramatic work often involvesadapting or reinterpreting traditional orcontemporary works. Extensive consultation isimportant to identify who has authority to speak fora work14 and who can authorise any adaptation.

Indigenous controlIndigenous people have the right to self-determination in their cultural affairs, andexpression of their cultural material. There are manyways in which this right can be respected in thedevelopment and production of dramatic works.

One significant way is to discuss how Indigenouscontrol over a project will be exercised. This raisesthe issue of who can represent clans and who cangive clearances of traditionally and collectivelyowned material.

Speaking to the right people is very important.Indigenous communities, whether regional, urban orremote, have an infrastructure of organisations andindividuals who can advise on a range of issues – including guidance about locating Indigenouspeople with authority to speak for specificIndigenous cultural material.

For initial contacts we recommend the following directories.

• The Black Book Directory 2000 – Indigenous Arts & Media Directory. Publishedby Blackfella Films and available fromPublication Sales, AIATSIS on (02) 6261 4200or www.aiatsis.gov.au

• National Directory of Aboriginal and TorresStrait Islander Organisations. Published forATSIC and available from Crown Content on (03) 9329 9800 or www.crowncontent.com

If your project involves a visit to Aboriginal lands orouter Torres Strait Islands, permission must beobtained from the local Land Council or Trust, or theCommunity Council concerned. For a list of relevantauthorities consult the National Directory ofAboriginal and Torres Strait Islander Organisations.

Some other useful starting points for inquiries include:

• Aboriginal Land Councils

• Aboriginal and Torres Strait Islander Commission

• Torres Strait Regional Authority

• Island Coordinating Council

• Australian Institute of Aboriginal and Torres StraitIslander Studies

• Indigenous Unit of the Australian Film Commission

• Indigenous theatre companies

• Indigenous language centres

• Indigenous curatorial staff at local keepingplaces, state and national galleries, museumsand libraries

• relevant individuals or family members

• elders and custodians of relevant Indigenousclans and groups

Communication,consultation and consent The process of communication, consultation and consent may include:

• Identifying community members who haveauthority to speak for the Indigenous culturalheritage in the dramatic work.

• Discussions with community members, providinginformation about the proposed project, seekingconsent to use the Indigenous material, seekingguidance on use, and feedback on proposals.

. . .


Indigenous drama takes many forms, includingplays, storytelling and musicals. It can be performedin all sorts of venues from theatres to the street.

Indigenous drama might include cultural heritagesuch as traditional songs or dances, tell atraditional story belonging to a particular clan, or tell the story of a person or community.

The production of a dramatic work requires thecollaboration of many people including thewriter, director, actors, dramaturg, technicalcrew and people who provide promotion anddistribution services.

The principles outlined below are a framework forrespecting Indigenous heritage.

• Respect

• Indigenous control

• Communication, consultation and consent

• Interpretation, integrity and authenticity

• Secrecy and confidentiality

• Attribution

• Proper returns

• Continuing cultures

In the following pages, under each of theseprinciples, we have suggested protocols for usingIndigenous cultural material, and interacting withIndigenous performers and Indigenous communities.

RespectIt is important that anyone working withIndigenous works recognise Indigenousownership of the material and provideacknowledgment of the Indigenous owners.They must also follow the principles of respectand consultation.12

Acknowledgment of country

Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the original inhabitants of Australia.

When organising a performance or festival, it isrespectful to seek the consent of the Indigenouscustodians of the country where the work is performed.

If consent is given, it is important to acknowledgecountry and custodians at the site of each publicperformance or festival. Seek advice from theIndigenous community on the preferred manner ofacknowledgment.

Representation

Indigenous cultures should be represented in termsof Indigenous cultural values. It is important to avoidderogatory or outdated perspectives andterminology. When a non-Indigenous groupcollaborates with Indigenous performers and thecommunity, it is best to designate an Indigenousperson to liaise between the groups, and ensurethat cultural protocols are followed.13

dramaprinciples and

protocols

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• Accepting that the community may not consentto the project.

• Ongoing discussions about the way in whichthe work will be developed, performedand presented.

An increasingly popular addition to this kind ofconsultation is the hire of an Indigenous culturalconsultant or advisor to work with the cast andcrew. This is an important part of the production of dramatic works for both Indigenous and non-Indigenous performers.

A cultural advisor will provide important information on the protocols relevant to theparticular dramatic work.

case study

Marrugeku Company ‘Marrugeku have worked in thisIndigenous community for five years.And through working here for that timewe have developed a set of ethics.So when we worked on Crying Baby wecould go through a process that wasvery explorative. This would be veryinappropriate in another community orat another time in this community.Collaborations are very culturallyspecific and [are] based on the historyand the amount of time taken betweenthe company and the community.

Different communities will requiredifferent ways of working, so the mostimportant part is to have strong ethicsand consultation.

The most important issues to considerare consultation, cultural specificity ofthe collaboration, the relationship withthe community and we also think verycarefully about the context the work islater toured in’. 15

The following case studies are examples ofconsultation by Indigenous artists and directors with community.

case study

The DreamersIn the 2002 season of The Dreamers,directed by Wesley Enoch, the theatrecompany Company B employed LynetteNarkle, Associate Director at Yirra YaakinNoongar Theatre, as cultural advisor.Enoch worked closely with the family of theplaywright, the late Jack Davis. The playinvolved references to Western AustralianIndigenous cultural material, and Lynettewas contracted to ensure that the propercultural protocols were followed.16

. . .case study

Kooemba Jdarra Indigenous Performing Arts

Using a cultural consultant The play, Luck of the Draw, tells thestory of some members and family ofthe Stolen Generation. When KooembaJdarra, an Indigenous theatre companybased in Brisbane performed the play,the company hired an elder fromCherbourg to advise the cast and crewon cultural issues.17

Consulting with communityWhen Kooemba Jdarra presented Going to the Island, about theMinjerribah community on StradbrokeIsland, consultations with the communitycommenced at the writing stage.

A non-Indigenous writer based atKooemba Jdarra initiated consultationwith the Stradbroke Island communitythrough the Indigenous theatre groupmembers. Drafts of the play were sent tothe community to be checked foraccuracy and to seek the community’screative contributions to the work.

Although the process of production wasmore time consuming, it resulted in aproduction which everyone was happywith. The Stradbroke community felt agreat sense of ownership of the workand supported it enthusiastically duringthe performance.

Kooemba Jdarra have developed strongcommunity consultation protocols forproduction of their work, and Going tothe Island was a great example of the successful operation of their cultural protocols.18

case study

Yirra Yaakin Noongar Theatre

Individuals‘In some instances our work hasfocused on telling the life story of anindividual person. After consultationwith the broader community, we usuallyfind the individual is the best person todo the consultation and we leave thecommunity consultation to thatindividual. The contract, in those cases,gives royalties to the individual and tothe family members who were consulted.

CommunitiesIn 1999, we wanted to develop workbased on the traditional stories aboutwaterways in the south-west of WesternAustralia. We knew families from thatarea who had those stories, so we wentand talked to them. They in turn,advised we talk to others – and this ofcourse unearthed more stories.

We spent about 6–8 months talking tothe owners of those stories. The work weproduced in 2000 was called Djildjit.It’s not unusual for any of our works tobe developed over an eighteen to twentymonth period before production starts.

Advising non-Indigenous organisationson consultation protocols We were asked by a non-Indigenousfestival organiser on how to conductconsultation for a performance in aremote area. We told them the namesof the families who were responsible forthat area. They consulted with a fewfamilies, but stopped when they had amajority in agreement. We advisedthem that they needed to talk to all thefamilies, not just a majority.’19


Consultation issues for contemporary creators

Contemporary Indigenous actors, dancers,directors, choreographers and those whocollaborate with them are creators of Indigenousculture. Creation of culture has many aspects.One role of society ’s creators is to value ongoingcultural obligations and to keep culture active andvibrant through practice. Another widely acceptedrole of creators is to observe and comment onsociety ’s ways and directions.

Comment might include depicting sensitive issues, practices or trends in the community.Indigenous director Wesley Enoch regards this asan important role:

One of the roles of theatre is to confront andquestion the status quo, otherwise we riskconfining the role of theatre to ‘celebration’ only. 24

Another role of creators is to interpret works in thecontemporary context. Existing works areincreasingly developed and reinterpreted in thecontemporary context, according to the style ofparticular artists. Issues such as whether a work is tobe reinterpreted or reproduced close to its originalform have legal, artistic and cultural implications.Copyright owners of a work should be consulted forpermission to perform or adapt a work. Artistic andcultural issues need to be determined in consultationwith the people associated with the work.

Indigenous creators in the performing arts oftenconsider their responsibilities to their communitiesand cultures. It is important to consider how a workmight be received by the particular communitydepicted in the work, and also by the widercommunity. The impact on any identifiableindividuals, communities and Indigenous people ingeneral are essential considerations for responsibleperforming arts creators.

Interpretation, integrity and authenticityInterpretation

Development of a dramatic work

During collaborative projects it is important torecognise, remunerate and acknowledgeIndigenous participants who contribute to thecultural authenticity and integrity of a work.

It is common practice to require actors to take onthe role of cultural advisors in the development ofauthentic and appropriate dialogue and themes.

Indigenous actors get used as culturalconsultants all the time. They are told: ‘Youknow about your community ’. In effect they areasked to double as consultants. For instance, if they see faults in the script or set design, if they feel that it ’s not authentic or the scenemakes them feel uncomfortable, they tend tocome up with suggestions to make it more‘culturally appropriate’.

Indigenous actors are paid and credited withacting, but they are doing the job of actor/scriptwriter cultural and community consultant.25

The collaborative nature of performance means thatmany people contribute to the work. Performers mayhave strong ideas on character development andstyles of performance. In a practical sense, it maybe too difficult to accommodate all suggestions.

Wesley Enoch says:

It is still the writer who has to choose what totake on and what to reject in their pursuit of abetter script/performance … As a course ofaction, the employment of a cultural consultantas a single focus point is the best option.26


Time frames for consultation and consent

Effective consultation is rarely achieved in a singlemeeting. The quality of the process of consultationwill be crucial to the development of a respectful,authentic work.

Consultation should be undertaken within the timeframes of the Indigenous community or individual.This may require that funding bodies or othergroups working on the project are alerted to theimportance of the process and time frames.

Non-Indigenous funding bodies need to realisethat the process is the most important thing.Funding bodies say: ‘Product! Product!Product! It ’s Indigenous Australian theatre!’Yes, well it is, but the process has to be donethe right way.20

Complexity of the consultation process

Consultation can be very straightforward, butfrequently it is more complex. It is not enough tofind just one person who will agree to the project ora particular interpretation of a work. It will generallybe necessary to discuss the project widely with clanor family members, and to get advice from severalpeople to establish the custodian of material. It isalso important to remember that consultation andconsent processes include the option for Indigenouspeople to say ‘no’.

The consultation process is ongoing over a periodof time. It is often not a ‘one off ’ consent. It may bea continuing process of working with the traditionalowners as the production develops.

It may take two years to develop a workbecause people have to meet their culturalobligations. There may be a death in thefamily and people have to attend.

For example, when Dallas Winmar waswriting Aliwa, Aunty Dot Collard got sick, andthe process had to wait until she got better.When they were in Adelaide and Jack Davispassed away, they had to wait again.21

Rachael Swain of Marrugeku Company describesthe nature of consultation.

It ’s a lot about time, and some of the old menwe’re working with, like Thompson (Yulidjirri),last time we worked together he said, ‘Well,what ’s really important is that we work reallyslowly. If we do the wrong thing some of usmight get sick. We have to work so slowly thatwe can find out if that happens while we’reworking, and then we know we’ve gone thewrong way and [can] start going a differentway. We have to work so slowly that we keepin touch with each other as we go ...’ 22

Paul MacPhail of Yirra Yaakin Noongar Theatre talksabout developing productions with community input.

Yirra Yaakin ensures that all dramatic worksare performed in the community first. Forexample, One Day in 67 by Michelle Torres isbased on events in Broome. Consultation wasconducted with Michelle and the community.The work was performed in Broome fourmonths before its Festival of Perth season.

The play Solid, which is about Aboriginalpeople from the Kimberley and the south-westof Western Australia, was first performed in the Kimberley, then toured the south-westbefore its Festival of Perth season. We leaveabout four months between performances inthe community the work is from, and theperformances in Perth or other locations,so we can work with the input we get fromthe community.23

. . .


In the Torres Strait, for instance, phrases or accentsare distinctive among certain Island clans. Respectfor authenticity and integrity would requireacknowledgement and consultation on the form tobe adopted in performance.30 The use of the Dhari,the Torres Strait Island traditional headdress, wouldrequire permission, proper consultation, and respectfor authentic use in any performance.31

case study

Marrugeku

Development Marrugeku develops their work withinthe Indigenous community.

‘The works are devised and performedin the remote community. They areshaped by that community’s sense ofhumour. We create them for thatIndigenous audience and then later weadapt them for an urban audience.

This is not the way it is normally done.Normally a work is developed in anurban environment and adapted to theremote community. We do it the otherway around.

We find that urban audiences will often struggle to understand thedramaturgical and dramatic motifs fromthe country in which the work wasdeveloped and we often providematerial to help them understand’.32

Development of authentic work with respect forcultural integrity can sometimes mean that the processis time consuming and labour intensive. ‘As anIndigenous theatre company, we can’t just pick aplay off the library shelf. We have to develop newIndigenous writers and that can be a long process.’ 33

Secrecy and confidentialitySome Indigenous material is not suitable for widedissemination on the grounds of secrecy andconfidentiality. It is the responsibility of the projectorganisers to discuss any restrictions on use with therelevant Indigenous groups.

Representation of deceased people Some film makers include a warning at thebeginning of a film to alert viewers that the filmcontains people who have passed away. While dramatic works are not permanent and fixedin the same way as films, representation ofdeceased people may arise, and warnings couldbe used in programs, published editions of playsand announcements prior to a performance.

Secret and sacred material Another important issue is access to and use ofsecret and sacred material.

The reproduction or unauthorised use of secret andsacred material may be a transgression ofIndigenous law.

‘Secret and sacred’ refers to information or materialthat, under customary laws, is:

• made available only to the initiated

• used for a particular purpose

• used at a particular time

• information/material that can only be seen andheard by particular clan members (such as menor women or people with certain knowledge)

Anyone proposing use of material that might berestricted according to Aboriginal law or customshould find out and obey rules relating to thatcultural material.


Performance of a dramatic work

The context in which a dramatic work is performedis very important to the authenticity and integrity ofthe work. For instance, when performing a song orother cultural material in an Indigenous language, itis important to establish the nature of the song, knowwhat it is about and perform it in its correct context.

Helen Anu says:

Performing a song in the wrong context canridicule that work. There are many songs thatare not appropriate to be performed at apolitical venue or meeting, for instance. 27

case study

Marrugeku

Impact of context on a performance‘We think very carefully about the waysour work is presented also. We turndown a lot of touring work we getoffered if the context for presenting thework is not appropriate. We have foundthat particularly in Europe there is an‘exotifying’ of Indigenous culture. We don’t go unless we feel that thepresenter has enough understanding tocontextualise the work properly. We feelthat is a big part of our responsibility.We take on how the work is seen andtoured, how it is contextualised, when itis shown and where it is shown’.28

Integrity

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Yirra YaakinWhen a non-Indigenous companylicenses production of a work developedby an Indigenous theatre company, it isvery important that protocols are put inplace for the use of the work. Forinstance, our first performance of a newwork is for the Indigenous people thework is about.

When a new company subsequentlyperforms the work, the same Indigenouspeople should be shown the work andinvited to make suggestions about thenew production. This is essential toensure that the authenticity andintegrity of the work is maintained.

The protocols need to recognise thatwhen a non-Indigenous companylicenses the use of an Indigenous work,they are not just buying the performancerights; they are required to engage withthe Aboriginal community. The theatrecompany that originally developed thework needs recognition for their role infacilitating the engagement.29

Authenticity Giving proper consideration to authenticity andintegrity means respecting any customary law orcultural obligations associated with the work.Theseinclude gender, correct language, sensitivity to thecontext the work’s performance, and respectingcultural norms in promotional material (such asposters). Proper regard to these factors will helpprotect the Indigenous cultural property from misuseor exploitation.

. . .


Continuing culturesIf a company licenses use of work to be presentedby another group – for example, re-staging a play,the agreement should be clear on any protocols to be followed during the re-staging process. For instance, the company which originallydeveloped the work may require that the sourcecommunity or particular contributors view the workprior to public performance, or be credited at eachperformance. In addition to these protocols, theownership of the material should be clarified.

Recognition and protection Yirra Yaakin Noongar Theatre is developing theconcept of ‘branding’ for their dramatic works.While Yirra Yaakin invests the time, effort andfinancial resources in proper consultation, frequentlythey are not attributed when the dramatic workreaches the national or international stage. Effectivebranding of a Yirra Yaakin work will increaserecognition of the company when a work is licensedand toured by a larger company. It will alsoindirectly increase returns to the company.39


Personal privacy The personal privacy of Indigenous people shouldbe respected. Personal or confidential informationmust not be disclosed without permission from thepeople who would be affected by the disclosure.Ask the individual, community or relatives of the individual for permission. Observe closeconsultation processes.

Disclosure of personal information about a person who has passed away should be clearedwith the family and community.

There are a few guiding principles for creativedevelopment of contemporary works andresponsible representation of Indigenous culture.

• How will your work affect the Indigenous personor group it is based on?

• Does it empower them?

• Does it expose confidential material?

• Does it reinforce negative stereotypes?

Attribution It is very important to acknowledge Indigenouscontributions to dramatic works.

Attribution can include:

• credit for the custodians of traditional stories ormotifs used in the work

• attribution of the community or individuals whocontributed through the consultation process

• attribution of Indigenous cultural consultants andothers who have participated or contributedcultural information during the development andperformance of the work

In the Kooemba Jdarra’s production of Going to the Island, the participation of the community was an important part of the publicity for theproduction, and the community was acknowledgedin the program.34

Proper returns Wages and conditions

Apart from the usual wages and allowances fortravel and accommodation, Indigenous writers,performers and directors may have specific culturalrequirements which must be met if they are toparticipate in a work. For instance, someIndigenous participants may have particular dietaryor medical requirements that must be met if they areto spend extended periods away from home – touring for example.35

Performers are also familiar with the seasonal natureof their work, and it is an important factor whennegotiating wages and conditions. ‘A cheque hasto go a long way! ’36

Royalties

Royalties are paid as a percentage of either thebox office or the sale of the work. Writers generallyreceive royalty payments on the first season.Directors, dramaturgs, designers and in someinstances, actors, may receive royalties on the firstseason, but often they are not paid royalties untilsubsequent seasons.

Royalties may be negotiated by individuals andincluded in contracts. In some cases royalties arepaid to the community which has participated in the work.37

Royalties are also paid to the originating theatrecompany when it licenses the performancerights to the work. Generally a small Indigenoustheatre company will license to a larger non-Indigenous theatre company. At present there isno recognition in the royalty structure for the effort,time and cost to Indigenous theatre companies ofconsultation and adherence to cultural protocols inthe development phase.38

. . .

. . .

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Kooemba Jdarra Indigenous Performing Arts hasfollowed the Indigenous protocol in the localBrisbane area, where it is located, and does notteach or perform dance as part of its repertoire.42

Accepting diversity There is great diversity of Indigenous dance formsand styles among Indigenous communities.Inspiration for new dance forms includes personalexperience and observations, new ways of telling the story of an individual, family orcommunity, and research and revival of Indigenousdance styles. Acceptance by audiences of thisdiversity is an important contribution to fosteringcreative endeavour and cultural development.

Living culturesIndigenous cultures are living and evolving entities,not historical phenomena. Where a dance is to beinterpreted or adapted from traditional orcontemporary dance forms, it is important to identifythe person with authority to speak for that dance. This may take extensive preliminary consultation.

Indigenous controlIndigenous people have the right to self-determination in their cultural affairs, andexpression of their cultural material.

One significant way in which this right can berespected is to discuss how Indigenous control over a project will be exercised. This raises theissue of who can represent clans and who can give clearances of traditionally and collectively owned material.

Most Indigenous dance steps and combinations ofdance forms belong to particular clan groups.Permission from clan owners is required to performthose steps and dances.

Peter Cleary from Woomera AboriginalCorporation in Mornington Island states:

The community would strongly declare theirright to the exclusive use of all songs anddance steps that derive from their homeland,and do object strongly to exploitation by anyoutside people. At the same time they are notisolationists and have freely engaged in

promoting that culture through danceperformance, film and recordings.43

Speaking to the right people is very important.Indigenous communities, whether regional, urban orremote, have an infrastructure of organisations andindividuals who can advise on a range of issues – including guidance about locating Indigenouspeople with authority to speak for specificIndigenous cultural material.

For initial contacts we recommend the following directories.

• The Black Book Directory 2000 – IndigenousArts & Media Directory and published byBlackfella Films. Available from PublicationSales, AIATSIS on (02) 6261 4200 orwww.aiatsis.gov.au

• National Directory of Aboriginal and TorresStrait Islander Organisations. Published forATSIC and available from Crown Content on (03) 9329 9800 or www.crowncontent.com

If your project involves a visit to Aboriginal lands or outer Torres Strait Islands, permission must beobtained from the local Land Council or Trust, or theCommunity Council concerned. For a list of relevantauthorities consult the National Directory ofAboriginal and Torres Strait Islander Organisations.

Some other useful starting points for inquiries include:

• Aboriginal Land Councils

• Aboriginal and Torres Strait Islander Commission

• Torres Strait Regional Authority

• Island Coordinating Council

• Australian Institute of Aboriginal and Torres Strait Islander Studies

• Indigenous Unit of the Australian Film Commission

• NAISDA Dance College

• National Aboriginal Dance Council of Australia(NADCA)

• Indigenous language centres

• Indigenous curatorial staff at local keepingplaces, state and national galleries, museumsand libraries

Indigenous dance takes many forms includingstorytelling, ritual and entertainment, and maycombine with other artforms such as drama andvisual arts.

Dance productions are generally collaborativeworks involving the expertise of dancers,choreographers, artistic directors, production crewand others.

RespectWhile Indigenous customs and practices may vary across Australia there are some fundamentalprinciples of respect.

Acknowledgment of country

Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the original inhabitants of Australia.

When organising a dance performance or festival, it is respectful to seek the consent of theIndigenous custodians of the country where thework is performed.

If consent is given, it is important to acknowledgecountry and custodians at the site of each publicperformance or festival. Seek advice from theIndigenous community on the preferred manner of acknowledgment.

Representation

Indigenous cultures should be represented in amanner preferred by those cultures. Avoidderogatory or outdated perspectives andterminology. Where development of a danceproduction requires non-Indigenous collaboration onthe work, it is best to designate an Indigenousperson to liaise between the groups, and ensurethat cultural protocols are followed.40

Australia’s premier Indigenous dance company,Bangarra Dance Theatre, has a strong commitmentto cultural protocols in the development of dance. For instance, Bangarra developed a formalagreement with the Munyarryun clan of north-eastArnhem Land for permission to perform and adaptthe clan’s dances.

When we went into creative development forour full length piece in 1997, Fish, we drewup a formal agreement which stated that theMunyarryun clan give their consent for use oftheir traditional dance and song (which usesthe Yirritja language in its raw form) and [that]these materials would used by Bangarra.We’ve been in a very fortunate positionbecause Djakapurra (Munyarryun clan member)and his sister Janet, are actually working withus – so we don’t have the problems of goingback and forth, checking the way material isbeing used and isn’t distorting any of its truemeanings or transgressing any protocols. They are constantly overseeing this throughtheir very presence.41

danceprinciples and

protocols


Interpretation,integrity and authenticity Interpretation

It is important for performers and choreographers torespect the cultural protocols of the performers andthe custodians of country in the development andperformance of dance.

…for example, we were dancing and Rachael(the artistic director) wanted us to try atraditional boy ’s move on the stilts. Because weweren’t set characters like women spirits or menspirits or any spirits yet, I didn’t want to do itbecause the old ladies were watching us and Ithought it might be disrespectful to them, to seea woman doing their men’s dance. I askedRachael and she said you’re not really anythingyet; you’re not a man or a woman in characterstyle. But it felt wrong. She said if it felt wrongyou don’t do it. Even if you don’t know what ’sright and you’ve got doubts you can talk to eachother which I think is the best thing about ourcompany because we all seem to get aroundthe problems by sitting down and having a bigmeeting and talking.48

Integrity

The context of a dance performance must also beappropriate. In relation to Torres Strait dance Helen Anu says, ‘Performing a dance in the wrongcultural context can ridicule the dance and itscultural meaning.49

Teaching Torres Strait Island dancing must be done with close regard to accuracy and context.For educating – you have to get it right.50 It is notenough just to give an exhibition of the dance; it must be accompanied by the history andacknowledgment of the traditional custodians of the dance.’ 51

Authenticity

The important nature of dance in Indigenous culturemeans that where permission is given to perform,special regard must be given to authentic use of thesteps and styles.

We were participating in a workshop andthere was a non-Indigenous person teaching usa dance step. We were being taught aparticular way, and I knew that the style in thatcountry was not that way. The women do notdance with a heel strike in that country. So wesat down and told the woman teaching thatwe would not dance that way, and that wewould only dance the proper way.52

In the Torres Strait, permission must be soughtbefore performing a Torres Strait Island dance.It is important to show particular care whenusing traditional instruments, and respect forownership of dances and music by clangroups on different islands.53

Interpretation, integrity andauthenticity when recording

Indigenous dance is not always easily recordedusing the usual methods, such as labanotation.54

Ronne Arnold, dancer and teacher at NAISDA55

described his experiences when he was taught thedances of the Wik-Mungkan people in northernQueensland. Ronne explained that labanotation isvery useful for recording Indigenous dance, butproper notation of Indigenous dance utilises aparticular aspect of the labanotation method.

‘In general, Western dance is recorded by focusingmainly on the steps. Indigenous dance is mostaccurately recorded by focusing on the actions ofthe dance. Correct notation is important to protectthe integrity of the dance’.56


Communication,consultation and consentIn the use of traditional dance, it is essential toobtain the informed consent of Indigenous ownersof the traditional work prior to any performance orrecording of a dance piece.

There are many examples of failure to consult andseek consent prior to use. The result is appropriationof dramatic works, including stories and dance steps.

case study

Woomera Aboriginal CorporationThe Mornington people have experiencedappropriation of their work throughrecordings of their cultural property.‘Some members of our community arevery wary of this and it inhibits theirwillingness to bring out their culturepublicly outside the community.

We have in the last few years takenaction against recording companies 44

which subcontracted recordings of oursongs in composite CD releases overseaswithout any notification, authorisation orfinancial contract … It has taken years tosettle this matter, but it remains apotential problem because the worldmarketplace is so vast’.45

Duration of consultation onperformances

As with drama, consultation processes for use ofIndigenous dance may take some time.

case study

Wik-Mungkan DanceRonne Arnold from the NationalAboriginal Islander Skills DevelopmentAssociation (NAISDA) travelled to Arukunto learn and study the dances of the Wik-Mungkan people. He was a guest intheir country for three weeks before theybegan to teach or show him their dances.He says, ‘You must wait – you must notget impatient and you must wait’.46

Caution with consultation

Consultation is not a guarantee of consent but it isan essential first step.

Consultation may be a complex process and maytake considerable time. It may not be sufficient totalk to one person. It may be necessary to talk tomany family or clan members in order to achieveproper consent from the custodian of the material.

Woomera Aboriginal Corporation has strongcommunity consultation methods, but states that nosystem is without potential problems.

We try to work through our committee andinformally with families and elders. This however doesn’t always happen whenindividuals may be away, working remote fromthe community. Another problem identified isthat sometimes an individual can give consentand then it turns out not to be group consent.47

. . .


Proper returns Resolving ways in which benefits will be shared isoften made complex by the number of people andgroups contributing to the final dance production.

It is important that proper returns be flexible andinclude, but not be restricted to royalties or fees.

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Mornington Island Dancers‘We wanted to get something back fromworking together with professionalpeople in a theatre; learning aboutlighting, sound, discipline and doingyoga. There were amazing thingshappening in the process’.59

Marrugeku Company‘Everyone in the Marrugeku Companygets the same wage, that’s our way ofacknowledging everyone’s skills. The community receives a royalty of 3% when the show is sold. Sometimesthe community has asked that its royalty be paid in particular things themember may feel [they] need ratherthan a cash payment’.60

Continuing culturesCultures are dynamic and evolving, and theprotocols within each group and community willchange. It is important to consider how relationshipswith a community or individual can be maintainedfor future consultation. For instance, consultationmay be needed if a production is to tour overseas,or to be filmed.

Recognition and protection

case study

Woomera Aboriginal Corporation‘Grappling with copyright legislationand having things in material form hasurged the Mornington Island communityto create material forms of songs.

In the last two years we’ve beenevolving a Lardil Songs Register. This isonly for notation of songs, nothing todo with ceremony. Ceremony stuff staysout of it completely; it’s just for thesongs that are performed in public.They’ve sat down, written it all down,and created recordings, so that whenthe lawyer comes to see us, it’s all there– who dreamt the song, what countrythey’re from, who’s connected with it,thereby creating a structure of wherethe song belongs in the community’.61

Bangarra Dance Theatre has developed contractualarrangements recognising cultural contributions totheir work. Bangarra contracted Djakapurra for therole of cultural advisor and teacher. The followingoutlines the structures developed by Bangarra.

. . .


Film is also a very valuable method of recordingdance. It is important to consider issues of copyrightownership, storage and administration of film accessonce the dance is recorded. As with all recordingsof Indigenous cultural material, it is important todiscuss these issues with custodians and dancers.

If a recording is made and stored, it is important toaccurately label the recording with the names of thedances, the dancers, time and place so that futureviewers of the film are aware of its content. This isan important aspect of respect for cultural practices.For example, if a dancer or other person depictedon the film passes away, family and communitymembers can make informed decisions about futureuse of the film.57

Secrecy and confidentialitySome Indigenous material is not suitable for widedissemination on the grounds of secrecy andconfidentiality. It is the responsibility of thechoreographer, dancers and those working on theproject to discuss any restrictions on use withrelevant Indigenous groups.

Representation of deceased people

In many Indigenous communities, the reproductionof names and images of deceased people isoffensive to Indigenous beliefs. The deceasedperson’s family or community should be consultedso that the appropriate protocols are observed.

Secret and sacred materials

The reproduction or unauthorised use of sacred or secret materials may be a transgression ofIndigenous law.

‘Secret and sacred’ refers to information or materialthat, under customary laws, is:

• made available only to the initiated

• used for a particular purpose

• used at a particular time

• information/material that can only be seen andheard by particular clan members (such as menor women or people with certain knowledge).

Personal privacy

The personal privacy of Indigenous people shouldbe respected. Personal information should not bedisclosed without permission from the people whowill be affected by the disclosure. This may be relevantto portrayal of people’s lives in dances, and topublicity, promotional material and media releases.

Disclosure of personal information about anIndigenous person who has passed away shouldalso be cleared with the family and community.

AttributionWoomera Aboriginal Corporation have developeda policy for attribution of individuals contributing toperformance of a traditional work.

As dancers and singers we have engaged incollaborative performance in which traditionalworks were integrated with contemporarypieces. This was under the supervision ofelders, and was done on the understandingthat the performance pieces were exclusive tothe production and could only be performedwith Mornington Island people. Choreographywas attributed to the new choreographer andLardil elders if it incorporated part of thetraditional body of work. No dramaturg,choreographer or artistic director will be givenseparate rights where any traditional materialis involved.58

P R I N C I P L E S A N D P R O T O C O L S - 2524 - P E R F O R M I N G C U L T U R E S

case study

Bangarra Dance Theatre‘The intellectual property for the culturalknowledge and material which is beingused obviously still resides with theMunyarryun community and the clan. The contract we have with them isalmost like a licence whereby we agreeto use that material in certain ways incertain performances. Because most ofthe time the traditional material is beingintegrated into contemporaryperformance, or is being adapted in acontemporary way, the fee we pay toDjakapurra in his role as culturalconsultant is almost like a ‘culturaldesign’ fee.

Apart from the specific dances and songswhich are being used, there’s an overallinfusion of the Munyarryun clan’s culturein the work. In terms of actual copyright,when we commission the broaderchoreographer and composer, we enterinto a relationship with them as a sub-commission. The amount ofcontemporary choreography versustraditional movement, and the amountof synthesised contemporary musicversus traditional song is somethingworked out during the creative processesbetween the choreographer andDkakapurra, and the composer andDjakapurra. So we have contractualrelationships with the clan for the overallwork and then with the artists that wecommission. They in turn have arelationship with any other collaborators,who, in this case, is Djakapurra’.62

National AboriginalDance Council Australia(NADCA)Cultural Protocols on Aboriginal Dance

The National Aboriginal Dance CouncilAustralia (NADCA) is a collective voice forIndigenous dance in Australia. NADCAaims to provide and maintain a nationalnetwork to support Indigenous dance inits many forms and to advocate andlobby on behalf of dancers nationwide.NADCA is committed to preserving andpromoting awareness for Aboriginaldance both nationally and internationally.

At the 2nd National Aboriginal DanceConference in Adelaide, 1997, theNADCA Steering Committee consideredthe following statement:

The Law/The DreamingKuarna word is "Munaintya"

‘Munaintya’ (the law/the dreaming) is the base of

our core, of our being - spirit - life

Aboriginal Dance must come fromthe ‘Munaintya’ and draw itsreasons - rationale - history

- roots - basefor being from the "Munaintya"

After much discussion, NADCA thenadopted the following Vision Statement:

Aboriginal dance comes from thewell spring of law and the dreamingand is essentially connected to thecore of our spiritual life and therenewal of our Mother Earth

. . .NADCA/s Strategic Plan 1998-2002,NADCA states the following:

Priority 2. Cultural Maintenance and Protection

NADCA recommends that all Governmentand non-Government organisations promoteand support the ideology of culturalmaintenance, cultural protection and culturaldevelopment within all Aboriginal and TorresStrait Islander Dance policies and activities.

Aboriginal and Torres Strait Islander peoplehave practiced and observed customs thathave reflected their ecosystem. Dance hasplayed a significant role in the developmentof community cultural life and education. It is the maintenance and protection ofdance that will allow us to continue thesacred and spiritual binding link with ourancestors with future generations.

The teaching of dance to children and youthhas been a key element in the maintenanceand protection of a culture which ensuresthe survival, retention and development ofdance within our communities.

Priority 2 from NADCA’s Strategic Plan 1998-2002, highlights the criticalimportance of the need for accuracy indeveloping documents pertaining to CulturalProtocols and in NADCA’s case, specificallyCultural Protocols on Aboriginal Dance.

During NADCA’s existence and presenting of a number of conferences and forums, inparticular the bi-annual National AboriginalDance Conference, Cultural Protocols onDance has been a major topic fordiscussion. From these discussions, NADCAhave noted a number of Cultural Protocolsrelating to dance in reports from pastNational Aboriginal Dance Conferences.

NADCA are currently in the process ofdeveloping a pilot program to formulate adocument on ‘Cultural Protocols on

Aboriginal Dance’. The pilot program willtake place in the Western Sydney Regionand involves participation from NSWNADCA members, Aboriginal CulturalDance teachers, Department of Educationrepresentation, Aboriginal EducationAssistant’s (AEAS) and other AboriginalCommunity elder representatives who willworkshop and have input to the formulationof this document.

Initially, the document will be used withinthe school system, and NADCA will continueto consult various elders, cultural danceteachers and community members in eachstate, and add to and amend the workingdocument ‘Cultural Protocols on Dance’ untilit can be recognised by NADCA as beingaccurately relevant to Aboriginal Dance on aNational level.

NADCA are committed to the developmentof a ‘Cultural Protocols on Aboriginal Dance’document as it will ultimately contribute toNADCA fulfilling its Primary Objective, whichis the maintenance, preservation andpromotion of Aboriginal dance, as stated inNADCA’s Mission Statement below:

In Australia, dance and music play asignificant role in Aboriginal communitycultural life and education. The NationalAboriginal Dance Council (NADCA) iscommitted to promoting awareness andrespect for Aboriginal dance both nationallyand internationally. NADCA aims to assistand support Aboriginal individuals,communities, professional and non-professional groups and organisations,government and non-government institutionsand organisations in the maintenancepreservation and promotion ofAboriginal dance.

© 2002 National Aboriginal Dance Council AustraliaReproduced with permission of NADCA

Negotiating appropriate conditions for performanceof Indigenous works can be difficult. Waiata Telfer,event coordinator notes:

I had an ordeal in negotiating the rate of payfor people performing their traditional dance.The assumption was that Aboriginal peopleperforming traditional dances did not rely onthis as their mode of employment (bread andbutter) and wouldn’t have to go through highlevel training to attain the knowledge todance, and therefore weren’t deemed asimportant to pay as say an opera singer forthe same amount of time.63

Not all performers wish to be paid at the awardrate. Some Indigenous people suggest that theaward rate does not include recognition of thenature of Indigenous performance. It was suggestedthat rates of pay should include an amount whichrecognises the additional cultural element inIndigenous performance.64

Festival performances The rights to record performances at festivals, andto use that recording later, is another important issuefor Indigenous performers.

Copyright in the recording will generally belong tothe company or individual who makes therecording. Performers whose work is recorded donot share in the copyright, but the owner is requiredto gain permission from the performer for any futureuse of the recording. For example, the performerwill generally be given a contract which providesfor a set portion of the performance to be recordedand used once for a fee.

case study

Marrugeku Company ‘Get all the paperwork before you letthem put a camera on you. We veryseldom let anyone record and when wedo, we are very careful about it. Ourcontract says our performance can onlybe recorded for under three minutesand the recording can only be usedonce. This is pretty standard.

Mostly we don’t let people take theirown photos of the performance either.We will give them our own photos.

We are very careful and we have areputation for being quite tough whenwe negotiate performing at festivals. Wedon’t agree to work at a festival unlesswe know there is a resonance betweenthe vision of festival and the vision ofour work. It can get really bad reallyfast, so generally we are very toughbecause we have been burned. We havea name for being tough but we put in alot of time trying to get everyone tounderstand what the issues are’.66

case study

Mornington Island Dancers‘In contracts with festivals we are oftenasked to assign limited recording andbroadcast rights to our performancesfor promotion and other purposesclosely related to the festival event.This has not been abused to ourknowledge, but seems not to recognisethe special care and attentionwarranted by traditional owners ...Often contracts need additionalqualifications in this area so that controlis not lost on traditional dance andsong items’.67

C O M M O N I S S U E S - 27

. . .common issues


Welcome to countryRecognition of Indigenous protocol, acknowledginganother clan’s ownership and seeking permission to be in another’s country, has become widelyrecognised over the last few years. This recognitionincludes acknowledgment and adherence to thecultural protocols of the traditional owners. It maybe expressed in a Welcome to Country given by a respected community member or elder, or otherceremony preceding an event or function.

It is important to correctly identify the recognisedcommunity representative for the occasion. In someareas, dislocation of Indigenous communities has led to discussions over traditional boundariesand ownership. In such cases a cultural advisor orcultural liaison project officer can advise on thecommunity, community representative and protocolsto be followed.

In some instances, Indigenous organisations areoffering contemporary alternatives to the Welcometo Country. In the urban area of Brisbane,Indigenous performers are providing aContemporary Celebration65 which includesIndigenous performers such as the IndigenousWomen’s Choir, Indigenous rap performers, anopera singer and three dancers. The Celebrationincludes acknowledgment of traditional owners andIndigenous ancestors.

Fees and employmentconditionsIndustry standards for performances can beobtained from the Media, Entertainment and ArtsAlliance (MEAA). The MEAA also providesinformation on GST for performers, industrysafety guidelines, choosing an agent and otheruseful information.

Industry bodies generally negotiate standardconditions for different categories of performers.

• Actors Equity has recently negotiated standardrates for repeat broadcasts of performances.

• The Entertainment and Broadcasting Industry – Dance Company Awards set out awards fordifferent ages, rates for rehearsals, touringallowances, penalty rates, and superannuation for dancers.

• The Performers’ Certified Agreement 2000– 2002 sets out rates of pay for categoriesof theatre, variety, different ages, rehearsalrates, meal allowances, superannuation,travelling allowances, and rates of pay forspecial attendance at publicity events.

. . .copyright

C O P Y R I G H T - 29

It is important for people working in the performingarts to develop an understanding of copyright sothey can negotiate their rights. This can include theright to license the use of their work.

Copyright in a dramatic work lasts for 50 yearsafter the death of the author of the work. Copyright in a recording of a work lasts for 50 years after the recording was made. A writer,director, choreographer or other copyright ownermay enter into agreement to license the use of thework. The agreement will include the fee, term ofthe licence, purpose and nature of rights granted.

Copyright owners might need to consider who theywant to control the copyright and who will benefitfrom any royalties after the author’s death.

Performers should also be familiar with their legalrights to recordings of their performances.

This section provides some general copyrightinformation for indigenous artists and is intended asa guide only. For specific legal advice werecommend consulting a lawyer.

What is copyright? The Copyright Act 1968 (Cth) provides that the author of a work is the copyright owner.71

The author of a dramatic work may be the writer,or authorship may be shared between the writer(s),cultural advisors, and the custodians of anyIndigenous material used in the work.

This means that the creator has the rights over useand development of the work. Anyone seeking touse, copy or develop adaptations of the work musthave the creator’s permission.

The Copyright Act is the main law in Australia that governs the use, production and disseminationof literary, artistic, dramatic and musical works.There are no special laws for the protection ofIndigenous heritage.

How does copyright protect performance?Copyright is a legal protection that aims to providethe author of a work with the right to exploit or usethe work, and to prevent others from exploiting itwithout the author’s permission.

In the case of performing arts, copyright protectionexists in the dramatic work. It may also exist in anyliterary work such as the text of the play, any musicalwork which is part of the performance, a recordingof the work and any adaptation of the work.


Issues of authenticity and integrity also arise infestival performances.

We had problems negotiating the numbers ofpeople to invite, because the dances andsongs needed a particular amount of peoplefor the presentation to maintain its culturalintegrity. The festival budget couldn ’t cater forthe cultural needs of the groups, therefore theartistic and cultural integrity of the overall eventwas compromised on a daily basis.68

ResourcesA number of protocol documents have beenproduced in recent years to meet the needs ofparticular communities, organisations, industry andsituations. The following are selected as useful guidesfor people working in the performing arts sector:

• Lester Bostock, The Greater Perspective: Protocoland Guidelines for the Production of Film andTelevision on Aboriginal and Torres Strait Islander Communities, Special BroadcastingServices, 2nd edn, Sydney,1997.

• Indigenous Arts Protocol: A Guide, developedby the Indigenous Arts Reference Group, NSW Ministry for the Arts, 1998.69

• Terri Janke, Doing It Our Way: ContemporaryIndigenous Cultural Expression in New South Wales, NSW Ministry for the Arts,Sydney, 2002.

• The National Aboriginal Dance Council ofAustralia (NADCA) is developing a pilotprogram to formulate a document about culturalprotocols on Aboriginal dance. Initially thedocument will be used within the school system,and NADCA will continue to consult until thedocument is considered relevant to Aboriginaldance on a national level.70

• Terri Janke, Our Culture: Our Future – Report onAustralian Indigenous Cultural and IntellectualProperty Rights, Michael Frankel & Company,Solicitors, for the Australian Institute of Aboriginaland Torres Strait Islander Studies and theAboriginal and Torres Strait Islander Commission,Sydney, 1998.

• Taking the Time – Museums and Galleries, CulturalProtocols and Communities, A Resource Guide,Museums Australia (Qld), 1998.

• Previous Possessions, New Obligations, a policydocument produced by Museums Australia in1994 provides a way for museums to approachIndigenous cultures. A plain English versionwith case studies has been published.

• Aboriginal and Torres Strait Islander Protocols forLibraries, Archives and Information Services,compiled by Alex Byrne, Alana Garwood,Heather Moorcroft and Alan Barries for theAboriginal and Torres Strait Islander Library andInformation Resources Network.

C O P Y R I G H T - 3130 - P E R F O R M I N G C U L T U R E S

. . .Who owns copyright?

The owner of the copyright in a dramatic work isgenerally the author.78

Indigenous cultural material is frequently ownedcommunally, rather than by individual authors.

As Peter Cleary explains:

A song may be dreamt by one person butothers may have strong associated rightsaccording to the subject matter of the song orcountry, story or place associated with thedreaming. Individual ownership is notpractically carried on beyond the death of theoriginator but songmen of the clan group mayhave a strong say over the songs of theirforebears. There seems to be acceptance ofold songs as belonging to a form of collectiveLardil ownership.79

Copyright exceptions

Although rights granted under copyright generallybelong to the author of the work, there are somesignificant exceptions.

• Where the work is produced under a contract of employment, copyright will belong to the employer.80

• Where a work is produced under the directionor control of the Crown, copyright may belongto the Crown.81

• Where copyright has been assigned under awritten agreement, the agreement may specifywho owns copyright.

Collaborative works Another issue impacting on the ownership ofdramatic works is the collaborative nature ofperforming arts. A dramatic work such as a play isoften workshopped by writers, actors, directors,dramaturgs and others. Copyright will protect thework of the author, who is generally the playwright,but will not allocate any rights to other peoplewhose ideas were drawn upon.

Under the Copyright Act, a ‘work of jointownership’ refers to a work produced by thecollaboration of two or more creators, where eachcreator’s collaboration is not separate from thecontribution of the other creator(s).

The creator must contribute to the work by way ofeffort, skill and labour. It is not enough to inspire ormake suggestions. The custodians of cultural imagesare generally not recognised as the legal copyrightowners of an Indigenous artwork which depictsclan cultural images.

Each creator in a work of joint ownership ownscopyright in the resulting work. This means that eachcreator must obtain the consent of the others beforeexercising any of their rights under copyright.

Where more than one person collaborates andcontributes to a work, copyright may be held bythese people jointly, as tenants in common. This means that if one of the contributing creatorsdies, his or her interest passes to his or herbeneficiaries rather than to the other collaborator(s).One collaborating creator cannot authorise use of a jointly produced work without the permission of the co-owner(s).

In the performing arts, there are often manycollaborators on a particular work. To avoid any future disagreements, the participating creatorsshould discuss copyright and proposed use of thework prior to commencement of the project.

A dramatic work is a work that is intended to beperformed. The Copyright Act defines a dramaticwork as a choreographic show, or other dumbshow (mime for example), or a scenario, a script fora film, but not the film itself.72 Film is protectedunder a separate part of the Act.

The Copyright Act provides for copyright in worksto be held jointly. The contributors to a work can belisted next to the © symbol and the year the workwas produced. In this way, copyright ownership bya number of people can be recognised andenforced if there is an infringement or dispute.

The Copyright Act also provides that in some cases,where the author of a dramatic work is employed,the copyright in dramatic works will be owned bythe author’s employer. These are works that areproduced under a contract of employment. It ispossible to modify this arrangement by contractbetween the employer and the author, prior to thewriting of the work.73

Authors who are commissioned to write a workshould exercise care when negotiating anagreement to ensure they retain copyright in thecompleted work.

If performance or dance companies enteragreements with a funding body for developmentof a work, the company is advised to check thecontract and be certain about who owns theintellectual property in the work.

Originality

Copyright protects works that are original. In thepast, it was thought that Indigenous worksreproducing pre-existing themes were not ‘original’because they were handed down through thegenerations. In the Carpets Case,74 the judgerecognised that each artist contributed his or herown skill, labour and effort to bring originality to hisor her artwork. Hence, the artworks were protected

by copyright. There is scope for this reasoning tobe applied to dances and songs.

Copyright protects the expression of the idea

Copyright protects the expression of an idea but notthe underlying idea.

Although copyright does not protect ideas, sometimesthe difference between a mere ‘idea’ and the ‘writtenexpression’ of the idea is not always clear-cut.

Courts have considered a number of cases wherea party alleges that their dramatic work has beencopied. In deciding this question, the courts haveconsidered evidence relating to the creation of theworks and the question of originality of the work,particularly the ‘combination of the principalsituations, singular events and basic characters’.75

The court has held that: ‘In general there is nocopyright in the central idea or theme of a story orplay, however original it may be; copyright subsistsin the combination of situations, events and sceneswhich constitute the particular working out orexpression of the idea or theme. If these are totallydifferent, the taking of the idea or theme does notconstitute an infringement of copyright ’.76

How is performance reduced tomaterial form

In general, copyright protects works that arerecorded in some way. The work must be in apermanent and tangible form.77 This may be in thewritten word, notation, sound recordings, video or other film recording. This is described as being‘reduced to a material form’.

Issues can arise in Indigenous traditionalknowledge, dance, designs and stories that areorally or ephemerally transferred. These are not inmaterial form and are not automatically protectedunder copyright laws.


One example is recordings of Indigenous dancemade by early anthropologists, and which are nowstored in archives and libraries. Fifty years after arecording is made, copyright expires and the workis in the public domain. It no longer has anycopyright protection. For example, recordings madebefore 1952 are now in the public domain.

It should not be assumed that all rights ofIndigenous people to the recorded performancehave lapsed just because one recording of it is inthe public domain. More recent recordings oftraditional performances by Indigenous actors ordancers, and recordings of adaptations ofIndigenous performance will be protected bycopyright, and reproduction may infringe copyright.

Woomera Aboriginal Corporation in MorningtonIsland are in the process of recording versions oftheir cultural material so they will hold contemporaryversions in material form.87

Rights of performersThe Copyright Act 88 provides rights for performers in their live performances. Performers’ rights aredifferent to copyright. Performers’ rights aregenerally the right to consent to the recording, orbroadcast of any recording, of a performer’s work.The right applies in the following categories:

• A performance (including an improvisation) or part of a performance of a dramatic work,including a performance using puppets. An example of this kind of performance is acting in a play.

• A performance or part of a performance,including an improvisation of a musical work. This includes singing and playing amusical instrument.

• Reading, reciting or delivering a literary work,or part of a literary work, or improvising aliterary work. An example of this kind ofperformance could be storytelling.

• Performance of a dance.

• Performance of a circus act or variety show.89

The following types of performance are exceptionsto the above-mentioned protection:90

• Performances of works for educational purposes.This means performance by a teacher or studentwhere no box office fee is charged.91

• Reading, reciting or delivering the news.

• Performing a sporting activity.

• Participation as part of an audience.

Performers have the right to authorise the recordingor broadcast or re-broadcast of their performances.In practice this means that performers are required tosign clearance forms or agreements which authorisethe owner of the recording to use of the work.

This right to authorise use gives performers somebargaining power in setting their rates of pay andconditions or work.

Recording performances

It is important to have and check agreements forrecordings of dramatic and dance works. It isadvisable for performers, prior to signing anyclearance agreements for the recording, to considerany limits they may want to put on the use ofrecordings of their work. If performers fail to specifylimits on use, they will not be able to preventunlimited broadcast and changes to the recordingbeing made.

If a performer only wants the recording to bebroadcast once, or only to a particular audiencethey must specify those terms in the agreement.


Where there is a dispute over the rights in a work,legal actions other than copyright, such as breachof confidence and passing-off laws, may providesome protection from copying of elements depictedin a work.

Communal ownership vs. joint ownership

In Bulun Bulun v R & T Textiles,82 the courtconsidered that traditional Indigenous workscontaining ‘traditional ritual knowledge’, handeddown through generations and governed byAboriginal laws, are not works of joint ownership.Under Aboriginal laws the entire community mayhave an interest in the particular work and itsknowledge and expression, but copyright does notrecognise the group as the owners.

The individual author is recognised as the copyrightowner and may have a special obligation to theclan to reinterpret the copyright in the art, in waysthat are consistent with Indigenous law. Dependingon the circumstances, this obligation can beenforceable in the courts.

What rights do copyrightowners have?The copyright owner of a work has the exclusiveright to make decisions about the copyright. The copyright owner also has the exclusive right toearn money from the use, reproduction andpublication of the work. The copyright owner of adramatic work such as the playwright, can do all orany of the following acts:

(i) reproduce the work in a material form

(ii) publish the work

(iii) perform the work in public

(iv) communicate the work to the public (this includes broadcasting and the Internet)

(v) make an adaptation of the work

(vi) make an adaptation of the original dramatic workand then reproduce, publish, perform in public,or communicate to the public this adaptation.83

An important exercise of these rights is the right ofcopyright owners to negotiate a licence agreementallowing others to use the work in one or more ofthese ways. For instance, a theatre company maynegotiate a licence with a producer for theexclusive right to perform a dramatic work for anumber of years. Performers have a more limited setof rights as detailed below.

How long does copyright last? Copyright protects works for a limited period.Copyright in a script or labonotation 84 of a dance,for example, lasts for fifty years after the death ofthe writer.85 After that time, the work is consideredto be in the public domain.

Copyright in a recording of a work generally lastsfor fifty years from the date of the recording.86

What is the public domain?Once copyright lapses, a work is said to be in thepublic domain. The law no longer provides rightsto the copyright owners to prevent others fromexploiting their work. Indigenous customary lawgenerally provides that rights to culture exist forever,and according to customary law, it may benecessary to get permission from the Indigenousowners even though legally, the dramatic work is inthe public domain.

The operation of the Copyright Act creates anumber of problems when it comes to protectingIndigenous performance.

. . .


It is advisable for individuals and performancecompanies to check their entitlement to royaltiesunder the agreement to record, and to checkwhether there are any protocols they wish to berespected for recording or broadcast.

The following issues should be considered prior to making a recording:

• If recording communally owned performanceadvise traditional custodians and other people inauthority and seek permission for recording.

• It should not be assumed that traditionalIndigenous music or performance is in the publicdomain. It is necessary to consult with relevantIndigenous people for permission to use ordistribute recordings. Royalties should be paid.

• Performers, writers, choreographers, directorsand traditional custodians should be attributed atall stages, including use of the copyright noticeand attribution of a clan group.

• Indigenous performers should be provided an opportunity to consider any culturalobligations before negotiating a contract orentering into agreements relating to theperformance. For example, website publicationof a performance may expose the expression togreater appropriation.

• Where possible, cultural obligations should beincluded in an agreement.

• When entering into an arrangement for thecommercial recording of Indigenousperformance, it is recommended that there be awritten contract outlining the terms of thearrangement and obligations of the parties.Indigenous performers should be given theopportunity to consider contracts and obtainproper legal advice.

• When selecting illustrations or photos forpromotional material, consult with the writer,choreographer, performer or director and otherIndigenous people to check culturalappropriateness of the image.

What are moral rights? In December 2000, moral rights were introducedinto the Copyright Act.

These new laws provide the following rights toindividual creators of dramatic works:

• The right to proper attribution for the authorof the performance.92

• The right not to have authorship falselyattributed.93 For example, if someone otherthan the author is attributed as the author, thetrue author may take action for infringement of moral rights.

• The right of the author to integrity ofauthorship.94 This is the right to bring a legalaction if a work is treated in a ‘derogatorymanner’, resulting in a material alteration of thework which prejudices the author’s reputation.95

For example, if a dance or other dramaticwork is performed without permission, in amanner that is harmful to the reputation of thecreators or authors of the dance, the creatormay have an action for infringement of his orher moral right of integrity. It is important to notethat if the author of the dramatic work consentsto the use of the work, they cannot bring anaction.96 Also, if the person who subjected thework to derogatory treatment can show that thetreatment was reasonable in all the circumstances,then it is not an infringement.97

Moral rights are only held by individuals. There isstill no legal recognition of communal ownership ofIndigenous cultural material.

. . .The potential of moral rights to increase copyrightprotection for Indigenous performance has not beenfully explored, but it is hoped that it may providesome additional protection.

Managing copyright toprotect your interestsAs copyright exists as soon as a script is writtendown, it is not a legal requirement to registercopyright. However, certain precautionary practicescan provide good warning to potential infringersand notify them of where to get prior permission to copy.

It is important to keep good records of your works.For example, if producing a play, write down yourscript or record it by film.

Label all reproductions of the work clearly with thefollowing information:

• title of the script• writer

• date created

• copyright owners

• if applicable, cultural group or clan

When authorising others to reproduce your worksmake sure that you use written agreements andkeep records of the rights you have granted. Ask forcopies of any programs.

Copyright notice

You should also include a copyright notice. A copyright notice provides information about usesthat are acceptable and includes details aboutcontacting the copyright owner for consent to use in other material.

Some works use the words ‘All Rights Reserved’.This is not necessary but if you are publishing insome South American countries it may beadvisable. If you think that your work will be firstpublished overseas seek advice from a suitablepractitioner on appropriate wording.

The following is an example of a copyright noticefor a script:

© Wesley Enoch, 1999*.* The date of creation or the date the work was

first published.

If your performance includes songs, copyrightnotices should also be given on any writtenmaterial. The following is an example of acopyright notice for a song:

All songs written and performed by Terri Janke.© Terri Janke, 1999*.* The date of creation or the date the song was

first published.

Notice of creative contributors other than thescriptwriter may also be appropriate:

Directed by: Wesley EnochProduced by: Theatre CompanyChoreography: Robynne Quiggin

The following is an example of a copyright noticefor clan owned traditional stories:

Traditional story: Torres Strait IslandsThis version: © A. Murray, 2002. This performance is made with the permission of the clan. It may not be reproduced in anyform without the permission of the writer and the clan concerned.

It may also be prudent to include warnings againstfilming in brochures and programs for example:

WARNING: Any unauthorised recording orbroadcasting of this performance is prohibited.


Authorised recordings of performances often carry a warning such as:

WARNING: Copyright subsists in this recording.Any unauthorised sale, rental, hire,broadcasting, public performance or re-recording in any manner whatsoever willconstitute an infringement of copyright.

For more information on recommended copyrightwording for publications, see the Style Manual forAuthors, Editors and Printers.98

Moral rights notice

If your work is to be distributed in New Zealandand Britain, it is also a good idea to include anotice asserting your moral rights such as:

The creator(s) assert their moral rights.

When is copyright infringed?It is an infringement of copyright to copy or dealwith a copyright work without the consent of thecopyright owner.

A person will infringe copyright in a musical,dramatic, artistic and literary work if he or shereproduces it in material form, publishes it, orcommunicates the work to the public, withoutpermission from the copyright owner.99

For musical, dramatic and artistic works, it is alsoan infringement to adapt the work.

It is not necessary to copy the whole of a work. It isalso an infringement to copy a substantial part of awork. A substantial part of a musical work does notnecessarily refer to a large part of the work. Thecourt will look for striking similarities between theoriginal work and the infringing copy, and accessthe quality of what was taken.

It is also an infringement of copyright to importcopies of a copyright infringing recording intoAustralia for sale or hire.

Exceptions to copyright infringement are detailed below.

Fair dealings provisions

Then argument of fair dealings can be a defence toallegations of copyright infringement. It does notconstitute an infringement of copyright in the work ifit is used for:

• research or private study purposes100

• criticism or review, whether of that work or ofanother work, and a sufficient acknowledgmentof the work is made101

• the purpose of, or associated with, the reportingof news in a newspaper or magazine, and asufficient acknowledgment of the work is made;or it is for the purpose of, or is associated with,the reporting of news by means of broadcastingor in a cinematograph film102

• judicial proceedings or of a report of judicialproceedings, or for the purpose of the giving ofprofessional advice by a legal practitioner103

Crown use of artworks

The Crown may use a copyright work withoutpermission of the copyright owner where the usemade is ‘for the services of the Crown’. The artist isstill entitled to payment for use and the Governmentmust contact him or her as soon as possible tonegotiate this.

Library copying

Libraries and archives can make copies ofcopyright works under certain circumstances inaccordance with statutory procedures.104

. . .Educational copying

Educational institutions such as schools anduniversities can make multiple copies of printmaterial, and copy television and radio programsfor education purposes. They must however paystatutory licence fees to the relevant collectingsocieties. Performing arts practitioners who arecopyright owners should be aware of theseschemes, as there may be royalties payable incertain circumstances. Contact APRA, AMCOS,CAL, Screenrights or Viscopy where applicable.

Further copyrightinformationFor general information on copyright laws see thefollowing websites:

• Australian Copyright Councilwww.copyright.org.au

• Arts LawCentre of Australiawww.artslaw.com.au

Copyright collecting societies

Most copyright owners lack the time and necessarybargaining power to manage and exploit theircopyright works. Several collecting societies havebeen established in Australia to manage and administerthe copyright of its members for a fee, or share of theroyalties. Some of them such as CAL and Screenrightshave a legislative basis for collecting royalties. Othersare voluntary organisations which artists are requiredto join. APRA, AMCOS, CAL, Screenrights andViscopy are the most relevant collecting societies forcopyright owners in dramatic or dance works.

APRA – Performing rights for composersThe Australasian Performing RightAssociation (APRA) administers theperforming rights in music ofcomposers, songwriters and publishersin Australia and New Zealand.

These are the rights of performance inpublic and communication to the public.

The rights of performance in public occurmostly when music is played on radio,television, music venues, other venuesthat play music (including incidentalmusic) and businesses (including onlinebusinesses) that use music.

The right of communication to thepublic includes any method ofcommunicating music to the publicincluding TV, radio, Internet, cableservices and other media.

APRA also manages the reproductionrights licensing business of theAustralasian Mechanical CopyrightOwners Society (AMCOS).

For more information about APRA visittheir website www.apra.com.au

ScreenrightsScreenrights is a copyright collectingsociety for producers.

Screenrights manages rights on behalfof copyright owners in film andtelevision, licensing the use of their workin circumstances where it is difficult orimpossible to do so on an individualbasis. Screenrights also administers theeducational copying licence.

This allows educational institutions tocopy from radio and television,provided they pay a fee to copyrightowners. Screenrights monitors copying,collects money and distributes thisincome to the copyright owners.

In addition, Screenrights collectsroyalties being held by other societiesadministering rights in their territories.All money collected is distributed to thecopyright owners after deduction ofadministrative overheads.

For more information on Screenrightsvisit their website www.screen.org

Screenrights has also established a website for educators atwww.enhancetv.com.au

Enhancetv lets teachers know aboutupcoming programs relevant to theircurriculum and provides teachingresources for using television and radioin educational contexts.

ViscopyViscopy is the copyright collectingsociety for visual artists in Australia andNew Zealand. Established in 1995,Viscopy is the main point of contact forthose wishing to clear copyright for thereproduction of artistic works.

Viscopy has about 2000 Australianartist members, half of which areIndigenous artists and their estates.

Viscopy negotiates copyright-relatedtransactions between the artist and theuser for reproductions of artistic work inadvertising, publications, newspapersand electronic media such as television,cinema, the Internet and CD-ROM.

Viscopy handles associated contracts,negotiations, legal requirements andthe distribution of royalties. There is nomembership fee to join Viscopy.However, an administrative chargeapplies to clearances. Payments arethen made to artists half yearly.

For more information on Viscopy visittheir website www.viscopy.com.au


AMCOS – Mechanical rightsThe Australasian Mechanical CopyrightOwners Society (AMCOS) canadminister the mechanical rights (theright to record a sound onto record, CD or cassette) and the synchronisationright (the right to use your music on avideo or film soundtrack).

AMCOS can administer the right toreproduce written music, for example theoriginal notation or lyrics for a song. Therights are assigned to a music publisherand anyone who then wishes to copy thework must seek permission of the musicpublisher and pay royalties for that use.Exceptions include educational purposes.

When music is used in a film ortelevision show, composers shouldensure that the producer makes a cuesheet listing the music on the soundtrack,which should then be submitted toAPRA for royalty payment.

APRA and AMCOS license people andcompanies who want to use music, and then distribute the licence fees to members.

For more information on AMCOS visittheir website www.apra.com.au

CAL – Copyright Agency LimitedThe Copyright Agency Limited (CAL) isan Australian statutory collectingagency whose role is to provide abridge between creators and users ofcopyright material.

CAL collects and distributes fees onbehalf of authors, journalists, visualartists, photographers and publishers,operating as a non-exclusive agent tolicense the copying of works to thegeneral community.

CAL administers licences for the copyingof print material by educationalinstitutions, government agencies,corporations, associations, places ofworship and other organisations.

Authors must register to receive moniesdirectly from CAL. If not registered, themonies may go the publisher who isthen responsible for passing on theauthor’s share under terms of thepublishing contract.

For more information on CAL visit theirwebsite www.copyright.com.au


. . .

F O L L O W U P - 41

Indigenous control Indigenous people have the right to self-determination in their arts and cultural affairs.

• Indigenous people have the right to own and control their heritage, including Indigenousbody painting, stories, songs, dances, images, traditional knowledge and other formsof cultural expression.

• Identify appropriate Indigenous information andauthority structures.

• Discuss your ideas for performances and projectwith Indigenous dance schools, associations,Indigenous theatre companies, Indigenousmedia organisations.

• The current practice of the Australia Councilrequires all Indigenous participants to provide aletter confirming their Aboriginal or Torres StraitIslander identity from an incorporated Indigenousorganisation.

• When engaging Indigenous contributors toparticipate in a project, the Aboriginal andTorres Strait Islander Commission (ATSIC)definition of Aboriginal identity can be used as a guide.

• Keep appropriate/relevant Indigenous peopleinformed and advised, and where possible,provide regular updates.

Communication, consultation and consentCommunication

Indigenous people should be consulted on the useand representation of their Indigenous heritage.

• Have you considered how the work mightimpact on or portray Indigenous people?

• Have the relevant Indigenous people beenconsulted on the proposed project? Is there oneperson or a clan who has authority to speak fora particular work? Have they been consulted?

• Is the particular story or music acceptable forpublic use, or is it subject to restrictions? If unsure, discuss with Indigenous custodians.

• Have you advised elders or people in authorityof the perceived risks and benefits from thewider performance of their cultural material?

• Will the community or individual who is thesubject of the play see it prior to publicperformance, and is there time allotted forincorporating their suggestions?

Consultation

• Consultation should address the communalnature of Indigenous cultural expression.

• Has sufficient time been allowed forconsultation? Be flexible with time andunderstand that the consultation process may belengthy. Do not expect to have a reply to aquestion in a day or a week. Each communitywill need a reasonable period of time toconsider and consult within their communities.

• Are you planning to write a play that depicts anidentifiable individual or community? If so askthe individual, community or relatives of theindividual for permission, and observe closeconsultation and consent throughout the process.

• Are there plans to license the work to anothercompany? Are there consultation processes builtinto any agreements for ongoing use?

• Consultation is as an ongoing process for the lifeof the performance, the work, and the company.

Consent

Seek the consent of the storytellers or writers(including next of kin if deceased) and the traditionalcustodians for use of their cultural material.

• Has the consent of the relevant Indigenouspeople been obtained on all issues raised in thecommunication and consultation process?

• Are you proposing to adapt or alter, record orlicense the work? Prior informed consent must besought for all uses.

• It is important to avoid disclosing sensitiveinformation without discussion and consent.Disclosure about a person who has passedaway will be very sensitive.

. . .follow up


Applying the protocolsProtocols are about people’s value systemsand their cultural beliefs.105

The protocols in this guide are flexible. You can usethem to develop protocols for your performing artsproject, program or practice, and language group,region, clan or community.

It is important to read all the preceding sections ofPerforming Cultures before applying the protocols.Follow up can then be the main point of referencewhen returning to the guide at a later date, or inthe planning stage of an Indigenous performing artsproject or program.

Follow up provides a checklist of key points toconsider when developing protocols for a performingarts project, or in your own performance practice. It offers different and more specific information thanthe preceding sections. We therefore suggest youuse the points outlined here in the context of thedance or drama and copyright sections.

The following principles are a framework forrespecting Indigenous cultural heritage:

• Respect

• Indigenous control

• Communication, consultation and consent

• Interpretation, integrity and authenticity

• Secrecy and confidentiality

• Attribution

• Proper returns

• Continuing cultures

• Recognition and protection

RespectPeople working in the performing arts areencouraged to respect that:

• Indigenous Australians, the Aboriginal and TorresStrait Islander people, are the originalinhabitants of Australia.

• Indigenous world views, lifestyles and customarylaws should be respected in contemporaryartistic and cultural life.

• Indigenous cultures are living cultures.

• Indigenous culture is diverse. Culture varies fromIndigenous country to country and from clan to clan.

• Indigenous people should be represented by theappropriate Indigenous people and in a mannerthey approve.

• The cultural contribution of Indigenous people to a performance should be valued,acknowledged and remunerated.

• Local cultural protocols and protocols associatedwith a work should always be respectedand observed.

42 - P E R F O R M I N G C U L T U R E S F O L L O W U P - 43

• Ask for correct wording of how the person orcommunity wishes to be attributed withownership or contribution.

Proper returns Indigenous people have the right to be paid for their contribution and for use of their Indigenous heritage

• Have fees or other benefits beennegotiated with the writers, performers,choreographers, directors, cultural advisorsand traditional custodians?

• Is the cultural value of their work recognised infinancial returns?

• Have Indigenous cultural advisors beenacknowledged and properly remunerated fortheir contribution?

• Has registration with APRA been completed?Are all other holders of rights acknowledged inthat registration?

• Will Indigenous custodians share in the benefits from any commercialisation of theircultural material?

• Check whether benefits other than royalties, suchas branding of a work or sharing of skills, arealso sought by Indigenous people.

• Recipients of Australia Council grants areencouraged to use written contracts and seeklegal advice.

Continuing culturesIndigenous people have a responsibility to ensurethat the practice and transmission of Indigenouscultural expression is continued for the benefit offuture generations.

• Have cultural protocols been considered andincluded in any future licence agreements foruse of a work?

Recognition and protection Indigenous people have the right to protect their heritage.

• Has copyright protection for a work been sought?

• Have the owners of copyright in a work been identified?

• Has the Indigenous theatre or dance companyconsidered ways of branding its work to ensureit is always recognised as the source company?

• Written releases and contracts are the best wayof ensuring that rights are cleared for intendeduse. The Arts Law Centre of Australia has draftagreements available for members. It is a goodidea to seek independent legal advice onwritten releases and contracts.

Common issuesWelcome to country

• Has this Indigenous protocol been followed?

• Has consultation included identifying thetraditional country and traditional owners?

• Has the traditional owner been remunerated?

Fees and employment

• Are performers remunerated in accordance withindustry standards?

• Are performers remunerated for the culturalelement of their work?

Festival performances

• Is it appropriate to film, photograph or recordthe performance?

• Confidential information must not be disclosedwithout permission from all the Indigenouspeople affected by the disclosure.

• Have you considered the possibility that theremay be no consent to your proposal?

Interpretation, integrity and authenticityInterpretation

Be responsible for your representations ofIndigenous cultures.

• How will your work affect the Indigenous groupit is based on?

• Does it empower Indigenous people?

• Does it depict or expose confidential, personaland/or sensitive material?

• Does it reinforce negative stereotypes?

Integrity

• Are you proposing to adapt or alter the culturalheritage material in any way?

• Have you discussed this and gained consent?

• Will the individual or community who is thesubject of the work get an opportunity to see thework prior to public release? Have theirsuggestions been incorporated?

Authenticity

• Seek advice on the correct cultural context forthe performance material and the correct culturalcontext for heritage material.

• Ask about any restrictions on the material, and theexact meaning of any language words if unsure.

• Are there any restrictions on performance suchas where, when and by whom?

• Are you using heritage material such as imagery,music and language with proper regard togender, clan affiliations and cultural restrictions?

Secrecy and confidentiality SecrecyIndigenous people have the right to maintainconfidentiality about their personal and cultural affairs.

• The right of Indigenous people to keep secret and sacred their cultural knowledge should berespected. Secret and sacred refers toinformation that is restricted under customary law.

Confidentiality• Does the performance expose confidential or

sensitive material?

• Be aware that the inclusion of personal materialmay be sensitive. If it is objected to by family orclan representatives, leave it out.

• If depicting deceased people, seek permissionfrom the family or clan representatives. Discussissues of interpretation and authenticity.

• It is a good idea to speak to elders and/orother Indigenous people in authority to identifysensitivities, sacred material or religious issues inthe depiction of images, stories and events.

AttributionIndigenous people should be given proper credit andappropriate acknowledgment, including copyrightand royalties, for their role in the development anduse of their Indigenous cultural material.

• Be sure to attribute the performance to allIndigenous custodians, the source community,writers, actors, dancers, directors, designers,choreographers, technical personnel andcultural consultants who contributed to the workat all stages.

. . .

Recording dramatic and dance works

• When recording a dramatic or dance work it isnecessary to secure copyright clearance fromthe copyright owner. In a performance work thismay include separate copyright clearances foruse of the dramatic work, the choreography, themusical work and the artwork.

• It is strongly recommended to use writtenagreements when licensing dramatic or danceworks for commercial purposes.

• Broadcast and film companies should providewritten agreements for copyright owners.Indigenous authors should be given theopportunity to consider contracts and obtainproper legal advice.

• Recipients of Australia Council grants areencouraged to seek legal advice on writtencontracts for recording.

• Have performers signed clearance forms if theirwork is to be recorded at a festival?

• Under the educational statutory licensingschemes, authors may be entitled to royalties foruse of their works in books and films. Therelevant collecting agencies – APRA, AMCOS,CAL, Screenrights and Viscopy – collect anddistribute royalties to members.

Copyright infringement

• A person will infringe copyright in a work if heor she publishes the work, reproduces the workin material form, performs the work in public,communicates the work to the public, or makesan adaptation of the work without thepermission of copyright owner.

• Statutory exceptions to copyright infringementinclude the purposes of criticism or review, andincidental filming.

• Public performance of a work can include anyperformance that is not domestic or private,even if no fee is charged. So, anyone intendingto perform a work that is protected by copyrightshould seek advice to ensure they are notinfringing copyright. Check the Contacts pagein this guide for copyright advice referrals.

F O L L O W U P - 4544 - P E R F O R M I N G C U L T U R E S

• Have performers been advised and consulted onuses of any recordings of a festival performance?

• Have written clearances from performers been sought?

• Are there any cultural considerations necessaryfor the scheduled performances?

CopyrightCopyright protects specific categories of material.For a performance this might include literarymaterial, musical works, dramatic works and film.The material must be original and must be reducedto material form.

To be original, for the purpose of copyrightprotection, the author or authors must have applied sufficient skill, labour and judgment tocreate the work.

To be ‘reduced to material form’ means that thework must have been written or recorded.

When publishing or licensing a dramatic work it isnecessary to get the copyright clearance from thecopyright owners.

Dramatic and dance works

• Writers, composers, choreographers, dramaturgsand other contributors are referred to as ‘authors’in a copyright context.

• The copyright owner is generally the author ofthe literary, musical or dramatic work. There areexceptions to this rule, including an author whois an employee under a contract of service.

• Authors do not need to register for copyrightprotection.

• Copyright in a literary, musical or dramatic worklasts for 50 years after the death of the author.

• The author of a literary, musical or dramaticwork has the exclusive right to:

- reproduce the work in a material form

- publish the work

- perform the work in public

- communicate the work to the public

- make an adaptation of the work

- do any of the above in relation to an adapted work

• When any of these rights are exercised thecopyright owner is generally entitled to a licencefee or royalties for the use of their work.

• Styles of drama and dance are not protected bycopyright. It is the expression of the style in thedramatic or dance work that is protected.

• The author has moral rights to his or her work.This includes the right of integrity and attribution.

• In collaborative works, copyright may be sharedwith the collaborating authors. If companymembers collaborate to create a dramatic ordance work, the members will generally be the joint authors.

• The Indigenous author who incorporatestraditional ritual knowledge in his or herdramatic or dance work has a specialobligation to the clan when exercising thecopyright in the work.

• There are special copyright provisions forcommissioned photographs.

. . .

R E F E R E N C E S - 47

29 Paul MacPhail, Yirra Yaakin Noongar Theatre, telephone consultation, 17 May 2002.

30 Helen Anu, consultation meeting, 14 August 2001.

31 ibid.

32 Rachael Swain, Marrugeku Company, telephone consultation, 4 April 2002.

33 Nadine McDonald, Kooemba Jdarra Indigenous Performing Arts,telephone consultation, 26 March 2002.

34 ibid.

35 Rachael Swain, Marrugeku Company, telephone consultation,4 April 2002.

36 Wesley Enoch, consultation meeting, 7 February 2002.

37 Rachael Swain, telephone consultation, 4 April 2002. Marrugekuensure that the community is paid a royalty of 3% when the showis sold.

38 Paul MacPhail, Yirra Yaakin Noongar Theatre, telephoneconsultation, 17 May 2002. David Milroy is pursuing brandingfor Yirra Yaakin’s work.

39 ibid.

40 Janina Harding, manager, Indigenous Arts Program, City ofMelbourne, telephone consultation, 19 March 2002.

41 Jo Dyer, [then] general manager, Bangarra Dance Theatre,Collaborations: Using Indigenous Cultural Material inContemporary Performance, seminar papers, Arts Law Centre,1999, page 5.

42 Nadine McDonald, telephone consultation, Kooemba JdarraIndigenous Performing Arts, 26 March 2002.

43 Peter Cleary, Woomera Aboriginal Corporation, consultationresponse, 11 March 2002.

44 Festival Records publicly apologised to Woomera AboriginalCorporation for unauthorised use of material by Larrikin Records.Apology published by Festival which had taken over Larrikin bythe time of resolution of the dispute.

45 Peter Cleary, Woomera Aboriginal Corporation, consultation response, 11 March 2002.

46 Ronne Arnold, telephone consultation, 3 April 2002.


48 Dalisa Pigram, Marrugeku Company, Presentation,Collaborations: Using Indigenous Cultural Material inContemporary Performance, seminar papers, Arts Law Centre,1999, page 11.

49 Helen Anu, consultation interview, 14 August 2001.

50 ibid.

51 ibid.


53 Helen Anu, consultation interview, 14 August 2001.

54 Labanotation is a system of notation developed by Rudolph vonLaban to record human movement.

55 National Aboriginal Islander Skills Development Association.

56 Ronne Arnold, telephone consultation, 6 June 2002.

57 Pauline Clague, film maker, telephone consultation, June 2002.


59 Peter Cleary, Woomera Aboriginal Corporation, Presentation,Collaborations: Using Indigenous Cultural Material inContemporary Performance, seminar papers, Arts Law Centre,1999, page 8.


61 Peter Cleary, Woomera Aboriginal Corporation, Presentation,Collaborations: Using Indigenous Cultural Material inContemporary Performance, seminar papers, Arts Law Centre,1999, page 16.

62 Jo Dyer, [then] general manager, Bangarra Dance Theatre,Presentation, Collaborations: Using Indigenous Cultural Materialin Contemporary Performance, seminar papers, Arts Law Centre,1999, page 15.

63 Waiata Telfer, email, consultation response, 2 May 2002.

64 ibid.




68 Waiata Telfer, email, consultation response, 2 May 2002.

69 NSW Ministry for the Arts, Guidelines 2001–2002, Sydney,2000, pages 103–104.

70 Submission received from National Aboriginal Dance CouncilAustralia, 17 May 2002.

71 Section 35 (1), Copyright Act 1968 (Cth).

72 Section 10, Copyright Act 1968 (Cth).


74 M Payunka, Marika & Others v Indofurn 30 IPR 209.

75 Zeccola v Universal City Studios Inc (1982) 67 FLR 225.

76 Zeccola v Universal City Studios Inc (1982) 67 FLR 225.

77 Sections 31(1)(a)(i) and (b)(i), Copyright Act 1968 (Cth).


79 Peter Cleary, consultation response, 11 March 2002.

. . .references


1 Terri Janke, Our Culture: Our Future – Report on AustralianIndigenous Cultural and Intellectual Property Rights, MichaelFrankel & Company, written and published under commission by the Australian Institute of Aboriginal and Torres Strait IslanderStudies and the Aboriginal and Torres Strait IslanderCommission, Sydney, 1999.

2 Wesley Enoch, Indigenous theatre director, telephoneconsultation, 1 May 2002.

3 Terri Janke, Our Culture: Our Future.



6 Report of the Sub-Commission on Prevention of Discriminationand Protection of Minorities, 46th session, Draft Declaration onthe Rights of Indigenous Peoples, United Nations Documents,E/CN.4/1995/2 and E/CN.4/Sub 2/1994/56.

7 The Mataatua Declaration was developed at the FirstInternational Conference on the Cultural and Intellectual PropertyRights of Indigenous Peoples, 12–18 June 1993, atWhakatane, Aotearoa, New Zealand. A full text of theDeclaration is cited in Terri Janke, Our Culture: Our Future,pages 306–310.

8 Mrs Erica Irene Daes, Final Report on the Protection of theHeritage of Indigenous Peoples, United Nations DocumentE/CN.4/Sub.2/1995/26. The full text, as adopted andelaborated on by ATSIC's Indigenous Reference Group, is citedin Terri Janke, Our Culture: Our Future, pages 273–277. See also Erica Irene Daes, Study of the Protection of the Culturaland Intellectual Property of Indigenous Peoples, United NationsEconomic and Social Council, Geneva, 1993.

9 http://www.wipo.int/globalissues

10 http://www.wipo.int/globalissues

11 Section 6, Model Law for the Protection of TraditionalKnowledge and Expressions of Culture, South PacificCommunity, Noumea, 2002.


13 ibid.

14 Wesley Enoch, peer review notes, 1 May 2002.


16 Wesley Enoch, consultation meeting, 7 February 2002.


18 ibid.




22 Rachael Swain, Marrugeku Company, transcript of discussion ondance from Awaye, ABC Radio National, in Writing on Dance20: Dance Comes from the Land, page 84.


24 Adapted from Wesley Enoch, peer review notes, 29 April 2002.


26 Adapted from Wesley Enoch, peer review notes, 29 April 2002.

27 Helen Anu, consultation meeting, 14 August 2001.


. . .

B I B L I O G R A P H Y - 49

Alex Byrne, Alana Garwood, Heather Moorcroft,Alan Barries (comp), Aboriginal and Torres StraitProtocols for Libraries, Australian Library andInformation Association. Endorsed at the Aboriginaland Torres Strait Islander Library and InformationResource Network Conferences, December 1994and September 1995, and at the First Roundtableon Library and Archives Collections and Services ofRelevance to Aboriginal and Torres Strait IslanderPeople, May 1995.

Collaborations: Using Indigenous Cultural Materialin Contemporary Performance, edited transcript ofseminar at Bangarra Dance Theatre (May 1999),Arts Law Centre of Australia, Sydney, 1999.

Doing it Our Way: Contemporary IndigenousCultural Expression in New South Wales,Terri Janke, NSW Ministry for the Arts, Sydney, 2002.

Heather Elton, Chinook Winds – Aboriginal DanceProject, The Banff Centre Press, Canada, 1997.

Sally Gardner, (ed) Dancing comes from the Land,Writings on Dance, 2000.

Guidelines for Ethical Research in IndigenousStudies, Australian Institute of Aboriginal and TorresStrait Islander Studies, Canberra, 2000.

Indigenous Arts Protocol: A Guide, in Guidelines2001-2002, NSW Ministry for the Arts, 2001.

Indigenous Arts Protocols: A Guide to helpnurture Indigenous cultural expression in New SouthWales, Handbook for Applicants, Indigenous ArtsReference Group, NSW Ministry for the Art,Sydney, NSW, 1998.

McKeough and Stewart, Intellectual Property inAustralia, Butterworths, Sydney, 1991.

Mina Mir Lo Ailan Man: Proper Communicationwith Torres Strait Islander People, QueenslandGovernment, Department of Aboriginal and Torres Strait Islander Policy and Development,Brisbane, 1998.

bibliography

80 Section 35(6) of the Copyright Act 1968 (Cth), states that wherethe work is ‘made by the author in pursuance of the terms of hisor her employment by another person under contract of serviceof apprenticeship, that the other person is the owner of anycopyright subsisting in the work’.

81 Section 176(1) of the Copyright Act 1968 (Cth), Section 10, Copyright Act 1968 (Cth), Section 35, Copyright Act 1968 (Cth).

82 Section 41, Intellectual Property Reports 513.

83 Section 31, Copyright Act 1968 (Cth) 31.

84 Labonotation is the diagrammatic written expression used torecord dance.



87 Peter Cleary, consultation response, 11 March 2002.

88 Section 248A(1), Copyright Act 1968 (Cth).

89 The Copyright Act 1968 (Cth) requires that the work beperformed in Australia, in the presence of an audience and byqualified persons.

90 Section 248A(2)(a), Copyright Act 1968 (Cth).


92 Section 193, Copyright Act 1968 (Cth), An exception iswhere it was reasonable not to identify the author:section 195AR Copyright Act 1968 (Cth).

93 Section 195AC, Copyright Act 1968 (Cth)

94 Section 195AI, Copyright Act 1968 (Cth).

95 Section 195AJ, Copyright Act 1968 (Cth).

96 Section 195AWA, Copyright Act 1968 (Cth).

97 Section 195AS, Copyright Act 1968 (Cth).

98 Style Manual for Authors, Editors and Printers, 6th edn,Commonwealth of Australia, Canberra, 2002, page 413.







105 Doreen Mellor, telephone consultation, 31 May 2002.


. . .contacts

C O N T A C T S - 51

Arts policy and funding

Aboriginal and Torres Strait Islander Board,Australia Council

PO Box 788Strawberry Hills NSW 2012Tel: (02) 9215 9065Toll Free: 1800 226 912Fax: (02) 9215 9061Email: [email protected]: www.ozco.gov.au

Arts NT

GPO Box 1774Darwin NT 0801Tel: (08) 8924 4400Fax: (08) 8924 4409Email: [email protected]: www.nt.gov.au/cdsa/dam

Arts Queensland

GPO Box 1436Brisbane QLD 4001Tel: (07) 3224 4896Toll Free (Qld): 1800 175 531Fax: (07) 3224 4077Toll Free (Qld): 1800 175 532Email: [email protected]: www.arts.qld.gov.au

Arts Queensland – Aboriginal and Torres Strait Islander Unit

PO Box 5300Cairns Mail Centre Qld 4870Tel: (07) 4048 1411Fax: (07) 4048 1410Email: [email protected]: www.arts.qld.gov.au

Arts SA

GPO Box 2308Adelaide SA 5001Tel: (08) 8463 5444Fax: (08) 8463 5420Email: [email protected]: www.arts.sa.gov.au

Arts Tasmania

GPO Box 646Hobart TAS 7001Tel: (03) 6233 7308Fax: (03) 6233 8424Email: [email protected]: www.arts.tas.gov.au

Arts Victoria

Private Bag No. 1South Melbourne VIC 3205Tel: (03) 9954 5000Toll Free (Vic): 1800 134 894Fax: (03) 9686 6186Email: [email protected]: www.arts.vic.gov.au

Arts WA

PO Box 8349Perth Business Centre WA 6849Tel: (08) 9224 7310Toll Free (WA): 1800 199 090Fax: (08) 9224 7311Email: [email protected]: http://hosted.at.imago.

com.au/artswa/

Department ofCommunications, Information Technology and the Arts

GPO Box 2154Canberra ACT 2601Tel: (02) 6271 1000Fax: (02) 6271 1901Email: [email protected]: www.dcita.gov.au

Terri Janke, Our Culture: Our Future – Report onAustralian Indigenous Cultural and IntellectualProperty Rights, Michael Frankel & Company,written and published under commission by theAustralian Institute of Aboriginal and Torres StraitIslander Studies and Aboriginal and Torres StraitIslander Commission, Sydney, 1999.

Previous Possessions, New Obligations, MuseumsAustralia, Sydney, 1994.

Protocols for Consultation and Negotiation withAboriginal People, Department of Aboriginal andTorres Strait Islander Policy and Development,Queensland Government, Brisbane, 1998.

Staniforth Ricketson, The Law of IntellectualProperty: Copyright, Design and ConfidentialInformation, Lawbook Company, Sydney, 2001.

Taking the Time. Museums, Galleries, CulturalProtocols and Communities, Museums Australia Inc.(Qld), Brisbane, 1998.

Doreen Mellor and Terri Janke, Valuing Art,Respecting Culture: Protocols for working with theIndigenous Visual Arts and Crafts Sector, NationalAssociation for the Visual Arts, Sydney, 2001.


C O N T A C T S - 53

Gadigal Information Service

PO Box 966Strawberry Hills NSW 2012Tel: (02) 9564 5090Fax: (02) 9564 5450Email: [email protected]: www.gadigal.org.au

Goolarri Media Enterprises

PO Box 2708Broome WA 6725Tel: (08) 9192 1325Fax: (08) 9193 6407Email: [email protected]: www.goolarri.com.au

Torres Strait Islander Media Association

PO Box 385Thursday Island QLD 4875Tel: (07) 4069 1524Fax: (07) 4069 1886Email: [email protected]

Torres Strait Regional Authority

PO Box 261Thursday Island QLD 4875Tel: (07) 4069 0700Fax: (07) 4069 1879Email: [email protected]: www.tsra.gov.au

Indigenous performingarts organisations

Aboriginal Theatre Network

c/- Yirra Yaakin Noongar TheatreGPO Box 51598Perth WA 6000Tel: (08) 9202 1966Fax: (08) 9202 1885Email: [email protected]: www.yirrayaakin.asn.au

Bangarra Dance Theatre

Pier 4, 5 Hickson RoadWalsh Bay NSW 2000Tel: (02) 9251 5333Fax: (02) 9251 5266Email: [email protected]: www.bangarra.com.au

Broome Musicians Aboriginal Corporation – BMAC

PO Box 2708Broome WA 6725Tel: (08) 9192 1325Fax: (08) 9193 6407Email: [email protected]: www.goolarri.com.au

Daki Budtcha

PO Box 3261South Brisbane QLD 4101Tel: (07) 3846 7722Fax: (07) 3846 7020Email: [email protected]: www.dakibudtcha.com.au

Doonooch Aboriginal Dancers Group

c/- Global Network ProductionsPO Box 169Sutherland NSW 1499Tel: (02) 9543 1079Fax: (02) 9543 1366Email: [email protected]: www.globalnetwork.com.au

Ilbijerri Aboriginal and TorresStrait Islander TheatreCooperative Ltd

Art House, Town Hall Corner of Errol andQueensbury Streets North Melbourne VIC 3051Tel: (03) 9329 9097Fax: (03) 9329 9105Email: [email protected]

Kooemba Jdarra IndigenousPerforming Arts

Judith Wright Centre ofContemporary Art420 Brunswick StFortitude Valley QLD 4006Tel: (07) 3257 1433Fax: (02) 3257 1633Email: [email protected]: www.kooemba.com.au

Laura Aboriginal Dance and Cultural FestivalAng-gnarra AboriginalCorporation

c/- Post OfficeLaura QLD 4871Tel: (07) 4060 3214Fax: (07) 4060 3231Web: www.laurafestival.com


NSW Ministry for the Arts

PO Box A226Sydney South NSW 1235Tel: (02) 9228 5533Toll Free (NSW): 1800 358 594Fax: (02) 9228 4869Email: [email protected]: www.arts.nsw.gov.au

Copyright and legal

Arts Law Centre of Australia

The Gunnery43–51 Cowper Wharf RoadWoolloomooloo NSW 2011Tel: (02) 9356 2566Toll Free: 1800 221 457Fax: (02) 9358 6475Email: [email protected]: www.artslaw.com.au

Australian Copyright Council

PO Box 1986Strawberry Hills NSW 2012Redfern NSW 2016Tel: (02) 9318 1788Fax: (02) 9698 3536Email: [email protected]: www.copyright.org.au

Indigenous Cultural andIntellectual Property website

Web: www.icip.lawnet.com.au

Media Entertainment & ArtsAlliance – MEAA

PO Box 723Strawberry Hills NSW 2012Tel: (02) 9333 0999Fax: (02) 9333 0933Email: [email protected]: www.alliance.org.au

Copyright collectingsocieties

Australian MechanicalCopyright OwnersSociety – AMCOS

Locked Bag 3665St Leonards NSW 2065Tel: (02) 9935 7900Fax: (02) 9935 7999Email: [email protected]: www.amcos.com.au

Australasian Performing Right Association – APRA

Locked Bag 3665St Leonards NSW 2065Tel: (02) 9935 7900Fax: (02) 9935 7999Email: [email protected]: www.apra.com.au

Copyright Agency Limited – CAL

Level 19, 157 Liverpool StreetSydney NSW 2000Tel: (02) 9394 7600Fax: (02) 9394 7601Email: [email protected]: www.copyright.com.au

Screenrights

PO Box 1248Neutral Bay NSW 2089Tel: (02) 9904 0133Fax: (02) 9904 0498Email: [email protected]: www.screen.org

Viscopy

Level 1, 72–80 Cooper StreetSurry Hills NSW 2010Tel: (02) 9280 2844Fax: (02) 9280 2855 Email: [email protected]: www.viscopy.com

Indigenousorganisations

Aboriginal and Torres StraitIslander Commission – ATSIC

PO Box 17Woden ACT 2606Tel: (02) 6121 4000Toll Free: 1800 079 098Fax: (02) 6281 0722Web: www.atsic.gov.au

Australian Institute forAboriginal and Torres StraitIslander Studies – AIATSIS

GPO Box 553Canberra ACT 2601Tel: (02) 6246 1111Fax: (02) 6261 4286Email: [email protected]: www.aiatsis.gov.au

. . .


The Marrugeku Company

c/- Stalker Theatre Company Hut 24, 142 Addison Road Marrickville NSW 2204 Tel: (02) 9550 9887 Fax: (02) 9564 6061 Email: [email protected]

Middar Aboriginal Theatre

Tel: (08) 9354 9540Fax: (08) 9354 9540

National Aboriginal DanceCouncil – NADCA

Aboriginal Dance Theatre Redfern88 Renwick StreetRedfern NSW 2012Tel: (02) 9699 9172Fax: (02) 9310 2643Email: [email protected]: www.koori.usyd.edu. au/nadca/

Songlines Music Aboriginal Corporation

PO Box 574Port Melbourne VIC 3207Tel: (02) 9696 2022Fax: (02) 9696 2183Email: [email protected]: www.songlines.com.au

Woomera AboriginalCorporation

PO Box 349Townsville QLD 4810Tel: (07) 4771 4699Fax: (07) 4771 2110Email: [email protected]: www.woomersmi.org

Yirra Yaakin Noongar Theatre

GPO Box S1598Perth WA 6845Tel: (08) 9202 1966Fax: (08) 9202 1885Email: [email protected]: www.yirrayaakin.asn.au

Yothu Yindi Foundation

GPO Box 2727Darwin NT 0800Tel: (08) 8941 0202Fax: (08) 8941 1088Email: [email protected]: www.garma.telstra.com

. . .

A C K N O W L E D G M E N T S - 55

Terri Janke & Company would like to acknowledge the role of Wesley Enoch indeveloping this document.

We thank Helena Zilko whose contribution as editorassisted in bringing the five protocol guides into acomplementary set.

We also acknowledge the contribution of thefollowing people who provided comments on earlydrafts. Their feedback was invaluable in thedevelopment of Performing Cultures.

Helen Anu – Singer and performer

Ronne Arnold – Dancer and teacher, NAISDA

Pauline Clague – Film maker, Core OriginalProductions Pty Ltd

Peter Cleary – Woomera Aboriginal Corporation

Lorrae Coffin – Music/Events Manager, GoolarriMedia Enterprises

Jerry Dohnal – Solicitor, Gilbert & Tobin

Wesley Enoch – Director

Janina Harding – Festival Co-ordinator & ArtsAdvisor, Indigenous Arts Program, City of Melbourne

Paul MacPhail – Yirra Yaakin, General Manager,Yirra Yaakin, Noongar Theatre

Nadine McDonald – Artistic Director, KooembaJdarra Indigenous Performing Arts

David Milroy – Artistic Director, Yirra Yaakin, Noongar Theatre

Dalisa Pigram – Dancer

Rachael Swain – Artistic Director,Marrugeku Company

Waiata Telfer – Festival Coordinator and dancer

The Aboriginal and Torres Strait Islander Arts Board thanks the Dance Board of the Australia Council for contributing towards the publishing ofPerforming Cultures.

acknowledgments

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