PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215 9065 ... · mediums such as photography,...

..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 47242 4 New Media Cultures: Protocols for Producing Indigenous Australian New Media

cultures. N E W M E D I A . . . . .Protocols for Producing Indigenous Australian

New Media

An initiative of the Aboriginal and Torres Strait

Islander Arts Board of the Australia Council

contentsIntroduction 1

Using the New Media Cultures guide 2What are protocols? 2What is new media art? 3Special nature of Indigenous new media art 4

Indigenous heritage 6Current protection of heritage 7

Principles and protocols 9Respect 9

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

Indigenous control 10Communication, consultation and consent 11

Collaborating with other artists 13Interpretation, integrity and authenticity 13

Interpretation 13Integrity 13Authenticity 13CD-ROM and database works 14Adapting materials 14

Adaptation of works 14Traditional motifs 15Photographs 15Indigenous imagery 16Indigenous songs 16Film footage 17

Internet publishing 18Secrecy and confidentiality 19

Representation of deceased people 19Secret and sacred material 20Personal privacy 20

Attribution 20Proper returns 21Continuing cultures 21Recognition and protection 22Resources 22

Copyright 23What is copyright? 23

Requirements of copyright 23

Copyright exceptions 24How long does copyright last? 24

What rights do copyright owners have? 24Reproduction right 24

Collaborative works 25Communal ownership vs. joint ownership 25

What are moral rights? 25New media art protection 26Reproducing works 26Licensing use of artworks 27

Assigning copyright vs. licensing 27Managing copyright to protect your interests 27

Copyright notice 27Moral rights notice 28

When is copyright infringed? 28Fair dealings provisions 29Crown use of artworks 29Library copying 29Educational copying 29

Further copyright information 29Copyright collecting societies 29

Follow up 32Applying the protocols 32Respect 32Indigenous control 33Communication, consultation and consent 33

Communication 33Consultation 33Consent 34

Interpretation, integrity and authenticity 34Interpretation 34Integrity 34Authenticity 34

Secrecy and confidentiality 34Attribution 35Proper returns 35Continuing cultures 35Recognition and protection 36Copyright 36

References 37

Bibliography 39

Contacts 41

Acknowledgments 44

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:Terri JankeSolicitorTerri Janke & CompanyEntertainment, Cultural Heritage and Media Lawyers and Consultants

Peer review:Jenny Fraser

Design & Typesetting: L&L Design & Production

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

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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. Since 1998, when Our Culture: Our Future wasfirst published, the term ‘Indigenous heritage rights’has gained more favour in the international arena. In the New Media Cultures guide we use‘Indigenous heritage’ to refer to these rights.

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

New Media Cultures guides the reader throughmany of these protocols.

New Media Cultures is one in a series of fiveIndigenous protocol guides published by the AustraliaCouncil’s Aboriginal and Torres Strait Islander ArtsBoard. The guides reflect the complexity of IndigenousAustralian culture, and provide information and adviceon respecting Indigenous cultural heritage. Althougheach of the guides address cultural protocols specificto an Indigenous artform, they are shaped by thesame underlying principles – the backbone of theprotocols. The five guides in the series are:

• Song Cultures

• Writing Cultures

• Performing Cultures (Drama/Dance)

• Visual 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.

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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 transacting with Indigenous people and theircommunities, there are some fundamental principleswithin which to conduct respectful work.

The protocols outlined in New Media Cultures areshaped by nine fundamental principles. Theprotocols are, by definition, ways of actioning theseprinciples. For example, a cultural protocol to actionthe underlying principle of respect is to acknowledgethe Indigenous custodians of country at the site ofeach performance or installation, or in theintroductory on-screen text in a screen-based project.

New Media 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, NewMedia Cultures outlines the current copyright lawframework. The process of following the protocolssupports the recognition of Indigenous heritagerights. It encourages culturally appropriate workingpractices, and promotes communication between allAustralians with an interest in Indigenous newmedia art.

What is new media art?

As with all things experimental, there isconfusion around the area of new media arts;the edges are blurry and definition bleedsacross forms.

Jenny Fraser 3

New media art is generally a collaborative practicewhere artists engage with performance, digitaltechnologies and cross-disciplinary artforms toproduce a range of performance, installation andscreen-based artworks. It can also explore thecreative synthesis of art and emerging science andtechnology fields.

New media art is sometimes referred to as cross-disciplinary art, hybrid art or art fusion.

As Samara Mitchell describes it:

New media artists often employ existingmediums such as photography, painting, filmmaking and performance, and combine thesemediums in new ways, or forge them withemerging technologies (such as digital video,electroplating), or in methodology, such as anartist working alongside geneticists to sculptwith stem cells. The results aim to generate anew medium for conducting ideas andexperiences that are invoked by being on thethreshold of cultural discovery.4

The subject matter of new media is diverse andresists categorising. Some examples of new mediaart include:

• creative web-based projects

• new applications of film or video

• installations incorporating mixed forms of artsuch as sculpture, sound and visual technologies

• hybrid performance practice

• digital manipulation of images such asphotographs or video (enhanced, adapted,and/or mixed)

• computer-generated art such as DVDs andCD-ROMs, including games and databases.

There are two fundamental aspects of new mediathat suggest the ‘newness’.


We hope Indigenous people, and those workingwith Indigenous people, will be inspired to use theprinciples as a framework for developing protocolsappropriate to their specific projects, languagegroups, regions, clans and 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 DirectorAboriginal and Torres Strait Islander ArtsAustralia CouncilPO Box 788 Strawberry Hills NSW 2012

Using the New Media Cultures guide

New Media Cultures is written as a first point ofreference in planning a work with Indigenous newmedia practitioners, or using Indigenous culturalmaterial. When you need specific advice on thecultural issues of a particular group, we recommendthat you either speak to people in authority, orengage an Indigenous cultural consultant withrelevant knowledge and experience.

It is important to read all sections of New Media Cultures.

The Introduction defines protocols as used in thisguide, and looks at the special nature of Indigenousnew media art.

The next section, Indigenous Heritage, is animportant overview of the issues that inform thedevelopment of Indigenous protocols. It looks at thecomplexity of Indigenous Australia. It also chartsinternational initiatives for the protection ofIndigenous cultural and intellectual property rights.

The key section, Principles and Protocols, presentsnine principles we have developed to support theprotection of Indigenous cultural heritage. There isvaluable information on protocols specific to the use

of cultural heritage material in the context of newmedia art. A number of case studies andcommentaries from Indigenous new media artistsidentify pitfalls and offer advice.

The Copyright section contains general information and advice on the main law in Australiagoverning the use and reproduction of arts andcultural expression.

Follow Up provides a checklist of key points toconsider when developing appropriate protocols fora new media project. It offers different and morespecific information than the preceding sections.We therefore suggest you use the points outlined inFollow Up together with the Principles andProtocols and Copyright sections.

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

What are protocols?

Indigenous communities are clearly enthusedabout the emerging multimedia industry and(are) keen to participate. But this enthusiasm is tempered by concerns about process and protocol.

Wal Saunders 2

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.

Responsible use of Indigenous cultural knowledgeand expression will ensure that Indigenous culturesare maintained and protected so they can bepassed on to future generations.

. . .

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Indigenous artists with an interest in newmedia technologies often feel locked out of thisdeveloping area. This is in part due to thedifficulties (both perceived and real) of eitheraccessing or obtaining the equipment requiredto learn these new skills.6

There are growing numbers of Indigenous artistspractising in the field of new media. Some artistsare Brook Andrew, Tina Baum, Brenda L Croft,Destiny Deacon, Jenny Fraser, Jason Hampton,Dianne Jones, Jonathon Jones, Rea, Michael Rileyand Christian Thompson.

The different forms of work are diverse and rangefrom digital manipulation of photographs and CD-ROM to performance and installation art.

The artists in this field state a variety of reasons forthe special nature of this medium as a form ofIndigenous cultural expression.

These include:

• facilitating ongoing transmission of information• recording community knowledge• recording oral histories/life stories• community ownership of stories• cultural reclamation and maintenance• entertainment• personal and community healing (e.g. stories of

the Stolen Generation)• educating the broader community about

Indigenous issues• educating Indigenous communities about local

and national Indigenous issues.New media art is an incorporation process. This raises issues for Indigenous new media artists in the use of cultural heritage and appropriaterepresentation and production of this material.

Indigenous artists must incorporate cultural respectprotocols when dealing with Indigenous culturalheritage material. This is particularly importantbecause technology makes it easier to combine,copy and manipulate materials without permissionfrom Indigenous custodians. Indigenous artists mustincorporate cultural respect.

The digital form is scrutinised very carefully byIndigenous communities. For this reason respect forcultural protocols is an important step in the processof creating Indigenous new media works, or usingIndigenous cultural material.

Some of the issues include:• Who has the right to use Indigenous

cultural material?• Can Indigenous cultural material be adapted

or altered?• What is the proper treatment of Indigenous

cultural material, including creation stories andclan images?

• How should Indigenous cultural information beproperly attributed?

. . .• How the work is created – often through

cross-disciplinary or hybrid practices whereartists collaborate across artform, culture and/or fields of practice.

• How the work is transmitted and made accessibleto the audience – often involving integration oftext, pictures, video, sound and the use oftechnologies as a mode of delivery. The integrationdetermines the interactivity and/or how theaudience engages with the work, either through a public event or via screen-based technologiessuch as a CD-ROM, DVD, video or film.

It is not necessary for all new media artists toemploy emerging technologies in the creation oftheir work. Hybrid performance and installationscan be produced using traditional artforms that arefused into something new.5

The Australian Network for Art and Technology(ANAT) and the Australian Centre for the MovingImage (ACMI) are two organisations with a newmedia art focus.

Australian Network for Art andTechnology – ANATANAT is the peak advocacy body for art and technology, and represents the concerns of art and technologypractitioners all over the world.

ANAT offers a range of nationalprofessional development initiatives for emerging and established artists and curators.

ANAT is developing opportunities for Indigenous artists to learn about new media.

For more information visit their websitewww.anat.org.au

Australian Centre for the Moving Image – ACMIThe Australian Centre for the MovingImage (ACMI) at Federation Square in Melbourne is a state-of-the-artcentre for the exhibition, collection,preservation and appreciation ofAustralian screen-based arts. ACMI showcases the moving image in all its forms – film, television,multimedia, games, video, Internet and digital media.

ACMI features the world’s largest digital media gallery, a uniqueexhibition space for innovativeAustralian and international screen-based art, including interactiveinstallations, large-scale projections and immersive environments.

ACMI offers production facilities and adiverse range of educational programs.

For more information visit their websitewww.acmi.net.au

Special nature of indigenous new media art

New media is a developing field of Indigenous artspractice. In this century Indigenous culturalexpression spans all artforms and can includedigital technologies and hybrid art practices.

According to a report by the Australian Network for Arts and Technology, access to new mediatechnologies is an issue for Indigenous artists.


Our Culture: Our FutureIndigenous cultural and intellectualproperty rights refer to Indigenouspeople’s cultural heritage.

Heritage comprises all objects, sites andknowledge – the written nature or use which 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 include 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 oftheir cultures

• authorise or refuse to authorise thecommercial use of Indigenous culturaland intellectual property, according toIndigenous customary law

• maintain the secrecy of Indigenousknowledge and other culturalpractices

• full and proper attribution

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

For a full list of rights seeOur Culture: Our Future.9

Current protection of heritage

Australia’s current legal framework provides limitedrecognition and protection of these rights. OurCulture: 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 an industry 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.

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.10

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’.11

. . .


New media is an important means of expressingIndigenous heritage – past, present and future.Indigenous heritage, enshrined in Indigenouscultural and intellectual rights, is discussed at lengthin Our Culture: Our Future.7

The new media sector can adopt a ‘best practice’approach by encouraging respect for the cultures ofIndigenous 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. They need toensure that Indigenous cultures, both in the past andtoday, are protected and maintained in their works.In this way these cultures can be passed on tofuture 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.

An Indigenous person’s connection to Indigenousheritage is expressed in contemporary life throughhis or her relationship with land, waterways,animals and plants, and his or her relationships withother people.

Aboriginal and Torres Strait Islander people have awell developed and complex web of relationshipsbased on family ties, clan belonging, languagegroup affiliations and community, organisation andgovernment structures. A range of authority structuresexists across urban, regional and remote communities.It is important to acknowledge the complexity ofIndigenous Australia when negotiating the use ofIndigenous heritage for a new media project.

Indigenous Australians are concerned that there isno respect for their Indigenous cultural knowledge,stories and other cultural expression in the widerAustralian cultural landscape. Concerns include thecurrent legal framework that does not promote orprotect the rights of Indigenous people – particularlyto own and control representation anddissemination of their stories, knowledge and othercultural expression.8

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

Indigenousheritage

Draft Principles and Guidelines for the Protection ofthe Heritage of Indigenous People (1993) wereadopted by ATSIC’s Indigenous Reference Groupin1997.12 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 betweencivilisations and cultures, in creating wealth and inpromoting the human dignity and cultural identity oftraditional communities’.13

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.14

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.15

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.


. . .

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

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

• Recognition and protection.

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

Respect Respectful use of Indigenous cultural material andinformation about life experience is a basic principle.

Acknowledgment of country

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

When organising an installation, performance orevent, it is respectful to seek the consent of theIndigenous owners of the land.

If consent is given, it is important to acknowledgecountry and custodians at the site of eachperformance, installation and event, or in theintroductory on-screen text in a screen-based project.

Seek advice from the Indigenous community on thepreferred manner of acknowledgment.16

Accepting diversity

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

Indigenous artists come from many differentbackgrounds, learn their art in many different ways,and develop their new media works in manydifferent styles.

Representation

Indigenous people and their cultures need to berepresented in a manner preferred by those cultures.Derogatory or outdated perspectives andterminology should be avoided. It is important toconsult the relevant groups about this.

Living cultures

Indigenous cultures are living and evolving entities – not historical phenomena.

Indigenous artists draw upon their pre-existingcultural base in many different ways.

principles andprotocols

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. . .It is important to respect the diversity of culturalexpression in Indigenous new media art, andacknowledge its ongoing development throughdifferent styles and forms.

Indigenous controlIndigenous people have the right to self-determinationin their cultural affairs, and expression of theircultural material. There are many ways in which thisright can be respected in the development of newmedia 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.

To consult effectively and gain consent for use ofIndigenous cultural material in a particular project,the Indigenous people with authority for specificgeographic locations, stories, rhythms, song cyclesand images need to be identified.

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 inquiries and contacts, Doreen Mellor17

recommends the following directories.

• ATSIC ’s 2000/01 Visual Arts and CraftsResources Directory. Available from ATSIC’sNational Marketing & Media Office on (02) 6121 4000 or toll free 1800 079 098.

• The Black Book Directory 2000 – IndigenousArts & Media Directory. Published by BlackfellaFilms and available from Publication Sales,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

• Aboriginal Arts and Crafts Centres. For a list seeValuing Art, Respecting Culture: Protocols forworking with the Australian Indigenous VisualArts Sector.18

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

• relevant individuals or family members

• elders and custodians of relevant Indigenousclans and groups

• Indigenous arts centres

• Indigenous media organisations

• Indigenous language centres

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

• State and territory government arts departmentsin NSW, WA, QLD, SA, TAS and NT which have staff dedicated to Indigenous arts programs.

New media artist Vynette Wright offers someadvice on locating relevant Indigenous custodians.

Sometimes the lines of custodianship overtraditional cultural material are like a tangledweb. Different language groups, clans andfamilies may share common songs, stories,dances and designs. Cultural disruption has ledto confusion and conflict over who controls theright to use and exploit this lore. If there is suchconflict the new media artist can decide not touse the material or to seek out the seniorcustodians of each group. Most custodians andcommunity desire our cultural heritage to berevived and restored and strongly emphasise theneed for cultural transmission to youngergenerations. These custodians tend to considertraditional law first and their duties to transmitknowledge to youth as a priority. So a newmedia project can be unifying, if senior eldersconsent to material being used. If the eldersgive their consent (a consent form is suggested),the majority of people in their respective mobswill relax and show strong support.19

Engaging IndigenouscontributorsWhen engaging Indigenous contributorsto participate in a project, the ATSICdefinition of Aboriginal identity can beused as a guide.

The current practice of the AustraliaCouncil requires all Indigenousparticipants to provide a letter ofsupport confirming their Aboriginal orTorres Strait Islander identity from anincorporated Indigenous organisation.20

Communication,consultation and consent

It is only natural for works to reflect theAustralian experience, but the intention toinclude Indigenous experiences needs to gothrough a consultative process of collaborationand acknowledgment.

Jenny Fraser 21

New media artists may use material from anyartform to create their works. For instance, a CD-ROM might include artworks, old photographsand songs. The cultural content may range fromsensitive to more openly available material.

By communicating and consulting with the relevantIndigenous people and groups you can be betterinformed about the issues in using this materialbefore seeking their consent.

Communication, consultation and consent is animportant first step when:

• developing and planning new media projects• reproducing and including existing

cultural material.


case study

Consultation for a CD-ROM – Walkabout Walkabout BulurruVynette Wright, a Yidinji artist, isworking on a CD-ROM, WalkaboutWalkabout Bulurru, that aims to recordthe songlines of a number ofIndigenous groups. Vynette emphasisesthe importance of close consultationwith the elders who she is recording onfilm telling stories and singing songs.Prior to filming, there was a lot ofconsultation allowing elders to decide ifthey wanted to be involved, what theywanted to say, and how they wantedthe material represented.

Vynette says the elders often like theidea that the old stories are told in ‘a new media’ that will engage theyounger people.

‘There’s been too much taking and notenough giving. You have to go to theelders. They have had life experienceand if you go there with the intention toexploit them, they will pick it up.

The elders won’t cooperate with peoplethat are not genuine. When talking tothe elders it has to be face-to-face in ameeting with you telling them all aboutthe project, basically asking for theirsupport and seeking their agreement tobe involved.’ 22

The artist’s responsibility to effectivelycommunicate with the elders is reaffirming her role in the continuingpractice of culture.

Doreen Mellor outlines the importance ofearly consultation:

Consultation with a community or group ofpeople is not simply a formality ...Consultation is required as a precursor toconsent for it to proceed. It is not appropriateto have decided that the activity is to proceed,or that its structure or format is establishedbefore consulting the Indigenous group orperson involved. The idea may be a goodone from an external point of view.Consultation establishes the internal, culturalperspective and it is important to accept that itis this perspective which should determine theappropriate course of action.

With regard to the process ofobtaining consent:

• allow time (perhaps more than onemeeting) for communication of a proposal

• allow time for a decision to be made

• remember that the decision will be madeon other bases than the ones brought fromoutside the community – different types ofknowledge operating in Indigenouscommunities may conflict with therequirements of a project

• be prepared to take ‘no’ for an answer(but don’t take it personally)

• respect the views of all factions within acommunity, and ensure that consent comesfrom the appropriate quarter for aparticular activity or project. 23

Collaborating with other artists

There are many situations where an Indigenous newmedia artist may be approached to collaborate ona project with a group of artists. It is important thatcommunication and consultation with the Indigenousartist and their communities takes place in the initialdevelopment phase of the project.

Many new media works are collaborative works inthat they are produced by more than one artist.When more than one person works on a projectsuch as a database or CD -ROM, the copyrightownership may belong to more than one person,unless employed by the creating entity (see theCopyright section for details). It is important todiscuss ownership of rights at the outset and wherepossible, allow Indigenous people to retain rights totheir cultural material. Proper attribution should alsobe given to the owners of the story.

Where possible, licences should be sought ratherthan an assignment of rights.

Interpretation,integrity and authenticityInterpretation

Interpretation refers to how cultural material isinterpreted and represented. In the past, Indigenouscultural material has been subjected to interpretationby non-Indigenous people. Today, as Indigenouspeople seek to reassert and claim control over theircultural heritage material, Indigenous interpretation ofcultural heritage is a means of giving power to thecultural significance of the work.

Integrity

Jenny Fraser adds:

Most people are happy to see their storiescome to life if they are dealt with properly.This means respecting the integrity and alsoattributing the source of the story.24

Integrity refers to the treatment of the original work.Under the Copyright Act 1968 (Cth), the moralright of integrity provides a right of protection forindividual artists against ‘derogatory’ treatment oftheir works. For example, the alteration of the workby adapting, cutting, editing, and/or enhancingmay materially alter the original intention of thework and infringe the artist’s moral rights.

Maintaining the integrity of a work is important forartists. Integrity of a work is also very important forthe Indigenous communities where a workoriginates. Unfortunately there is no legal remedyfor a community as a whole if a work is subjectedto derogatory treatment, although individual artistscan exercise their legal rights.

Authenticity

Authenticity refers to the cultural provenance ofIndigenous heritage material.

Giving proper consideration to authenticity meansrespecting any customary law or cultural obligationassociated with the work such as gender, correctlanguage and sensitivity to the context of the work’sreproduction. It is important to consider theauthenticity of a new media work during itsdevelopment phase.

Consider authenticity and context in the publicationor performance of new media works.

• Words or phrases from particular languagesshould not be used just because they are‘language words’.

. . .

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• Language should only be used where its propermeaning is known and where it is used in theproper context.25

• Cultural material should always be used in theappropriate context.

CD-ROM and database works

New media works in digital formats are oftencreated by combining content from differentsources. The current technology makes it easy tocombine materials created by others such as filmclips, photographs and songs.

Clearing copyright on use of this material isnecessary. If copyright material is included withoutpermission, the owner of copyright can stop youdistributing your work. They can also claimdamages – that is, financial compensation forlosses suffered.

For each element, it is also necessary to getpermission for the use and context cultural material.

Adapting materials

Some Indigenous content may not be suitable foradapting, editing, mixing and altering. Under themoral rights law it is an infringement to materiallyalter a work without the specific consent of thecopyright owner.

Issues to be considered:

• Can an individual consent to alteration where the work depicts traditional ritual knowledge?

• Is the consent of the group needed?

Adaptation of works

The adaptation of works is an important issue.When permission to adapt is given, the copyrightcreated in new work may not always be clear andcan raise the following issues:

• Who should own and control reproduction ofworks that incorporate new works?

• How do artists clear uses of works that are inthe public domain?

According to Indigenous new mediaartist Vynette Wright:

Indigenous artists today are dreaming newstories, songs, dances and designs based oncultural lore, with the approval and guidanceof their elders. Adaptations to traditionalcultural material is often sanctioned so theyounger generation have the right to publiclyshow this material without elders alwaysneeding to be on hand. For example, dancersmay subtly change movements in a traditionaldance or artists will change a clan designslightly so that it retains the majority ofcharacteristics, yet still satisfies the Law.

... The community easily accepts the use ofnew media technologies and contemporary artpractices applied to traditional material as longas the original spirit embodied in the work isnot harmed by the changes. I think this is thekey to using cultural material validly and in away that will almost guarantee sanctioned use.even when the work is radically altered. If thespirit embodied within the work is recognisablyretained it is easily acceptable. A song mayhave contemporary music applied and mixedwith the traditional sound but it retains itsoriginal integrity. A Rainbow Serpent may bedrawn traditionally, scanned into a computer,translated into a 3D figure, animated, morphedinto water, a rainbow or sculpted out ofmicroscopic matter created in a laboratory,photographed as a geometric configuration inquantum physics, yet still recognisably retain itsidentity as a Rainbow Serpent in the context ofthe entire presentation.26

Traditional motifs

Indigenous traditional motifs such as the Wandjinasand Mimis are part of the cultural heritage ofcertain Indigenous groups. They may not besuitable for mass communication or dissemination.The context of the reproduction is an importantconsideration.

It is necessary to discuss context and intended useand get moral rights clearances from the relevantartists. You should also get permission fromcustodians. Each and every intended context shouldbe discussed so that there is an understanding ofthe envisaged extent of use.

case study

Sydney OlympicsFor the Sydney Olympics images of – the Wandjina – an ancestral rain spiritfrom a specific region in the Kimberleyin north Western Australia, werecommissioned for inclusion in theopening ceremony. According to RhodaRoberts, the written agreement forfilming the event included provisionsrequiring any use of the footage afterthe event to be cleared by thetraditional owners for each and everynew context and purpose.27

Photographs

New media art might involve the digitalmanipulation of photographs including collage,superimposition, heightened colouring and playwith text.28 According to Jenny Fraser, the use ofarchival photographs is a big problem which needsfurther consideration by Indigenous artists workingin new media forms.

Some artists feel the need to use photographsto create an atmosphere of time and place,knowing that such an act is like treading oneggshells, but using it anyway – withoutseeking approval from the subject ’s family oracknowledging who the person was or wherethe image came from. Even some Indigenousartists use images inappropriately – and theyprobably shouldn’t – like images of peoplethat are not from their own particular mob orlanguage group, or people who havepassed away. Images are also sometimesused in a new context which is inappropriate.This issue hasn’t really been dealt with properlyin this country.29

Some Indigenous artists apply cultural sensitivity by seeking consent from family members to usephotographs of family, or by only using Indigenousclan material from their own regions.

Other artists feel that unless they can ascertain theorigins of archival photographs and gainpermission then it may be unwise to reproduce oruse such images – particularly where there is little orno information about the individual or communitydepicted in the photograph.

Brenda L Croft states,

At the very least there should be attemptsto consult with experienced people in thesame field.

Cultural sensitivity applies to Indigenous artistsas well, and this is along the lines ofappropriating symbols and designs that arenot from your language group, simply becausethey ‘suggest ’ Indigenous visual art andculture, e.g. dot paintings or cross-hatching,which come from particular regions in thedesert or in Arnhem Land, northern Australia.30

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Some artists have developed culturally sensitivepractices such as:

• not using photography of deceased people intheir work

• explaining in writing the proposed use andusing release forms with models

• working in close collaboration with anIndigenous community giving them joint controlof the project

• using only photographs of their own familymembers and/or clans.

Indigenous imagery

Permission from the artist (or copyright owner) is necessary for artwork protected by copyright. A copyright artwork is one created by a livingartist, or created by an artist who passed away lessthan 50 years ago.

See the Copyright section for further information. It is important to note that the artist of the originalwork has the moral right of integrity in respect of hisor her work. Special permission and consent will beneeded to alter or adapt the works. It isrecommended that such consent be sought inwriting, after fully explaining to the original artisthow his or her work will be adapted or altered.

Certain cultural imagery may not be suitable foradaptation or alteration. For instance, it isconsidered culturally inappropriate to distort oradapt an artwork that embodies a creation story.This is because part of the cultural value of theartwork relates to the accuracy of the artwork indepicting that particular story.

Although some very old artworks may no longer bein copyright, it is still good practice to consult withIndigenous people for the use of these works.Although such works might be able to be sourcedand copied from the Internet or accessed fromcultural institutions, permission for context and use isculturally appropriate.

The artist may require consent for instances wherecommunally owned knowledge and potentiallysensitive material is used. It is important to developstrong consultative ties with the owners of suchmaterial and to keep them informed of how youintend to use the material. The owners should alsobe informed of any intended uses by third parties towhom you might license the rights to your works.

Indigenous songs

For traditional songs it is a good idea to consultwith the clan and get permission to use the song inthe intended context. For example, a didgeridoosong as synchronised music for a film on TorresStrait Islanders is not appropriate, as didgeridoosare not Torres Strait Islander instruments.

Copyright permission for songs will be necessary ifdevelopment of the work involves the reproductionand performance of a song. This includes doingyour own version of it, or using an existingrecording. For information on music and copyrightsee Music Cultures.31 See also the AustralasianPerforming Rights Association (APRA) and theAustralasian Mechanical Copyright Owners Society(AMCOS) at www.apra.com.au It is important to note that many Indigenousmusicians may not be members of these copyrightsocieties and direct permission for copyright maybe necessary.

Film footage

It is also necessary to consult on the use of old filmfootage, particularly if many of the people depictedare deceased.

Another issue that arises for new media artists is thefilming of performances. Generally, under theperformer’s rights of the Copyright Act, once aperformer gives permission for a recording of his orher work to be used, it can be used in any waythat the owner of the recording chooses in the future.

Some Indigenous performance artists may not wishto be photographed. Consent is necessary and allpotential uses of the footage should be discussedprior to filming. Where possible, release formsshould also be used.

Jenny Fraser encourages performersto ask questions such as:

• How many cameras will be recording theperformance?

• Who is the film being made for?

• What are the proposed uses of the footage orstills from the performance?

• Can I view the edited version and consent tothe context?

• Who has the rights to control the use ofthe footage, e.g. the film maker(s) or theparticipants, or both?

It is possible to ask to limit the rights given to thefilm maker by way of a written agreement, whichcan include setting agreed terms about the natureand extent of permitted use. Some useful samples ofagreements are available from the Arts Law Centre.

case study

Filming of Yeperenye FestivalThe grant of rights to the AustralianBroadcasting Corporation to broadcastthe dance ceremonies in the YeperenyeFestival restricted Internet use of thefootage. Further, to respect the elderlyage of many of the Indigenous dancers,the film footage was only to be used bythe ABC for one year after the event.After this the film was to be destroyed.32

. . .


case studyIn 2000, the International OlympicMuseum reproduced the works of threeIndigenous artists on its website withoutseeking their prior permission. Viewerswere encouraged to copy the paintingsas computer ‘wallpaper’. One of theartists, Sam Tjampitjin of Balgo Arts,was appalled when he heard that hissacred painting was treated in thisway.34 On behalf of the three artists, the National Indigenous Arts AdvocacyAssociation is following the moral rightsand copyright claim.

In responding to this challenge, some Internetcreators have developed a means of protectingmaterial in the design and presentation of thematerial online. For example, Jenny Fraser notes it isa good idea to ensure images for websites arecreated at a low resolution; if they are downloadedthey will only print at a small size, but are still largeenough on screen to view the overall work. She also recommends watermarks over the images– such as a big ‘c’ for copyright laid over the top ofthe image to get the message across. Also, Brenda L Croft advises artists signing licence agreements to request their work bereproduced in hard copy (print format) to check they are not also agreeing to their work beingreproduced on the web.35

Secrecy and confidentialitySome Indigenous content may not be suitablefor wide dissemination on the grounds of secrecyand confidentiality. It is the responsibility of artists putting together new media projects todiscuss any restrictions on use with the relevantIndigenous groups.

Representation of deceased people

In many Indigenous communities the reproduction ofnames and photographs of deceased Indigenouspeople are not permitted. Doreen Mellor notessome communities will request that an artwork by adeceased artist not be displayed for some time afterthe death of the artist. They may also require theartist’s name not to be used or an image of theartist not to be displayed. The artist’s family orcommunity should be consulted so that theappropriate protocols are observed.36

case study

Dance performance on CD-ROM An Indigenous woman developedoriginal choreography based on theremoval of Aboriginal children fromtheir parents. She had developed thepiece sensitively in a culturallyappropriate manner, taking intoaccount the content in consultation withothers. Although the work was still inprogress, she performed part of itpublicly at a university concert involvingdance students she was tutoring.

At the performance the dance was filmedwithout her consent. The film maker usedexcerpts from the performance to make aCD on video production at the university.The clip was also put on the Internet. The clip contained images from herdance but the images were cut andinterposed with another more violentpiece. In the choreographer’s opinion,the sensitivity of the original dance piecewas severely misrepresented.

The choreographer was able to stop thefilmmaker and university from using thedance in that way. She also negotiatedpayment by raising the issue of copyrightand moral rights infringement.33

Internet publishing

Indigenous people tend to consider that publishingin new media technology such as the Internet andCD-ROM is different from publishing in books. Thisstems from the belief that books tend to have afinite number of copies and circulation which tosome extent can be monitored. The Internet andCD-ROM, on the other hand are perceived asbeing much more difficult to monitor. Not only isthere potential for a wider audience on the Internet,but it also increases the potential for abuse by others.

Indigenous people are concerned that aspects ofIndigenous culture risk being taken out of theircontexts through wide dissemination of heritagematerial on the Internet. For example, the practicesof caching, linking and framing raise issuesconcerning the appropriate storage, display and juxtaposition of cultural heritage material on the Internet.

Indigenous people are also concerned about therate at which Indigenous material is beinguploaded onto the Internet. While some sites are ofbenefit because they facilitate access to Indigenouspeople, others may contain inaccurate or sensitive information. There is already a large rangeof Indigenous websites and Indigenous culturalmaterial available on the Internet, including:

• library collections of articles

• information on collecting institutions

• artworks and prints

• languages

• photographs

• manuscripts

• oral histories

• recorded interviews

• creation stories

• recordings of Indigenous music.

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It is important to consult on the form of attributionpeople may want such as proper wording andspelling of names.

The culture of attribution is changing:

• It has become the practice with manyIndigenous artists to also list their clan affiliationsafter their own names.

• Indigenous custodians, contributors and relevantIndigenous organisations contributing resourcesand knowledge are now given a significantcredit as a collaborator on the project.

case study

Community and technical collaborationA collaborative project brought togetheran Indigenous artist, an Indigenouscommunity (whose information was thesubject matter) and a non-Indigenouscomputer programmer. At the end ofthe project the programmer wanted ‘topbilling’ on promotional material for thework because he had technically put theproject together. The artist had to makevery clear that it was the Indigenouscommunity who owned the story, andthat the artist had directly collaboratedwith the community. The artist insistedthat the order of attribution beheadlined with the Indigenouscommunity, followed by the Indigenousartist, and finally the programmer.39

Proper returnsGiven that there may be many different componentsin a new media artwork, resolving ways in whichbenefits can be shared among all contributors is a challenge.

Some new media artists have developed methodsof benefit-sharing which allow large scale projectsto be undertaken – for instance, exchangingtechnical information for free copies of the productfor members of the contributing cultural groups.

Brenda L Croft says,

Artists should also receive licence or royaltypayments for any commercial productgenerated by the collaboration.40

This should apply to all creative contributors.When applying for funding, these fees should beincorporated in the project budget.

Continuing culturesCultures are dynamic and evolving, and theprotocols within each group and community also change.

Consultation is an ongoing process, and thoughtshould be given to ways of maintainingrelationships for future consultation. This mightinclude consultation, at a later date, for further usesof the music not envisaged at the initial consultation.

The new media artist will also need to considerhow his or her work might be made available tothe relevant communities in the future. Some artistshave dealt with this issue by donating collections toIndigenous cultural centres or depositing material atthe Australian Institute of Aboriginal and Torres StraitIslander Studies and/or ScreenSound. Beforedepositing material, discuss the deposit terms withthe communities.

case study

Barani websiteIn developing the Barani 37 website for the City of Sydney atwww.cityofsydney.nsw.gov.au/barani/CyberDreaming incorporated a gatewayentrance protocol to respect the contentof the site. The website entrance page states:

‘Barani contains the history, life storiesand images of many Indigenous men and women who have made greatcontributions to their people and theircountry. The story of Aboriginal Sydneycould not be told without recognisingtheir achievements.

In some Aboriginal communities, seeingthe names and photographs of deadpeople may cause sadness and distress,particularly to relatives of those people.’

Viewers are then asked if they wish toproceed. They must click on ‘I agree’to proceed or ‘cancel’ to return to thehome page.

‘You have to respect culturalsensitivities. Developing respect forculture within the design of a website isimportant,’ says Mark Leavy ofCyberDreaming.38

Secret and sacred material

The reproduction or unauthorised use of secret andsacred images in films, CD-ROMS and/or websitesmay be a transgression of Indigenous 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

Are you planning to depict an identifiable individual or community? If so, ask the individual,community or relatives of the individual forpermission and observe close consultation andconsent throughout the process.

It is important to avoid disclosing sensitiveinformation without discussion and consent.Confidential information must not be disclosedwithout permission from all Indigenous peopleaffected by the disclosure. Disclosure about a person who has passed away will be very sensitive.

If a new media artist uses details about anindividual’s life experiences, it is advisable to consultwith that individual. There may be important culturalformalities to be observed in telling their story.

AttributionIndigenous people should be attributed for the use of their cultural heritage material in new media works.

Under the moral rights provisions of the CopyrightAct, the right of attribution is recognised forindividual creators. However, as a new media workmay use material from many different sources, it isrespectful practice to credit individuals, families,clans or communities who contributed to the work atany stage.

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An understanding of legal issues is essential for newmedia artists. Depending on the subject matter andthe particular artform, the following areas of lawmay be relevant:

• patents

• trademark

• breach of confidence (or trade secrets law)

• copyright.

More information on the law can be obtained from the Arts Law Centre of Australia and theAustralian Copyright Council. See Contacts forfurther information.

The following is a general summary of copyrightlaw under the Copyright Act 1968 (Cth).For further information about copyright and how it applies to dance, music, film and other media, visit the Australian Copyright Council ’s website,www.copyright.org.au

What is copyright?Copyright is a bundle of specific rights granted tothe creators of literary, dramatic, artistic or musicalworks and the makers of sound recordings andfilms, published editions and broadcasts under theCopyright Act.

Copyright protects the works of Indigenous artistsand creators in the same way it does for otherAustralians.41 There is no need to register copyright.

Copyright protects:

• artistic works

• literary works

• musical works

• dramatic works

• films, sound recordings

• television and sound broadcasts

• published editions of works.

Requirements of copyright

Copyright will exist in a work as soon as it iscreated in a material form or as soon as arecording or film is made, provided that certainstatutory requirements are met. They are:

• Original work: The new work must not becopied, and the creator must have used thenecessary degree of skill, labour and effort tocreate a new work.

• Material form: A work must be written down orrecorded in some fixed form.

• Identifiable author: There must be an author,or authors, for a work to be a copyright work.Generally the author must be identifiable,although there is some protection foranonymous works.

copyright

Recognition and protectionThere are currently no special laws dealing withIndigenous cultural heritage ownership andreproduction rights. The Copyright Act has beencriticised for not recognising the communal ownershipof heritage material and that rights to heritage areinfinite. It is important for Indigenous new mediaartists to be informed about copyright and other lawsin order to protect their cultural interests.

The Indigenous artist owns copyright in his or hernew media work. This means that he or she cancontrol the reproduction and dissemination of theirnew media work. Such rights are granted under theCopyright Act.

It is important for Indigenous new media artists tobe informed about copyright and other laws inorder to protect their cultural interests. The Copyrightsection provides some general information.

There are currently no special laws dealing withIndigenous cultural heritage ownership andreproduction rights. The Copyright Act has beencriticised for not recognising the communal ownershipof heritage material and the continuing right ofheritage custodians to control the use of this material.

The increasing level of non-Indigenous appropriationof Indigenous cultural material has compelledIndigenous people to seek greater protection ofindigenous arts, including the call for new legislationrecognising communal rights to culture.

Indigenous artists should be aware that whileinformation gained from an interview is the culturaland intellectual property of the artist, the copyrightin the resulting article, book, thesis, television orradio program that is produced as an outcome ofthis and other interviews remains with the author (orpublisher or producer).

The artist can negotiate with the writer, publisher orfilm maker for a proper credit and a share in anymoney made from the exploitation of the book, orfilm, for example. The terms of the arrangement canbe incorporated in a written agreement.

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

• The Greater Perspective: Protocol andGuidelines for the Production of Film andTelevision on Aboriginal and Torres StraitIslander Communities, Lester Bostock, SpecialBroadcasting Services, Sydney, 1997.

• Doing It Our Way: Contemporary IndigenousCultural Expression in New South Wales,Terri Janke, Indigenous Reference Group, New South Wales Ministry for the Arts, Sydney, NSW, 2002.

• Our Culture: Our Future – Report on AustralianIndigenous Cultural and Intellectual PropertyRights, written and researched by Terri Janke,Michael Frankel and Company, Solicitors, for the Australian Institute of Aboriginal andTorres Strait Islander Studies and the Aboriginaland Torres Strait Islander Commission, Sydney, 1998.

• Taking the Time – Museums and Galleries,Cultural Protocols and Communities, A ResourceGuide, Museums Australia Inc. (Qld), 1998.

• Previous Possessions, New Obligations, a policydocument produced by Museums Australia in1994 provides a way for museums to approachIndigenous cultures. A plain English version withcase 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.



without permission from the copyright owner – for example, when extracts of a work are digitallysampled, an infringement of copyright may occur.But this will always be a question of degree. It isnot so much the quantity of what is copied orreproduced, but rather the quality of what is taken.In deciding on the issue, the court will consider thecircumstances of each particular case.

An infringing work must be shown to have beencopied from the copyright work – whether doneconsciously or unconsciously, directly or indirectly.

Collaborative worksUnder the Copyright Act, a ‘work of jointownership’ refers to a work resulting from thecollaboration of two or more artists, where eachartist’s contribution is equal to the contribution(s) ofthe other artist(s).53

The artist 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 that depicts clancultural images.

Each creative contributor to a work of jointauthorship owns copyright in the resulting work.54

This means that each artist must obtain the consentof the others before exercising any of their rightsunder copyright. For example, if an artist wants tolicense the rights to reproduce a collaborative work,he or she must get the consent of all the artists whoparticipated in the collaboration.

New media works are often produced in acollaborative arrangement. To avoid any futuredisagreements the participating artists shoulddiscuss issues of copyright and proposed use of thework prior to commencement of the project.

Communal ownership vs. joint ownership

In Bulun Bulun v R & T Textiles,55 the courtconsidered that traditional Indigenous workscontaining ‘traditional ritual knowledge’, handeddown through generations and governed byAboriginal laws, are not works of joint ownership.Although under Aboriginal laws the entirecommunity may have an interest in the particularartwork, and the designs and knowledge within thework, copyright does not recognise the group asthe owners.

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

What are moral rights?The moral rights provisions of the Copyright Actprovide some new ways to challenge derogatorytreatment of Indigenous artworks. Moral rights wereintroduced into the Copyright Act in December2000. These new laws provide the following rightsto artists:

1. The right to be attributed as artist

The artist has the right to be identified as theartist where his or her work is reproduced inmaterial form, published, performed, adapted,or communicated to the public.56 Artists canrequire their names be clearly and prominentlyidentified with their works.57

2. The right not to have work falsely attributedto another artist

Artists can bring a legal action against partieswho falsely attribute others as creators of their works.


Copyright exceptions

There are some significant exceptions to thisgeneral rule of ownership:

• Where the work is produced under a contract ofemployment, copyright will belong to theemployer.42

• Where a work is produced under the directionor control of the Crown, copyright may belongto the Crown.43

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

How long does copyright last?

The period for protection of copyright is generally:

• 50 years from the death of the artist for publishedartistic, literary, musical and dramatic works.

• 50 years from the date of creation forunpublished artistic, literary, musical anddramatic works.

• 50 years from the date of creation for films andsound recordings.

What rights do copyrightowners have?Under the Copyright Act specific rights are grantedto copyright owners.

Literary, dramatic or musical works(such as novels, plays or songs)

The exclusive right to:

• reproduce the work in material form 44

• publish the work

• perform the work in public

• broadcast the work 45

• communicate the work to the public 46

• make an adaptation of the work.47

Artistic works (such as paintings)


• reproduce the work in material form• publish the work• communicate the work to the public.48

Sound recordings (such as tapes and CDs)


• make a copy of the sound recording• cause the recording to be heard in public• communicate the work to the public• enter into a commercial rental arrangement.49

Films (such as videos and movies)


• make a copy of the film• cause the film to be seen or heard in public• communicate the work to the public.50

Reproduction right

Aside from the new right of communication to thepublic, the most important right in the digitaldomain is the reproduction right. This is the right toreproduce a work in material form.51

The Copyright Act provides that an original work,which is protected by copyright, can be infringed ifit is reproduced in the same format or in a differentformat – for example, where a literary, dramatic ormusical work is reproduced as a sound recordingor film. It is important to note that reproduction in adigital form would also include scanning.52

It is not necessary for a work to be reproducedcompletely for an infringement of the exclusive rightof reproduction to occur. If a ‘substantial’ part of thematerial protected by copyright is reproduced

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3. The right of integrity

Artists can bring a legal action against partieswho edit, alter or treat their works in aderogatory way, causing harm to the artist’shonour or reputation.58 This might include workthat is cropped or materially altered, orreproduced in poor quality. An artist cannotbring an action against derogatory treatment ifhe or she agreed to the alteration or treatment ofthe work. Whether or not the work has beentreated in a derogatory way is subject toreasonable defence.59 Prior to making anysignificant alterations to, or adaptations of anartwork, it is important to get the consent of theartist in writing.

New media artists need to ensure they respect themoral rights of any copyright owners whose worksthey incorporate in their own new media works.

Further, there are issues of protecting new mediaartist’s own moral rights in an artform practicewhere manipulation and alteration is common.

New media art protection As copyright protects particular categories ofcreation such as artistic and literary works, a newmedia work will usually contain a number of worksprotected by copyright. For example, the followingelements of a new media work may have separatecopyright owners:

• text graphics

• music

• choreography

• video

• animation

• sounds

• photographs

• computer software.

For new media art projects, copyright clearancesmust be obtained from each and every copyrightowner of each included component.

There is no separate category in the Copyright Actfor ‘new media art’ which specifically covers newmedia. Artists seeking to protect a new media workhave in the past adapted it to one of the categorieswithin the Act such as a cinematograph film, soundrecording or a dramatic work.

Different levels of copyright protection will beavailable to the copyright owner depending onwhich category the new media work falls under.

Reproducing works A new media work will involve clearing rights from a range of copyright owners. It is important to seek prior permission for reproduction by way of a licence from all copyright owners for allintended purposes.

Remember that writers, artists and other creativecontributors are entitled to a fee for the reproductionof their works

It is also important to note that the artist has the moralrights of integrity, attribution and the right againstfalse attribution. It is a good idea to clear anymaterial alterations with the artists and to carefullycheck proofs of the work prior to publication. It isalso important to use correct labelling.

When reproducing artworks, we recommend youseek the assistance of a lawyer, or speak to therelevant copyright collecting society.

Licensing use of worksIt should not be assumed that traditional Indigenousworks are in the public domain. It is necessary toconsult with relevant Indigenous people forpermission to use their material and if agreed, thereshould be scope for negotiating with Indigenouspeople on appropriate royalties for use.

Some other points are:

• Written contracts are preferred to oral agreements.

• Indigenous artists, writers and cultural ownersshould be given the opportunity to considercontracts and to obtain proper legal advice.

• The contract should be explained to Indigenousartists, writers and contributors, and if necessary,a translator should be used to explain the majorissues of the contract.

• If the work is to be altered or adapted, artistsshould be given opportunity to approve, orotherwise reject, the alteration or adaptationtheir work.

Assigning copyright vs. licensing

Copyright can also be assigned. This means thatyou can give the copyright in your work tosomeone else. They become the copyright ownerand can authorise others to reproduce your work.

Copyright is usually assigned under writtenagreement. Once assigned, the artist relinquishescopyright in his or her work.

Where possible, Indigenous artists should retain thecopyright in their works so they can maintain controlover reproductions.

It is important for Indigenous artists to checkagreements and make sure they are not assigningtheir rights away instead of licensing use of their work.

It is a good idea to seek legal advice on copyrightlicensing issues.

Managing copyright toprotect your interestsAs copyright exists as soon as a work is recordedor written down, it is not a legal requirement toregister copyright. However, certain precautionarypractices can provide good warning to potentialinfringers and notify them of where to get priorpermission to copy.

Given the mixed media nature of new mediaworks, there will often be a range of copyrightmaterials that are combined to make the overallwork. For instance, a website will include songs,artworks and text. Each component may be ownedby a number of copyright owners and licensed foruse by the new media artist. It is important toinclude copyright notices for each component, aswell as the overall works.

Label all reproductions of the work clearly with thefollowing information:

• title of the work, song or story

• creator

• date created

• copyright owners

• if applicable, cultural group or clan.

When authorising others to reproduce your works make sure you use written agreements and keep records of the rights you have granted.Ask for copies.

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.

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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 website:

© Aboriginal Web Group, 1999*.

* The date of creation or the date the websitewas first published.

The following is an example of an artwork:

© Banduk Marika, 1998.

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

‘Black Woman’ written and performed by Toni Janke.

Recording from the Album The Brink, Toni Janke Productions, 2002.

Licensed by: Toni Janke Productions

The following is an example of a notice for clanowned traditional materials:

Traditional story: Torres Strait Islands

This 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 theclan concerned.

It may also be prudent to include warnings againstfilming, 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.60

Moral rights notice

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

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 the work in material form, publishes orcommunicates the work to the public, withoutpermission from the copyright owner.61

For musical, dramatic and artistic works it is also aninfringement to adapt the work.

It is also an infringement to copy a substantial part of a work. This does not necessarily refer to a large part of the work. The court will look forstriking similarities between the original work andthe infringing copy, and assess the quality of whatwas taken.

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

Some exceptions to infringement are:

Fair dealings provisions

The argument of ‘fair dealings’ can be a defence toallegations of copyright infringement. Copyright inthe work is not infringed if it is used for:

• research or private study purposes62

• criticism or review, whether of that work or ofanother work, and a sufficient acknowledgmentof the work is made63

• the purpose of, or associated with the reportingof news in a newspaper or magazine and asufficient acknowledgment of the work is made;or for the purpose of, or associated with thereporting of news by means of broadcasting orin a cinematograph film64

• judicial proceedings or of a report of judicialproceedings, or for the purpose of the giving ofprofessional advice by a legal practitioner.65

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.66

Educational copying

Educational institutions such as schools anduniversities can make multiple copies of printmaterial and can copy television and radioprograms for education purposes. They must

however pay statutory licence fees to the relevantcollecting societies. New Media artists should beaware of these schemes, as there may be royaltiespayable in certain circumstances. Contact APRA,Viscopy, CAL and Screenrights where applicable.

The above is general only and does not cover allissues relating to infringement. If you think your workis copied without your consent, we stronglyrecommend that you consult a lawyer regarding.

Further copyrightinformationFor information on copyright laws see the following websites:

• Australian Copyright Councilwww.copyright.org.au

• Arts Law Centre of Australiawww.artslaw.com.au

• Viscopy www.viscopy.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 andadminister the copyright of its members for a fee, or share of the royalties. Some of them such as CAL and Screenrights have a legislative basis forcollecting royalties. Others are voluntaryorganisations which artists are required to join.CAL, APRA, Screenrights and Viscopy are the mostrelevant collecting societies for new media artists.

. . .

P

ScreenrightsScreenrights is a copyright collectingsociety for screenwriters, producers,distributors, music copyright owners,copyright owners in artistic works andsound recordings, and other rightsholders in film and television.

Screenrights manages rights on behalfof copyright owners in film andtelevision, licensing the use of theirwork in circumstances where it isdifficult or impossible to do so on anindividual basis.

Screenrights also administers theeducational copying license. This allowseducational institutions to copy fromradio and television, provided they paya fee to copyright owners. Screenrightsmonitors copying, collects money and distributes this income to thecopyright 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 awebsite 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 2 000 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 no membership fee to joinViscopy. However, an administrativecharge applies to clearances. Paymentsare then made to artists half yearly.

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


CAL – Copyright Agency LimitedThe Copyright Agency Limited (CAL) is an Australian statutory collectingagency whose role is to provide a bridge 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 to 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

APRA – Performing rights for composersThe Australasian Performing RightsAssociation (APRA) administers theperforming rights in the music ofcomposers, songwriters and publishersin Australia and New Zealand. Theseare the rights of performance in publicand communication to the public.

The rights of performance in publicoccur mostly when music is played onradio, television, in music venues andother venues that play music (includingincidental music), and businesses(including online businesses) which use music.

The right of communication to thepublic includes any method ofcommunicating music to the publicincluding television, radio, Internet,cable services 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


. . .

F O L L O W U P - 33

• Local community protocols and protocolsassociated with a specific work should alwaysbe respected and observed.

• Derogatory or outdated perspectives andterminology should be avoided.

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

This means Indigenous people have the right toown and control their heritage – includingIndigenous body painting, stories, songs, dances,images, traditional knowledge and other forms ofcultural expression.

• Identify appropriate information and authority bodies

• Discuss your ideas for development of newmedia works and projects with relevant peoplein Indigenous media organisations andIndigenous arts centres.

• The current practice of the Australia Councilrequires all Indigenous participants to provide aletter of support confirming their Aboriginal orTorres Strait Islander identity from anincorporated Indigenous organisation.

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

• Keep appropriate and relevant Indigenouspeople informed and advised, and wherepossible, provide regular updates.

Communication, consultation and consent Indigenous people should be consulted on the useand representation of their Indigenous heritagematerial. Consultation is an ongoing process.

Communication

Have you considered how the proposed workmight impact on or portray Indigenous people?

• Consider the risk and benefits of incorporatingIndigenous creation stories and discuss widelywith relevant individuals, families, clans andpeople in authority about your intended use.

• Is the particular cultural expression suitable for public use, or is it subject to restrictions? If unsure, discuss with Indigenous custodians.

• Indigenous people have the right to berepresented by Indigenous people of theirchoice. Consult with Indigenous organisations,family members, and individuals relevant to the project.

• Discuss who should own copyright in theresulting work, e.g. the community, the writer, anorganisation, or a combination? The followingfactors may be taken into account:

- nature of the commission

- skill, labour and effort of the writer

- nature of the subject matter

- whether it is a collaboration

- fee for engagement, whether royalty-based or a flat fee.

• Have you advised the elders or people inauthority of the perceived risks and benefits fromthe wider dissemination of their cultural material?

Consultation

• Consultation should address the communalnature of Indigenous cultural expression.

• Make opportunities for the relevant Indigenouspeople to view and comment on proposals and prototypes of the project. Show thecommunity or individual the work prior to publicrelease, and make time available to incorporatetheir suggestions.

• Be flexible with time and understand that theconsultation process may be lengthy. Do notexpect to have a reply to a question in a day orweek. Each community will need time toconsider and consult.

. . .


Applying the protocolsProtocols are about people’s value systemsand their cultural beliefs.67

The protocols in this guide are flexible. You can usethem to further develop protocols for your newmedia art project, program or practice, andlanguage group, region, clan or community.

It is important to read all the preceding sections ofNew Media 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 new media artproject or program.

Follow Up provides a checklist of key points toconsider when developing protocols for a newmedia art project, or in your own practice. It offersdifferent and more specific information than thepreceding sections. We therefore suggest you usethe points outlined here together with the Principlesand Protocols and Copyright sections.

The following principles 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

• Recognition and protection.

Respect The rights of Indigenous people to own and controltheir cultures should be respected.

Diversity of Indigenous cultures should beacknowledged and encouraged.

Indigenous world views, lifestyles and customarylaws should be respected in contemporary artisticand cultural life.

Those working in Indigenous new media art areencouraged to respect that:

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

• Acknowledgment should be given to theIndigenous custodians of the country and in amanner preferred by the custodians.

• Indigenous cultures are living cultures.

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

follow up

34 - N E W M E D I A C U L T U R E S F O L L O W U P - 35

• Does the new media artwork exposesecret/sacred, confidential or sensitive material?

• Secret and sacred objects are important toIndigenous religious practices. It may be atransgression of Indigenous law to reproducethese images. For instance, some culturalinformation may only be learned or viewed bymen or women, or only after initiation.

• Speak to elders and/or other Indigenous peoplein authority to identify any sensitivities, sacred orreligious issues that might prevent depicting theimage, story or event.

• Be aware that the inclusion of personal materialmay be sensitive. Many Indigenous communitieshave restrictions on whether the name andphotograph of a deceased Indigenous personcan be made public. If individuals, family orclan representatives object – leave it out.

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

• If adapting content of traditional knowledge orcommunally-owned material, it is a good idea toexplain the adaptation you propose and givepeople time to comment.

AttributionIndigenous people should be given proper creditand/or appropriate acknowledgment, includingcopyright and royalties, for their role in thedevelopment and use of their cultural material.

• Acknowledge Indigenous contributors, writers,creators, communities and custodians whocontribute to the work in any important way.

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

• Ensure that proper acknowledgment is given tothe writer and the source community, or otherrelevant Indigenous people.

Proper returnsIndigenous people have the right to be paid fortheir contribution and for the use of their culturalheritage material.

Indigenous people have the right to controlcommercial exploitation of their cultural andintellectual property.

• The issue of copyright ownership of the material form of cultural expression should bediscussed up-front.

• Have fees or other benefits been negotiatedwith the contributors and traditional custodians?

• Are the relevant Indigenous people sharing inthe benefits from any commercialisation of theircultural material?

• Is the cultural value of the work recognised? The cultural contribution of Indigenous people to new media art should be valued,acknowledged and remunerated.

• Indigenous cultural advisers should beacknowledged and properly remunerated fortheir contribution.

• Incorporate any such fees in the project budgetwhen applying for funding.

Continuing culturesIndigenous cultures are dynamic and evolving, andthe protocols within each group and community willalso change.

Indigenous people have a responsibility to ensure the practice and transmission of Indigenouscultural expression is continued for the benefit offuture generations.

. . .Consent

Has the consent of the relevant Indigenous people been obtained? This should include theconsent of writers, storytellers, artists (including next of kin if deceased) and the custodians oftraditional knowledge.

• Are you proposing to record culturalinformation? Do you wish to license thedeveloped work? Prior informed consent must besought for all uses.

• Are there plans to license the work to othercompanies? Are there consultation processesbuilt into any agreements for ongoing use?

• Are you planning to focus on an identifiableindividual or community? If so, ask theindividual, community, or relatives of theindividual for permission. Observe closeconsultation and consent throughout the process.

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

Interpretation, integrity and authenticityIndigenous people should be consulted about the integrity and authenticity of their cultural heritage material.

Indigenous people should have control over howtheir material is presented.

When dealing with Indigenous cultural material,consider the following:

Interpretation

How will your work affect the Indigenous group it 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? If so, have youdiscussed this and gained consent?

• Will the individual or community who is thesubject of the work get an opportunity to see the work?

• Have their suggestions been incorporated priorto public dissemination?

Authenticity

• Seek advice on the correct cultural context for the material, particularly for heritage material.Ask about any restrictions on the material and theexact meaning of any language words if unsure.

• Are there restrictions on performance such aswhere, when, and by whom?

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

Secrecy and confidentialitySacred and secret material refers to information thatis restricted under customary law. The right ofIndigenous people to keep secret and sacred theircultural knowledge should be respected.

Indigenous people have the right to maintainconfidentiality concerning aspects of their personaland cultural affairs.

. . .

R E F E R E N C E S - 37

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

2 Wal Saunders, [then] Director of the Indigenous Branch of theAustralian Film Commission, Nick Richardson (comp.), The BushTrack Meets the Information Superhighway, Indigenous Branch,Australian Film Commission, Sydney, 1997, page (iii).

3 Jenny Fraser, email to Terri Janke & Company, 21 April 2002.

4 Samara Mitchell, Ngapartji Media Centre, Adelaide, email toTerri Janke & Company, 22 March 2002.

5 Andrew Donovan and Reed Everingham, consultation meeting,Australia Council for the Arts, 1 March 2002.

6 Virginia Baxter and Keith Gallasch (eds), Australia’s IndigenousArts, produced by Realtime for the Australia Council for the Arts,Sydney, 2000.

7 Terri Janke, Our Culture: Our Future.

8 Terri Janke, Our Culture: Our Future, page 3.

9 Terri Janke, Our Culture: Our Future.

10 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.

11 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.

12 Erica Irene Daes, Final Report on the Protection of the Heritageof 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. Seealso Erica Irene Daes, Study of the Protection of the Cultural andIntellectual Property of Indigenous Peoples, United NationsEconomic and Social Council, Geneva, 1993.

13 See the World Intellectual Property Organisation’s website,http://www.wipo.int/globalissues, for further information.

14 See the World Intellectual Property Organisation’s website,http://www.wipo.int/globalissues, for further information.

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

16 Mellor, Doreen (ed), Valuing Art, Respecting Culture: Protocolsfor Working with the Australian Indigenous Visual Arts and Craft Sector, National Association for the Visual Arts, Sydney,2001, page 13.

17 Mellor, Doreen (ed), Valuing Art, Respecting Culture.

18 Mellor, Doreen (ed), Valuing Art, Respecting Culture.

19 Vynette Wright, email to Terri Janke & Company, 27 May 2002.

20 Registered under the Aboriginal Councils and Associations Act 1976 (Cth) or other relevant legislation.


22 Vynette Wright, telephone interview, 20 May 2002.

23 Mellor, Doreen (ed), Valuing Art, Respecting Culture, page 44.


25 Helen Anu, consultation interview, 14 August 2001.

26 Vynette Wright, email to Terri Janke & Company, 27 May 2002.

references


Consultation is an ongoing process.

• Have you given thought to ways of maintainingrelationships for future consultation?

• Have future uses of the artwork notcontemplated at the initial consultation been considered?

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

Recognition and protectionIndigenous people have the right to protection oftheir cultural and intellectual property.

Australian laws and policies should be developedand implemented to respect and protect Indigenousrights to cultural and intellectual property.

• Have copyright issues been discussed?

• What means of identifying cultural sources ofinformation have been proposed?

• Written releases and contracts are the best wayof ensuring that rights are cleared for proposedand intended use. It is a good idea to seekindependent advice on written releases andcontracts. The Arts Law Centre of Australia hassample agreements available for members.

CopyrightCopyright protects:

• Artistic works

• Literary works

• Musical works

• Dramatic works

• Films, sound recordings

• Television and sound broadcasts

• Published editions of works.

The owners of the copyright works have theexclusive right to, among other things:

(i) reproduce the work in a material form

(ii) publish the work

(iii) communicate the work to the public.

• Creators do not need to register for copyright protection.

• Copyright lasts for 50 years from the death ofthe creator for artistic, literary, musical anddramatic works. Films and sound recordings areprotected for 50 years from when they are made.

• A person will infringe copyright in a copyrightwork, film or sound recording if he or shereproduces it in material form, publishes it orcommunicates the work to the public, without the permission of copyright owner.

• In collaborative works, copyright may be sharedwith the collaborating artists.

• The Indigenous artist who incorporatestraditional ritual knowledge in his or her artworkhas a special obligation to the clan whenexercising the copyright in the artwork.

• When reproducing copyright material it isnecessary to get the copyright clearance fromthe artist.

• New media artists are encouraged to usewritten agreements when licensing artworks forcommercial purposes.

• The artist has the moral rights to his or herartwork. This includes the right of integrity and attribution.

• There are statutory licensing schemes whichallow copying of certain copyright materialunder certain circumstances. The relevantcollecting agencies including APRA, Viscopy,CAL and Screenrights collect and distributeroyalties to their members.

. . .

B I B L I O G R A P H Y - 39

Anthony Balmain, ‘Artists’ Olympian Struggle to get Justice for Brushstrokes’, The Age,Melbourne, 19 June 2001.

Caring for our Culture: National Guidelines forMuseums, Galleries and Keeping Places, MuseumsAustralia, 1998.

Doreen Mellor (ed.), Valuing Art, RespectingCulture: Protocols for working with the IndigenousVisual Arts and Craft Sector, National Associationfor the Visual Arts Sydney NSW, 2001.

Guidelines for Ethical Research in IndigenousStudies, Australian Institute of Aboriginal and Torres Strait Islander Studies and The AustralianInstitute of Aboriginal and Torres Strait IslanderStudies, Canberra, 2000.

‘Indigenous Arts Protocol: A Guide’, IndigenousArts Reference Group, Guidelines 2001–2002,NSW Ministry for the Arts, Sydney, 2000.

‘Indigenous Arts Protocols: A Guide to HelpNurture Indigenous cultural expression in NewSouth Wales’, Indigenous Arts Reference Group,Handbook for Applicants, NSW Ministry for theArts, Sydney, 1998.

Judy Kean (ed.), Portraits of Oceania, exhibitioncatalogue, Art Gallery of NSW, Sydney, 1997.

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

Mina Mir Lo Ailan Man: Proper communication with Torres Strait Islander People. Department ofAboriginal and Torres Strait Islander Policy andDevelopment, Queensland Government, Brisbane, 1998.

Nick Richardson (comp.), The Bush Track Meetsthe Information Superhighway, IndigenousBranch, Australian Film Commission, Sydney, 1997.

Previous Possessions, New Obligations, Museums Australia, Sydney, 1994.

bibliography


27 Rhoda Roberts, [then] Artistic Director, Sydney OlympicCommittee of the Olympic Games, telephone consultation,February 2002.

28 Virginia Baxter and Keith Gallasch (eds), Australia’s IndigenousArts, page 51.


30 Brenda L Croft, email correspondence, 8 May 2002.

31 Robynne Quiggin, Music Cultures: Protocols for ProducingIndigenous Australian Music, Australia Council for the Arts,Sydney, 2002.

32 Libby Feez, Message Stick Online, Australian BroadcastingCorporation, consultation meeting, 22 April 2002.

33 Pauline Lampton, personal communication, 24 May 2002.

34 Anthony Balmain, ‘Artists Olympian struggle to get justice forbrushstrokes’, Age, 19 June 2001.


36 Dr Anita Heiss wrote this project under commission for theCouncil of the City of Sydney.

37 Mark Leavy, CyberDreaming, telephone consultation, 23 May 2002.

38 Mellor, Doreen (ed), Valuing Art, Respecting Culture, page 16.



41 See full text of the Copyright Act 1968 (Cth).

42 Section 35(6) of the Copyright Act 1968 (Cth) states that wherethe work is ‘made in by the author in pursuance of the terms ofhis or her employment by another person under contract ofservice or apprenticeship, that the other person is the owner ofany copyright subsisting in the work’.

43 Section 176(1), Copyright Act 1968 (Cth).

44 Section 31(a), Copyright Act 1968 (Cth).

45 This refers to the broadcasting of both sound and visual imageson television.

46 Section 31(1)(b), Copyright Act 1968 (Cth).

47 Section 31(a), Copyright Act 1968 (Cth).


49 Section 85, Copyright Act 1968 (Cth).


51 The right to reproduce an artistic work in material form is anexclusive right pursuant to Section 31(1)(b) of the Copyright Act1968 (Cth).

52 Section 21(1A), Copyright Act 1968 (Cth).



55 Bulun Bulun & M* v R & T Textiles Pty Ltd (1998), 41 IntellectualProperty Reports 513. The M* refers to a deceased person andthat is how the cultural protocol advises speaking of him.

56 Section 194(1), Copyright Act 1968 (Cth).

57 Section 194AA, Copyright Act 1968 (Cth).

58 Sections 195AJ, 195 AK and 195 AL, Copyright Act 1968 (Cth).

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

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







67 Doreen Mellor, telephone consultation, 31 May 2002.

. . .

C O N T A C T S - 41

Artist associations

National Association for the Visual Arts

PO Box 60Potts Point NSW 1335Tel: (02) 9368 1900Toll Free: 1800 221 457Fax: (02) 9358 6909Email: [email protected]: www.visualarts.net.au/nava

Arts policy and funding

Aboriginal and Torres Strait Islander Arts 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 4001Ph: (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 – Aboriginaland 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

contacts

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

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

Terri Janke, Copyright and Computer GeneratedArt, National Indigenous Arts AdvocacyAssociation, Sydney, 1996, viewed 9 April 2002,www.niaaa.com.au/2_computer_generated.html

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

Terri Janke, Our Culture: Our Future – Report onAustralian Indigenous Cultural and IntellectualProperty Rights, Michael Frankel and Company,Commissioned by Australian Institute of Aboriginaland Torres Strait Islander Studies, Canberra, ACT,and Aboriginal and Torres Strait IslanderCommission, Sydney, 1999.

Virginia Baxter and Keith Gallasch (eds), Australia’s Indigenous Arts, Realtime for theAustralia Council for the Arts, Sydney, 2000.


C O N T A C T S - 4342 - N E W M E D I A C U L T U R E S

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

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

Copyright collectingsocieties

Copyright Agency Limited – CAL

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

Australasian Performing RightAssociation – APRA

Locked Bag 3665St Leonards NSW 2065Tel: (02) 9935 7900Fax: (02) 9935 7999Email: [email protected]: www.apra.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 2855Email: [email protected]: www.viscopy.com.au

Indigenousorganisations

Aboriginal and Torres Strait Islander Commission – ATSIC

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

. . .Australian Institute for Aboriginal and Torres Strait Islander Studies – AIATSIS

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

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

Island Coordinating Council

PO Box 501Thursday Island QLD 4875Tel: (07) 4069 1446Fax: (07) 4069 1868

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

New media and screenorganisations

Australian Centre for theMoving Image – ACMI

Federation SquareFlinders Street Melbourne VIC 8009Tel: (03) 8663 2200Fax: (03) 8663 2211 Email: [email protected] Web: www.acmi.net.au

Australian Network for Artand Technology – ANAT

PO Box 8029, Station ArcadeAdelaide SA 5000Tel: (08) 8231 9037Fax: (08) 8211 7323Email: [email protected]: www.anat.org.au

Indigenous Branch Australian Film Commission

GPO Box 3984Sydney NSW 2001Tel: (02) 9321 6444Toll Free: 1800 226 615Fax: (02) 9357 3737Email: [email protected]: www.afc.gov.au

ScreenSound Australia

McCoy CircuitActon ACT 2601Tel: (02) 6248 2091Fax: (02) 6248 2222Email: [email protected] Web: www.screensound.gov.au

N E W M E D I A C U L T U R E S - 45

. . .


Terri Janke & Company would like to acknowledge the role of Jenny Fraser, as peerreviewer, in developing 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 New Media Cultures.

• Robynne Quiggin – Solicitor, Terri Janke & Company

• Vynette Wright – New media artist

• Brenda L Croft – Curator, National AustralianGallery and new media artist.

• Cathy Craigie – Director, Aboriginal and TorresStrait Islander Arts Board, Australia Council

• Samara Mitchell – Ngapartji Media Centre, Adelaide

• Fiona Prince – Assistant Policy Officer,Aboriginal and Torres Strait Islander Arts Board,Australia Council

• Andrew Donovan – Manager, New Media ArtsBoard, Australia Council

• Reed Everingham – Project Officer, New MediaArts Board, Australia Council

• Libby Feez – Australian BroadcastingCorporation’s Message Stick.

• Brook Andrew – New media artist

• Rhoda Roberts – Event organiser

• Pauline Lampton – Dancer and choreographer

• Mark Leavy – CyberDreaming

• Dr Anita Heiss – Author, Curringa Communications

The Aboriginal and Torres Strait Islander Arts Board thanks the New Media Arts Board of theAustralia Council for contributing towards thepublishing of New Media Cultures.

acknowledgments

PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215 9065 ... · mediums such as photography,...

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Transcript of PO Box 788 Strawberry Hills NSW 2012 Tel: (02) 9215 9065 ... · mediums such as photography,...