24 June 2015 1 Who owns research? Intellectual Property in
Native Title Materials Terri Janke
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1 2 3 Native title materials and Intellectual Property What is
Indigenous Cultural and Intellectual Property (ICIP)? Ethical
standards and protocols for IP management and ICIP recognition 2
Intellectual Property & Native Title Research
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Anthropologists, Native Title Reports & Intellectual
Property 1 3 Intellectual Property & Native Title Research
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Collect information to form the opinion on connection
Intermediaries Independent expert witnesses Terri Janke &
Company 4 Intellectual Property & Native Title The role of
anthropologists
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Intellectual Property 5 Intellectual property protects products
of the mind -economic rights -- limited in time.
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1.Copyright protects original works in material form as soon as
they are created. 2.The expression is protected not the underlying
ideas. 3.The author is the person who creates the material form.
4.The general rule is that the author is the creator and copyright
owner. 5.Employers owns copyright of works created by employees.
6.Copyright can be assigned and licensed under contract. Terri
Janke & Company 6 Intellectual Property & Native Title
Copyright basics
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Copyright in sound recordings made of folklore, without
payment, will be jointly owned by the maker and speaker/performer.
Copyright in the film is owned by the maker. Performers have rights
to control the making the record. Consent is required, but can be
implied. Terri Janke & Company 7 Intellectual Property &
Native Title Copyright in sound recordings and films
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70 years after the death of the author for works. 70 years
after the publication, for subject matter other than works. Terri
Janke & Company 8 Intellectual Property & Native Title
Copyright duration
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Creators have the moral rights of: attribution right against
false attribution. Right of Integrity. Terri Janke & Company 9
Intellectual Property & Native Title Moral rights
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Communal copyright Case study: Bulun Bulun v R & T Textiles
The artist, as copyright owner, owed a fiduciary (special) duty to
the clan to look after the copyright in his artwork because it
included clan owned traditional ritual knowledge. Fabric copying
Magpie Geese and Water Lilies at the Waterhole Johnny Bulun Bulun,
Ganalbingu clan 10
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Foster v Mountford (1976) The law of confidential information
was used to stop the wide publication of a book containing
Pitjantjatjara mens sacred knowledge. Terri Janke & Company 11
Intellectual Property & Native Title Confidential information:
Case Study
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What is Indigenous Cultural and Intellectual Property (ICIP)? 2
12 Intellectual Property & Native Title
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Our Culture, Our Future 13 Indigenous cultural and intellectual
property rights are Indigenous peoples rights to their cultural
heritage. Intellectual Property & Native Title
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14 Intellectual Property & Native Title
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PrincipleICIP Rights Free prior informed consentRecognition of
value of ICIP Self determination Cultural integrity Recognition as
primary guardians and interpreters Protect against derogatory use
Attribution Attribution and acknowledgement as source of the ICIP
Individuals contributing and groups/clans who own TK Respecting
cultural beliefs Uses according to customary laws, cultural
practices eg: respect for restricted materials Benefit SharingFair
payment for use of knowledge and cultural expression 15
Intellectual Property & Native Title
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16 Intellectual Property & Native Title Intellectual
PropertyIndigenous Cultural and Intellectual Property Expression
protected Material form Styles or underlying theme important Oral
and performance IndividualCommunal Economic rights except for moral
rights Cultural rights Assignable rightsHanded down as cultural
practice Limited in timeRights continue in perpetuity
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Declaration on the Rights of Indigenous People 17 Article
31(1): Indigenous peoples have the right to maintain, control,
protect and develop their cultural heritage, traditional knowledge
and traditional cultural expressions, as well as the manifestations
of their sciences, technologies and cultures, including human and
genetic resources, seeds, medicines, knowledge of the properties of
fauna and flora, oral traditions, literatures, designs, sports and
traditional games and visual and performing arts. They also have
the right to maintain, control, protect and develop their
intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions. Intellectual
Property & Native Title
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World Intellectual Property Organisation (WIPO) 18
Inter-Government Committee on Intellectual Property and Genetic
Resources, Traditional Cultural Expressions and Traditional
Knowledge have drafted provisions. Intellectual Property &
Native Title
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Ethical standards and protocols for IP management and ICIP
recognition 3 19 Intellectual Property & Native Title
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IP issues in Section 3.7: It should be recognised that research
participants may have a contractual and/or legal interests in data,
recordings and publications. Copyright clearances for audio and
video recordings. Section 3.2: Confidential information not to be
revealed without consent. (3.2) Terri Janke & Company 20
Intellectual Property & Native Title Australian Anthropological
Society Code of Ethics
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True Tracks: Protocols Protocols are the leading industry
practice for successful Indigenous engagement Protocols are
effective and respectful frameworks for using ICIP and for engaging
with Indigenous people and communities. Protocols go beyond the law
to respect Indigenous cultural differences. Protocols encourage
ethical conduct and promote interaction based on good faith and
mutual respect. 21
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1.Respect 2. Self determination 3. Consent and consultation 4.
Interpretation 5. Cultural integrity 6. Secrecy and privacy 7.
Attribution 8. Benefit sharing 9. Maintaining Indigenous culture
10. Recognition and protection True Tracks Protocols 22
Intellectual Property & Native Title
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Indigenous Research AIATSIS Guidelines for Ethical Research in
Australian Indigenous Studies.
http://www.aiatsis.gov.au/_files/research/GER AIS.pdf
http://www.aiatsis.gov.au/_files/research/GER AIS.pdf Libraries:
Aboriginal and Torres Strait Islander Libraries and Research
Network Protocols. http://aiatsis.gov.au/atsilirn/protocols.php
http://aiatsis.gov.au/atsilirn/protocols.php Research protocols 23
Intellectual Property & Native Title
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Records: Deepening Histories of Place Protocols Individual
Consent Form Individual Consent Under 18 Copyright Consent Form
Access materials in archives Consent Form Community Consent Form 24
www.terrijanke.com.au Deepening Histories of Place Project,
Coordinated by National Film & Sound Archive & Australian
National University.
http://www.deepeninghistories.anu.edu.au/ethical-protocols/
Recognises right of Knowledge holders and TK communities to control
the recording of cultural customs and expressions, and the
particular language which may be intrinsic to cultural identity,
knowledge, skill and teaching of culture. Intellectual Property
& Native Title
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Research protocols: Kimberley Land Council KLCs Research,
Ethics and Access Committee developed an ICIP framework including a
research protocol, policy and contract for approved research on
ICIP.
http://uploads.klc.org.au/2012/05/KLC_IP_TK_Policy_V1_final1.pdf
25
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Access and Use to Records subject to community consultation and
consent 26 www.terrijanke.com.au Source:
http://aiatsis.gov.au/sites/default/files/docs/collections-
and-library/access-and-use-policy-aiatsis-collection.pdf
Intellectual Property & Native Title
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Issues for return of materials Privacy People have passed away
who to give materials to How the information will impact
individuals and the group (sensitivities) Digitisation and access
by others Observation of cultural beliefs and customary laws
Copyright 27
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Betty, an anthropologist, was employed by the Cape East Land
Council to prepare a connection report for the Bilya Native Title
claim. She interviewed Norma, a Bilya traditional owner, who
provide important cultural information. She recorded Norma on her
sound file and also filmed her on country talking about plant
knowledge. Terri Janke & Company 28 Intellectual Property &
Native Title Scenario future publication #1
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10 years later, Betty has left Cape East Land Council and is
living in Melbourne working at the university. Norma has passed on.
Betty publishes a book about Bilya culture using information she
gathered when doing the Bilya Native claim. She puts the sound file
on the universitys website, and uses the film of Norma in an
associated documentary. Normas family or the community dont know
about the book or the film. The Cape East Land Council have heard
about it, but dont have any resources to take up the issue. What IP
and ICIP issues arise? Terri Janke & Company 29 Intellectual
Property & Native Title Scenario future publication #2
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Who owns research? Legal copyright ownership Depends on the
facts Look at copyright law to consider copyright ownership Is
there a contract that says who owns copyright or gets license Bulun
Bulun Fiduciary Duty Consider copyright ownership of collected
materials Indigenous cultural and intellectual property ownership
Art 31 UN DRIP: Indigenous peoples rights to protect, maintain and
control ICIP protocols to recognise ICIP rights Use contracts, law
and protocols to recognise ICIP Terri Janke & Company 30
Intellectual Property & Native Title Concluding Comments
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Contact us: Terri Janke and Company PO Box 780 Rosebery NSW
1445 Ph: 02 9693 2577 Email:
[email protected]@terrijanke.com.au 31 Thank you for
listening Intellectual Property & Native Title