ABORIGINAL CULTURAL KNOWLEDGE AND MATERIALS
The need for protection mechanisms for Aboriginal Cultural Knowledge has been widely discussed. The views expressed provide insight into practical approaches Aboriginal Nations can use to protect their Cultural Knowledge and Materials. There is a need to continue to work to develop these ideas into practical methodologies for dealing with these complicated issues.
In this disucssion we undertake a survey of the current landscape regarding Aboriginal Cultural Knowledge and Materials touching upon some of the practical difficulties faced in this area of the law. An outline for a model dealing with Cultural Knowledge in a contractual context is then proposed for consideration. Whilst the model is by no means definitive, it is hoped that it advances discussion within the wider community about how to develop workable and practical solutions to this issue.
The South Australian Government released its Intellectual Property Policy (“Policy”) in November 2005. In relation to Indigenous Cultural Knowledge, the Policy states the following:
‘agencies should respect and acknowledge the cultural knowledge and interests of Australian Indigenous communities. The South Australian Government is cognisant of, and sensitive to, the protection, management and commercialisation of indigenous IP or Traditional Knowledge.’
The Policy further notes that:
‘Indigenous cultural knowledge encompasses the cultural, spiritual and other aspects of community heritage and includes traditional use of native flora and fauna, objects, sites of significance and knowledge transmitted from generation to generation of Indigenous Australians.’
Other States have either implemented similar IP Policy Frameworks or are in the process of doing so.
There are Commonwealth agencies that develop and implement IP policy. The Commonwealth Government does not have a whole of government approach to IP policy that is analogous to that in South Australia. Instead, each individual agency is responsible for developing its own mechanisms for managing IP.
Typically, the major difficulty in this area is attempting to define Cultural Knowledge and Materials and to reconcile those concepts with traditional IP systems. The definition of Cultural Knowledge and Materials extends far beyond the scope envisaged by current IP structures. Cultural Knowledge and Materials are ‘entwined’, not separate or compartmentarised, as they are in western law. The existing categories of IP are directed towards protecting ideas for commercial purposes. These categories incorporate ideas and the manifestation of those ideas. There is no category which assists in the protection of Cultural Knowledge and Materials per se. It may be that when the transmission of Cultural Knowledge and Materials occurs that copyright protection for the work occurs or it is protected as confidential information. The issue of transmission typically leads to greater concerns about ownership rather than leading to clarity and protection for Aboriginal People.
As there is no clear or accepted category at law to protect Cultural Knowledge and Materials the appropriate form of protection is by the creation of rights and obligations between the user of Cultural Knowledge and Materials and the Indigenous People through the drafting of legally binding contracts. The reason to take this approach when dealing with Cultural Knowledge and Materials is that this categorises Cultural Knowledge and Materials as being unique and separate from other categories. The ownership of Cultural Knowledge and Materials can then be recognised as being with Aboriginal People, and borrowing from the methodolgies used to control personal information in the area of Privacy law, the use of such property being capable of being categorised as directed to their collection, use, handling or disclosure.
A difference between the category being created by the use of contractual terms (as there is no satisfactory existing law) and the usual categories of Intellectual Property is that in the former category, we have incorporate ideas and objects. This is based upon the assumption that all things are connected in Aboriginal cultures, and that it is not possible to disjunct the idea from the object. It is considered that such approach is more attuned to Aboriginal cultural manifestations. By way of analogy, this statement is not entirely different from the notion of the development of a tablet in the biotechnology field, the tablet being the physical manifestation of the intellectual effort arising from years of research in the laboratory. Although it is culturally appropriate for the protection of a new, non obvious and industrially useful idea in western industrialised countries to separate the function of the idea, and its physical manifestation, to ensure greater protection of ideas. It is culturally appropriate in devising a new sui generis category of Cultural Knowledge and Materials not to do the same thing, as the protection and policy outcome for Aboriginal People would be demeaned if such was to occur.
The Aboriginal community also faces numerous practical difficulties in attempting to protect its Cultural Knowledge and Materials. There is quite often a power imbalance between the negotiating parties.The Aboriginal community may not be equipped to deal with these complex issues. This is compounded by the lack of funding to support the Aboriginal communities which prevents them from seeking legal and other expert advice. By formulating standard clauses and approaches for interactions between Academics and Researchers from University or Government Departments and Aboriginal People, a model can be formed which is accessible to each group and can develop into a standard for interactions; a standard based upon respect and transparent communications.
Model Contract to Protect Cultural Knowledge
Despite recognition by the South Australian Government and some Federal Government Departments of the need to protect Aboriginal Cultural Knowledge and Materials, Aboriginal communities are given little guidance about how best to do this.
The following provides an example of changes made to a standard IP agreement to incorporate Cultural Knowledge abd Materials.
1. The exclusion of Cultural Knowledge from the definitions of IP and Confidential Information.
Intellectual Property or IP means any rights in any copyright work (including any work or item created in the future), patentable invention, design, circuit layout, new plant variety, trademark, know-how or trade secret but excludes Cultural Knowledge.
Confidential Information means confidential information (in any form) that either party discloses to the other but excludes Cultural Knowledge. Information is not confidential if it is: (i) publicly available, (ii) rightfully known by the receiving party before disclosure or rightfully known by the receiving party before disclosure, or (iii) independently created by the receiving party without access to the other’s confidential information.
The distinction between Cultural Knowledge and IP and Confidential Information is further clarified by the incorporation of an interpretation clause, for example:
The definition of confidential information and intellectual property excludes Cultural Knowledge. It is acknowledged that the use of the terms confidential information or intellectual property in normal every day use could include cultural knowledge but that that usage does not apply in determining the rights and obligations of the Parties under this Agreement.
2. A definition of Cultural Knowledge is inserted, for example:
Cultural Knowledge means all and any cultural knowledge, whether such knowledge has been disclosed or remains
undisclosed of the Indigenous group, including but not limited to:
(a) traditions, observances, customs or beliefs;
(b) songs, music, dances, stories, ceremonies, symbols, narratives and designs;
(d) spiritual knowledge;
(e) traditional economies and resources management;
(f) scientific, spatial, agricultural, technical, biological and ecological knowledge;
and includes documentation or other forms of media arising therefrom including but not limited to archives, films, photographs, videotape or audiotape.
3. The contract should include an operative clause such as:
1.1 Notwithstanding any other clause in the Agreement, it is acknowledged that:
(a) The Indigenous Group own all and any Cultural Knowledge; and
(b) The Other Party undertake not to collect, use, disclose or handle Cultural Knowledge without the prior written consent of the Indigenous Group; and
(c) any report or publication resulting from the Project shall be designated as either a ‘Category A Report’ or a’Category B Report’ and the following shall apply:
(i) the publication of a Category A Report shall be unrestricted and the ownership of such publication shall vest in all Parties as tenants in common in equal shares (except such parts of the report which constitute Cultural Knowledge included with the consent of the Indigenous Group; and
(ii) the publication of a Category B Report shall be restricted to the Other Party and the ownership of such publication shall vest in the Indigenous Group.
(d) The Other Party (and each of their Personnel and Students) who records Cultural Knowledge in material form does so as a mere amanuensis.
An amanuensis is merely a scribe and is not considered to have created an original work. The Cultural Knowledge embodied in the material form is not subject to copyright ownership of the party recording it, ownership remains with the Indigenous community.
4. A dispute resolution clause should be inserted which states:
If the dispute relates to whether particular knowledge is Cultural Knowledge, the Indigenous Group have the sole and absolute discretion, to the exclusion of all other Parties to this Agreement, to determine whether such particular knowledge is Cultural Knowledge, and such determination shall be binding on each of the Parties.
There have long been calls for greater protection of Aboriginal Cultural Knowledge and Materials. The next steps require the development of practical methodologies for protection and control of Cultural Knowledge and Materials. The above model provisions provide a starting point for discussion about how Aboriginal communities can best achieve protection of their Cultural Knowledge and Materials.
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