Indigenous knowledge, intellectual property, libraries and archives: crises of access, control and future utility.

In Australia, as in other places around the world, Indigenous people are raising important questions about the histories that have been produced from the archive and from libraries. Indigenous people are also seeking greater access to and, in certain cases, control over material that is located within the archive. This not only challenges rationalities of archival management (and I should say that I am using the term archive in a generic way to refer to both libraries and other archives) but also to the conception of the 'public' as well as legal conceptions of authorship and ownership. On one hand these struggles can be understood in the light of post-colonial politics. As the historical subjects of the archive reinterpret and re-inscribe material from within the archive, this affects how the archive is understood, both as a site and its effects on the social.

In this chapter, I discuss some of the reasons why there might be crises of access, control and ownership of Indigenous cultural material, the relationship of these issues to intellectual property law, and how to begin thinking through what the issues mean and how to navigate a pathway through them. I begin with an outline of my work and what I do in this area. From there, I move into some more philosophical questions about the making of archives and libraries--the spaces that they make possible and the relations of power that are inherent to their structure. I do this through the frame of liberal archives and colonial archives. In my view, this perspective is important because the processes Of documenting Indigenous knowledge are not isolated to the past but are ongoing activities for a variety of reasons and across a variety of communities and academic disciplines. Whilst Indigenous people and communities are much more involved in these processes than in the past, there are still a number of issues about collecting and documenting Indigenous knowledge and a range of intellectual property implications. I conclude with a discussion about the work I am conducting with the Galiwin'ku Indigenous Knowledge Centre. This involves the development of a very specific community intellectual property agreement that responds to quite specific needs of the Knowledge Centre. The prolific nature of protocols in this area points to their power as a strategic tool. As the Galiwin'ku example will show, they have the potential to forge new relationships between the community and researchers, archives, libraries and other cultural institutions. They begin to establish a benchmark for responsible obligations between parties that move around some of the more tedious constraints of copyright law.

Issues of Access and Ownership: The Importance of Intellectual Property

At the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), I work on an intellectual property (IP) and Indigenous knowledge project, which came about because there were serious issues of ownership with the collection at AIATSIS. AIATSIS holds the world's largest collection of Australian Indigenous material. Some of the materials in the collection have issues that generally revolve around authorship and ownership and which have led us to investigate what these mean, how to work through and solve any problems so that AIATSIS can deliver access to that material to Indigenous people and communities. Resolving issues involves wading through a whole historical milieu: what has happened in the past, how material has come to the Institute, who has deposited it, who legally has copyright rights and, significantly, who has had the power to say who does get access. All these questions come to bear on determinations about how and what to do in relation to such materials. So, clearly, intellectual property is a huge kettle of fish, especially in an institution that has such a wide range of Indigenous cultural material. Indeed for AIATSIS and cultural institutions more generally, the road seems to be paved with copyright problems and complications.

The project looks practically at some instances of material that causes difficulty viz, material that has difficult depositors, material that has deceased depositors, and depositors fearful of material that perhaps should never have been collected in the first place. To date these people control access because they are, in most cases, the copyright owners, and if they say, Indigenous people, regardless of whether they are family members or related to the original people in the recordings can be denied access then there is very little power that AIATSIS has over the legal rights of the copyright owners of the material. I should put a caveat here that this is not the majority of material at AIATSIS but because it affects how AIATSIS delivers access now and in the future to the material, these are issues that are in need of attention.

What kind of materials are we talking about? For the most part, the materials that are particularly difficult is photographs, sound recordings and films; or for copyright law, subject matter other than works. (1) I find this interesting because of the importance of the visual image and aural mediums. They hold an immediacy of representation, for instance, representation of place, of ceremony, of knowledge. That it is this material that raises quite intense questions of authorship and ownership is significant too because in the history of copyright law these have been the types of materials that have posed challenges for copyright law. (2) For copyright law always has struggled with determining creative endeavour, and hence justifying ownership of…