Managing Indigenous knowledge and Indigenous cultural and intellectual property.

Indigenous people view the world they live in as an integrated whole. Their traditional knowledge, beliefs, arts, and other forms of cultural expression have been handed down through the generations. This information has been recorded in many forms by non-Indigenous people and Indigenous people. In this way, libraries are important places for Indigenous people. Libraries have inherited a lot of significant Indigenous information about Indigenous people. Indigenous knowledge includes traditional, contemporary, the recorded form, artistic, oral, creative, and written knowledge. Forms include:

* photographs

* stories

* oral histories

* films

* geographic and genealogical information, and

* information about plants and animals.

Some of this knowledge is collectively owned. It might have been written by non-Indigenous people. It might have been taken without the knowledge or consent of Indigenous people.

In recent years, Indigenous people have been successful in calling for greater recognition of their rights to Indigenous knowledge at international forums. Nationally too, there have been many inroads made for greater protection of Indigenous cultural and intellectual property rights by Aboriginal artists taking cases in copyright law. (1) Studies like Our Culture Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (2) have called for new laws. Given the longterm processes of creating new laws, the main focus of protection in Australia has been the development of protocols within industry and governments. In December 2003, the government released plans to introduce amendments to the Copyright Act 1968 (Cth) for Indigenous communal moral rights.

Libraries face a new quest about how to manage this Indigenous knowledge material and to whom this material should be made available. In this chapter, I begin with a brief description of Indigenous cultural and intellectual property before setting out some international developments in this area, including activities of the World Intellectual Property Organisation (WIPO), the international agency responsible for administering intellectual property. Then I discuss the role of protocols, with a particular focus on the framework of the Australia Council's Aboriginal and Torres Strait Islander Arts Board artform protocols. Some of the salient issues surrounding the proposed amendments to Australian copyright legislation to deal with Indigenous communal moral rights are then presented. In conclusion, I briefly summarise some key issues for libraries.

Indigenous Cultural and Intellectual Property

The definition of 'Indigenous cultural and intellectual property' (ICIP) in Our Culture Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (3) follows the international standard developed in 1997 by a global study undertaken by the Chairperson of the United Nations Working Group on Indigenous Populations, Professor Daes. (4) 'Indigenous cultural and intellectual property' is also the term used in the Draft Declaration of the Rights of Indigenous Peoples. (5) ICIP refers to Indigenous peoples' rights to their heritage. Heritage consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity. The heritage of an Indigenous people is a living one and includes items that may be created in the future, based on that heritage.

Each Indigenous community asserts ownership of this communally owned heritage material. Whether there are firm cultural rules and expectations will vary from community to community. In many communities, whether consent is necessary may depend on the circumstances of the proposed use, and if the person who wants to use it is part of the relevant cultural group. It is common for Indigenous communities to assert ownership over cultural material in those communities where cultural practices still occur or are being revived.

Copyright law does not cover all the types of rights Indigenous people want to their ICIP. In fact, intellectual property laws actually allow for the plundering of Indigenous knowledge by providing monopoly property rights to those who record or write down knowledge in a material form, or patent it. A communal song or story is not a commodity. Indigenous people view Indigenous knowledge as part of a continuing relationship between people and their heritage. Following this understanding, the definition of heritage affirms that the cultural and intellectual heritage of Indigenous people comprises traditional practices, knowledge and the ways of life that are unique to particular people. Indigenous people are responsible for culture and are the guardians of an Indigenous culture and intellectual property. Their rights and obligations to their heritage are determined by the customs, laws and practices of the community and can be exercised by an individual, a clan, or a people as a whole.

When…