Indigenous Cultural and Intellectual Property (ICIP) Rights refer to all aspects of Indigenous peoples’ cultural heritage.
This cultural heritage includes traditional knowledge, sacred sites, object and ancestral remains, literary, performing and artistic works, cultural knowledge, and documentation of Indigenous heritage. This heritage is a living heritage, transmitted from generation to generation, and regarded as pertaining to a particular Indigenous group or its lands and seas. Many generations may contribute to the development of ICIP. In this way, Indigenous cultural heritage is communally owned.
In accordance with ICIP Rights, Indigenous people have the right to:
- Own and control Indigenous Cultural and Intellectual Property;
- Ensure that any means of protecting Indigenous Cultural and Intellectual Property is based on the principle of self-determination;
- Be recognised as the primary guardians and interpreters of their cultures;
- Authorise or refuse to authorise the commercial use of Indigenous Cultural and Intellectual Property according to Indigenous customary laws;
- Maintain the secrecy of Indigenous knowledge and other cultural practices;
- Guard the cultural integrity of their Indigenous Cultural and Intellectual Property;
- Be given full and proper attribution for sharing their heritage; and
- 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.
These rights form the basis of Section C: Principles and Protocols of Working with ICIP of this Protocol.
The Copyright Act 1968 gives exclusive rights to the copyright owner of protected material. This means that any use of copyright material without the permission of the copyright owner may infringe copyright. Copyright protects ‘original’ works, meaning the work must be new, and not copied. It protects the expression of ideas, not the ideas themselves. Copyright may only be owned by a person or a company – there are challenges for copyright to be held by an unincorporated collective community. Copyright will usually belong to the creator or author of a work unless varied by written agreement. There are also specific laws which deal with copyright ownership in relation to performances, broadcasts, published editions and film and sound recordings.
Copyright protection in Australia is automatic, meaning that there is no registration process – original material will be protected from the time it is written or recorded. This means that copyright will protect works still in draft format, such as film rushes, draft research reports, and sketches.
Performers have rights to control the use of their Recordings, and may exercise such control by saying who can record them, and in what ways that recording may be used. A release or clearance form is best practice to ensure that the rights given to the filmmaker are clearly understood by the performer. Performers include interviewees and performers of folklore.
The moral or reputation rights of authors, creators, performers and filmmakers are also protected under the Copyright Act. These rights ensure that the creator is always acknowledged, and that their works may not be treated in a derogatory manner.
Some copyright owners choose to waive some or all of their copyright rights and publish their content as open source material (for e.g. under a Creative Commons licence). Use of that material may still be restricted in some ways, and the rights granted by the copyright owner must always be confirmed before using open source material.
Once copyright has expired, the work or other type of material becomes public domain. Public domain content may be used freely and without restriction. Where public domain content contains ICIP, this Protocol will still apply, regardless of the copyright status of the material.
Attachment A lists some of the more common kinds of material protected by copyright, and the duration of that copyright protection.
Some publications include many forms of copyright material. For example a recording of a song will include the underlying copyright works of the song lyrics and the sheet music, the copyright in the actual sound recording and in the arrangement.
Websites publish a range of copyright content. The website created for the Deepening Histories project is intended to be a 360 degree research approach which combines film and sound recordings, artistic works (including maps and photographs), and literary (texts and extracts from other people’s reports and papers) and dramatic works (plays and dance performances) as well as other ICIP material. When compiling such a complex website it is necessary to get permission from copyright owners in each work published on the site. For example permission will need to be sought from the producer or a director of a film for use on the website. In addition, the film may feature underlying copyright material – there may be poetry read in the film, an artwork in the background or a song playing. Every single one of these materials must be cleared for the intended use. These obligations are in addition to the requirements under Section C. Principles and Protocols of Working with ICIP.
Please refer to the table in Attachment B for more information.