Are you aware of the Indigenous Cultural and Intellectual Property (ICIP) rights? This article will discuss what ICIP is, what rights are covered under the ICIP, and the connection between ICIP and Australian law.
What is Indigenous Cultural and Intellectual Property (ICIP)?
Indigenous Cultural and Intellectual Property (ICIP) refers to the intellectual property rights of Aboriginal and Torres Strait Islander peoples. Further, ICIP generally concerns traditional arts, knowledge and culture. ICIP is also used interchangeably with ‘cultural heritage’ or ‘traditional cultural expression’.
Rights Covered Under ICIP
To preserve Indigenous cultural heritage and uphold the principle of self-determination, the ICIP rights include the right to:
- protect traditional knowledge and sacred cultural material;
- respect traditional laws and customary obligations;
- remuneration for the use of ICIP;
- full and proper attribution of the Indigenous community connected with the work;
- prevent offensive, misleading or insulting use of ICIP; and
- control the recording of cultural customs and expressions, and language related to cultural identity, knowledge, skill and teaching about Indigenous culture.
Examples Where ICIP May Apply
Given that ICIP covers a broad range of traditional knowledge, culture and expression, examples where ICIP rights may apply include:
- artistic works;
- written works;
- musical works;
- dramatic works, such as performances;
- films, photographs, sound recordings and other methods of documentation of cultural heritage;
- tangible cultural places, such as sites of Indigenous significance;
- objects and physical items; and
- intangible cultural aspects, such as storytelling, knowledge and language.
ICIP and Australian Law
Although ICIP rights are critically important to the protection of Indigenous cultural heritage, Australian IP laws do not formally recognise ICIP. Furthermore, there is no legislation that refers to ICIP rights specifically.
Intellectual Property laws in Australia cover the following forms of expression, which also overlap with ICIP:
- musical, dramatic, literary and artistic works are protected by copyright law for the life of the creator, plus 70 years;
- moral rights of the creator of a work are protected by copyright law for the life of the creator, plus 70 years;
- performer’s rights protected by copyright law, with varying years of protection depending on the circumstances;
- designs and patents, noting that traditional medicines and treatments are unlikely to be protected under patent law if they are based on knowledge passed down over generations.
Barriers to Protection
Australian Intellectual Property laws do not protect all forms of ICIP rights. There are a number of barriers to this protection, which include the following.
| Material Form | Australian copyright law requires that in order to be capable of copyright protection, the work needs to be expressed in ‘material form’. This means that some forms of Indigenous cultural expression and work that are expressed orally may not meet the requirements of being in ‘material form’. |
| Communal Ownership Work | Australian laws also do not acknowledge communal ownership of a work. Given the nature of Indigenous culture and knowledge is often collectively owned by the community and passed on through generations, it is generally not possible to name one individual as the owner of this work. |
| Duration of Copyright | For most works, the duration of copyright protection is the length of the author’s life + 70 years. Once this time has passed, the works can be used freely by the public. This presents challenges for ICIP, given many of these works have existed for thousands of years. |
It will be interesting to see whether these barriers are removed over time, in hopes of expanding protection and formal recognition of ICIP in the Australian legal system.
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Key Takeaways
ICIP rights are important to uphold the principle of self-determination and to protect the cultural heritage of Aboriginal and Torres Strait Islander peoples. Furthermore, ICIP rights may apply to a wide range of tangible and intangible works. However, these rights are not yet formally recognised under Australian law.
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Frequently Asked Questions
Indigenous Cultural and Intellectual Property (ICIP) covers tangible and non-tangible aspects of Indigenous cultural heritage, such as artistic, written and musical works, performances, films, photographs, sound recordings, burial grounds, knowledge and storytelling.
Unfortunately, at the time of writing, ICIP rights are not yet recognised in Australian legislation.
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