Intellectual Property Law and the Protection of Indigenous Folklore and Knowledge
Graduate, Murdoch University School of Law
||Volume 5, Number 2 (June 1998)|
This paper is concerned with the debate as to whether modern intellectual
property regimes adequately protect indigenous cultural
regard to the latter term, I have adopted the definition formulated by
UN Special Rapporteur, Erica-Irene Daes:
The heritage of indigenous peoples is comprised of all objects,
sites and knowledge the nature or use of which has been transmitted
generation to generation, and which is regarded as pertaining to a particular
people or its territory. The heritage of an indigenous
peoples also includes
objects, knowledge and literary or artistic works which may be created
in the future based upon its heritage.
[It] includes all moveable cultural
property as defined by the relevant conventions of UNESCO, all kinds of
literary and artistic
works such as music, dance, song, ceremonies, symbols
and designs, narratives and poetry; all kinds of scientific, agricultural,
technical and ecological knowledge, including cultigens, medicines and
the rational use of flora and fauna; human remains; immoveable
property such as sacred sites, sites of historical significance, and burials;
and documentation of indigenous peoples' heritage
on film, photographs,
videotape, or audio tape.
I have focused specifically on the protection of indigenous folklore and
knowledge. The former is the label that I have given to
those aspects of
heritage that Daes defines as "all kinds of literary and artistic works
such as music, dance, song, ceremonies,
symbols and designs, narratives
and poetry". Knowledge refers to "all kinds of scientific, agricultural,
technical and ecological
knowledge, including cultigens, medicines and
the rational use of flora and fauna".
The protection of indigenous folklore and knowledge has become a pressing
issue both within Australia and abroad. This has been due
to the development
of a lucrative international trade in indigenous heritage, which has seen
most of the economic benefits diverted
to non-indigenous persons and institutions.
For example, in Australia, the indigenous arts and crafts industry has
a turnover of
almost $200 million per annum, but indigenous people only
receive about $50 million of this return.
Similarly, the global pharmaceutical and agrochemical industries generate
billions of dollars annually from products developed with
but hardly compensate indigenous peoples for their valuable contributions.
For indigenous people the graver
and more reprehensible consequence of
the commercialisation of their heritage is the denigration of their cultures
through the use
of heritage in culturally inappropriate ways.
I argue that modern intellectual property law regimes, which are rapidly
assuming global uniformity, have facilitated and reinforced
of economic exploitation and erosion of indigenous peoples' cultures. This
is because they are based on notions of property
ownership which are alien
and detrimental to indigenous peoples. Liberal eurocentric discourse, upon
which these laws are premised,
maintains that individuals have a right
to private property. The purpose of recognising private proprietary rights
is to enable economic
exploitation by the holder of the rights. Therefore
the purpose of creating intellectual property rights is to enable individuals
to exploit the products of their intellect. Such rights are perceived to
reward creativity and encourage innovation and invention.
world-view, on the other hand, property rights are a means of maintaining
and developing group identity rather than
furthering individual economic
pursuits, they are therefore communal in nature. Therefore any use or alienation
of indigenous heritage
must be sanctioned by the community as a whole or
by its traditional custodians acting with the mandate of the community,
be on such terms as imposed by the group.
In Part A, I analyse the protection of indigenous folklore under copyright
law, in particular that of Australia, and highlight the
The problems relating to copyright law stem from the failure of indigenous
folklore to meet the requisite
elements of copyright protection: individual
ownership; limited duration; originality; and material form. I consider
within Australia, both common law and legislative, to redress
these problems, and also the international developments on indigenous
In Part B, I present a similar evaluation of the protection of indigenous
knowledge under patent laws. As with copyright law, the
by indigenous peoples in trying to protect their traditional knowledge
under present patent laws emanate mainly
from the failure of such knowledge
to satisfy the elements of patent laws. Alternatively, where such knowledge
does come within the
criteria, the prohibitive costs of registering and
defending the patent curtail effective protection. There is, therefore,
bias in the operation of these laws in favour of the pharmaceutical
industry and other institutions based in the industrialised nations.
modern patent laws allow these institutions to monopolise the benefits
derived from the exploitation of indigenous knowledge
at the expense of
indigenous people's interests.
In Part C, I propose a basic framework for protecting indigenous folklore
and knowledge, which contemplates the enactment of sui
the development of policy guidelines and protocols; and the implementation
of public awareness and education
campaigns. The content of the framework
would draw heavily from the issues that have emerged from the debate both
at the domestic
or national level and the international level.
I conclude with a reiteration that the difficulties experienced by indigenous
peoples in the protection of their heritage stem from
a fundamental misunderstanding
between western and indigenous discourses about the concept of property.
The key to finding a solution
is in acknowledging and embracing the proposals
put forward by indigenous peoples and using these as a basis for legislation,
guidelines and public education on the value of indigenous culture.
Protection of Indigenous Folklore
Protection of Indigenous Folklore Under Copyright Law
Doubts have been cast, both within Australia and abroad, about the inability
of the current copyright regimes to fully accommodate
and protect indigenous
folklore. The deficiencies of copyright law in this regard are manifested
in the requirements appertaining
to ownership and authorship; material
form; originality; duration; and rights in derivative works.
Ownership and Authorship
Conventional intellectual property systems vest copyright in the owner,
who is generally presumed to be the author, of the work.
Eurocentric discourse perceives the aim of copyright laws to be the encouragement
and reward of individual creativity.
To this end, copyright is regarded as a proprietary interest that is capable
of being traded: while a copyright owner has the general
right not to exploit
his or her material (albeit a right subject to statutory exceptions), or
to allow others to deal with it, the
expectation built into the system
is that copyright will be exploited, and that the copyright owner may thereby
receive a return
for his or her investment of time, capital or talent.
Copyright as private property is justified by reference to its ultimate
to the community as a whole.
In contrast, indigenous world-view prioritises the interests of the community
as a whole over those of the individual. Ownership
of folklore in indigenous
culture is therefore a collective, as opposed to individual, phenomenon.
Consequently, "[t]he lauding of individual artists is very much a western
response to Aboriginal art, and a facet of Aboriginal artistry
people find quaint."
Indigenous appreciation of folkloric works is not simply based on their
aesthetic qualities, but more fundamentally on the ability
of the individual
author to reflect the culture and livelihood of the community in the folklore:
art is considered to be precious,
not as an object, but for its life-sustaining
qualities. The language it uses - the signs, symbols and codes may all
necessary for survival.
The realisation that folklore is intimately linked with the identity of
indigenous communities therefore informs on the definition
in indigenous culture. The concept is akin to custodianship rather than
exclusive proprietorship, and hence connotes
a set of responsibilities
owed to the indigenous community by those in whom ownership of folklore
Ownership of folklore usually lies with tribal custodians, who then license
its use to individual members of the community, subject
to a strict code
of traditional rules. It is these
custodians and not the individual authors who define the limits for reproduction
and use of the folkloric works.
Courts in Australia have acknowledged the failure of the copyright system
to accommodate indigenous peoples' concept of ownership.
In Yumbulul v
Reserve Bank of Australia ,
French J observed that, Australia's copyright law does not provide adequate
recognition of Aboriginal community claims to regulate
and uses of works which are essentially communal in origin.
Similar sentiments were echoed in Milpurrurru v Indofurn Pty Ltd 
by von Doussa J who stated that: the statutory remedies do not recognise
the infringement of ownership rights of the kind which reside
In addition to the problem of defining ownership, there is the related
requirement that an author of the work be identified to whom
may be attributed. Indigenous folkloric works generally tend to be the
results of a collective effort, with individual
additions being incremental
and spread out over time. Consequently, it is often the case that no one
individual can be solely identified
with the authorship of a design, song,
dance or other manifestation of folklore.
It is evident then that the requirements for individual ownership and author
identity are reflections of the underlying eurocentric
belief that economic
benefit is the primary motivation for creativity. Private property rights
are then introduced to allow economic
exploitation. It is inappropriate
to apply this tenet to indigenous cultural folklore because it is at odds
with the indigenous concept
of communal ownership. The purpose of the latter
is to regulate the use of indigenous folklore and thereby maintain the
and the identity of the group. Recognising the primacy of the
individual's interests over those of the group, as copyright law does,
reflects a lack of respect for indigenous customary laws and facilitates
indigenous peoples' loss of culture.
Copyright law requires a work to be original, that is, it should have "[the]
distinct individual creative style" of the author. 
As most folkloric works tend to be inspired by pre-existing traditions
and successive patterns of imitation over time, it is arguable
condition of originality is not satisfied.
This factor is particularly relevant to sacred ancestral designs, which
must be replicated exactly or to a high degree of accuracy.
The World Intellectual Property Organisation (WIPO) has observed that,the
very nature of many folkloric works is that they are repetitive;
on tradition and the scope for interpretation and individual expression
In Australia the issue of originality in relation to indigenous folkloric
works is yet to be curially addressed. Some commentators
are of the view
that, given the low threshold that courts have generally set for establishing
originality, it would not present a
major obstacle in the protection of
indigenous folklore. Nevertheless,
other observers caution that despite a lack of prior judicial comment on
the matter, it is a potentially substantial
problem, particularly where
anonymous authors are concerned.
Gray explains that the Australian cases on indigenous intellectual property
rights to date have involved artists
who are well known both within indigenous and non-indigenous circles and
therefore originality has been a non-issue.
However, in dealing with less
recognisable authors a balance would have to be drawn between the "freedom
of artistic expression",
on the one hand, and the "recognition of an exclusive
legal right in Aboriginal people to significant and identifiable Aboriginal
designs", on the other. Non-indigenous
authors averse to copyright protection would argue in favour of the former.
The counter-argument would be that indigenous designs are not merely ideas,
but "property in the most basic sense, the distinction
between real and
intellectual property having no significance in Aboriginal customary law."
Here again we see the economic reward and individual entitlement rationale
underpinning copyright law. The aim of having the originality
to avoid others from exploiting the creator's work. Indigenous world-view,
on the other hand, would find such a requirement
irrelevant, more so because
folklore is the property of the whole community regardless of who created
it. I submit that if anything
originality may contravene customary laws,
for example, where exact replication of design is required any alterations
may be deemed
A key tenet of copyright law is the idea/expression dichotomy where the
expression of ideas, as opposed to the ideas themselves,
Therefore, fixation or reduction to material form is a condition precedent
to the protection of works. The practical consequence
of this requirement
is that ideas, themes, styles and techniques embodied in a work are not
protectable. This has serious
implications for indigenous people since most folkloric works tend to be
orally and visually represented.
Furthermore, in Australia indigenous designs are regarded as ideas rather
than expressions of ideas. Non-indigenous
people are thus free to commercially exploit indigenous works with scant
regard for indigenous customary law. Even
where particular indigenous works
are protected, non-indigenous people can still create their own versions
of indigenous art, which
are in themselves protectable as original works.
This way they avoid copyright infringement and at the same time violate
indigenous customary law.
The observations above lead Puri to conclude that,the fixation requirement
should not apply to ancestral designs and works of folklore.
form part of the cultural heritage of Aborigines and their very nature
lies in their being handed on orally or visually
from generation to generation.
I would agree based on my comments above that the purpose of folklore in
indigenous societies is the expression, maintenance and
their identity. Denying protection to indigenous ideas, themes, styles
and techniques, on the basis that they are
beyond the scope of western
private property rights is, in my view, unjustifiable and detrimental to
Section  (2) of the Australian
Copyright Act (1968) generally limits the duration of copyright in artistic,
musical, dramatic and literary
works to the creator's life plus 50 years.
The reason for limited duration has been stated to be the protection of
the creators of the works so as to encourage them to produce
and to ensure them a fair economic return.
The limited duration of copyright offers inadequate protection as it conflicts
with longevity of indigenous folkloric works.
The concern for indigenous communities is that folkloric works, which are
currently protected, could end up in the hands of non-indigenous
once the copyright expires. As
a result the rightful owners of the works under traditional customary law
would become "culturally dispossessed and impoverished",
relying on others
to allow them access to that which is rightfully theirs.
This problem is particularly likely to arise where non-indigenous persons
are concerned. They are much more likely to put folkloric
works to culturally
inappropriate uses as they are not bound to indigenous customary laws and
are therefore not exposed to the sanctions
consequent to a violation of
such laws, for example, social ostracism.
Section 32 (2) clearly has its basis in the economic reward justification
for copyright and is therefore at odds with the function
of folklore in
indigenous culture and with the concept of communal property. It is therefore
inappropriate to apply the provision
to the protection of indigenous folklore.
Rights in Derivative Works
A related issue to that of ownership is the control of works derived from
indigenous folkloric works such as traditional designs.
Copyright law recognises
derivative works as original creations in themselves, which are capable
of protection as such.
As outlined above, the traditional owners of a folkloric work are not necessarily
its legal owners and they therefore do not have
legal control over its
reproduction or use. Similarly they do not have any legal control over
any unauthorised reproductions or adaptations
of the work. This state of
affairs is insensitive to indigenous customary laws and traditions because
it enables non-indigenous people
to adapt and exploit indigenous works
in culturally inappropriate ways.
Exceptions under copyright legislation may still validate an otherwise
infringing reproduction or use of a traditional design, even
if it violates
indigenous customary law. The
Yumbulul case is a good illustration of this point. Terry Yumbulul was
authorised by tribal elders to craft the Morning Star
Pole ("the pole")
and license its display in selected museums. The Reserve Bank of Australia
commissioned an agent to obtain authorisation
from Yumbulul for the use
of the pole on a ten-dollar banknote. The agent subsequently obtained an
assignment of copyright from Yumbulul
and then authorised the Bank to print
the pole on the banknote. The primary issue before the judge was whether
there had been a valid
assignment of copyright. The agent argued that even
if there had been no lawful assignment, the reproduction of the pole on
was still valid due to sections 65-68 of the Copyright Act 1968.
These provisions allow the reproduction of a sculpture that is on permanent
display without the permission of the copyright holder.
As the judge ruled that the assignment of copyright had been valid, he
did not have to decide on the correctness of the agent's defence.
commented that if the agent was right, then it may be the case that some
Aboriginal artists laboured under a serious
misapprehension as to the effect
of public display upon their copyright in certain classes. This question
and the question of statutory
communal interests in the reproduction of
sacred objects are a matter for consideration by law reformers and legislators.
The preceding discussion reveals serious inconsistencies between copyright
law and indigenous folklore. I have argued that these
problems stem from
an underlying conflict in notions of property between eurocentric and indigenous
discourses. The former vests
private property rights in individuals with
the aim of enabling them to derive economic reward for their creativity.
The latter embraces
a notion of communal property rights aimed at maintaining
and developing indigenous cultural identity. Therefore, any protection
of indigenous folklore must have cognisance of this basic conflict and
must take into account the needs of indigenous people. In
section I consider the attempts that have been made within Australia to
deal with the issue and whether they reflect
an understanding of the problem.
Proposed Solutions in Australia
The solutions suggested in Australia may be classified into those grounded
in common law, on the one hand, and those of a legislative
nature, on the
Common Law Alternatives
The two main non-legislative proposals for protecting indigenous intellectual
property rights have been: (1) the introduction of
claim, and; (2) the use of a breach of confidence action.
Gray states that:
[the] recognition by the Australian legal system of proprietary
interests under customary law must logically imply recognition of
interests, which are inextricably woven, with those proprietary interests
under Aboriginal law. To do otherwise would not be
legally impossible if
a rigid separation between real property law and intellectual property
law were relied upon: but it would be
illogical, and its effect would be
to deny that measure of respect for Aboriginal customary law which a decision
proprietary interest in land at common law would
Though a pre-Mabo observation, Gray's statement has nevertheless, received
post-Mabo affirmation from Puri who emphasises the proprietary
indigenous designs: they "represent the title deeds of Aboriginal land
ownership". Indigenous peoples
regard intellectual and real property to be so intimately linked that no
meaningful distinction can be made between
In Mabo the High Court held that where the relevant nexus to the land can
be established, native title still subsists, irrespective
of any changes
to indigenous laws and customs over the years of Crown sovereignty.
Puri argues that this reasoning can be similarly applied to indigenous
sacred objects, ceremonies or customs even if they have no
basis in common
law, provided they are consistent with basic common law principles.
There are several problems inherent in a Mabo-style approach. Firstly,
as most indigenous customary laws are orally passed on, there
may be a
lack of evidence in proving the existence and continuance of particular
rules regulating the reproduction and use of folklore.
Secondly, the Mabo case does not grant indigenous law much room in which
to operate within the mainstream law. This would lead to
a piecemeal approach
for determining whether particular customary laws relating to folklore
apply in a particular case. This is because
the High Court decisions would
need to be applied to each and every such customary law.
Thirdly, one would need to determine whether there has been any legislative
extinguishment (State or Federal) of customary law rights
relating to the
reproduction and use of folkloric works.
In this regard, the Australian Copyright Council (ACC) refers to section
31 of the Copyright Act of 1912 (Cth) which stated that: no person shall
be entitled to copyright or any similar right in any literary, dramatic,
or artistic work, whether published or unpublished, otherwise than
under and in accordance with the provisions of this Act.
One would thus have to determine whether the relevant customary laws conferred
rights of copyright or any other similar right.
Fourthly, it is unclear whether courts would enforce customary law if a
case were brought on that basis, even if indigenous peoples
such law and some non-indigenous people did so out of cultural sensitivity.
Gray proposes the equitable action of breach of confidence as an alternative
framework for protecting indigenous folklore, particularly
The action has three main elements: (a) information of a confidential nature;
(b) an obligation of confidence; and (c) unauthorised
use of the information.
With regard to the first element, the mere ability of the public to inspect
a confidential document does not in itself suffice to
eliminate the quality
of confidentiality. Applying this
principle to indigenous art, one may then argue that the publication or
public scrutiny of Aboriginal designs does
not render the sacred information
embodied in the designs any less confidential.
The design retains its quality of confidentiality as long as its secrets
are known only to those authorised by Aboriginal law to
It is indigenous customary law that determines whether or not there has
been a breach of confidence. An
analogy may be made with trade secrets law, whereby particular trade usage
and practices determine existence or otherwise of a
breach of confidence.
In Yumbulul, the mere public display of the Morning Star Pole in the museum
did not negate the confidential nature of its sacred
meaning, since that
particular use was authorised under customary law. However, when the pole
was reproduced in a manner that contravened
indigenous law, the aspect
of confidentiality was lost.
It is not necessary for the recipient of the information to actually know
that it is confidential in order for the second element
to be satisfied.
The test for obligation of confidence is an objective one: was the information
communicated in circumstances in which a reasonable
person would know that
the information is confidential?
Thus in Yumbulul it was not necessary for the agent to know that it was
breaching indigenous customary law by allowing the reproduction
pole on the banknote.
That amounts to an unauthorised use and what sort of detriment is suffered
will depend on indigenous law, and not simply on what
the individual artist
Gray sums up the main advantage of a breach of confidence action as follows:
[the] action possesses greater scope than any other legal remedy
for taking into account Aboriginal law in making the decision, particularly
as it is not restricted by the notion that only an individual artist can
satisfy its requirements.
Both the judicial approaches discussed above are significant in that they
recognise the fundamental divergence in western and indigenous
of property ownership. They represent an alternative protection mechanism
that is willing to accept communal ownership
and customary law as the basis
for safeguarding indigenous heritage. However, such acceptance is only
conditional on the discovery
of a parallel rationale within western common
law, and this unfortunately renders the approaches a piecemeal solution
to the problem. Consequently,
legislative reform seemingly offers more appropriate measures to tackle
the Copyright Act
There is a general consensus amongst legal commentators that this would
be an inappropriate measure. The 1981 Working Party on the
Aboriginal Folklore noted the inadequacies of the Copyright Act, but rather
than recommending an amendment of the statute, it advocated the enactment
of sui generis legislation to address the deficiencies.
The ACC has also noted several problems with this option:
(a) The conceptual and practical differences between copyright and indigenous
customary law: copyright regulates property rights
in the creations of
individuals, whereas indigenous law prescribes cultural rights linked to
communities; copyright ignores aspects
of genres and styles and offers
a host of exceptions to infringement which may be irrelevant to indigenous
rights; copyright protects
neither indigenous imagery nor knowledge of
biodiversity. (b) Any attempt to merge the Copyright Act with the tenets
of indigenous customary law would result in a core disturbance and comprise
of both systems. (c) Under the Berne
Convention, any copyright protection
afforded to Australian citizens must be extended to nationals of other
without a guarantee of reciprocal protection. Therefore
amendments to the Copyright Act must be considered in light of Australia's
obligations under international treaties.
In my view, the A.C.C. and the Working Party were right to reject such
an approach as it clearly does not address the fundamental
problem of conflicting
notions of property. It seeks an answer within Copyright law, thus focusing
on the wrong discourse from which
a solution ought to be derived. It is
indigenous perceptions of property which ought to be understood and allowed
to develop. Any
attempts to mould western copyright law to accommodate
indigenous notions of communal property would compromise the former and
Public Payant and Moral Rights Legislation
The doctrine of domain public payant allows the use of works that have
entered the public domain in return for the payment of royalties.
Therefore indigenous folkloric works that are in the public domain would
generate revenues for the indigenous owners. However, whilst
such a system
would sustain and promote indigenous culture, it would be ineffective as
a means of regulating the use of culturally
This is because it could create the view that such folklore is available
for general use, albeit for a fee.
Moral rights are independent personal rights aimed at maintaining the integrity
of the author's works. The Australian
Copyright Act as it presently stands does not offer much protection in
the form of such rights. The only significant provisions in the statute
in this respect are sections 189-195, which provide that works should not
be attributed incorrectly to a person other than the artist or author.
There is however a proposal to redress the omission through the introduction
of a right to attribution and a right of integrity in
The first is a right to be named as the author of the work, the second
is a right to object to derogatory treatment of the work that
to the author's honour or reputation.
The significance of moral rights to indigenous artists is that they would
prevent the debasement, mutilation and destruction of indigenous
works. They also have the advantage of being "perpetual, inalienable and
imprescribtible," and even if the author dies
they are exercised by his
or her heirs irrespective of who owns the economic rights.
Nevertheless, both the doctrine of domain public payant and moral rights
suffer the same flaw that copyright does, that is, they
are premised on
a eurocentric tenet of the individual's right to private property and economic
reward. The former is concerned primarily
with ensuring a fair economic
return rather than maintaining cultural integrity. The latter, though they
give priority to the non-economic
value of the works, only attach only
to individual artists and disregard communal ownership.
Consequently, the scope of protection that they are able to offer is limited.
Heritage legislation in Australia tends to exhibit a serious lack of uniformity
between State, Commonwealth and Territory levels.
This is due to the fact
that all the three levels of government have power to legislate in regard
to cultural heritage. One of the
principal concerns that indigenous people have about heritage legislation
is that it does not allow them to be the legal
owners of their heritage.
This is because it construes indigenous cultural heritage as part of the
wider Australian cultural heritage,
to which no particular group of people
should have a monopoly. A good
example is the Queensland Cultural Record Act 1987 which makes no distinction
between indigenous heritage and other heritage
Victorian legislation on the other hand does recognise the right of indigenous
people to own and control their own heritage.
In regards to folklore in particular it has been suggested that the 1984
Aboriginal and Torres Strait Islander Heritage Act (Cth)
be extended to
cover indigenous folkloric works, as was done in the State of Victoria. 
At present the Act generally protects sacred indigenous sites remains and
objects. However, in Victoria the statute's ambit is widened
to cover "Aboriginal
cultural property", which includes "Aboriginal folklore".
The latter expression is defined as "traditions or oral histories that
are or have been part of, or connected with, the cultural
life of Aboriginals
(including songs, ritual ceremonies, dances, art, customs and spiritual
beliefs) and that are of particular significance
to Aboriginals in accordance
with Aboriginal tradition."
The effectiveness of the Victorian legislation vis-à-vis folklore
is, however, open to doubt. Though the statute includes
folklore as part
of the cultural property to be protected, it nevertheless focuses almost
exclusively on the protection of tangible
property such as areas, sites
and objects. This indicates a
distinction made by western legal systems between tangible and intangible
cultural property, a difference that finds
no equivalent in indigenous
cultures. To the latter, all manifestations of culture, be they tangible
or otherwise, are defined as
heritage and cannot be separated as they are
central to the group's identity.
Colvan recommends three major amendments to the federal statute:
- A provision protecting, in addition to presently protected aspects of folklore, artistic works (as defined under copyright legislation)
and designs of traditional significance to indigenous people.
- A provision for national operation of the scheme of protection under the Act, including a national listing of "local aboriginal communities".
- The availability of a civil cause of action akin to copyright to local aboriginal communities, which would help prevent unauthorised
reproduction or adaptation of artistic works or designs of traditional Aboriginal significance.
He further advocates the exclusion of any form of time limitation as that
found in copyright legislation.
The possibility of amending heritage legislation to accommodate indigenous
intellectual property rights has also been acknowledged
in the Stopping
The Rip Offs Paper and by the
ACC. However, the latter refers
to the Evatt Review which noted
several administrative and procedural problems that indigenous people have
experienced generally with the heritage legislation.
- Unclear procedures under the Act;
- Confusing interaction between Commonwealth, State and Territory laws;
- Substantial delays;
- Long consultation periods, but few emergency or interim protection orders;
- Legal challenges to Minister's decisions;
- Intensive scrutiny of indigenous religious beliefs coupled with a limited respect for their confidential aspects;
- Insufficient involvement of indigenous people in the process;
- Minister has the ultimate discretion on the granting of protection orders and this
may prove unacceptable to Indigenous people should
the Act be extended to regulate indigenous intellectual property rights.
Duri also expresses reservations with ability of the Act, which he regards
as "administratively cumbersome", to overcome the deficiencies
of the Copyright
The use of a certification or authentication mark to protect indigenous
art has been proposed by Marianna Annas, who observes that
of the works of indigenous artists has now become uncontrollably extensive,
the establishment of a national labelling
system is a fundamental cultural
However, as Annas concedes the label of authenticity is not intended to
make up for the inadequacies of the Copyright Act. It is primarily a marketing
device aimed at deterring passing off and misleading and deceptive conduct
relating to indigenous art
and ensuring the proper remuneration of indigenous
people involved in the creation of such art.
Sui Generis Legislation
The 1981 Report of the Working Party on the Protection of Indigenous Folklore
recommended the development of a special scheme of protective legislation
that would incorporate:
- a prohibition on non-traditional uses of sacred-secret materials;
- prohibitions on debasing, mutilating and destructive use of folklore;
- payments to traditional owners of folklore items used for commercial purposes
- development of a system of clearances for prospective users of folklore;
- establishment of an Aboriginal Folklore Board to advise the Minister on policy issues;
- establishment of a Commissioner for Aboriginal Folklore to issue clearances and negotiate payments.
Infortunately the Working Party's recommendations are yet to receive any
executive implementation. However, as I shall detail in
Part C, I consider
a sui generis legislation to be a key element of any framework to protect
Key International Attempts to Protect Folklore
There have been various international efforts to address the inadequacies
of intellectual property in the protection of folklore,
but these do not
seem to have affected the status quo significantly. One of the earlier
international attempts to deal with the problem
was the 1967 Diplomatic
Conference of Stockholm, which was convened for the purpose of revising
the Berne Convention to protect expressions
of folklore through copyright
law. The conference resulted in
the insertion of Article 15(4) in the Berne Convention. The Article provides
for the protection of the
unpublished works of unknown authors presumed
to be citizens of Convention members.
In such situations the presumed country of citizenship may by legislation
designate a "competent authority" to represent the author
and protect his
or her rights. The designation
is then to be communicated to the Director-General of WIPO. Unfortunately,
as recently as 1995, WIPO had yet to receive
any designation under Article
15(4). In my opinion, the provision would clearly be inadequate to protect
indigenous folklore. This
is because it does not address itself specifically
to that particular subject matter and would therefore fail to acknowledge
fundamental conflict between western and indigenous notions of property
responsible for the problem in the first place.
UNESCO and WIPO have also fostered some major developments in the protection
of folklore, the most notable being the 1976 Tunis Model
Law on Copyright
for Developing Countries and the 1985 Model Provisions for National Laws
on the Protection of Expressions of Folklore
Against Illicit Exploitation
and Other Prejudicial Actions. Both instruments eventuated from a concern
expressed by developing nations
about the appropriation and exploitation
of their national cultural heritage by the institutions and governments
of the industrialised
nations. They recognise the inadequacies of conventional
copyright laws vis-à-vis the protection of folklore. The Tunis Model
Law, however, attempts to resolve the deficiencies by widening the ambit
of copyright law to accommodate the special features of
it provides for three main forms of protection not available under standard
copyright systems: (a) exclusion
of a time limitation for protection; (b) exemption of folkloric works from
the requirement of fixation; and (c) introduction
of moral rights to prevent
the destruction and desecration of folkloric works.
The Tunis Model Law reflects a basic realisation that the nature of folklore
poses special problems for standard copyright laws.
It acknowledges the
on-going or "living" nature of folklore; the oral and visual form of many
folkloric works; and the non-economic
significance of such works.
The Model Provisions, on the other hand, represent a protection mechanism
lying outside copyright laws, that is, sui generis protection,
use of the term "expressions of folklore" as opposed to "works of folklore".
This may also explain why the instrument lacks specific provisions on copyright
deficiencies similar to those provided for in the
Tunis Model Law. Protection
under the Model Provisions takes the form of, 
- a prohibition on the unauthorised use of expressions of folklore;
- a prohibition on misrepresentation of the source of expressions of folklore;
- a prohibition on the wilful distortion of folklore in a way prejudicial to the interests of the relevant community;
- a provision for international extension of protection based on reciprocity.
Both UNESCO-WIPO models provide for a "competent authority"
to regulate the use of works or expressions of folklore as the case maybe.
The designation of such an authority is left up to individual national
governments on the grounds that the ownership of folklore
may be regulated
in different ways in different countries: who should be entitled to authorize
the utilization of expressions of
folklore depends very much on the situation
as regards ownership of them and necessarily varies according to different
on the subject.
Whilst the respect for national sovereignty on this issue is understandable,
I would nevertheless contend that it still leaves room
for national governments
to sideline indigenous communities on issues of crucial importance to them.
For example, one of the problems
identified with the Australian Aboriginal
heritage legislation by the Evatt Review was the insufficient incorporation
people in the decision making process and the wide ministerial
discretion over important indigenous issues.
The latest initiative from UNESCO and WIPO was the World Forum on the Protection
of Folklore which was attended
by 180 participants from 50 countries. The participants noted the lack
of an international standard for the protection
of folklore and also the
inadequacy of the copyright regime to confer such protection.
Of crucial importance was the need to strike a balance between the interests
of the communities owning the folklore and the users
of the expressions
of folklore. In particular
the following actions were recommended in the Forum's Plan of Action:
- the establishment of a Committee of Experts in cooperation with UNESCO to look into the conservation and protection of folklore;
- the holding of regional consultative fora;
- the drafting of a new international agreement on the sui generis protection of folklore by the Committee of Experts by the second
quarter of 1998.
Whilst the Forum was an important step in the international debate on the
protection of folklore, it is disheartening to note the
reluctance of key
participants such as the United States and the United Kingdom to associate
themselves with the plan of action.
This is a clear indication of the insensitivity
that western regimes exhibit towards indigenous concerns. It is this arrogant
that threatens to erode indigenous cultures around the world.
Indigenous peoples have also consulted with each other on an international
level to discuss the protection of their folklore. One
of the most important
indigenous conventions was the 1993 First International Conference on the
Cultural and Intellectual Property
Rights of Indigenous Peoples held in
Aotearoa, New Zealand. The major outcome of the conference was the Maatatua
Declaration on Cultural
and Intellectual Property Rights of Indigenous
Peoples, which emphasised the right of indigenous peoples to self-determination
their status as "exclusive owners of their cultural and intellectual
Amongst the key recommendations to indigenous people are that they should:
- define for themselves their own intellectual and cultural property;
- develop a code of ethics which external users must observe when recording (visual, audio, written) their traditional and customary
- develop and maintain their traditional practices and sanctions for the protection, preservation and revitalisation of their traditional
intellectual and cultural properties;
- establish an appropriate body with appropriate mechanisms to:
- preserve and monitor the commercialism or otherwise of indigenous cultural properties in the public domain;
- generally advise and encourage indigenous peoples to take steps to protect their cultural heritage;
- allow a mandatory consultative process with respect to any new legislation affecting indigenous peoples cultural and intellectual
property rights 
- establish international indigenous information centres and networks.
States, national and international agencies are asked to; (i) recognise
that indigenous peoples are the guardians of their customary
and have the right to protect and control the dissemination of that knowledge;
(ii) note that existing protection mechanisms are insufficient for the
protection of indigenous peoples' cultural and intellectual
(iv) accept that the cultural and intellectual property rights of indigenous
peoples are vested with those who created them;
(v) develop in full co-operation with indigenous peoples an additional
cultural and intellectual property rights regime incorporating
(a) collective (as well as individual) ownership and origin; (b) retroactive
coverage of historical as well as contemporary works;
(c) protection against
debasement of culturally significant items (d) co-operative rather than
competitive framework; (e) first beneficiaries
to be the direct descendants
of the traditional guardians of that knowledge; (f) multi-generational
In my view, though the declaration is not a legally binding instrument,
it is nevertheless of great significance to governments seeking
the folklore of their indigenous communities. This is because it identifies
the issues that should form the basis for
any serious attempt to confer
such protection. It is representative of an alternative discourse, which
I have argued ought to be
incorporated in any intellectual property regimes
formulated to protect indigenous heritage.
Protection of Indigenous Knowledge
Indigenous peoples are deeply concerned with and offended by the way western
governments and institutions use modern patent regimes
to appropriate and
exploit indigenous knowledge and resources with little or no regard for
indigenous peoples' interests. They regard
patent laws as a new form of
colonialism and a means of achieving monopoly control over indigenous knowledge
and resources to the
detriment of indigenous people.
These laws, being solely concerned with economic profits, ignore the contributions
of indigenous people and the inter-relationships
that they have with their
knowledge, genetic resources and the environment.
This trend of exploitation of indigenous peoples' knowledge using modern
intellectual property regimes has been labelled as "biopiracy".
The use of intellectual property regimes to legitimise the exclusive ownership
and control of biological resources and knowledge,
reward or protection for the contributions of informal innovators.
RAFI warns that the monopoly benefits acquired through acts of biopiracy
pose a serious threat to global food security and to the
sustainable use of biological diversity, and also threaten to further marginalise
the world's poor. A prominent
example of biopiracy is the granting of a patent to Agracetus Inc, a subsidiary
of W.R. Grace Corporation, for all "transgenic"
cotton varieties by the
US Government in 1992. The
patent was however revoked in 1994 due to public pressure and a legal challenge
from the US Department of Agriculture. The effect
of the patent would have
been to bar any genetically engineered cotton from the market-place without
the permission and payment of
royalties to W.R. Grace.
Though the Company was willing to license the payment, the "licensing fees
and royalties could [have been] prohibitive for many scientists,
[have restricted] research and innovation to a handful of corporations."
W.R. Grace also successfully applied for a European patent on all transgenic
soybeans, a development that has been labelled as a
"threat to world food
security" and as "economic high jacking".
In Australia, the Western Australian government has licensed Amrad, a pharmaceutical
company, to develop an anti-AIDS drug from the
Smoke-bush plant, which
was traditionally used by Aboriginal peoples for medicinal purposes. Amrad
has obtained a global license
to develop the patent from the United States
National Cancer Institute. Should the project be successful, the WA government
receive royalties in excess of $100 million by the year 2002. No provisions,
however, has been made for any remuneration of the Aboriginal
first discovered the medicinal properties of the drug.
The difficulties that indigenous peoples have with the patent regime arise,
firstly, from meeting the requisite conditions for patent
secondly, from the costs of registering and maintaining patents. Underlying
the first problem is divergence in western
and indigenous notions of property
rights and their function.
Conditions For Patent Protection
Section 18 of the Australian Patents Act 1990 (Cth) set outs five requirements
for a patentable invention, of which the most relevant to indigenous knowledge
- a manner of manufacture;
- novelty and
- an inventive step. 
Manner of manufacture
For an invention to be patentable it must be a product or process produced
or achieved by following specific instructions. Therefore
mental processes or information are not in themselves patentable.
For them to be they must be translated into something new and useful.
What this means for indigenous people is that: "the mere existence of genetic
resources on land [they own] or formerly owned will
not give [them] any
intellectual property rights in these resources, should they turn out to
have some scientific or commercial value.
In order to gain protection or
to prevent others from gaining it, the indigenous people would have to
'discover' the resources, and
put them to a new use with commercial significance".
The novelty of an invention is usually considered having regard to the
prior art base. There is a
presumption of novelty under s.7(1) of the Patents Act which may be rebutted
by showing that the prior art information was contained in a publicly available
document or documents, or was
made publicly available through doing an
act or acts. For indigenous peoples opposed to a patent application the
problem would be
proving, firstly, that their prior use of the knowledge
or resource under patent application constitutes prior art information,
secondly, that the dissemination of the traditional knowledge to members
of the indigenous community constitutes making the information
available. Indigenous groups
wishing to obtain patents over their indigenous knowledge face the problem
that much of it has been documented
by researchers hence incorporating
it into the public domain.
Like novelty the requirement of an inventive step is determined by making
a comparison with the prior art base. There is a presumption
under s.7(2) of the Patents Act which can be rebutted by showing that "the
invention would have been obvious to a person skilled in the relevant art
in the light
of the common general knowledge as it existed in the patent
area before the priority date." The problem that indigenous people would
have is establishing that because of the traditional knowledge that existed,
the scientific or commercial use to which the knowledge
has been put to
is obvious therefore uninventive.
Legal issues would arise as to what the "relevant art" is for the purposes
of s.7(2) and as to whether indigenous traditional knowledge forms part
of the "common general knowledge" in that art.
In my opinion the requirements under the Patent Act are clearly aimed primarily
at facilitating economic exploitation of inventions,
the rationale being
that this promotes innovation and research. These requirements are at odds
with the indigenous view that their
genetic resources, land and knowledge
of these resources constitute communal property, which is incapable of
being individually owned.
The indigenous notion of communal property focuses
on maintaining and developing communal identity, rather than facilitating
Costs of Registering and Maintaining Patents
Even where indigenous peoples are able to satisfy the elements of patentability
they still face the prohibitive costs of registering,
maintaining and defending
the patents. Estimates of registering patents in Australia are put at about
$14000 and between $5000 and
$23,000 in other countries.
The size of these amounts effectively prevents indigenous people from lodging
applications, or at the very least limits the number
of patents that can
be applied for.
The financial costs involved in maintaining and defending patents may also
present a formidable barrier to effective protection of
Patents must be maintained throughout their life, otherwise they lapse.
The cost of maintenance may be as much
as $250,000 over the life of the
patent. The cost of monitoring and defending the patent against infringement
is usually much higher,
particularly when international patents are concerned.
For a patent holder to fully commercially exploit a patent they must have
the ability to license it out to others. Determining the
fairest or most
beneficial licensing proposals calls for a lot of skill and judgement.
Most corporate patent holders have access
to specialised legal and other
advice. Indigenous communities on the other hand do not usually have the
financial resources to recruit
such advice and are thus poorly equipped
to determine the fairest proposals.
International Fora on the Protection of Indigenous Knowledge
Blakeney outlines a number of international conventions and indigenous
peoples' declarations which have acknowledged the need for
of traditional indigenous knowledge.
The underlying motivations for seeking protection differ between the various
fora. International conventions, such as the Rio Earth
and the 1991 ILO Convention No. 169
consider the protection of indigenous knowledge an essential component
of the greater concern for global ecological sustainability.
peoples' declarations on the other hand, perceive the protection of their
knowledge as a fundamental constituent of their
ultimate right to self-determination.
Nevertheless, regardless of the underlying rationales, there is no doubt
that the protection
of indigenous knowledge has become an issue of universal
The international conventions recognise the right of indigenous peoples
to participate in the management and conservation of their
They urge governments to respect, maintain and promote indigenous knowledge;
to actively involve indigenous people in the formulation
of laws and policies
dealing with resource management; and to ensure equitable sharing with
indigenous peoples of the economic benefits
flowing from the exploitation
of their knowledge.
The indigenous declarations and statements assert the right of indigenous
peoples to self-determination, pursuant to which there
must be recognition
and protection of their right to control and benefit from their indigenous
knowledge, practices and innovations.
 These instruments condemn
the biased nature of the prevailing intellectual property regimes and propose
various measures to redress
the problem. The basic theme embodied in the
proposed measures is allowing indigenous people greater control of their
as well as physical resources. For example, the Maatatua Declaration
- the vesting of commercial exploitation of traditional plants and medicines in the hands of indigenous owners.
- a moratorium on further commercial exploitation of indigenous plants and human genetic materials until adequate protection mechanisms
are in place.
- consent by indigenous peoples prior to experiments with and commercialisation of their biogenetic resources by companies and institutions.
The COICA Statement recommends,
- the setting up of "an indigenous programme for the collection, use and protection of biological resources and knowledge";
- the training of indigenous leaders in aspects of intellectual property and biodiversity;
- the formulation of a "Legal Protocol of Indigenous Law on the use and community knowledge of biological resources"; and
- the development of a strategy for the dissemination of the Legal Protocol at national and
In my view the greatest significance of the international fora lies essentially
in their norm-setting function. Whereas of the conventions
only the Convention
on Biological Diversity has legal force in Australia, it is arguable that
the all the instruments considered
in toto are part of current international
law which Australia cannot afford to ignore.
Together these instruments represent important manifestations of current
international thinking on the subject of the rights of indigenous
and Australia, as part of the international community has actively contributed
in several international forums to the development
of the views, ideas
and ideals expressed in these instruments. Moreover, to the extent that
certain common themes appear in these
instruments, they reinforce each
other and inevitably have the effect of exerting greater pressure upon
governments to implement
the obligations contained therein.
The indigenous declarations and statements articulate specific issues that
need to be addressed and propose measures aimed at securing
of indigenous heritage.
These instruments therefore indicate the basics of a framework in which
current intellectual property regimes can be expanded to
discourse or in which an alternative and separate legal regime can be established
that is based primarily on the
demands of indigenous world view.
for a Proposed Solution
In this part of my discussion I outline a basic framework for the protection
of indigenous people's heritage, based on the inadequacies
of the copyright
and patent laws noted above. I propose a three-pronged approach involving:
- the enactment of sui generis legislation;
- the development of protocols and guidelines; and
- an education and awareness campaign.
Sui Generis Legislation
I favour a sui generis protective mechanism because, as I see it, the
problem is the fundamental clash in world-views. Any attempts
existing copyright or patent laws to accommodate the idiosyncrasy of indigenous
intellectual property may, as the ACC has
result in an unsatisfactory compromise of both systems. However, this not
to say that the current western-based systems should not
apply where the
relevant criteria is met. A sui generis legislation would allow the law-makers
to deal with the problem much more
comprehensively, while at the same time
avoiding the need for major overhaul of current regimes. Such legislation
would also give
cognisance to the fact that what is being dealt with is
a new legal concept with a previously unacknowledged rationale, in much
same way that native title has altered the real property landscape.
With respect to the contents of the legislation, it might stipulate the
A provision that the nature of indigenous intellectual property is to be
defined by and in accordance with indigenous customary law;
A provision recognising the perpetual duration of indigenous folklore and
Exemptions of folklore from the requirements of originality and material
Provisions on moral rights of attribution to indigenous communities (as
opposed to merely individual artists) and of integrity vesting
custodians of folklore;
A prohibition on the ownership of patent or copyright in indigenous heritage
by non-indigenous persons or corporations without the
prior informed consent
of affected indigenous communities.
A right of recognition and protection of indigenous peoples' contribution
to patentable inventions; for example, during the patent
a question should be included as to whether the identification or discovery
of the invention involved indigenous
knowledge or resources. If it did
then the prior informed consent of the indigenous community(ies) should
be a condition precedent
of patent registration.
A provision for a right of civil action against infringers of indigenous
intellectual property rights, pursuant to which a judicial
enforcement structure should be set up.
Provisions detailing the persons or bodies empowered to authorise the commercial
use of indigenous folklore and knowledge within
a particular indigenous
group, for example, indigenous land councils, arts and craft centres and
Establishment of a collecting agency to allow indigenous communities to
charges fees for non-customary and commercial uses of heritage.
Protocols and Guidelines
In addition to specific legislation all parties ought to develop ethical
guidelines which recognise and promote the right of indigenous
to own and control their own heritage. A good example of the sort of guidelines
appropriate for this purpose are those formulated
by Daes in her Final
Report. Governments, international
organisations and private institutions ought to support the development
of educational, research and training
centres which are controlled by indigenous
communities. They should also
support the development of regional and global fora focusing on indigenous
science, culture, education and the arts
and provide financial and institutional
support for indigenous initiatives.
Researchers and academic institutions should also develop policy guidelines
dealing with, among other issues, the acquisition or
holding of items of
indigenous heritage; the study of previously undescribed flora and fauna
obtained with the consent of traditional
owners; increased access for indigenous
peoples to all forms of medical, scientific and technical education that
might affect them.
Business and industry should not offer incentives to individuals to assert
claims to heritage which violate indigenous customary
law. They should
financially assist in the development of research and educational institutions
controlled by indigenous communities.
Artists, writers and performers should desist from unauthorised incorporation
of indigenous heritage in their own works. Instead
they should support
the artistic and cultural development of indigenous peoples and participate
in public awareness campaigns to
promote indigenous art and culture.
In Australia various entities, such as museums,
indigenous groups, and government
departments have developed
comprehensive policy documents relating to indigenous heritage.
Education and Public Awareness
The protection of indigenous heritage must be accompanied by public awareness
and education campaigns, which promote a greater public
indigenous culture and reduce the incidence of appropriation of heritage
and violation of customary law. Such campaigns
may take the form of articles
in school curricula and textbooks, films on indigenous issues, signs regarding
museum exhibitions of
indigenous art, labels on indigenous books and music,
and so on.
Education programs should also be directed at indigenous people themselves
to acquaint them with the rights and remedies available
to them vis-a-viz
their heritage. That such education is needed was made evident in the submissions
to the Stopping the Ripoffs Issues
Paper, which revealed that many indigenous
people do not comprehend copyright.
The issues discussed in this article highlight one crucial point: an attempt
to protect indigenous folkloric works and traditional
existing intellectual property law systems is akin to fitting a square
peg in a round hole. The problem stems fundamentally
from a clash of social
paradigms, a western world-view on the one hand, and an indigenous discourse
on the other. The former underlies
a dominant social and economic order,
which has afforded little accommodation to the principles espoused by the
latter. The tenets
of individualism and economic value that are central
to eurocentric thought and legal order are alien to indigenous peoples,
embrace a holistic attitude to life and nature. For indigenous people,
human entitlements to the physical and metaphysical phenomena
are more a matter of privilege and responsibility, than absolute rights.
It is the relationships with such phenomena that
define human identity.
Indigenous peoples regard all products of the human mind and heart as inter-related,
and as flowing from the same source: the relationships
between the people
and their land, their kinship with the other living creatures that share
the land, and with the spirit world.
Since the ultimate source of knowledge
and creativity is the land itself, all of the art and science of a specific
people are manifestations
of the same underlying relationships, and can
be considered as manifestations of the people as a whole.
It is this understanding that should inform the dominant social order vis-a-vis
any attempts to accommodate the interests of indigenous
peoples in the
legal system. It is suggested here that the most suitable means of addressing
the problem is through the enactment
of sui generis legislation, which
recognises indigenous intellectual property rights as a distinct and separate
group of rights from
copyright and patent regimes, though there may be
similarities. The legislative action must be reinforced by effective policy
and protocols, as well as educational campaigns that promote
recognition of the right of indigenous peoples to own and benefit from
their own cultural heritage.
 Daes, Erica-Irene, Discrimination
Against Indigenous Peoples: Protection of the Heritage of Indigenous People,
Final Report, United
Nations Economic and Social Council, E/CN.4/Sub.2/1995/26,
21 June 1995, p 10, paras 11 & 12.
 ATSIC, National Aboriginal and
Torres Strait Islander Cultural Industry Strategy, prepared by Focus with
assistance from Sharon Boil
& Associates, February 1997, cited in Terri
Janke, Our Culture, Our Future: Proposals for the Recognition and Protection
Cultural and Intellectual Property, (Surry Hills, NSW: Michael
Frankel & Company, Solicitors, 1997), at 26.
 Puri, Kamal, "Cultural Ownership
and Intellectual Property Rights Post-Mabo: Putting Ideas into Action"
(1995) Intellectual Property Journal, 293, at 310.
 Australian Copyright Council,
Protecting Indigenous Intellectual Property: A Copyright Perspective (March,
1997), at 38.
 Puri, above note 3.
 Tim Johns, "Reappropriation",
in Sue Cramer (ed), Postmodernism: A Consideration of the Appropriation
of Aboriginal Imagery, Forum
Papers (1989), at 9, cited in Australian Copyright
Council, above note 4.
 Australian Copyright Council,
above note 4, at 43.
 Golvan, Colin, "Aboriginal
Art and the Protection of Indigenous Cultural Rights", (1992) 7 European
Intellectual Property Review, 227, at 230.
 Golvan, above; Puri, above,
note 3, at 308.
  FCA 332; (1991) 21 IPR 481.
 Above, at 490.
  FCA 975; (1994) 30 IPR 209.
 Above, at 239.
 Puri, above note 3, at 311.
 Sims, Charlotte, "Aboriginal
Intellectual Property Rights - A Culture Needing Protection", (Unpublished
Masters Paper, Murdoch University,
1997), at 7.
 Puri, above note 3, at 313;
 Sims, above note 17.
 Attorney General's Department,
WIPO-Australia Copyright Program for Asia and the Pacific (Canberra: AGPS,
1987), 222, cited in Sims,
above note 17.
 Puri, above note 3, at 314;
Australian Copyright Council, above note 4, at 40)
 Gray, Stephen, "Aboriginal
Designs and Copyright: Can the Australian Common Law expand to meet Aboriginal
Demands?", (1991) 9 (4) Copyright Reporter, 8, at 15.
 He refers to Bulun Bulun v
Nejlam Pty Ltd, Federal Court of Darwin, unreported, 1989, and Yumbulul,
above note 12. Originality of
artworks has not been a disputed issue in
 Above, note 22.
 Puri, above note 3, at 315.
 Gray, above note 22
 Puri, above note 27.
 Puri, above note 2, at 316.
 Janke, Terri, Principal Consultant,
Michael Frankel & Company Solicitors, Our Culture, Our Future: Proposals
for the Recognition
and Protection of Indigenous Cultural and Intellectual
Property, (Sydney: Australian Institute of Aboriginal and Torres Strait
Studies, 1997), at 42.
 Above, at 42.
 UNESCO & WIPO, Model Provisions
for National Laws on the Protection of Expressions of Folklore Against
Illicit Exploitation and
Other Actions, (1985), at 5.
 Puri, above note 3, at 318.
 Australian Copyright Council,
above note 4, at 41.
 Puri, above note 3, at 319.
 Per French J, at 492, cited
in Puri, above, at 319-20, and Australian Copyright Council, above note
4, at 42.
 Mabo Fors v State of Queensland
 HCA 23; (1992) 175 CLR 1.
 Gray, above note 22, at 14.
 Puri, above note 3, at 323.
 Puri, above; Gray, above note
22, at 12.
 Above note 43, at 29, referred
to in Puri, above note 3, at 324.
 Puri above.
 Australian Law Reform Commission,
The Recognition of Aboriginal Customary Laws, Report No. 31 (Canberra:
AGPS, 1986), referred to
in Australian Copyright Council, above note 4,
 Australian Copyright Council
 Gray, above note 22, at 16.
 Coco v Clark (1969) RPC 41
 Gray, above note 22, at 18.
 Above, at 19.
 Gray above note 58.
 Above note 56, at 48.
 Foster v Mountford (1977)
14 ALR 71.
 Above, note 22, at 20.
 Australian Copyright Council,
above note 4, at 59.
 Puri, above note 3, at 326-27.
 Australian Copyright Council,
above note 4, at 60.
 On this particular point the
Council referred to the Attorney - General's Department Issues Paper, Stopping
The Rip-Offs - Intellectual
Property Protection for Aboriginal and Torres
Strait Islanders, (Canberra: AGPS, 1994), at 7.
 Australian Copyright Council,
above note 4, at 61; Puri, above note 3, at 335.
 ACC, above, at 61.
 Gray, above note 22, at 16.
 Puri, above note 3, at 332.
 Attorney - General's Department,
above note 69, at 4.
 Puri, above note 3, at 334.
 Gray, above note 73.
Our Culture, Our Future, above
note 33, at 48.
 Above, at 49.
 Preamble to the Aboriginal
and Torres Strait Islander Heritage Protection Amendment Act 1987, see
Our Culture, Our Future, above at 49.
 Golvan, above note 10, at
 Above, at 231.
 Section 21A of the Act, referred
to in Golvan, above.
 Our Culture, Our Future, above
note 33, at 50.
 Golvan, above note 10.
 Above note 69, at 8.
 Above note 4, at 62.
 Hon. Elizabeth Evatt AC, "Review
of the Aboriginal and Torres Strait Islander Heritage Act 1984", referred
to in Australian Copyright
Council, above note 4, at 36-37, and at 62-63.
 Above, note 3, at 321.
 Annas, M., "The Label of Authenticity:
A Certification Trade Mark for Goods and Services of Indigenous Origin",
 AboriginalLawB 20; (1997) 3 (90) Aboriginal Law Bulletin, 4.
 Annas, above, at 5.
 Department of Home Affairs
and Environment, Report of the Working Party on the Protection of Aboriginal
Folklore (Canberra: AGPS,
 Above, at 4, referred to in
Stopping the Rip-Offs, above note 69, at 8, and in Puri, above note 3,
 See the "Introductory Observations"
of the Model Provisions, above note 35, para 9.
 See, commentary in Stopping
the Rip-Offs, above note 69, at 12.
 Model Provisions, above
note 35, para 32.
 Australian Copyright Council,
above note 4, at 48.
 And also a "supervisory
authority" in the case of the Model Provisions.
 Section 6(3) of the Tunis
Model Law and section 9 of the Model Provisions.
 Commentary on the Model
Provisions, para 49.
 Held in Phuket, Thailand
from April 8-10, 1997
 see note in Industrial
Property and Copyright: Monthly Review of the World Intellectual Property
Organisation, No. 6 June 1997, at
 Above, at 214.
 Preamble, Maatatua Declaration.
 Article 1.1.
 Article 1.3.
 Article 1.6.
 Article 1.8.
 Article 1.9.
 Article 2.1.
 Article 2.3.
 Article 2.4.
 Article 2.5.
 Statement by the Asian
Consultation Workshop on the Protection of Indigenous Knowledge, (TVRC
Tambunan, Sabah East Malaysia, 24 -
25 February 1995).
 "Introduction", An Overview
to Biopiracy, Discussion Paper prepared by the Rural Advancement Foundation
International (RAFI) for
the South Pacific Consultation on Indigenous Peoples'
Knowledge and Intellectual Property Rights, (Suva, Fiji, April 24-27, 1995).
 "Biopiracy Case Studies",
An Overview to Biopiracy, above.
 Bio-Piracy Case Study #5,
An Overview of Biopiracy, above note 123.
 Blakeney, Michael, "Bioprospecting
and the Protection of Traditional Medical Knowledge of Indigenous Peoples:
An Australian Perspective",
(1997) 6 European Intellectual Property Reports,
 Gray, Stephen, "Vampires
Round the Campfire: Indigenous Intellectual Property Rights and Patent
Laws", (1997) 22 Alternative Law Journal 61.
 Christie J, Biodiversity
and Intellectual property Rights: Implications for Indigenous Peoples',
note 1 and 5 of Gray, above, at
 National Research Development
Corporation v Commissioner of Patents  HCA 67; (1990) 102 CLR 252 cited in Gray
 Gray, above at 61.
 Section 18 (1) (b) of Patents
Act 1990 (Cth)
 Gray, above, at 62.
 Our Culture, Our Future,
above note 33, at 45
 Gray, above at 62.
 Our Culture, Our Future,
above note 33, at 46.
 Blakeney, Michael, "Bioprospecting
and the Protection of Traditional Medical Knowledge of Indigenous Peoples:
An Australian Perspective",
(1997) 6 European Intellectual Property Reporter,
298, at 300-303.
 Earth Summit , convened
in Rio De Janeiro, Brazil in 1992 by the United Nations Conference on Environment
and Development (UNCED).
 International Labour Organisation,
Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries.
 Article 15 of the ILO Convention
No. 169; Principle 22 of the Rio Declaration on Environment and Development
and Chapter 26 of Agenda
21 both proclaimed at the 1992 Rio Earth Summit;
Article 8(j) of the Convention on Biological Diversity, see Blakeney, above,
 For a more detailed discussion
of the various instruments see Blakeney, above, at 301 - 302.
 Article 2.7, see Blakeney
above note 147, at 301.
 Article 2.8, Blakeney above.
 Article 2.9, Blakeney above,
 Blakeney above.
 Department of the Prime
Minister and Cabinet, Office of the Chief Scientist, Access to Australia's
Biological Resources, (Canberra:
AGPS, March 1994), at 31, quoted in Blakeney,
above, at 303.
 Australian Copyright Council,
above note 68.
 Our Culture, Our Future,
above note 33, at 71.
 Above, at 62.
 Daes, Erica-Irene, UN Special
Rapporteur, Protection of the Heritage of Indigenous People, Final Report,
Our Culture, Our Future,
above, at 64.
 Above, at 73.
 Above, note 162, at 10
 Above, at 10-11.
 Above, at 11.
 Above, at 12.
 Above, at 13.
 Above, at 14.
 Council of Australian Museums
Associations, Previous Possessions: New Obligations: Policies for Museums
in Australia and Aboriginal
and Torres Strait Islander Peoples, 1993.
 ATSIC, Draft National Policy
for the Return of Aboriginal and Torres Strait Islander Cultural Property,
 Aboriginal and Torres Strait
Islander Arts Board, National Aboriginal and Torres Strait Islander Arts
 Daes, above note 157, at
14; Our Culture, Our Future, above note 33, at 91.
Our Culture, Our Future,
 Daes, Erica-Irene, Study
on the Protection of the Cultural and Intellectual Property of Indigenous
Peoples, above note 157, at 7-8.