Proper partnerships in industries dealing with Indigenous Cultural Intellectual Property.

Proper partnerships in industries dealing with Indigenous Cultural Intellectual Property.

We acknowledge the ongoing work of many others including Terri Janke & Company, the Australia Council for the Arts, the Arts Law Centre of Australia and the traditional custodians of ICIP across the country for their ongoing work in looking after, promoting and protecting ICIP. 

First things first; what is ICIP? 

We recognise Indigenous Cultural and Intellectual Property (ICIP) as a term that describes the embedded knowledge that Aboriginal and Torres Strait Islander people have which informs cultural practice and expression. ICIP is grounded in the thousands of generations of our people observing and living with the all-encompassing environment and the resultant knowledge that comes from that multigenerational and multidimensional lived experience. 

ICIP is real and living and communities across the country engage with it every day. It is found in forms of art, songs, languages, but also ways of living, perspectives and understanding of viewing the world we live in, it is protocols and practices, part of ceremonies and sites.  

While ICIP is not comprehensively recognised by Australian law, it is inherently tied to our communities' identities, belief systems and practice. And informed by the way in which we do business in a proper way.

From another perspective – a commercial and business perspective – ICIP can be viewed as a valuable contributor to industries of art and tourism, product development in relation to bush foods, plants, cosmetics and pharmaceuticals, management of land, sea, waterways, and fire, understanding of astronomy and furthering scientific research. This perspective can also bring with it financial benefit and gain.  

The broad range of ICIP and its potential uses can be relevant to many different industries and therefore requires careful management. From community to community and group to group, the process of engagement, agreement and decision making to use ICIP can be unique and different across the nation. This requires a specific approach to the Indigenous group or ICIP you wish to work with. Such diversity or difference in ways of doing business should not be viewed as a burden, but rather an opportunity to engage deeply and genuinely with ICIP. 

Many industries dealing with or interacting with ICIP can be fast paced, money driven and governed by complex legal systems that favour western practices and definitions which do not always align with Indigenous protocols. This conflict in values has contributed to the lack of recognition, rightful place and economic return to Aboriginal and Torres Strait Islander people for their time and ICIP. 

Such industries also deal with established concepts of intellectual property of copyright, trade mark, patents, plant breeders rights and designs. These are categories of intellectual property that have distinct pieces of legislation governing protection, recognition and use. These are systems of ownership and use that are based on western concepts of exclusive ownership for a particular time, monopolisation of that property for a particular period for monetary gain and then released into the public domain once the exclusivity period ceases.

If we strip away the legal jargon and approach the use of ICIP and IP as a human-to-human issue, with whole-hearted transparency, we can navigate a way forward that is based on mutual respect and the understanding of each other’s legal and cultural rights and obligations. This can result in good genuine outcomes for everyone involved. 

In such cases, a balancing act occurs between those who want to use ICIP for a particular purpose (whether that is a company, government or research institution), existing laws, existing protocols and the custodians of that ICIP (that is, the people to which that ICIP is known and cared by). In many cases, such use will be for beneficial and great use for all peoples across our country and even the world. 

With that being said, we believe that any proposed arrangement or agreement involving Aboriginal and Torres Strait Islander people and their ICIP requires an initial intent to form and build a genuine relationship, open and honest communication that takes into account Indigenous perspectives and ways of doing business, an understanding of legal terms and obligations, including fair payment for the use of ICIP. 

Before protocols and agreements can be entered into, our experience and that of our client’s tells us that relationships and communication is key. Relationship building takes time and cannot be rushed.  

At Parallax Legal, we can provide advice, advocacy and support around establishing and managing these partnerships and agreements. However, we work with clients who are committed to doing the work needed to make these arrangements ethically viable for all parties. Book in for a free 30 minute initial session.