Australia’s Proposed Legislative Regime To Assist In Protecting Indigenous Culture and Art

We acknowledge the people united by the Yugambeh language who are the original custodians of the local land, rivers, mountains, and sea. We pay our respects to their past and current Elders and look to a positive future for their young people. We acknowledge their continued care of land, their wisdom, their laws and their passing on of knowledge. First Nations cultural expression is firmly connected to over 75,000 years of heritage and continuing practice in Australia. Their art has been recognised both within Australia and internationally. Despite the artistic recognition, current intellectual property (IP) laws in Australia only protect individual artists and do not recognise any communal rights. The inability of current IP laws to protect the creative and traditional ownership of indigenous art and property has been an ongoing problem within Australia. Currently, there are no specific laws that prevent the misuse, distortion or alteration of Indigenous and cultural IP that is communally owned or part of an Indigenous group’s heritage. The Productivity Commission (the Commission) has investigated this problem and released the Aboriginal and Torres Strait Visual Arts and Crafts report in response to the lack of legal and cultural protection offered to Indigenous Cultural and Intellectual Property (ICIP). Since the birth of Non-Fungible Tokens (NFT’s), there has been concern with copyright as the purchase of an NFT is not accompanied by a copyright transfer. Therefore, when an NFT is purchased, only the NFT itself is owned. This challenge stems from the lack of an authentication process and platforms not verifying the people who create (or mint) the NFTs in the first place. Subsequently, this impacts Indigenous artists who are now competing with fake Indigenous artwork or having their art sold as NFTs without their knowledge. Safeguarding Indigenous traditional knowledge and cultural expression is crucial to ensuring that cultural heritage is maintained and passed down from one generation to another. What is the Indigenous Cultural and Intellectual Property (ICIP)? The ICIP refers to the rights that Indigenous people have, and want to have, to protect their traditional arts and culture. Rights protected by the ICIP include the rights to protect traditional knowledge and sacred cultural material and the right to ensure that traditional laws and customary obligations are respected. The Australia Council for the Arts along with the national arts funding and advisory body to the Australian Government Office of the arts have released a set of protocols aimed at bridging the legal gap and providing IP protection by recognising and engendering respect for customary practice. The protocols aim to address key legal and ethical issues of Indigenous cultural material. Furthermore, ICIP covers many differed forms of traditional culture and expression. Who owns the IP of an NFT? NFT owners are not granted any rights under IP unless the creator takes certain measures to ensure that they are. Essentially, copyrighting is a proactive choice for artists whereby they can outline what others are able to do with their artwork. This information may be included in a [...]