True Tracks: Indigenous Culture and Intellectual Property principles for putting self-determination into practice

Abstract

The appropriation of Indigenous arts and knowledge is not adequately protected by Australian intellectual property laws. Indigenous Cultural and Intellectual Property (ICIP) rights include free, prior informed consent, integrity, attribution and benefit sharing. Appropriation of culture is demeaning but also steals economic opportunities from Indigenous people. The main argument of the thesis is that the True Tracks ICIP provide a framework for negotiating rights between ICIP holders and users. Part one examines the issues in law and policy. Part two presents case studies from my published papers. The case studies cover performing arts; Indigenous arts; records management; film protocols; and traditional knowledge and biological materials. This PhD research is an important contribution to understanding how Indigenous arts and knowledge is treated in the Australian legal system, in policy and practice. It outlines the issues and problems and then focuses on the 10 step True Tracks Framework, that can assist negotiations, planning and implementation of projects that include Indigenous cultural expression and knowledge. Seven published papers are presented which collectively provide valuable lessons for ICIP. They are laid out in three parts – the concepts are detailed in Part 1, with the inclusion of two chapters on Indigenous cultural heritage and the applications of the law. Part 2 presents case studies for the relevant fields and industries where ICIP rights are being applied. Part 3 makes recommendations for change with a solid paper on governance and infrastructure arguing for self-determination through a National Indigenous Cultural Authority. In effect, this structure can be used locally and regionally to assist communities deal with the issues. The publications provide extensive analyses derived from long-term research and practice as a lawyer over the past 25 years working with Indigenous people, organisations, companies and government. Three chapters are entirely new content. The Introduction chapter and the history and contextual chapter set the background for the work that has been done in the past, both in terms of critical writing in the literature and the many responses, reviews and developments that have taken place over the past 40 years. The concluding chapter brings together a cohesive framework. The True Tracks ICIP framework has a proven track record for dealing with ICIP. This framework can be used and adapted in various industries including technology, tourism and business. This approach can assist Indigenous people assert their ICIP rights with the necessary supporting infrastructure and governance. The demand is growing for Indigenous knowledge and arts, so the True Tracks framework provides a framework to negotiate, plan, manage and implement projects that involve ICIP Furthermore, the True Tracks ICIP framework can inform new law. But most importantly, the framework addresses the deeper relationship between Indigenous and non-Indigenous people and the value they place on each other’s knowledge systems. The framework is called ‘True Tracks’ because it is about creating meaningful relationships and connections; and keeping tracks into the future to enable Indigenous descendants to actively manage and practice and strengthen their cultural life.