Cultural Heritage & Indigenous Cultural & Intellectual Property Rights A World Archaeological Congress Symposium


Venue: Burra, South Australia
Dates: 3-5 December 2006
Convenors: Claire Smith and Heather Burke, Department of Archaeology, Flinders University
Conference Co-ordinator: Tim Ormsby

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Sessions

Barney Warria and Ronald Berndt: their Relationship and Intellectual Property

Moderator: Claire Smith, Flinders University, South Australia
Panel: Shaun Berg, Vincent Branson, Vincent Copley, Gary Jackson, John Stanton

Barney Warria and Ronald Berndt were good friends. They worked together for many years, recording the culture of Ngadjuri people. Their friendship started when Berndt was about 18 years old, and Barney was about 50. They liked and trusted each other. When Berndt died in May, 1990 he left a thirty year embargo on his field notes, including the notes he made of conversations with Barney Warria. Today, Barney Warria’s Ngadjuri descendents wish to access this material in order to obtain knowledge about their forebears as part of the process of coming back to country. As it stands, they are not able to access the material recorded by Berndt. This is not what Berndt envisaged when he established the embargo on his field notes, nor is it what he would have wished.

This situation raised serious issues concerning the ownership of the intellectual property that emerges as part of the research process. Did Berndt really have the right to place an embargo on Barney Warria’s words? Since some of the text was inter-linear, many of the words were Barney Warria’s, recorded verbatim. Surely his descendents should have access to these words? In this panel we suggest that these sections of Berndt’s field notes constitute shared intellectual property that was shared between the two men, and that did not have the right to place an Embargo on this material-especially as it relates to Barney Warria’s descendents. Various facets of this are explored in a panel discussion, the implications of which are global.

Indigenous Peoples, Archaeologists and the Research Process

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Convenor: Susan Forbes, Te Papa Museum, New Zealand

Indigenous peoples have long been the focus of research conducted by many archaeologists, anthropologists and ethnographers. The vast majority of the these researchers have been non-Indigenous. Research produces knowledge that, under current intellectual property laws, is legally owned, controlled and disseminated by the researcher. Indigenous communities who share their ICIP with researchers are not recognised as being the legal owners of their knowledge and hence, can exert no legal control over who can access or use that knowledge. This can be problematic when the knowledge is of a secret/sacred nature where access would normally be restricted to properly initiated members of the community. Appropriation and misuse of ICIP is a major issue for Indigenous peoples.

This focus of this session is on the ICIP issues that Indigenous peoples and archaeologists encounter in the course of research. It will discuss both problems faced and instances of where these issues were successfully resolved.

Managing Cultural Values and Biodiversity: Research, Cultural Knowledge and Intellectual Property on Ngarrindjeri Ruwe

Convenor: Steve Hemming, Flinders University, South Australia
Panel: Diane Bell, Shaun Berg, Daryle Rigney, Matt Rigney, George Rigney, Grant Trevorrow, Tom Trevorrow, Chris Wilson

The Ngarrindjeri Nation has been engaging with research and researchers since the nineteenth century. For most of this time non-Indigenous people have researched and written about Ngarrindjeir people for a largely non-Indigenous audience. Since the Kumarangk (Hindmarsh Island) Royal Commission Ngarrindjeri people have been developing a research agenda that seeks to harness the power of research for Ngarrindejri interests. The Kungun Ngarrindjeri Yunnan agreement (listen to what Ngarrindjeri people are saying) has been the instrument at the base of this new approach. We will discuss a number of research areas and research projects and the Ngarrindjeri approach to negotiating and conducting just, equitable and useful research.

Indigenous People and Film: Getting your Story out There

Convenor: Jo Smith and George Merryman, Sydney Film Festival

How do you get an idea from page to film? What cultural and intellectual property issues are likely to be encountered when making a film with Indigenous people? How do negotiate with Indigenous communities about making a film with them? Are there any particular pitfalls, or opportunities, if you are an Indigenous person yourself? The Australian Film Commission

The Australian Film Commission is trying to address such issues in its draft A Guide to Filmmakers Working with Indigenous Content and Indigenous Communities. These and other important cultural and intellectual property issues will be addressed by our high profile panel of film-makers, which includes Curtis Levy (Sons of Nammatjira, Mourning for Mangatopi, Lurugu)), Bob Connolly (First Contact, Joe Leahy’s Mates, Rats in the Ranks), Tom E. Lewis (Yellow Fella), and Christine Olsen (Rabbit Proof Fence).

The Rights of Rock Art: Using and Abusing Ancient ‘Images’ in a Modern World?

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Convenors: Sally K. May, Flinders University, Australia; Sven Ouzman, University of Pretoria, South Africa

Rock art is many things – artefact, sacred object, ancestral being, gateway to other worlds – and commodity. And not just a commodity exploited by advertisers, authors, film-makers, tourists and looters – but also by archaeologists and heritage workers. After all, we do make at least some of our remuneration through using imagery in articles, displays, films? To complicate matters, some uses of rock art do a lot of good for their makers and their descendants, and sometimes use is negotiated with affected individuals and communities. And sometimes rock art is claimed and used by multiple Indigenous and traditional communities. As originator communities are dealing with intellectual property rights relating to the representation and control of their and their ancestor’s rock art imagery and associated objects and places there is a constant stream of outside claims made on their rock art. Must communities use ‘Western’ legal systems to protect their art – as the Canadian Snuneymuxw First Nation did by trademarking ten of their images most abused because are “considered the official marks of the Snuneymuxw First Nation, in the same way the Canadian flag is considered an official symbol of Canada”? Or can rock art bring ‘Western’ and ‘Indigenous’ forms of law and co-operation into conversation, enabling mutual reform? Central to such a conversation would be to downplay human agency and pay more attention to rock art as a living tradition that itself can reasonably expect certain rights and courtesies.

The Rights of Rock Art session reviews a series of failed and successful case studies relating to the use and abuse of rock art and provides a forum for sharing ways to prevent or reduce abuse and to promote negotiated use while respecting originator-community wishes to have no outside use of certain images and places.

One Law? Two Laws? Many Laws?

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Convenors: Donald Craib, Craib Law Office, PLC, USA; Cheryl Simpson, Flinders University, Australia

Prior to colonisation by Western powers, Indigenous customary law controlled and protected knowledge within Indigenous society. Colonisation introduced a new set of laws that often conflicted with, and undermined, Indigenous law systems. This complexity is compounded when considered in relation to developments in international law. As it stands, Western intellectual property legislation has provided very limited protection for Indigenous cultural and intellectual knowledge. There is much debate over what would provide the best protection of Indigenous cultural and intellectual property, both tangible and intangible. While some advocate amending current intellectual property laws to include Indigenous concepts of knowledge, others question whether the very system that legitimises the appropriation of Indigenous cultural and intellectual property in the first place could ever be used to provide the necessary protection. The complexities of these issues are evident in treatment of cultural and intellectual property issues by public institutions and international organizations.

Moreover, many aspects of Indigenous cultural and intellectual property are of an intangible nature. These include oral histories, music, songs, dances and ceremonies. Others, such as sand paintings, are ephemeral in nature. Because of their intangible nature, these aspects of Indigenous cultural and intellectual property have limited protection under Western intellectual property laws. Western laws only protect material expressions of knowledge. This means that whoever first reduces intangible ICIP to a tangible form will be granted legal ownership of that knowledge. This includes photographs and recordings of songs and dances.

Within the framework of this debate, this session explores the intersections of customary, national and international protections of Indigenous cultural and intellectual property. It provides a critical overview of contemporary issues and seeks to highlight those cases that are addressing the current limitations of protection.

Publishing: Negotiating Clashing World Views

Moderator: Mitch Allen, Left Coast Press and Mills College, Oakland
Panel: Julie Hollowell, George Nicholas, Sean Ulm, Martin Wobst

It is a seemingly unfixable problem. While many work to retain the rights to intellectual property in the hands of Indigenous people, that sentiment is incompatible with the rigors of traditional commercial publishing-scholarly, textbook, or trade-where intellectual property rights are tightly held by the publisher. Western presses rarely are willing or able to make an accommodation that allows the control of words, images, and ideas of Indigenous people to remain in their own hands if they are to become the publishers of these works. Yet, broad circulation, familiarity and acceptance of these important ideas in the broader international community-including within other indigenous communities-is often dependent on the kind of global distribution and publicity that these presses can provide. Is there a way out of this conundrum? Self-publishing? Working with a limited set of presses? Indigenously-owned publishers? Trading intellectual property rights for other advantages? This panel discussion seeks to examine this problem through the lenses of publishers, Indigenous writers, and others concerned with cultural property.

About Conference

This cross-disciplinary international conference will address the history of and contemporary developments in the intersections between cultural heritage and cultural and intellectual property rights in Indigenous customary and academic worlds. Key speakers include Julie Hollowell and George Nicholas, Canada and Sven Ouzman, South Africa. The conference will be held in the heritage town of Burra, South Australia, in the traditional country of the Ngadjuri people. Burra is a significant location for discussion of this topic, since it was the site where the Burra Charter (the Australia ICOMOS charter for places of cultural significance) was developed. The significance of this charter is recognized internationally, and our planned conference also will be addressing issues of international significance. We expect that selected papers from this conference will form the core of an edited book.
Claims to the ownership and use of cultural and intellectual property rights and associated or intrinsic rights are rapidly emerging in most, if not all, research disciplines and in many policy contexts, as the economic, scientific, political and cultural uses and values of traditional and Indigenous knowledge demand mounting attention. Concerns about intangible heritage and cultural and intellectual property rights span diverse disciplines – from law, information technology, and art to applied research ethics, bioprospecting and human rights, and especially in archaeology, as an academic discipline whose scholars are deeply enmeshed in both policies and practices of cultural heritage. These issues cut across both disciplinary and geographic boundaries, and stakeholders include individual researchers, local communities, federal agencies, universities, museums and international organisations, as well as developers, tourism firms, and media producers as well as the public at large.
Over the past two decades this discussion has prompted new interpretations of cultural property rights, which in turn have provoked major shifts in the policies and practices adopted by archaeologists, bio-anthropologists, descendant communities, governments and museums around the world. To date, however, these discussions have focused largely on issues of material or physical property, and practices associated with this property such as physical repatriation of people and material culture, of collection and curatorial practice, trade in antiquities and heritage management , such as repatriation, museum and curation practices, the antiquities trade, and heritage management. At this point, discussions need to move beyond ‘ Who owns the past?’ to examine the diverse and divergent uses of past knowledge systems, and who does and does not benefit materially. Markedly less attention has been given to the intangible and intellectual aspects of scholarly research or cultural knowledge, and its representation, although this promises to be the next wave in policy research. Accordingly, this conference will address the following key questions:

  • How are people employing concepts of cultural and intellectual property to lay claim(s) to the past, present and future?
  • What examples do we have of successful uses and applications of the intellectual property system or, conversely, of the intellectual property and cultural heritage hindering success, especially in cross-cultural contexts?
  • What forms of legal and/or customary protection exist for intellectual property and cultural heritage? How do these apply to knowledge produced by academic research? What kind of variation exists in this, world-wide?
  • In what areas do problems tend to arise? How might such problems be avoided?
  • What are the key elements of successful, equitable resolutions of cultural and intellectual property rights issues, and what examples exist of how to translate these into workable policy and protocols?

This conference will take an international perspective to examine in depth the cultural and intellectual property issues facing Indigenous, customary and academic communities, and examine critically the successes and failures of efforts to resolve such issues. This conference will use used to identify core issues. Our ultimate aim is to inform protocol- and policy-making at individual community, national and international levels. The overall goal of this research is to provide foundational knowledge and data to assist scholars, Indigenous communities, and other stakeholders in developing more equitable and successful resolutions and policies regarding the cultural and intellectual property rights issues that are fast emerging.

This conference is one facet of a global project being co-ordinated by George Nicholas, Julie Hollowell and Kelly Bannister, which has received seed funding from the Social Sciences and Humanities Research Council, Canada.

Entry Formalities

A valid passport or similar certificate of identification is required of all people wishing to travel to and enter Australia. Everyone, except holders of Australian and New Zealand passports, requires a visa to enter Australia (New Zealand passport holders can apply for a visa upon arrival). Americans may enter with an Australian visa or, if eligible, through Electronic Travel Authority (ETA). This replaces a visa and allows a stay of up to three months. It can be obtained for a small fee at http://web.archive.org/web/20131005044939/http://www.eta.immi.gov.au:80/. Airlines and travel agents can also issue ETAs. More information about ETAs and other entry requirements can be obtained from the Embassy of Australia,1601 Massachusetts Avenue, N.W., Washington, D.C. 20036, or via the Australian Embassy home page at https://australia.visahq.com/. For information on Australian visas requirements go to the web site of the Department of Immigration and Multicultural and Indigenous Affairs* (www.immi.gov.au). For the location of your nearest Australian consulate go to the Department of Foreign Affairs and Trade’s* website (www.dfat.gov.au).

Working Holiday Maker

Australia has reciprocal Working Holiday Maker (WHM) arrangements with a number of other countries. This allows young people on holiday to earn cash through ‘incidental’ employment, as long as they meet visa requirements. The word ‘incidental’ is interpreted pretty broadly, and includes any kind of work of a temporary or casual nature. Currently, Australia has reciprocal WHM arrangements in effect with 19 countries: the UK, Canada, the Netherlands, the Republic of Ireland, Japan, the Republic of Korea, Malta, Germany, Sweden, Denmark, Norway, Finland, the Hong Kong Special Administrative Region of the People’s Republic of China, the Republic of Cyprus, Italy, France, Belgium, Estonia and Taiwan. If you obtain a WHM visa, you can stay up to 12 months from the date of your initial entry into Australia, regardless of whether or not you spend the entire period in Australia. To qualify for a WHM visa, you need to be aged between 18 and 30 and without dependent children. You must be visiting Australia primarily for a holiday and you must have a return ticket or sufficient funds to pay your return or onward fare, should the need arise, as well as sufficient money to cover the first part of your stay. The intention of this scheme is to allow you to work in Australia to fund a holiday, not to obtain semi-permanent employment, so you are not allowed to work with any single employer for more than three months. Remember, you must apply for a WHM visa outside Australia and before you turn 30. Information about the WHM scheme can be obtained from the website of Australia’s Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) (www.immi.gov.au).

Images

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