150._org_ Arts Tasmania

Full name: Stephen Kyne

If you are making this submission on behalf of an organisation, please provide the name: 
Arts Tasmania

Address: 146 Elizabeth Street, Hobart TAS 7000

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Arts Tasmania’s submission to the ALRC’s Inquiry are specifically related to Indigenous cultural content only.  Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples recognises that Aboriginal people should have the right to control, maintain and protect their ‘cultural heritage, traditional cultural expression and traditional knowledge’ – and we recommend that this be a key guiding principle for the ALRC’s approach to the Inquiry.
We also point the inquiry to the work being done in the World Intellectual Property Organisation’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore when considering changes to the Copyright Act 1968 (Cth).
Cultural Maintenance
A topic that was not specifically raised in the Issues Paper, but which Arts Tasmania recommends is considered is that of cultural maintenance.
There are instances where access to important cultural material has been denied to Aboriginal people by the copyright owners.  Aboriginal living people should be allowed access to the cultural material of their ancestors to interpret, adapt and republish.  An exception for cultural maintenance use of rare Indigenous works for use by Aboriginal people who have a connection to the material should be considered in this Inquiry.
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In terms of private use allowable without consent, there are some instances where it is appropriate for Aboriginal people to make copies of photographs, works, films and recordings, without copyright permission.  This could be the case where they do not change the work, and where the work is used for cultural purposes.  For example, using a song for tribute presentation at a community funeral.
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Arts Tasmania wishes to comment on the use of copyright material for private and domestic purposes, in social media, and as a transformative use – specifically insofar as it relates to Indigenous cultural content. 
There is a danger that people with no connection to the content or subject matter can use the copyright material for their private and domestic purposes, in social media, and as a transformative use, without regard for cultural protocols of consent, integrity and attribution. 
Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples recognises that Aboriginal people should have the right to control, maintain and protect their ‘cultural heritage, traditional cultural expression and traditional knowledge.’
Greater exceptions would allow use of Indigenous works without consent of the copyright owner, and as there is currently no other law recognising an Indigenous prior informed consent right, we are concerned that more Indigenous content could be abused, mistreated and appropriated.
Under current copyright law, consent is required from the copyright owner. In some cases Indigenous people are the copyright owners - particularly in the past 10 years as Indigenous awareness of copyright has increased.  This is equally true of non-Indigenous people who have worked collaboratively with Indigenous people in observation of Indigenous cultural and intellectual property protocols. These non-Indigenous artists, filmmakers, writers or photographers may hold copyright but their exercise of the copyright rights to the material are in accordance with agreed cultural protocols or contractual terms in research agreements or collaboration agreements.
An example to illustrate this is the photographer Ricky Maynard and his series of Tasmania Aboriginal people in the Moonbird series. Maynard is connected to the people, land and culture, and has forged relationships with the subjects of the photographs. As copyright owner, Maynard has been entrusted to protect the rights of the Aboriginal people who agreed to be photographed and take part in the project.  If his images could be used without permission by third parties who are not connected with the images, there is a risk of misuse in social media on sites like ‘Aboriginal Memes’ Facebook page; or used out of context .  The process of take down notices shifts the onus onto the Aboriginal people to know about the use, and also the process of asking for removal of offensive material. The unchecked use of Indigenous works can damage the reputation of Indigenous individuals and the cultural integrity of Indigenous cultural material.
Thus, if the Australian Law Reform Commission recommends that some online uses of copyright materials for social, private or domestic purposes be more freely permitted, Arts Tasmania would strongly urge that Indigenous content be exempted, or be subject to the guidelines set out in protocols such as Arts Tasmania’s Respecting Cultures:
http://www.arts.tas.gov.au/__data/assets/pdf_file/0012/23601/Respecting_Cultures_October_2009_Revision.pdf
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Arts Tasmania wishes to comment on the confinement of copyright material for social, private or domestic purposes – specifically insofar as it relates to Indigenous cultural content. 
It may be that a national standard cultural protocols process needs to be developed so that people can identify where the process of consent has been followed.  Protocols such as Arts Tasmania’s Respecting Cultures provide a detailed set of guidelines, and could be strengthened by a mediation or dispute resolution process.
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See response under question 12.
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The use of images of deceased Tasmanian Aboriginal people  needs special consideration. For instance, images of Truganninni, William Lanne and Mannalargenna are often used to the offence of Indigenous people, and serve to perpetuate stereotypes. Consent needs to be obtained in accordance with cultural protocols.
Sound recordings of oral histories needs special consideration.  Copyright is created in the recording which belongs to the maker but there should be copyright recognised in the words on the recording. Under current law, the digitisation of old cassette tapes creates a new copyright in a digital audio file. Access and control of these recordings are important as many of the people who have been recorded have died, or are very old. Some of the older recordings may have sacred or secret material, or personal knowledge.  Libraries and Archives need to follow cultural protocols about digitisation, reproduction and making the recordings available to third parties for use and publication.  The use of the sound recording and information on the recording must follow prior informed consent processes.
Institutions should be responsible for getting the consent of Indigenous people and should work with Indigenous communities on protocols for their management practices.
By way of example, the Australian Institute of Aboriginal and Torres Strait Islander Studies and the National Film and Sound Archive have policies that recognise intellectual property rights and require community consent:
http://www.aiatsis.gov.au/ava/ethics.html
Processes of consultation and consent need to identify who the person in authority is that is able to speak for the use of the cultural material. Identifying who can give consent would depend on a number of factors such as:
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