Introduction

The possibility of protection for Indigenous intellectual resources within existing intellectual property regimes remains elusive and problematic. Fundamentally, intellectual property law seeks to protect individual rights to property in the form of monopolies and rights to commercial exploitation. This kind of protection does not admit the priorities of Indigenous groups, which generally seek to preserve cultural significance and value of particular practices, methods, and customs, as well as restrict the disclosure of secret and sacred knowledge. This paper seeks to address the potential for protection of such resources in Australia, and in particular, considers the recent erosion of native title rights through the troubled connection to place. In insisting upon an uninterrupted connection to the land, the application of federal statutes has encroached upon local community identity and denied its existence and integrity despite the ongoing self-identification of its members. What is necessary is a development of the concept of community beyond the physical attachment to place, towards the co-operative idea of community, a cohesion and inclusion that may be established through the customary oral forms of evidence of Indigenous claimants, rather than the restrictive historical documents of Western legal paradigms.

Intellectual Property Protection in Australia

Intellectual property law in Australia is codified within several statutes. For instance, Section 8 of the Copyright Act 1968 (Cth) provides that copyright in Australia does not subsist other than by virtue of the Act.1 The consequence of codification of intellectual property law by statute was considered by the Federal Court in Bulun Bulun v R & T Textiles Pty Ltd 2 where von Doussa J held that communal title in artistic works in accordance with customary Aboriginal law cannot be asserted as a part of the statutory regime containing copyright law. Essential to the Copyright Act 1968 (Cth) is the fact that a work or artistic form must originate from an author, under section 35. In Bulun Bulun, von Doussa J held that this effectively prevents any operation of group ownership or communal title in such a work under customary Aboriginal law.

The only exception to this would be a work of joint authorship under s 10(1) of the Act: at 525. Provision for joint authorship under s 10 does not extend the notion of authorship in any relevant way with respect to communal title. Concerns raised by Indigenous artists, for instance, include the appropriation of artistic method by non-Indigenous authors. Whilst the supply of an artistic idea may amount to a significant contribution, it will not amount to joint authorship with the artist under the Act.3

Furthermore, the part owners of intellectual property take not as joint tenants, but as tenants in common, meaning that any one of those owners may assign their rights or maintain an infringement action against another without joining the co-owners.4 Despite these serious limitations to protection, equitable principles may nevertheless apply where a copyright owner may become bound through an oral or implied agreement to hold the copyright upon trust for the other parties jointly. 5

The Native Title Act 1993 and the Limits of Place

Recognition of the necessary relevance of customary law to the interpretation and application of intellectual property rights in Indigenous cultural property 6 was seemingly extended in Mabo v State of Queensland (No 2)7 leading to the enactment of the Native Title Act 1993 (Cth). This legislation has been suggested as a means of protection for cultural practices associated with the land, which can include agricultural practices, fishing sites, and may extend to knowledge of medicinal plants.8 However, certain limitations have been noted, such as the substantial obstacle of the "connection" requirement. This requirement may place an undue and insurmountable restriction upon the judicial recognition of "community" in contemporary circumstances, where dispersal of groups and alienation from geographical space has occurred, but attachment to cultural practice may persist amongst those dispersed members. In other words, it fails to recognize the individual's differentiation in respect of its communal ties, and renders community in a totally nostalgic sense of the local in its attachment to place and traditional groupings.

The requirement for a "connection" with the land as provided by s 223(1), can prove to be an unnecessarily restrictive and elementary understanding of Indigenous identification with traditional lands. Although lower courts have been less rigorous in demanding continuity of physical presence on traditional territory,9 Toohey J in Mabo (No 2) required a continuing physical presence since colonisation, and Mason J also required a physical connection in Coe v Commonwealth (1993) 68 ALJR 110. A recent decision of the Australian High Court, rejecting the claim of the Yorta Yorta people's traditional rights of land and waterways, handed down 12 December 2002, demonstrated how significant this obstacle has become for native title claimants.

These concerns were realised in some detail in the recent decision of Western Australia v Ward,10 handed down by the High Court of Australia in August 2002. The High Court, by a majority of five to two, established that native title rights and interests are a bundle of rights, which may be subject to separate extinguishment in respect of the separate components of those rights. It has been noted that this may lead to an incremental erosion of native title.12

The High Court ruled out the extension of the Native Title Act to protection of cultural knowledge except to the extent of controlling access to land and waters in which that cultural knowledge is situated. The decision established that native title rights and interests protected by the Act are in relation to land and water. Whilst cultural knowledge occurs in relation to the land, the decision ruled that any interests in that knowledge travelling beyond denial or control of access to land or waters will not be interests or rights protected by the Native Title Act. The joint judgment of Gleeson CJ, and Gaudron, Gummow and Hayne JJ, whilst noting that to some degree that traditional laws and customs manifested in sites fulfill the requirement of a connection with the land, made the following statement:

The Court held that s 223 of the Act refers not to how Indigenous peoples use or occupy land or waters, but whether a "connection" can be established on the basis of the traditional laws acknowledged and the traditional customs observed by the peoples concerned.14

The Court also held that there were no existing interests in minerals and petroleum that could have been disturbed by the event of colonisation, traditional laws and customs not extending to the modern mining of such resources. In his minority judgment, Kirby J questioned this approach and considered that it may be possible to protect cultural knowledge under the provisions of the Native Title Act.

Kirby J queried the separation of rights to resources in petroleum and other minerals from other rights in the land (such as those arising through the historical use of ochre) protected by native title as based merely upon the view that they are minerals that are mined by modern methods. Kirby J noted that the common law recognises the capacity of traditional law and customs to evolve and adapt. In doing so, the common law may incorporate the use of modern materials or resources that might have developed relevance to Indigenous communities:

The principle in Ward was recently applied in the Federal Court of Australia decision in De Rose v State of South Australia,17 handed down in early November 2002, where O'Loughlin J declined to protect the disclosure of spiritual beliefs and practices related to "places on the land" under the Native Title Act, stating that such precedent has "made it clear that matters of spiritual beliefs and practices are not rights in relation to land and do not give the connection to the land that is required by s 223 of the NTA."18

With respect to O'Loughlin J, Ward does not necessarily decide that spiritual beliefs and practices have no connection to the land, but that the Native Title Act does not extend to the use of those resources beyond controlling access to the land in which those cultural resources are situated or practised. The majority decision maintains that intellectual property laws or fiduciary duties may afford some protection to these rights. What the decision in Ward does state is that claims to protection of cultural knowledge are not rights protected by the Act.19

Kirby J notes the distinction between protection of cultural knowledge through the restriction of access to a physical area and that of protection through restricting access to representations, images, or oral accounts of knowledge relating to land or waters.20 His Honour maintains that if this cultural knowledge is related to land then it must be protected for the purposes of the Native Title Act, and in the context of Australia's ratification of international instruments providing for the protection of fundamental human rights,21 including those rights to full ownership, control and protection of cultural and intellectual property.22

Article 12 of the Draft United Nations Declaration on the Rights of Indigenous Peoples provides the following in respect of the right to cultural knowledge:

Kirby J notes the majority decision that such rights are within the ambit of intellectual property laws, but states that established intellectual property regimes are "ill-equipped to provide full protection of the kind sought in this case."23 Furthermore, Kirby J rejects the assertion in Bulun Bulun v R & T Textiles Pty Ltd24 that recognising native title rights that are analogous to intellectual property rights would contravene the "inseparable nature of ownership in land and ownership in artistic works" under Australian common law. His Honour maintains, however, that such a principle cannot be maintained where it offends justice and human rights.

Community Beyond Place

Ultimately, therefore, there is a need for the recognition of the rights of traditional communities to protect and maintain their cultural knowledge, including their rights in the integrity of spiritual beliefs and practices extending to artistic creation, performance, and narrative. Whilst the Native Title Act provided important recognition of communal rights, those rights have subsequently been eroded in the emphasis on geographical place in the recent application of that Act, and are severely compromised in their value to the protection of Indigenous resources once managed by traditional communities.

Whilst it seems that the Australian Courts will maintain that these are not rights related to the land, rights related to the integrity of the Indigenous community must be established. Such rights must not be subject to expiration with time, and, being rights vested in the community, will not be assignable by individual community members to individuals outside that community. Beyond native title, however, their must be a workable concept of community that resists the attachment to place and therefore the national encroachment upon those rights through their extinguishment in the local and particular sense.

The concept of community developed must not itself generalize particular instances of Indigenous culture, nor fix Indigenous custom in a nostalgic petrification of history. Nevetheless, the application of community is familiar to the Courts, and the potential for its theorization beyond place is available. For instance, in the administration of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), the Court is required to consider the integrity of a particular community and its entitlement to rights in the particular case, based upon the submissions of individuals.

Where problems have arisen is in the requirement of a connection to place, as in native title law, in order to "prove" community. As discussed, that requirement is an artificial and often devastating imposition upon groups that have been forcibly dispersed through the process of colonialism, therefore making the attempt at rectification through the recognition of community rights in such forms as the Native Title Act ultimately without effect in many cases. Furthermore, this connectedness betrays an ongoing Westernization of customary law, demanding tangible and reproducible proof in the form of physical location, rather than accepting the oral submissions of individuals. Although native title is determined in respect of a specific place, making the connection requirement appear logical, this does not necessarily require an uninterrupted physical link with that place. The ongoing cultural connection through spiritual practice and self-identification with a particular community, together with the historical entitlement of that community to that place, should not necessarily be compromised as evidence of connection. The application of the Act betrays a significant mistrust of oral submissions and the self-identification of Indigenous claimants, favouring instead the dominant Western form of history in order to prove rights to an area.

With respect to the question of aboriginality, however, the Federal Court of Australia has stated that communal recognition and integrity of the community is of paramount importance, and individual decisions provide some basis for the evolution of the concept of community and the extension of "connection" beyond the physical to processes of self-identification. Drummond J, in the case of Gibbs v Capewell (1995),25 noted that whilst descent in terms of biology may be relevant it is not sufficient to establish aboriginality. Rather, communal recognition as an Aboriginal person is described as often the best evidence available to prove Aboriginal descent, indicating the central importance of community to the Court's consideration of the subject of rights in respect of Indigenous issues.

In the case of Shaw v Wolf (1998),26 Merkel J was required to consider whether certain individuals were Aboriginal persons for the purposes of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) and therefore qualified to stand as candidates for election to Regional Council. Merkel J expressed regret that a person's Aboriginal identity is directed by a Parliament that is not representative of Indigenous people to be determined by a Court, similarly not representative. In other words, the autonomy of the community is relocated to a centralized state institution, rather than a truly communitarian practice of cultural integrity. Nevertheless, Merkel J produced a useful judicial consideration of "community," noting that self-identification is intricately tied up with the social and communal framework surrounding an individual:

This consideration provides important judicial recognition of the identification of community beyond the simple model of geographical connection. Whilst the Native Title Act calls for the continuation of social and customary tradition, it requires that ongoing practice to be inextricably linked to place. Significantly, Merkel J recognises the same kind of evolution or development of communities that is relevant to native title determinations, providing justification for the evolution of the concept itself beyond this geographical restriction. Merkel J explained:

Therefore, despite the loss of association with the land, the Aboriginality of such individuals persists and cannot be denied by the Courts. Whilst not necessarily binding principle, this consideration provides persuasive support for the contemporary acknowledgement of community based upon anthropological evidence as well as contemporary assertions by members of a particular group.

In this way, the "property" in resources, if it can be understood as such, amounts to communitarian rights over those resources, rather than an adjunct to place. Despite the seemingly irreconcilable difference between conventional Western notions of property and traditional community rights over resources, any discussion frequently starts with and returns to concepts of property in the logical sense, that is, the private individual sense.

A model for protection of resources, therefore, may be effectively based upon a type of communitarian property amongst Indigenous communities, which arises prior to colonisation. Such relationships operate in terms of the decisions, management, and governance of resources and their distribution according to traditional customs and laws that are internal to and constitutive of a particular group. This kind of relationship is not based upon the proprietary notions that found the common law of property or the statutory regimes that govern intellectual property.

Evolution of Community and Modern Resources

As an indication of the Courts' determination of tradition or custom relating to the use of resources, the decision in Western Australia v Ward apparently imposes serious limitations. The majority of the High Court held that there was no evidence of any traditional Aboriginal law, custom or use relating to minerals, suggesting that the Court will not protect resources that were not the subject of tradition or custom at the event of colonisation. Nevertheless, the judgment of Kirby J shows the artificial nature of this distinction. Kirby J shows that the use of modern methods need not necessarily be beyond the fact of resources being used in accordance with tradition and custom.

Conclusion

In identifying the object of protection in community rather than through an arbitration of a particular product's connection to land as in native title law, or in an individual as the normative subject of intellectual property law, the integrity of community moves beyond physical organization to cultural self-identification. The concept of community must be developed beyond a nostalgic or sentimental visualization of the group within a place. In this way, community rights move towards the organization of the determination and operation of protection of resources around the community. This also includes the Indigenous claimants who necessarily constitute the locus of that knowledge and its dissemination. The determination of those rights is a question of fact to be established by the community then, rather than an encroachment upon that community as a mere question of the law of the state. Only then can the management of those resources occur through a communitarian dialogue between community and state institutions.

Notes:

The references here are to legal cases (published in law reports, for instance CLR stands for Commonwealth Law Reports). These law report citations are the same wherever they are used in the world. US law report citations, however, look quite different, and are also cited consistently throughout. For example, 41 IPR 513 at 525, means volume 41 of the Intellectual Property Reports, with the report starting at page 513, and the relevant citation coming from page 525. Another example, "s 10", means section 10.

1. Subject to the prerogative rights and privileges of the Crown.

2. (1998) 41 IPR 513 at 525.

3. Kenrick & Co v Lawrence & Co (1890) 25 QBD 99; Bartos v Scott (1993) 26 IPR 27 at 30 per Young J; Brumar Contractors v Mt Gambier Garden Cemetery Trust (1999) 47 IPR 321 per Martin J.

4. Lauri v Renad [1892] 3 Ch 402; Powell v Head (1879) 12 Ch D 686; Cecinsky v George Routledge & Sons Ltd [1916] 2 KB 325; Prior v Lansdowne Press Pty Ltd [1977] VR 65; (1975) 12 ALR 685; Acorn Computers Ltd v MCS Microcomputers Systems Pty Ltd (1984) 4 IPR 214 (Fed C of A); Dixon Projects Pty Ltd v Masterton Homes Pty Ltd (1996) 36 IPR 136; Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 43 IPR 32 (FCAFC); Prior v Sheldon (2000) 48 IPR 301.

5. Lahore [26,030]; Robert J Zupanovich Pty Ltd v B & N Beale Nominees Pty Ltd (1995) 32 IPR 339.

6. Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481.

7. (1992) 175 CLR 1. This awareness of the relevance, and the subsequent application of customary law in evidence, was continued in the cases of Milpurrurru v Indofurn Pty Ltd (1995) AIPC 91-115 and Bulun Bulun v R & T Textiles Pty Ltd (1998) 157 ALR 193.

8. Puri K "Copyright Protection for Australian Aborigines in the Light of Mabo" in Stephenson MA & Ratnapala S (eds) Mabo: A Judicial Revolution, UQP, St Lucia, 1993, 132 at 159.

9. Re Waanyi People's Native Title Application (1995) 129 ALR 100 per French J at 114; Mason v Tritton (1994) 34 NSWLR 572 per Kirby P at 584.

10. (2002) 191 ALR 1.

11. Gleeson CJ, Gaudron, Gummow, Hayne, Callinan JJ: McHugh J (over question of whether pastoral leases extinguished native title) and Kirby J.

12. Ritter D "Fin de siecle: Western Australia v Ward" (2002) 5(10) Native Title News 162.

13. Para 59.

14. Para 64.

15. Citing Rubibi Community v State of Western Australia (2001) 112 FCR 409 per Merkel J.

16. Para 574. Ultimately, however, Kirby J did not provide a finding in respect of minerals and petroleum due to the extinguishing effect of the Mining Act 1904 (WA) and Petroleum Act 1936 (WA): Jagger K, "Ward: Mining and Petroleum," (2002) 5(10) Native Title News 170.

17. [2002] FCA 1342.

18. Para 51.

19. It is not in the joint decision, but in the single decision of Callinan J, that the rights to cultural knowledge are not considered to be in respect of land: "cultural knowledge does not constitute a native title right or interest 'in relation to land or waters'": Para 964.

20. Para 579.

21. International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights.

22. Para 581.

23. Referring to the decision in Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481.

24. (1998) 86 FCR 244.

25. 128 ALR 577.

26. 83 FCR 113.

27. BC9801311 at 10-11. BC9801311 at 11.