Understanding intellectual property
It’s important to know your rights as an author on a work, whether it’s a written story or any other product. You can get help if someone is using your work inappropriately.
Copyright is an automatic right given to the author of written works, films, music, artworks, computer programs and compilations of other works (like a journal or CD compilation). It doesn’t protect ideas, but it protects a specific work where ideas are expressed.
There is no need to apply for copyright in Australia. It is automatic. If you want to record the copyright details, you can add a copyright notice with the author’s name and date. This may discourage people from using your intellectual property.
In Australia, copyright for most works lasts for 70 years after the author’s death. For films, sound recordings and broadcasts, it lasts 70 years after they are released.
One purpose of copyright is to encourage creativity by allowing the creator to make money from their work. Owning copyright gives someone a lot of control for what an artwork can be used for.
The author usually holds copyright, but it can be assigned to someone, sold to someone, or shared between two or more authors who worked together on the work. If you share copyright with someone, it means you can’t licence it out or republish it without the other person’s permission.
Traditional Owners can benefit from having control over how a work is used and could receive income from licensing the copyright, but the creator of original art also deserves recognition and rights for their work. You should seek an agreement that benefits all.
Copyright and Traditional Cultural Expressions
Often, the copyright owner is a different person to the Traditional Custodian of a Traditional Cultural Expression. For example, if a traditional story is adapted for a novel, the novelist will own the copyright – unless there is a written agreement saying otherwise. The copyright owner will have the right to say yes or no to other people who want to use their story. But what if the traditional story was sacred, and Customary Law says it should not be shared with others?
This can create situations where Traditional Custodians do not have the right to use works that represent their own culture.
Many videos, photos and written descriptions around today were created during a time when Aboriginal and Torres Strait Islander cultures were seen as free for the taking. If you are using older works, we highly recommend talking to the Traditional Custodians even if it is not legally required for copyright. When creating new works, think carefully about who should have control over how the work is used in the future. Put all agreements in writing.
Recommendation: When the copyright owner of an existing work is different to the Traditional Custodian, both parties should be approached equally to gain the right to use or display copyright material.
Recommendation: All new works containing Aboriginal and Torres Strait Islander Traditional Cultural Expressions should assign or share copyright with Aboriginal and Torres Strait Islander participants wherever possible.
The people who create copyrighted material can decide who will own the rights once it is created. For example, an author on magazine article may be asked to assign copyright to the publisher of the magazine. This agreement will be recorded in writing, and signed. A songwriter may agree that a music publisher will own copyright for future songs, in return for a share of the income. In this case, the author is no longer the owner of copyright.
If you are an employee of a university, check their intellectual property policy to find out who owns copyright. Usually when you create works as part of your employment, your employer owns the copyright.
Some people are put off engaging with traditional art practices because it seems too difficult to work out the legal aspects of intellectual property. It’s not as complicated as you might think. If it is your original work, you own the copyright. And every artwork has a derivative element to it and is inspired by something. You can draw on traditional styles and keep copyright if that’s the right thing to do, but we encourage you to engage and share – rather than to take or ransack.
For historical reasons (and by no means ancient history) there are sensitivities about non-Aboriginal people taking culture from Aboriginal and Torres Strait Islander people. Here are some simple steps to avoid taking, and start engaging with Traditional Cultural Expressions:
If your work was inspired by someone, tell them.
Appropriately acknowledge the people who inspired you with a note on the artwork.
Give proper attribution to your sources. Don’t just throw in a weblink, say ‘this element was inspired by the Barngarla community of Port Lincoln’.
Find local artists and talk to them about their art. You may gain a deeper understanding, which will help your own style develop.
Talk to people in the community and check that you are not using sacred symbols or causing offence. This can cause real hardship for people. Be respectful.
Share your work with the community. Look for ways to give back. Indigenous people love learning about other cultures, Indigenous or not.
Who can own copyright?
Traditional Knowledge is often considered to belong to communities, rather than individuals. This can make copyright difficult, as copyright can only be held by:
Incorporated groups (companies)
To properly assign copyright, there may be an incorporated group within the community who could be named the copyright owner and have responsibility for managing those rights. Or an individual (or several individuals) from the community could be assigned copyright, so they can say how it would be used in the future.
Multiple people can share copyright if:
The people all contributed to the creation of the work, or
There is a written agreement that copyright will be jointly owned.
It is always a good idea to have a written agreement about who will own copyright if you are working with a group or being paid to produce something.
Journal articles and other forms of research products are also covered by copyright. If Aboriginal and Torres Strait Islander people are contributing to research, directly or indirectly, they must be acknowledged in the research product (preferably by copyright).
More information: Not sure if an Aboriginal and Torres Strait Islander person is a participant, collaborator or author? See Terri Janke’s 2009 article ‘Writing up Indigenous research: Authorship, copyright and Indigenous knowledge systems’ at http://www.terrijanke.com.au/documents/WritingupIndigenousresearch_14Sep09.pdf
Recommendation: Journal articles and other products of research should share authorship and/or copyright with Aboriginal and Torres Strait Islander participants and Traditional Knowledge owners.
Recommendation: Share your work with the community. They would like to see it.
A copyright notice is a sentence or two on a document that says, for example ‘Copyright The University of Adelaide, 2015.’ They do not change law – to do this you need a written agreement. But they can be important. By having a copyright notice at the start of a book, article, sheet music or other work, you can tell people whom they need to contact if they want to use the work and warn them that certain uses may breach Customary Law.
This is an example of a copyright notice appearing at the top of sheet music from the Centre for Aboriginal Studies in Music (CASM) at the University of Adelaide.
Words and Melody: Copyright Community Collective Rights, Traditional Owners, Boigu Island, Torres Strait Islands.
Arrangement: Copyright J. Newsome, A. Pak Poy, E. Peters, D. Petherick, G. Rotumah.
This music may be used only for teaching by Torres Strait Islander Traditional Owners at the Centre for Aboriginal Studies in Music at the University of Adelaide. Written reproduction is not allowed without the written consent from traditional owners and the Centre for Aboriginal Studies in Music at the University of Adelaide
This useful notice contains a lot of handy information. It lists two separate copyrights. The Words and Melody belong to the Traditional Owners, although community collective rights were not legally enforceable as of March 2015. The copyright for the Arrangement belongs to several individuals, some of whom are traditional owners themselves. It also clearly tells the reader that the work must only be used with written permission.
Journal articles may also note customary law, for example ‘This paper contains Traditional Knowledge from the Pitjantjatjara community. Written permission from the community must be received before using or reproducing the knowledge within. Failure to do so may breach Customary Law.’
Recommendation: All works containing the intellectual property of Aboriginal and Torres Strait Islander peoples should include a copyright notice identifying the traditional owners of the knowledge and details of any uses that are not allowed.
Performers have certain rights when people are filming or recording their music, dance, expression of folklore (including Aboriginal and Torres Strait Islander cultural material) or dramatic production. Be aware that:
You need consent to film or record a performance.
You need consent to broadcast or otherwise communicate a performance.
Performers have the right to be attributed as a performer, not to have the performance falsely attributed, and not to have the performance subjected to derogatory treatment. This is similar to the moral rights of authors, discussed below.
Uncommissioned sound recordings are owned by the performers on the recording, not the person who recorded them, as long as the recordings were made after 1 January 2005.
Under copyright, artists have the following moral rights over their work:
To be attributed.
Not to be falsely attributed.
For their work not to be dealt with in a way that damages their honour or reputation.
Artists still have these moral rights even if copyright has been assigned to someone else. These rights are particularly important to consider when repurposing a work or making derivatives. You must always attribute the author of a work, unless they give you written permission that they do not need attribution for a specific project.
Moral rights cannot be bought or sold, but they do expire when copyright expires. For directors, producers and screenwriters of film, and for performers in recorded performances, moral rights expire after death.
The Australian Copyright Council website: http://www.copyright.org.au/
Thinking of applying for a design, patent or trade mark?
As well as copyright, work can be protected with a design, patent or trade mark. For example, three-dimensional artistic works that are mass-produced do not qualify for copyright. They need to apply as a design through Intellectual Property (IP) Australia in Canberra to be protected.
These actions will help you protect your intellectual property.
Contact your university’s legal department and have a confidential discussion.
Keep your design or invention secret while you get advice on what to do. You may not be able to apply if you make it public.
Talk to IP Australia and see their website for more information.
Talk to a lawyer who specializes in intellectual property.
Make an application at IP Australia.
The IP Australia website: www.ipaustralia.gov.au
IP Australia publication: ‘Nanga Mai Arung Dream Shield: A guide to protecting designs, brands and inventions for Aboriginal and Torres Strait Islanders’ (2010): http://www.iba.gov.au/wp-content/uploads/2010/08/20131612_IP-Australia_Dream_Shield.pdf
Terri Janke: ‘Minding Culture’ (2003): http://www.terrijanke.com.au/documents/MindingCulture_finalstudy.pdf