New Stand-Alone Draft Legislation to Protect Aboriginal and Torres Strait Islander Cultural and Intellectual Property – Part 1

By Sophie Coffin

15 May 2025

This article was first published in the February 2025 edition of the Law Society of Western Australia’s Brief digital journal.

with thanks to David Stewart for his review and comments.

On 30 January 2023, through the national cultural policy entitled ‘Revive’,¹ the Australian Government committed to introduce new stand-alone legislation and other measures to adequately protect traditional knowledge and cultural expressions, known as Indigenous Cultural and Intellectual Property (ICIP). The new regime will address measures to protect ICIP in a variety of contexts. To inform the development of the new legislation generally, community consultations were held across Australia in 2024. The government have now formed a First Nations Expert Working Group on ICIP to guide the next stages.

The need for better protection of ICIP is also internationally topical. In May 2024, World Intellectual Property Organisation (WIPO) member states adopted the first WIPO Treaty to address the interface between intellectual property, genetic resources, and traditional knowledge. Australia is not currently a signatory to this treaty.

This article focuses on the upcoming reforms of ICIP in Australia in the context of visual art and design, including existing gaps in legislation and protection, the reasons why protection is important, and how the proposed legislative framework will address the gaps.

1. What is ICIP?

Self-determination manifests in authority of cultural expression.

In Australia, ICIP means ‘the cultural heritage of Aboriginal and Torres Strait Islander people which comprises all objects, sites and knowledge, the nature and use of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular Indigenous group or its territory. It is a living concept that can be adaptive and include objects, knowledge, literary and artistic works which may also be created in the future based on that cultural heritage and includes:

• Literary, performing and artistic works (including songs, music, dances, stories, ceremonies, symbols, languages and designs)
• Scientific, agricultural, technical and ecological knowledge (including genetic material, cultigens, medicines and phenotypes of flora and fauna);
• All items of movable and immovable cultural property (including sacred and historically significant sites and burial grounds) and ancestral remains; and
• Documentation of Indigenous peoples’ heritage in archives, film, photographs, videotape, or audiotape and in all forms of media.’²

Other terms used are traditional knowledge and traditional cultural expressions. While there is no internationally accepted definition of ‘traditional knowledge’, it generally describes any form of knowledge, skills and practices that are developed, sustained and passed on from generation to generation within a community, forming part of its cultural or spiritual identity.³ ‘Traditional cultural expressions’ describes the various ways in which this knowledge is expressed such as spiritual knowledge and through visual arts and crafts.⁴

‘ICIP Rights’ refers to the rights Aboriginal and Torres Strait peoples⁵ have or want to have to protect cultural heritage. This includes the right to:⁶

• Own, control, maintain their ICIP;
• Ensure that any means of protecting ICIP is based on the principle of self-determination;
• Be recognised as the primary guardians and interpreters of their cultures;
• Authorise or refuse the use of ICIP according to their own law;
• In the case of secret Indigenous knowledge and other cultural practices, maintain that secrecy;
• Guard the cultural integrity of their ICIP;
• Be given full and proper attribution for sharing their cultural heritage;
• Control the recording of cultural customs, expressions and language that may be intrinsic to cultural identity, knowledge, skill and teaching of culture; and
• Publish their research results.

2. Existing legislation: Gaps in protection

Customary laws incorporating ICIP are not recognised in Australia. In fact, there is no legislative framework for the use of ICIP. Unless the works of Aboriginal and Torres Strait Islander peoples can meet the requirements of existing Australian intellectual property laws, their rights are unprotected and open to unauthorised exploitation. In practical terms, this means that aspects of ICIP, such as sacred symbols and motifs, can be used without permission to create and profit from visual arts and crafts.

Aboriginal and Torres Strait Islander notions of cultural and intellectual property differ from non-Indigenous notions of intellectual property, for example:

• Under Aboriginal and Torres Strait Islander customary law, intellectual property (IP) rights are communally owned, whereas under non-Indigenous laws, these rights are not owned by communities, with the exception of geographical indicators of origin. Many aspects of ICIP and cultural expression do not have a singular author and require communal ownership.
• Under Aboriginal and Torres Strait Islander customary laws, intellectual property rights are generally not transferable by assignment or license outside the community. Under existing intellectual property laws, intellectual property can be freely transferred.
• Aboriginal and Torres Strait Islander customary law emphasises preservation and maintenance of culture, whereas existing intellectual property laws place an emphasis on economic rights, save for the moral rights regime in the Copyright Act 1968 (Cth) (Copyright Act).
• Additionally, Aboriginal and Torres Strait Islander knowledge is largely transferred through the spoken word and survives in intangible form. Many aspects of ICIP do not fall into the existing framework of IP, such as stories, games, song lines, rituals and oral traditions. The Copyright Act in contrast, for example, requires works to be reduced to material form and, in addition, it is not possible to obtain copyright in forms of artistic expression (such as dot painting or Wandjinas).
• The duration of copyright protection generally lasts for 70 years past the date of the death of the author. However, this does not align with the continuous nature of Aboriginal and Torres Strait Islander peoples’ connection to traditional knowledge and cultural expression from which ICIP is drawn. Aboriginal and Torres Strait Islander designs can date back tens of years.

The current Copyright Act illustrates these points. Rock art is communally owned, rather than owned by a single author, and exists for tens of thousands of years, in contrast to the ownership and duration parameters of the Copyright Act. This existing framework is not capable of adequately protecting the expression of cultural identity.

The existing protocols and guidelines that support better practices in the use of ICIP are not legally enforceable.⁷ Despite the utility of some laws that can help prevent the unauthorised use of ICIP in visual arts and crafts, there is no legal framework that directly governs the circumstances under which ICIP can or cannot be used. In addition, the cost and complexity of legal processes may prohibit Aboriginal and Torres Strait Islander peoples from pursuing legal remedies.

The gaps in ICIP protection under the current legal framework have been recognized by the courts for over 30 years. In 1999, French J (as his Honour then was) noted in Yumbulul v Reserve Bank of Australia,⁸ “it may also be that Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin”.⁹ A few years later, these sentiments were echoed by Von Doussa J in Milpurrurru, Marika, Payunka & Public Trustee for the Northern Territory v Indofurn Pty Ltd, Bethune, King & Rylands.¹⁰ His Honour remarked, “the recognition of the sacred and religious significance of these paintings, and the restrictions which Aboriginal law and culture imposes on their reproduction is only now being understood by the white community.”¹¹

3. Why is protection important?

In Aboriginal and Torres Strait Islander cultures, art is expression and identity. As outlined above, there is inadequate protection to ensure that only authentic art made by Aboriginal and Torres Strait Islander artists and communities, with the approval of traditional custodians, is created and sold. According to the Productivity Commission, over half of souvenirs and merchandise sold do not meet these criteria. This should properly be regarded as fake art, even if it does not satisfy the requirements of infringement in s 35 of the Copyright Act.¹²

Fake art includes Aboriginal and Torres Strait Islander style products created by non-Aboriginal and Torres Strait Islander people that use ICIP without the authorisation of traditional custodians, and may be products that infringe moral rights and copyright. This can include visual art, merchandise and souvenirs like boomerangs and didgeridoos. Generally, these are created and sold for the purpose of financial gain. It is a pervasive and longstanding issue.

Fake art has a profound effect on Aboriginal and Torres Strait Islander culture and people. It results in loss and misrepresentation of culture, personal hurt and emotional distress for Aboriginal and Torres Strait Islander peoples and communities. The detrimental impact is also economic. Fake art is often mass produced and cheap. Cheap, fake art affects the ability of Aboriginal and Torres Strait Islander artists to compete for sales and, therefore, prevents Aboriginal and Torres Strait Islander peoples from accessing the full economic benefits of their work.¹³

Inauthentic products can also mislead consumers in their false claims of authenticity. This issue arose in Australian Competition and Consumer Commission v Birubi Art Pty Ltd.¹⁴ The respondent represented each product it sold was hand-painted by Aboriginal people and that they were made in Australia. Neither was true.¹⁵ Justice Perry emphasised deterrence as an important consideration when determining pecuniary penalties in such cases because of the significant harm inauthentic art causes:

“the deterrent effect is of particular importance in the present context given the economic, social and cultural harms to Aboriginal and Torres Strait Islander Australians which may flow from businesses misrepresenting the provenance of art and souvenirs as Australian Aboriginal and Torres Strait Islander art and artefacts”.¹⁶

While the Australian Consumer Law targets misleading and deceptive conduct,¹⁷ it easily applies where the marketing of visual arts and crafts inaccurately presents the products as authentic. A certificate of authenticity is sometimes used by vendors (such as art galleries) as a marketing tool on genuine art. However, this is not always the case. It is also difficult for Aboriginal and Torres Strait Islander artists and communities to know when their cultural expression and practices have been inauthentically reproduced, particularly where this occurs in another state or overseas.

4. The proposed response – new legislative framework

Dedicated legislation has the potential to provide stronger recognition and more fit-for-purpose protection for ICIP used in visual arts and crafts, as opposed to the limited effect of amending existing laws.

The legislation will be developed in stages. The first stage will address fake visual arts, merchandise and souvenirs. Later stages will address broader ICIP rights. Importantly, the new legislation is being developed through an Aboriginal and Torres Strait Islander-led process. Public engagement sessions facilitated by the Office of the Arts’ Stand-alone Legislation team took place in 2024 to enable community voices to form part of the legislative process. The community consultation involved community input on the scope of the new framework. For example, what aspects should be protected under the new law; the key principles and objectives of the new law, preferred terms, communal ownership and enforcement against breaches of ICIP rights.¹⁸

The new framework will involve:

• new cultural rights legislation to protect aspects of ICIP used in visual arts and crafts;
• disclosure requirements for non-Aboriginal and Torres Strait Islander authored products;
• strengthening legal and other support services to Aboriginal and Torres Strait Islander artists;
• evaluating – in partnership with Aboriginal and Torres Strait Islander representatives – all Australian government funding directed to the Aboriginal and Torres Strait Islander visual arts and crafts sector, to inform future funding needs and objectives; and
• clarifying objectives and responsibilities for workforce policy, to ensure Aboriginal and Torres Strait Islander people working (or aspiring to work) in the sector have access to the training they need and opportunities to develop sustainable careers.

The purpose of the legislation will be to:

• preserve cultural tradition and knowledge;
• protect the economic interests of Aboriginal and Torres Strait Islander people with respect to rights to commercialise their IP on the market on their own terms and with the right to negotiation;
• protect the integrity of Aboriginal and Torres Strait Islander arts and cultural expression;
• encourage acceptable use;
• prevent offensive use;
• prevent use of secret/sacred material outside the traditional or customary context; and
• provide a framework for Aboriginal and Torres Strait Islander communities to control the use and benefit economically from the commercial exploitation of their arts and cultural expression.

5. Expected benefits

By providing Aboriginal and Torres Strait Islander peoples with legal remedies when cultural assets are exploited without authorisation, the new legislation will be a significant and crucial step in recognising thousands of years of cultural practices. Adequate protection under the proposed framework will make a meaningful difference in mitigating harm caused by fake art, including loss and misrepresentation of culture, personal hurt, emotional distress and economic loss. Adequately protecting ICIP will also help to sustain economic and innovative growth for Aboriginal and Torres Strait Islander artists.

The clarification of the rights and responsibilities of Aboriginal and Torres Strait Islander artists, and those seeking to use aspects of ICIP, will also assist non-Indigenous people engaging in this space.

There is also a significant benefit to consumers. Consumers would have accurate information about the authorship of products, support demand for authentic goods, while imposing minimal costs on Aboriginal and Torres Strait Islander artists.¹⁹

6. Suggested reform in addition to the new legislation

In addition to the new legislation, our other suggestions for reform include:

• expanding the purview and powers of the Australian Crime and Corruption Commission (ACCC) for consumer protection of ICIP to prosecute and investigate fake art;
• developing a legislative Traditional Knowledge symbol to authenticate tangible materials and also create awareness to consumers (mirroring the Trade Marks Act 1995 (Cth) which prescribes when to use the ™ and ® symbols, and the Copyright Act which governs the use of the © symbol);
• establishing an online register for ICIP, like the existing IP registers for trade marks, designs and patents; and
• establishing a national ICIP governing body, with an ICIP registration system, a budget, and enforcement and investigation powers. Such a body could also work in conjunction with the ACCC.

In Part 2 of this article, we look at how our suggestions for reform echo cultural regimes in other jurisdictions, and what regulatory concepts could be imported into Australia for the purpose of protecting ICIP.

 

1. Information about Revive can be accessed online at https://www.arts.gov.au/what-we-do/new-national-cultural-policy.
2. CSIRO, Australian Institute of Aboriginal and Torres Strait Islander Studies Code of Research Ethics.
3. World Intellectual Property Organisation, ‘Traditional Knowledge’, accessed online at https://www.wipo.int/tk/en/tk/.
4. World Intellectual Property Organisation, ‘Traditional Cultural Expressions’, accessed online at https://www.wipo.int/tk/en/folklore/.
5. Note: In the context of discussions about ICIP, different terms are used to describe Aboriginal and Torres Strait Islander peoples including Indigenous peoples, Traditional Owners, Traditional Custodians and First Nations peoples.
6. CSIRO Indigenous Cultural and Intellectual Property Principles, adapted from and reviewed by Terri Janke and Company, available at https://www.csiro.au/en/about/Policies/Science-and-Delivery-Policy/Indigenous-Cultural-and-Intellectual-Property-Principles. See also Terri Janke, Our Culture: Our Future Report (1998) 47-48.
7. For example, CSIRO Indigenous Cultural and Intellectual Property Principles above; National Library of Australia, written and researched by Anika Valenti of Terri Janke and Company, available at <https://www.nla.gov.au/sites/default/files/2023-09/nla-icip-protocol-2023.pdf>.
8. (1991) 21 IPR 481.
9. Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481, [490].
10. (1994) 130 ALR 65.
11. Milpurrurru, Marika, Payunka & Public Trustee for the Northern Territory v Indofurn Pty Ltd, Bethune, King & Rylands (1994) 130 ALR 65.
12. Australian Government Productivity Commission, ‘Aboriginal and Torres Strait Islander visual arts and crafts study report’, November 2022, 8. Available at Overview – Study report – Aboriginal and Torres Strait Islander visual arts and crafts (pc.gov.au).
13. Ibid.
14. (in liq) (No 3) (2019) 374 ALR.
15. Ibid.
16. Ibid, 776.
17. Schedule 2 of the Competition and Consumer Act 2010 (Cth).
18. See government fact sheet: Standalone-legislation-fact-sheet (arts.gov.au).
19. Ibid.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.