Will you be my guinea pig?
So. I’m doing this assignment on indigenous intellectual property and I’m kinda struggling to get my head around it. I’ve been sitting here for about ten minutes, ready to start writing, with my brain quietly imploding. Then, suddenly, someone I know walked past and complimented the blog.
Lightbulb.
Luckily, the topic vaguely relates to art. Procrastination? I think not. Effective study method more like. Also, safe audience.
It’s interesting, I promise. It really is.
Our legal system is based on norms that go back through Western culture for many centuries. These norms are pretty embedded in society, and as such, are pretty embedded in the legal system.
One of these norms is property. According to the norm, you can have ‘real’ property, which involves tangible things, or you can have ‘intellectual’ property, which involves ideas, et cetera.
Think about it like this: a physical book is an item of real property. It belongs to you as a person. If I take it, I’m stealing from you. The ideas, story, effort that’s gone into making the book, however, isn’t yours. It belongs to the author. If you or I steal the ideas in the book, write a book of our own including those ideas, and put our name on it, we’re stealing from the author. Why? Because, by virtue of the efforts that the writer of the book has put into the creation of the work, he or she has a copyright interest in it. Copyright is just one part of intellectual property. The other parts include things like patents, trademarks, designs, et cetera.
IP is meant to protect the Western values of individual ownership and the notion of a ‘public domain’, and the law reflects these values. For example, copyright can only subsist in a work for 70 years after the death of the author of the work. After that, it enters the ‘public domain’. Technically, if I rip off Shakespeare’s ideas and make a movie, I dunno, maybe call it 10 Things I Hate About You, then Shakespeare’s ancestors can’t come and sue me for breach of copyright. The 70 years has passed.
When it comes to indigenous intellectual property, indigenous values are kind of mismatched with those protected by the somewhat entrenched, western-oriented legal system.
To Australian indigenous peoples, ‘ownership’ is not individual, but rather it is communal. ‘Ideas’ are passed down from generation to generation, still belonging to the tribe as ‘property’ for thousands of years after our 70 years of copyright has expired.
Indigenous artists have to gain permission from their tribes in order to depict sacred ceremonies or Dreamings. Only certain artists are allowed to depict certain themes, and only members of particular tribes are allowed to depict stories belonging to that tribe. Why? Because the story belongs to the tribe. It has been passed down through generations. This is how their customary law works.
Under our law, if I were to pick up a canvas and depict a sacred ceremony, the tribe would have no legal remedy available to them. I haven’t breached anyone’s (western-concept) ownership of a work.
The courts have found that where a tribe member seeks permission from a tribe to depict a particular sacred ceremony, and their copyright is breached by a third party (i.e. someone copies the image and produces something else with it), the tribe member has a duty to take action against the third party for breach of copyright, to prevent the third party from using the image in a disrespectful manner. But the tribe can get no damages themselves. Why? Because the tribe is not interested in gaining monetary compensation for breach of their rights, rather they merely wish to protect the sacred ceremony from being sullied in such a way.
But there needs to be a relationship between the tribe and the artist for this kind of obligation to exist.
So, what are we going to do about it - if anything? Essentially we’ve got a bunch of laws that don’t accommodate for the interests and values of our indigenous population.
Here are the two sides of the argument as far as I can tell.
Side one: “Sorry, your value system doesn’t fit neatly into what our ancestors decided was ‘property’. Sure, we’ve made some changes over time, with the whole slavery thing. But property is only a ‘fluid’ concept when we say it is. This is too hard, and too different. Too bad.”
Side two: “This isn’t right, we need to accommodate the indigenous value system by changing the legal framework. If this doesn’t work, we’ll need to create a new one that is designed to protect these rights that don’t fit into the western notion of ‘property’.”
I think you know which side I’m on.
…
Ah, a sigh of relief (I meant from me, but… ). Thanks, I’m good now.
