While the terms ‘Aboriginal and Torres Strait Islander’ and ‘Indigenous’ are used in these protocols, they are essentially shorthand terms of convenience that mask the cultural diversity of Indigenous Australian communities. At time of first contact, linguists consider there to have been 250 languages spoken across the continent, each with its own cultural base and deeply linked to the land. While a great many of these languages are no longer spoken and those that do remain are under threat, there is still a significant cultural diversity among Indigenous groups that range the spectrum from traditional or remote to urban. Whatever the setting of research involving Indigenous groups, it is crucially important to engage in such a way that local cultural protocols for access to, reproduction of and circulation of cultural knowledge are respected and observed: research should lead to a strengthening of cultures rather than contribute to their diminution.
The intersection of Indigenous intellectual property rights and Western copyright presents many challenges for archives and researchers and is indeed a complex and evolving area of practice. Much of the tension arises from the incommensurability of Indigenous customary law and Western notions of property and open access to knowledge. Typically for the former, ownership of and access to knowledge is based on a range of criteria including gender, age, seniority, kinship and links to country, and is regulated accordingly. Western copyright law does not in many respects protect the intellectual property rights of Indigenous people: copyright protects tangible cultural expressions rather than ideas, or intangible oral traditions, which, in many Indigenous contexts, will never be written down or recorded. Copyright focuses on the rights of the ‘creator’ who, in this context, will usually be the researcher who created the research datasets. Although initiatives within the World Intellectual Property Organisation’s deliberations are attempting to address this problem, at the moment copyright does not protect rights vested in a community and rights which continue indefinitely.
In response to this gap, ATSIDA takes a risk management approach in performing its functions. It endeavours to provide the widest possible access to research data relating to Aboriginal and Torres Strait Islander peoples in order to maximise the benefits to Indigenous communities and researchers while respecting both Indigenous cultural protocols and research protocols. But ATSIDA recognises that judgement is required to achieve these outcomes since not all dilemmas are resolvable in advance. In making resources available it is therefore necessary to be guided by both the researcher and relevant communities in setting conditions of access and use.
The moral rights provision of the Copyright Act 1968 provide an approach to protecting the interests of Aboriginal and Torres Strait Islander peoples. In simple terms, they cover the right of an individual to be attributed as the creator of a cultural expression, to not have work falsely attributed, and not to have the work treated in a derogatory way. This applies to material that might appear in datasets, including song lyrics, sound recordings, and artistic works -paintings, drawings, photographs, for example. Moral rights need to be considered prior to reproduction (effectively digitising or other copying), publishing, and communication to the public (via a website, for example).
For many Aboriginal and Torres Strait Islander communities, aspects of their intellectual property are documented in library and archival collections. Upon reappearance in a community, through a research project for example, their ownership can be contested.