INDIGENOUS WOMEN'S ART DESIGNS

     The current Australian legal framework offers limited recognition and protection of indigenous cultural and intellectual property:

• It is generally considered that the existing intellectual property laws are inadequate in recognising and protecting indigenous cultural and intellectual property rights because non-indigenous notions of intellectual property are quite different from indigenous beliefs.

      Copyright
      While copyright law has been used by some indigenous artists to protect their interests in their creations, there are problems with the application of copyright provisions to indigenous works because these works may fail to satisfy the following requirements of copyright:

• Originality
• Material form
• Identifiable author.

      Some of the practical effects of copyright include: exclusive rights granted to individual authors and makers of recordings to use and deal with the copyright of their works; no special protection granted to secret or sacred material; performances of oral traditional material are not protected under copyright provisions and receive only limited protection under performers' rights. There are no performers' rights in relation to still photography.

      Limitations of Protection: Commercial interests are protected under copyright law, rather than interests pertaining to cultural integrity. There is no right of attribution for indigenous communities over works that include or incorporate aspects of their cultural heritage. Rights are valid for a limited period and then become freely available, whereas under indigenous laws, they exist in perpetuity. Individual notions of ownership are recognized, rather than the indigenous concept of communal ownership.

      Designs Act
     The Designs Act offers limited protection for indigenous cultural and intellectual property. The focus of design protection is to enable commercial interests to gain a competitive edge. A limited period of protection is offered, whereas traditional rights to indigenous designs exist in perpetuity. Protection is afforded to a registered owner, whereas Indigenous laws recognise communal rights.

      Patents Act
      Indigenous material is often not patentable, because it does not meet the requirements of patentability. The following factors exclude indigenous works from consideration:

• They are not novel
• They do not involve an inventive step

     Human beings and the biological processes that make them do not constitute a patentable invention. Nevertheless, a contentious issue is that patent application is allowable where human genetic resources, such as genes, are concerned.

      Trademarks Act
     To be registered as a trademark, indigenous cultural material would have to be used in the course of trade, which is not appropriate to the cultural significance or the traditional use of such material. Indigenous people may be able to make use of the restrictive provisions under the Trade Marks Act to challenge culturally offensive trade marks which are scandalous or contrary to law.

      Cultural Heritage Law
     Cultural heritage laws are inadequate in their application to all aspects of indigenous cultural and intellectual property and do not recognize many rights indigenous people consider important for the continuation of their culture. The inadequacies in the legislation include the following:

• The ownership of cultural heritage is often vested in a government department rather than in the appropriate indigenous community
• The focus of cultural heritage laws is on tangible cultural heritage, such as specific areas,
• objects and sites. The intangible aspects of a significant site, such as its associated stories, songs and dreaming tracks, are not protected.
• The focus is on past heritage rather than living heritage.
• Scientific and/or historical value is the emphasis for protection, rather than cultural and spiritual value.
• The discretion to act to protect rests with the relevant government department and indigenous participation in the decision-making process is usually limited.

      Recently there has been a turnaround in the focus of indigenous cultural heritage legislation. Witnessed by the development of cultural heritage agreements and the restoration of hunting and gathering and fishing rights in some States and Territories.

      Archives Legislation
      Existing archives legislation fails to deal with issues relating to who can access a particular institution's records. This is of particular concern for indigenous peoples, given that their records often contain personal and culturally sensitive information.

      Museum Legislation
     These laws focus on anthropological and scientific significance, and not on the cultural and spiritual value of institutions' collections to indigenous peoples.

      The Native Title Act
      This legislation is currently interpreted as focusing on the tangible issues relating to the rights to lands and waters.

      Defamation
     Current defamation laws apply to individuals rather than to indeterminable groups.

      Racial Vilification Laws
     These concentrate on material which publicly incites or encourages racial hatred. However, much culturally offensive material is not included in this definition.

      Privacy
     To date, there is no general right to privacy in Australia.

      The Trade Practices Act
     This Act prohibits misleading and deceptive conduct and may provide some protection against false labelling and marketing practices affecting indigenous cultural and intellectual property.

      Breach of Confidence Laws
     These may be useful in instances where indigenous cultural material has not previously been published.

      Passing Off
     This is a limited resource for indigenous communities, because it must be proven that damage to goodwill and reputation has been brought about by deception on the part of the defendant.

      Broadcasting Laws
     These regulate content on Australian television, radio and online services. However, they do not adequately address indigenous issues, including how indigenous people are portrayed in these media.

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