Moving beyond existing IP laws: New Victorian law protects traditional knowledge

Australia will be the second country in the commonwealth to protect intangible aspects of Aboriginal heritage including songs, dance and stories under new a law that comes in effect on August 1st. The new provisions are amendments to the Aboriginal Heritage Act in Victoria which put in place a significant fine for exploitation of non-physical aspects of Aboriginal culture without seeking consent of the indigenous owners.  

The Act describes intangible heritage as, “any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.” Intangible heritage also includes any intellectual creations based on or derived from Aboriginal creations.

According to the Victoria’s Aboriginal Affairs minister, Natalie Hutchins, the new law allows Aboriginal people in Victoria “to shape the nature of cultural heritage and control how their cultural knowledge is used by others.” In addition, the reforms also help address gaps in the existing intellectual property (IP) framework for protecting cultural heritage.

Based on the new provisions, traditional knowledge holders can apply to have intangible assets of their heritage added to the heritage registry for protection. The Act grants the Victorian Aboriginal Heritage Council with decision-making powers over items of intangible heritage in the registry.

Under this law, it is an offence to knowingly use registered items of Aboriginal heritage for commercial purposes without consent from the relevant owner(s). Individuals can be fined up to approximately AUD $280, 000 while corporations can be fined up to AUD $1.5 million.

The effectiveness of the legislation relies on overcoming a number of challenges. For one, the intent requirement of the offence could provide evidentiary difficulties. Enforceability also relies in ensuring traditional knowledge holders apply to have their intangible assets included in the registry.  Lack of awareness or motivation by Aboriginal groups to make such efforts to combat exploitation of their cultural heritage may undermine the intent of the law.

Besides Victoria, the Canadian province of Quebec is the only other jurisdiction in the commonwealth with laws that safeguard intangible heritage. This is in line with the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. However, Canada, Australia and other countries like United States have not signed this Convention

The new heritage law is a huge stepping stone in achieving protection of intangible Aboriginal assets. Unlike physical aspects of cultural heritage, which can be safeguarded in homes and museums, intangible assets are difficult to protect; they require being passed down from one generation to another. This is even more difficult in the modern era because as Bill Logan, professor in world heritage at Deakin University points out, it involves encouraging young generations to adopt dying cultural practices to keep them alive. The use of a registry can help safeguard knowledge that may be at risk of being lost otherwise.

In addition to directly protecting traditional knowledge, the heritage law also help strengthen relations between the State and indigenous people. This enables the creation of more opportunities for partnership and collaboration between businesses, government and indigenous groups based on protected knowledge, setting a great example for other jurisdictions to follow.

Additional references:

Minister for Aboriginal Affairs. “A National First for Aboriginal Heritage Protection” (20 July 2016), Premier of Victoria: The Hon. Daniel Andrews MP, online: <http://www.premier.vic.gov.au/a-national-first-for-aboriginal-heritage-protection/>.

Wahlquist, Calla. “Indigenous stories, songs and dance protected under new Victorian law” (19 July 2016), The Guardian, online: <https://www.theguardian.com/australia-news/2016/jul/19/indigenous-stories-songs-and-dance-protected-under-new-victorian-law>.

Photo credit: “Jingle Boogie // Powwow Jingle Dress Dance” by Donovan Shortey // licensed under CC BY-NC-ND 2.0

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