The World Archaeological Congress

Barney Warria and Ronald Berndt: their Relationship and Intellectual Property

Moderator: Claire Smith, Flinders University, South Australia
Panel: Shaun Berg, Vincent Branson, Vincent Copley, Gary Jackson, John Stanton

Barney Warria and Ronald Berndt were good friends. They worked together for many years, recording the culture of Ngadjuri people. Their friendship started when Berndt was about 18 years old, and Barney was about 50. They liked and trusted each other. When Berndt died in May, 1990 he left a thirty year embargo on his field notes, including the notes he made of conversations with Barney Warria. Today, Barney Warria's Ngadjuri descendents wish to access this material in order to obtain knowledge about their forebears as part of the process of coming back to country. As it stands, they are not able to access the material recorded by Berndt. This is not what Berndt envisaged when he established the embargo on his field notes, nor is it what he would have wished.

This situation raised serious issues concerning the ownership of the intellectual property that emerges as part of the research process. Did Berndt really have the right to place an embargo on Barney Warria's words? Since some of the text was inter-linear, many of the words were Barney Warria's, recorded verbatim. Surely his descendents should have access to these words? In this panel we suggest that these sections of Berndt's field notes constitute shared intellectual property that was shared between the two men, and that did not have the right to place an Embargo on this material-especially as it relates to Barney Warria's descendents. Various facets of this are explored in a panel discussion, the implications of which are global.

Indigenous Peoples, Archaeologists and the Research Process

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Convenor: Susan Forbes, Te Papa Museum, New Zealand

Indigenous peoples have long been the focus of research conducted by many archaeologists, anthropologists and ethnographers. The vast majority of the these researchers have been non-Indigenous. Research produces knowledge that, under current intellectual property laws, is legally owned, controlled and disseminated by the researcher. Indigenous communities who share their ICIP with researchers are not recognised as being the legal owners of their knowledge and hence, can exert no legal control over who can access or use that knowledge. This can be problematic when the knowledge is of a secret/sacred nature where access would normally be restricted to properly initiated members of the community. Appropriation and misuse of ICIP is a major issue for Indigenous peoples.

This focus of this session is on the ICIP issues that Indigenous peoples and archaeologists encounter in the course of research. It will discuss both problems faced and instances of where these issues were successfully resolved.

Managing Cultural Values and Biodiversity: Research, Cultural Knowledge and Intellectual Property on Ngarrindjeri Ruwe

Convenor: Steve Hemming, Flinders University, South Australia
Panel: Diane Bell, Shaun Berg, Daryle Rigney, Matt Rigney, George Rigney, Grant Trevorrow, Tom Trevorrow, Chris Wilson

The Ngarrindjeri Nation has been engaging with research and researchers since the nineteenth century. For most of this time non-Indigenous people have researched and written about Ngarrindjeir people for a largely non-Indigenous audience. Since the Kumarangk (Hindmarsh Island) Royal Commission Ngarrindjeri people have been developing a research agenda that seeks to harness the power of research for Ngarrindejri interests. The Kungun Ngarrindjeri Yunnan agreement (listen to what Ngarrindjeri people are saying) has been the instrument at the base of this new approach. We will discuss a number of research areas and research projects and the Ngarrindjeri approach to negotiating and conducting just, equitable and useful research.

Indigenous People and Film: Getting your Story out There

Convenor: Jo Smith and George Merryman, Sydney Film Festival

How do you get an idea from page to film? What cultural and intellectual property issues are likely to be encountered when making a film with Indigenous people? How do negotiate with Indigenous communities about making a film with them? Are there any particular pitfalls, or opportunities, if you are an Indigenous person yourself? The Australian Film Commission

The Australian Film Commission is trying to address such issues in its draft A Guide to Filmmakers Working with Indigenous Content and Indigenous Communities. These and other important cultural and intellectual property issues will be addressed by our high profile panel of film-makers, which includes Curtis Levy (Sons of Nammatjira, Mourning for Mangatopi, Lurugu)), Bob Connolly (First Contact, Joe Leahy's Mates, Rats in the Ranks), Tom E. Lewis (Yellow Fella), and Christine Olsen (Rabbit Proof Fence).

The Rights of Rock Art: Using and Abusing Ancient 'Images' in a Modern World?

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Convenors: Sally K. May, Flinders University, Australia; Sven Ouzman, University of Pretoria, South Africa

Rock art is many things - artefact, sacred object, ancestral being, gateway to other worlds - and commodity. And not just a commodity exploited by advertisers, authors, film-makers, tourists and looters - but also by archaeologists and heritage workers. After all, we do make at least some of our remuneration through using imagery in articles, displays, films? To complicate matters, some uses of rock art do a lot of good for their makers and their descendants, and sometimes use is negotiated with affected individuals and communities. And sometimes rock art is claimed and used by multiple Indigenous and traditional communities. As originator communities are dealing with intellectual property rights relating to the representation and control of their and their ancestor's rock art imagery and associated objects and places there is a constant stream of outside claims made on their rock art. Must communities use 'Western' legal systems to protect their art - as the Canadian Snuneymuxw First Nation did by trademarking ten of their images most abused because are "considered the official marks of the Snuneymuxw First Nation, in the same way the Canadian flag is considered an official symbol of Canada"? Or can rock art bring 'Western' and 'Indigenous' forms of law and co-operation into conversation, enabling mutual reform? Central to such a conversation would be to downplay human agency and pay more attention to rock art as a living tradition that itself can reasonably expect certain rights and courtesies.

The Rights of Rock Art session reviews a series of failed and successful case studies relating to the use and abuse of rock art and provides a forum for sharing ways to prevent or reduce abuse and to promote negotiated use while respecting originator-community wishes to have no outside use of certain images and places.

One Law? Two Laws? Many Laws?

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Convenors: Donald Craib, Craib Law Office, PLC, USA; Cheryl Simpson, Flinders University, Australia

Prior to colonisation by Western powers, Indigenous customary law controlled and protected knowledge within Indigenous society. Colonisation introduced a new set of laws that often conflicted with, and undermined, Indigenous law systems. This complexity is compounded when considered in relation to developments in international law. As it stands, Western intellectual property legislation has provided very limited protection for Indigenous cultural and intellectual knowledge. There is much debate over what would provide the best protection of Indigenous cultural and intellectual property, both tangible and intangible. While some advocate amending current intellectual property laws to include Indigenous concepts of knowledge, others question whether the very system that legitimises the appropriation of Indigenous cultural and intellectual property in the first place could ever be used to provide the necessary protection. The complexities of these issues are evident in treatment of cultural and intellectual property issues by public institutions and international organizations.

Moreover, many aspects of Indigenous cultural and intellectual property are of an intangible nature. These include oral histories, music, songs, dances and ceremonies. Others, such as sand paintings, are ephemeral in nature. Because of their intangible nature, these aspects of Indigenous cultural and intellectual property have limited protection under Western intellectual property laws. Western laws only protect material expressions of knowledge. This means that whoever first reduces intangible ICIP to a tangible form will be granted legal ownership of that knowledge. This includes photographs and recordings of songs and dances.

Within the framework of this debate, this session explores the intersections of customary, national and international protections of Indigenous cultural and intellectual property. It provides a critical overview of contemporary issues and seeks to highlight those cases that are addressing the current limitations of protection.

Publishing: Negotiating Clashing World Views

Moderator: Mitch Allen, Left Coast Press and Mills College, Oakland
Panel: Julie Hollowell, George Nicholas, Sean Ulm, Martin Wobst

It is a seemingly unfixable problem. While many work to retain the rights to intellectual property in the hands of Indigenous people, that sentiment is incompatible with the rigors of traditional commercial publishing-scholarly, textbook, or trade-where intellectual property rights are tightly held by the publisher. Western presses rarely are willing or able to make an accommodation that allows the control of words, images, and ideas of Indigenous people to remain in their own hands if they are to become the publishers of these works. Yet, broad circulation, familiarity and acceptance of these important ideas in the broader international community-including within other indigenous communities-is often dependent on the kind of global distribution and publicity that these presses can provide. Is there a way out of this conundrum? Self-publishing? Working with a limited set of presses? Indigenously-owned publishers? Trading intellectual property rights for other advantages? This panel discussion seeks to examine this problem through the lenses of publishers, Indigenous writers, and others concerned with cultural property.