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Introduction
In the first part of this article that appeared in the previous
issue of this magazine, a brief overview of the issues and
concerns relating to the didgeridoo in the global market was
outlined. The article touched upon the damage to the environment
that non-Indigenous didgeridoo producers in Australia are
notorious for. Wanton harvesting of didgeridoo stems not only
kills trees and upsets the ecological balance of native bushlands,
but also deprives Australian fauna of suitable habitations
and nesting hollows.
The recognition of this predicament raises interesting questions
about where consumers should spend their didgeridoo dollars.
Should consumers avoid Australian-made didgeridoos altogether?
Is there a legitimate place in the global market for overseas-made
instruments regardless of the materials and methods utilised
in their production and their obvious lack of Indigenous labour
input? This would undoubtedly relieve the ecological pressure
on Australian native bushlands whilst at the same time satisfy
the increasing demand for didgeridoos worldwide, but is this
the solution to the mounting environmental problem in Australia?
The solution I believe lies in accurate and detailed product
labelling in addition to tighter enforcement of - perhaps
even enactment of new or revision of existing - Australian
and international law. As well as protecting the ecological
integrity and diversity of the Australian landscape, the protection
of Indigenous Cultural and Intellectual Property should be
priority.
The following attempts to shed light on other issues and
concerns relating to the didgeridoo in the global market,
particularly the important area of Indigenous Cultural and
Intellectual Property rights. In this article and in my future
column ramblings, I hope to build a strong case for supporting
the Australian Aboriginal custodians of the instrument whilst
acknowledging the place of lawful and ethical non-Indigenous
producers worldwide.
What is Indigenous Cultural and Intellectual Property
(ICIP)?
Indigenous Cultural and Intellectual Property (ICIP) relates
to the rights of Indigenous peoples' to their heritage. One
definition of heritage is "Šall objects, sites and knowledge,
the nature or use of which has been transmitted or continues
to be transmitted from generation to generation, and which
is regarded as pertaining to a particular Indigenous group
or its Territory" (Janke, T. 1997, Our Culture Our Future:
Proposals for Recognition and Protection of Indigenous Cultural
and Intellectual Property, AIATSIS, Canberra).
It is beyond doubt that the didgeridoo is a part of the cultural
heritage of certain Aboriginal groups of Northern Australia
and that these groups hold collective ICIP rights to the instrument
and to the knowledge relating to its use. What is less clear
is whether or not didgeridoo-making should be restricted to
only the Indigenous custodians of the didgeridoo. There is
a whole spectrum of opinions on this issue, especially with
recent media coverage of the unwholesome aspects of the didgeridoo
trade hitting the headlines of major Australian and some international
news publications. Rather than examining these opinions, however,
let's look at what legislation says we can and can't do.
Australia's intellectual property laws come under a number
of different Acts of Parliament. Below are outlines of specific
legislation that are most relevant to Indigenous Cultural
and Intellectual Property rights. Copyright Act (1968) Copyright
laws in Australia protect the creative results and economic
interests of individual 'authors'. Creative outputs in the
form of music and other recordings, literature and other writings,
artwork, and photography, amongst other things, are protected
by copyright laws. Copyright is automatic in that no registration
process is required. That means that if I was to write an
original piece of literature, record an original piece of
music, or paint an original painting, I have immediate and
automatic rights to those works, including rights to economic
benefits from using those works for financial gain. Copyright
provisions, however, require that works:
- are original.
- take a material form (so knowledge, customs, and ideas are
not protected)
- have an identifiable author
Australian copyright laws have been successful in protecting
Australian Indigenous artists from unlawful reproduction of
their works by manufacturers of t-shirts, carpets, and the
like.
The didgeridoo, however, cannot be copyrighted because it
is a part of tradition and cannot be shown to be an original
creative work because of its long traditional use in Aboriginal
culture. In other words, rights to the didgeridoo are communal
and cannot be attributed to an individual, and as such, there
is no 'identifiable author' of the didgeridoo. The artwork
produced on didgeridoos, however, fall within the realms of
the Copyright Act. What this means is that under the Copyright
Act it is not illegal for non-Indigenous people to make didgeridoos,
but to copy images and artwork of Aboriginal artists is.
Legal experts and human rights advocates argue that there
are problems with the current copyright laws in protecting
ICIP rights, because copyright laws recognise individual rights
rather than Indigenous concepts of communal ownership. Also,
Australian copyright laws are valid for only a limited period
of time in contrast to Indigenous customary laws that exist
in perpetuity.
Designs Act (1905)
Like the Copyright Act, the Designs Act affords no protection
to the Indigenous custodians of the didgeridoo. This is because
the Designs Act, like the Copyright Act, is valid for only
a limited period of time, and because the Designs Act affords
protection to a registered owner rather than to collective
interests as is recognised in Indigenous customary laws.
Patents Act (1990)
Inventors are able to protect their intellectual property
under the Patents Act. For the Aboriginal custodians of the
didgeridoo, however, there are no provisions under the Patents
Act that protect their ICIP rights. This is because the Patents
Act requires:
- an inventive step
- novelty
Under the Australian legal framework, therefore, it seems
that there are no ICIP barriers preventing the average guy
down the street from making didgeridoos, which is good news
for all those backyard hobbyists, entrepreneurial craftsmen,
and large-scale manufacturers. The bad news is that there
are 3 other important legal areas that didgeridoo makers should
be aware of: land and environment protection laws, fair trade
laws, and international laws.
Land and environment protection laws
Many natural landscapes in Australia are protected areas
under state/territory or federal laws. These areas may be
in the way of state or national parks and reserves which prohibit
disturbances in any form including cutting of trees in those
parks and reserves. There are also Aboriginal lands and reserves,
most of which are located in the Northern Territory. Arnhem
Land, for instance is a large Aboriginal Reserve which requires
a permit from the Northern Land Council for entry into the
area. The permit system, which operates under the Aboriginal
Land Act (1980), has as one of its conditions of entry that
"This permit does not authorise the cutting of trees or removal
of flora from Aboriginal land, or disturbance to the environment,
including to wildlife, vegetation, water and soils".
There exists a variety of other legislation that protects
the natural and cultural integrity of lands. As an example,
the Northern Territory Aboriginal Sacred Sites Act (1989)
protects sites and areas of cultural significance to Aboriginal
people, administered by the Aboriginal Areas Protection Authority.
What all this means is that it is risky business for didgeridoo
harvesters and producers to cut trees on land that is not
their own private property (and even then, there are some
species of eucalyptus that are protected regardless of whether
they grow in your backyard or in a national park). Yet the
vast majority of didgeridoos made from Australian eucalyptus
trees are harvested illegally. A small number of medium- to
large-scale commercial operators hold harvesting permits,
but the rest operate through a combination of feigned ignorance,
stealth and commercially-driven friendships with Aboriginal
family groups.
There is an increasing number of prosecutions against illegal
harvesting of didgeridoo stems, especially in the Northern
Territory with illegal harvesting hotspots in the Katherine
and Darwin regions. This has seen determined didgeridoo makers
going further afield to escape the reach of authorities as
well as to search for new hunting grounds - now that old grounds
are depleted of suitable material.
The purpose of this article is not to blow the whistle on
suspected illegal operators or to conduct witch hunts, although
I am sure that presenting case studies of illegal harvesting
practises in Australia and their international distribution
and retail networks would make interesting - perhaps uncomfortable
- reading here. Rather, what I hope to achieve is to raise
the level of awareness amongst consumers, retailers and producers
about the issues and concerns that result from the commodification
of a cultural product. I believe the ramifications are many
both for non-Indigenous and Indigenous peoples. Whilst the
didgeridoo has been a convergent point for sharing and cross-cultural
exchange between non-Indigenous and Indigenous peoples - and
all the good things that come from these interactions - the
absence of controlling mechanisms against appropriation and
exploitation exposes our collective vulnerabilites for an
instrument we have all grown to love.
- To be continued -
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