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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.