The latest free webinar in the Creative Exchange program, co-produced by ArtsHub and Creative Victoria, was held on Thursday 15 August 2024 and is now available to view for those who missed out. This time around, the webinar was aimed at assisting non-Indigenous people in the creative industries sector to work productively and respectfully with First Peoples.
The webinar was presented by Neane Carter from the 100% Indigenous-owned law firm Terri Janke and Company. Creative Victoria and ArtsHub worked with the firm to craft a webinar suitable for sector workers and artists at all levels – from board members to independent practitioners – and across all creative forms. The webinar gave attendees practical knowledge and advice on how to work with First Nations creative practitioners and sector workers. Topics covered included:
- understanding Indigenous Cultural and Intellectual Property, aka ICIP
- implementing equitable remuneration principles, and
- putting in place other fundamental business protocols.
Read: First Nations power list: 41 recent appointments making a difference
The presenter
Neane Carter
Neane is a proud Dja Dja Wurrung, Yorta Yorta, Wamba Wamba, Wergaia and Wotjobaluk woman from northern and central Victoria. Neane draws on her cultural knowledge and connection to ensure her clients receive culturally informed and appropriate advice. She creatively weaves solutions for her clients utilising a system that was established to oppress them. Where the western legal system has been used as a weapon against community, Neane now uses it as a tool to advance and elevate community.
Neane was admitted to the Supreme Court of Victoria. She holds a Legal Practising Certificate and is a member of the Law Society of New South Wales. Prior to arriving at Terri Janke and Company, Neane was appointed as an Associate to his Honour Judge Purcell in the County Court of Victoria.
Transcript
0:04
>> CLAIRE FEBEY: Hi, everyone. On behalf of Creative Victoria and ArtsHub, welcome to today’s Creative
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Creative Exchange webinar, Working with First Peoples – a creatives industries overview. We’re all
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joining from different places today, but I’d like to start by acknowledging the traditional owners of the lands on which we
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are each living and working. I’m joining you today from Wurundjeri Country and I want to pay my deepest
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respects to Elders past and present of this unceded land and also acknowledge all of the First Peoples who are
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joining us on the call today. If we haven’t met before, my name is Claire Febey. I’m the CEO of Creative Victoria. My
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pronouns are she and her. I’m a settler woman from nipaluna and palawa Country. And I’ve been living and working for about the last 20
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years here on Wurundjeri Country and recently moved out to the beautiful cool country of Dja Dja Wurrung lands. Just a bit of housekeeping upfront. The webinar
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is being live captioned. If you’d like to access the live captioning, just select show captions
1:00
from your Zoom menu or if it doesn’t work, then you can click the link in your chat. Also we’re
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recording the session today, so any questions that you ask and please do ask them, will be on the recording. The recorded webinar
1:14
will be available through the Creative Exchange page on the Creative Victoria website and also on ArtsHub.
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We’ll send out a survey as we always do following the webinar. Please let us know how we’ve gone and what you want to hear about in the future.
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Today’s webinar is essential learning and very strongly aligned with Creative Victoria’s ongoing commitment to putting First Peoples
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first and working to better embed First Peoples’ self-determination in our work. We have heard from
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many of you about your strong desire to work with First Peoples in a respectful, meaningful and appropriate way.
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You want to do it well but you’re also seeking the foundational knowledge to work in true partnership.
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Through the pre-webinar survey, you told us what you most want to learn about. So in response today’s webinar
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is going to share practical insights around cultural safety, considerations in building partnerships,
2:03
Indigenous Cultural and Intellectual Property, benchmarking remuneration and
2:08
other fundamental business protocols. We’re so lucky to have an expert guest leading
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this important conversation today, Neane Carter. If you haven’t met Neane she’s a
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solicitor at renowned 100% Indigenous owned and return Terri Janke and Company. Neane is a proud
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Dja Dja Wurrung, Yorta Yorta, Wamba Wamba, Wergaia and Wotjobaluk woman from northern and central
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Victoria. She has expertise in the protection of Intellectual Property and Indigenous
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Cultural and Intellectual Property, governance and facilitation of workshops. And also consultations. In this Creative Exchange session, in particular, I’d
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like to remind you that the best way to learn is obviously to ask questions, so if you don’t know, someone else is definitely going
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to be wondering. Please actively use the Q+A function through the session and keep the questions
2:59
and ideas coming. Let’s make this a conversation today. As always, Creative Victoria is
3:04
very happy to be working in partnership with ArtsHub to bring you this Creative Exchange. But now it’s my pleasure to hand
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over to Neane Carter of Terri Janke and Co to lead us through today’s important conversation. Thank you Neane. Over to
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you. >> NEANNE CARTER: Thank you so much. Good morning, everyone. I’m really excited to have this
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yarn with you all today to talk about what are the things you should be considering when you’re developing those trusting
3:29
strong best practice relationships with First Peoples. I’m coming to you not
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just as a solicitor, although that’s the context I’ll be talking to you today to give you recommendations and things to consider.
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I’m also passionate about this conversation because I’m an artist. I’m a cultural dancer; that’s been passed down through
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my patriarchal lineage and danced on Country but I’ve also danced internationally. Also, a
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coil weaver; that’s been passed down by my matriarchal lineage and my weaving has been exhibited in Victoria.
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As Claire mentioned I come from a law and consulting firm called Terri Janke and company, we’re 100% Indigenous
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owned, run and managed by Dr Terri Janke, who you can see at the very front in that pinky purple sort of shirt.
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Dr Terri is a Wuthathi, Yadhaigana, and Meriam woman from Cape York and Torres Strait islands and she
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established this firm in the 2000s. So we’re coming into 24 years of running
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where we specialise in intellectual property but we lead in the area — of Indigenous Cultural and Intellectual Property and that’s a term if you’re not familiar with
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I’m going to be talking in more depth today We have a bit of a code of conduct
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to be aware of, noting this a culturally safe, positive and respectful learning environment.
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There’s an opportunity for you to ask questions which I’ll get to at the end of today’s session. Just be mindful that other
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people are joining today’s session as well and can see those questions. They are getting to be moderated. If
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anyone asks anything or puts anything in those chat functions that are inappropriate, they will be removed.
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Today’s content is broken down into three areas. First we’ll be talking about collaborating with First People and the 10 True
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Tracks principles. Really highlighting key resources and some things to consider. Then in the second
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component we’re going to be talking about those things to consider when engaging with First Peoples and what does good engagement look like? Then the last
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component is the fundamentals of Indigenous Culture and Intellectual Property, or ICIPfor short, and we’ll
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be building that understanding of terminology and what that concept actually means when you’re engaging with First
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Peoples. I have put together nine key best practice
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recommendations that I want you to be thinking about throughout today’s webinar. These recommendations may
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already be something that you’re putting in practice, maybe there’s something that you want to be putting in practice and I encourage you to do so after
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today’s webinar. We’ll be coming back to these recommendations at a later point.
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I have also put together practical scenarios. They’re hypothetical. Thinking of the breadth of the
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creative industry, what are some ways people might have engaged with First Peoples and their knowledge previously? Maybe some
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opportunities that are coming up in relation to engagement with First Peoples to highlight the way in which you’re
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not just engaging with First Peoples in the industry but also with their Indigenous Cultural and Intellectual Property.
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I want you to be thinking about a scenario like this. Can you insert yourself in that scenario? Picking which one
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resonates the most with you and as I go through the content today, thinking about what I’m saying and how you might apply that to that scenario.
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How would you engage with First Peoples? What are the sorts of considerations that are coming to mind for you? How would you
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implement the best practice recommendations we just talked about? We’re going to be revisiting this at the end of the webinar.
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First I quickly want to touch on what is ICIP. You’re thinking about not just engaging with First Peoples but also engaging with
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knowledge. ICIP is an umbrella term and when we get to the fundamental section I’ll be unpacking
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it a bit more. But I want you to look at the web you’re seeing in front of you now and think about
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the breadth of ICIP that there is. Maybe ICIP you’ve already engaged
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with or might resonate with you reflecting on some that you’re seeing on the screen. Or maybe there are other components of ICIP that
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you’ve never engaged with but you’d like to do that. We’re going to be talking about what is that best practice
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consideration if you would. The first is collaborating with
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First Peoples and the 10 True Tracks Principles. Thinking about key resources and things
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to be keeping in mind. So first is the 10 True Tracks
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principles framework. This is a best practice framework that can be used not just engaging with First Peoples but also engaging with
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their ICIP. It’s not linear or chronological in any way, which is a little bit deceptive because
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you’re seeing it numbered from 1 to 10. But mostly that’s just easier for me to explain it in that way. I
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want you to think about a framework like this as something that’s adaptable, flexible to
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what your engagement looks like. I’ll explain what these principles mean and what I want
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you to be reflecting on is how have these principles come up in your engagement with First Peoples and their knowledge and
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how do you want to ensure recognition of those principles moving forward? They’ll be embedded throughout the rest of
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the webinar today. So first is respect. Respect is
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looking at how do you start from a place of respect and understanding an appreciation of
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culture? What does respect look like? What does paying respect
8:44
for First Peoples and also their knowledge look like? And a really important starting point, if
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that’s where you’d like to start. Second is self-determination. First
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Peoples have the right to determine matters that affect them or impact them. So how are
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you ensuring that self-determination? How are you involving and collaborating with First Peoples? Three is consent
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and consultation. Consulting with First Peoples on the use of their ICIP and ensuring that you have obtained
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consent on a free, prior and informed basis. Something we’ll talk about in more depth later on. Four is
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interpretation. First Peoples are the primary guardians and interpreters of their culture. They have been custodians of it
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for tens of thousands of years. They’re the best people to interpret their culture and they
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can support you in that interpretation. Five is around cultural integrity. That is the right to maintain
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the integrity of culture and ensure that it’s strong and represented truthfully. How do
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you ensure culture is maintaining that integrity? You have got to do that with engagement with First Peoples. Six is
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around secrecy and privacy. There are two parts to that. First is the right to maintain secret
10:00
and sacred ritual knowledge or secret and sacred sites, but then there’s the privacy component.
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Privacy obligations in relation to personal information that you might receive. And seven is around
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attribution. First Peoples have the right to be attributed in relation to their ICIP and in
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relation to their engagement and that attribution should occur in a way that they feel comfortable.
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Eight is benefit sharing. First Peoples should receive in benefits or compensation for
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their engagement, their time, their expertise and their knowledge. So what does that benefit sharing look like? It
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could look like monetary benefit sharing or non-monetary benefit sharing. Important for First
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Peoples to define what that looks like. Nine is around maintaining Indigenous culture. Ensuring that
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culture can continue to be passed down from generation to generation, that practice is
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something that First Peoples can continue to pass down. How does your engagement ensure that
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First Peoples can continue to practise and pass down their knowledge and culture? And 10 is around recognition and
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protection. Recognising rights to their knowledge, recognising
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cultural protocols, and protecting that. What are some different avenues that you might protect knowledge, search as
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through protocols and contracts, which I’m going to talk to you about now.
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Protocols are something you may already be quite familiar with because there are some amazing ones out there that already exist in the creative industry.
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Protocols are a leading industry practice that look at what does best practice engagement with First Peoples and their ICIP
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look like? Protocols can provide guidelines, standards
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and benchmarks to work towards. But they can also be really useful and provide template clauses and template notices
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that you might want to use in your business practices. Protocols provide that framework. True Tracks is one
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framework. Protocols can provide you with another one in relation to your engagement. They go
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above and beyond what the law is like right now. And encourage that best practice engagement.
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We can also make protocols binding when we talk about contracts.
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For example, there are some protocols that are already out there. There’s the Creative Australia protocol, the using
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First Nations’ Peoples’ ICIP in the arts, specifically in the arts part of the creative industry, Screen
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Australia, they have a protocol, thinking about incorporating ICIP in the film industry.
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There’s the Indigenous art code, which have guidelines for fair and ethical dealings with Indigenous artists. There’s also the NAVA (National Association for the Visual Arts) code
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of practice, now that’s not specifically a First Peoples protocol, but what it is is a protocol that can provide
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you with really useful information about standard rates and payment. If that’s not something that you’re familiar with, I’d
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recommend you go and have a look at that after today’s webinar. And there’s Dhawura Ngilan, which includes principles and guidelines for businesses
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when you’re trying to think about how to implement free, prior and informed consent and also ensure self-determination of First
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Peoples. Contracts are really really important.
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And I don’t just mean that as a solicitor, I also mean that as an Aboriginal woman. Contracts
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don’t have to be this convoluted 50-page document written in legalese that even lawyers are
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struggling to understand what a clause means. Contracts can look exactly what you need them to look like
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depending on your engagement. Contracts can be developed collaboratively with yourselves
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and First Peoples as well. It might look very different from what your template or standard
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contract has been in the past. Contracts are a great way to define what is the engagement.
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What does that relationship look like? But it’s an opportunity to put in specific clauses that
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look at enforcing the rights that First Peoples have to their knowledge, so you can put in
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clauses around ICIP that recognise what ICIP is and ensure protocols around the use
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of that ICIP. They can be clauses around intellectual property and ensuring First
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Peoples own the intellectual property rights that incorporate their ICIP. They can also be clauses around
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Indigenous data sovereignty. The right to control data that First Peoples have. And they can also be
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really useful clauses around confidential information. That’s the information that’s shared maybe through your business
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practices, that’s not already publicly known. And you wouldn’t want it to be publicly known.
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Confidential information clauses means that there’s a protection there. Contracts are really
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important and we’ll talk a bit more about them today as well. So there are some key resources and
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things to be mindful of that are out there that can support your engagement. Now we’re going to get into what does good
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engagement look like? Thinking about the recommendations, those nine best practice recommendations for the
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beginning, we’re going to be applying them. Good engagement
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looks like building, trusting and strong two-way relationships with First Peoples. Moving away
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from an outcome or output focus and focusing more on the relationship building component.
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Understanding why you’re wanting to engage with First Peoples. What’s the purpose of your engagement? Is it something that
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First Peoples want? And how have you included them in the development of that engagement? If
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you’re thinking ‘I’ve got this idea and I’d love to involve First Peoples or love to incorporate ICIP,’ engaging with
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First Peoples on that development is really important. Understanding your why is really
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important. Good engagement looks
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like obtaining free prior informed consent. A concept I talked about before. Really important and we talk
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about that as the requirement when we’re engaging with ICIP.
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So free, prior, informed consent are all distinct concepts in their own right and they
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come together to make that informed consent. Free means that there’s no coercion. Prior means
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it’s happening before the engagement’s underway – the project, the initiative, you’re not halfway
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through and then engaging First Peoples, that you’re doing that before. The First Peoples are
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informed. That all components of the engagement – what are the risks, what are the benefits? What does that engagement look like?
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And then consent is the final component. Either consenting to it or not consenting to it? When we’re
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thinking about free prior and informed consent, it’s crucial that you’re clear on how the work will be used, work that
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incorporates ICIP I mean. Consent to use ICIP for one
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thing does not mean consent to use ICIP for all things. For instance, if you engage First Peoples to create a
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mural, that does not mean consent to take photos of that mural, put it on your email
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signatures or as a Zoom background. You’d have to go and obtain free, prior and informed consent again. Important for you
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to record that free, prior and informed consent. Whether you record it in a contract or not. Really
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recommend that it’s recorded in writing. Good engagement also looks like
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First Peoples owning their intellectual property rights. Intellectual property is an umbrella term. It encompasses
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copyright, trademarks, designs, patents, plant breeders’ rights and, to some extent, it
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also encompasses confidential information. It’s really important for First Peoples to
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own the intellectual property rights in what is created. Really important that
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when they do own those intellectual property rights, they’re not assigned or given away to another organisation or
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person. And a really important part of principle 5 is integrity,
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cultural integrity. Good
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engagement also looks like guarding moral rights. Moral rights are rights that you get as the
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creator or author of a work. It happens automatically and these are moral rights that come under copyright considerations. There
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are three moral rights. Important for First Peoples to have those rights recognised.
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The right of attribution – to be attributed in relation to the work. The right against false
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attribution – for the right to not have somebody else attributed in relation to that work. But also the right of integrity –
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to ensure the work is not treated in a way that is derogatory or a way that First Peoples didn’t intend.
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Good engagement also looks like ensuring appropriate compensation or benefit sharing.
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Like I mentioned before, benefit sharing could be monetary benefits or non-monetary benefits. It’s important for
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First Peoples to decide what benefit sharing is appropriate, depending on the engagement.
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Different types of monetary and non-monetary benefits that you can think about. Monetary
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benefits, are more about payments and fees. None-monetary benefits, what do we think
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beyond that? Collaboration. Strengthening capacity.
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Recognition, support, relationship building. There might be other things that are
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best in relation to that engagement, but again really important for First Peoples to decide what’s appropriate, so that you
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can have a yarn about that together. I’ve got some case
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studies of examples where those good engagement practices have been put in place. And one is
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that Mangkaja and Gorman collaboration. Mangkaja Arts is an arts centre that based iout of Fitzroy Crossing in WA.
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And they collaborated with Gorman, a fashion brand, to develop a 50-piece collection.
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And you can see some of the pieces there. This collaboration took
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over two years. It was important for both Gorman and the
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community to be aware of what that engagement actually looked like and it led to five artists being
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part of this collaboration. The artists were involved in the
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project throughout. From that concept to thinking about what it could possibly be, all the
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way up to the collaboration being launched, and marketing and promotional ideas being
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suggested. That’s part of that two-way relationship building.
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Thinking about the why and bringing community in from the very beginning.
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There was deep respect for cultural values which was demonstrated when Sorry business occurred just before
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the collection was launched. Artists were attributed in relation to their work and you
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can see examples of that as well. The signage. Artists were named on neck labels, on the
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clothing itself and other marketing materials. Artists received in benefit sharing for
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what they did, but also some of the proceeds of the sale went to fund a youth art program. One
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example where we’re seeing those good engagement practices being implemented. Another one is
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about a book, ‘The Yield’ by Tara June Winch. Tara is a Wiradjuri author and her novel
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features Wiradjuri language words. In the writing process, Tara engaged heavily with
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Wiradjuri language native speakers and elders such as Dr Uncle Stan senior and a linguist, Dr John
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Rudder. They also undertook extensive research of local records and interpretations from Wagga Wagga, of language
22:10
dating back to the 1880s. This project led to an acknowledgment of
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Wiradjuri custodianship of languages in the book. That’s mentioned within the book itself. There’s also recognition
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of Uncle Stan Grant’s work. And there were benefits that were shared with Wiradjuri community.
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For instance, Tara provided a collection of the books to the Wiradjuri Council of Elders, as
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well as for the first 1000 books sold, sent proceeds.
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Now we’re going to talk about the fundamentals of Indigenous Culture and Intellectual Property. What do I mean when I’m saying that term and how
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might you be engaging with that in the creative industry? Indigenous
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Cultural and Intellectual Property is an umbrella term. It refers to cultural heritage,
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traditional knowledge and traditional cultural expression. The right to Indigenous Cultural
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and Intellectual Property comes from the United Nations Declaration on the Rights of Indigenous Peoples. Where First
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Peoples have the right to maintain, control, protect and develop their cultural heritage,
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traditional knowledge and traditional cultural expression, remembering ICIP is the umbrella term.
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What’s really interesting about article 31 of the United Nations Declaration of the Rights of Indigenous Peoples is also the
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second part of article 31. That First Peoples have the right to maintain, control, protect and
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develop their intellectual property over such ICIP. This Declaration is a very important
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legal instrument, the highest legal instrument that we have right now that codifies what are
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the sovereign and inherent rights First Peoples have.
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Coming back to what is ICIP? We looked at this web at the very beginning. ICIP is a broad term.
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Because it includes cultural heritage, traditional knowledge and traditional cultural expression. ICIP is evolving,
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it’s constant, it’s existed from time in memorial and it’s going to exist for many generations to come. There are
24:24
different types of ICIP you might be engaging with. You might be engaging with
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documentation of Indigenous People’s heritage, archival records, anthropological records, maybe research,
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traditional scientific and ecological knowledge, knowledge of plants, seas, the skies,
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cultural property. Crafts, jewellery. Tools. Moveable
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cultural property. Maybe you’ve gone out to Country, to sacred sites, places of significance. It includes
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ancestral remains, genomes, hair samples. It includes language.
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How language is used and how it is spoken. And it includes
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literary, performing and artistic works. Stories, songs, dance, artwork and ceremony. ICIP has been misappropriated and
25:26
misused in Australia. In 2017 the firm was engaged to create a
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report that looked into what are the key challenges for ICIP? And through creating this
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report, six key issues were found. One is around the misappropriation of Indigenous
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arts and crafts, two is the misuse of Indigenous languages, words and clan names. Three is
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recording and digitisation of Indigenous knowledge. Four is the misappropriation and misuse
25:58
of traditional knowledge. Five is the use of Indigenous genetic resources and associated
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traditional knowledge. Six is that misuse and derogatory treatment. This all occurring
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without that free prior and informed consent of First Peoples. This occurring without the good
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engagement practices in place. These key issues arise when
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the rights to ICIP aren’t being recognised. So we know that the right to ICIP is codified in the
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United Nations Declaration on the Rights of Indigenous Peoples but there are also rights that attach to that ICIP. Some of the rights
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we have talked about already today. Such as to require free prior and informed consent. The
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right to be recognised as the primary guardians and interpreters of their culture.
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The right to authorise or refuse use. The right to benefit commercially from that
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authorised use. The right to prevent derogatory use. And the right to maintain secrecy. These
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are just some of the rights I want you to be thinking of when you’re engaging with first peoples and their ICIP.
27:07
But when you yarn with First Peoples, and you talk about the ICIP that might be part of the project or initiative that you’re working on, First Peoples might
27:15
define their rights differently. So it’s important that’s part of your yarn with them, that relationship or two-way
27:21
relationship building component. I wanted to share a case study
27:27
of where we have seen that occur and that’s with the ACCC and Birubi. Birubi were a
27:34
company that were selling souvenir products across Australia. And those products
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included boomerangs, artworks and other objects. And on those objects there would be
27:46
Aboriginal symbolism, artistic expression and design and some
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of the products also featured tag lines such as ‘authentic Aboriginal art’, ‘hand painted’,
27:59
and ‘Australian’. But it was found that Birubi was creating those
28:04
products in Indonesia and shipping them into Australia. The ACCC initiated proceedings
28:10
against Birubi because it was misleading customers into believing that their products were created by Australian Aboriginal
28:17
people. When, in fact, they weren’t. The Federal Court then asked Birubi to pay a $2.3 million
28:24
fine because it was misleading the Australian people on its products. This also linked to
28:31
the ‘Fake Arts Harm Culture’ campaign and maybe that’s a campaign that you’re familiar with.
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It found around 80% of Aboriginal souvenir products that are sold are actually fake art.
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They’re not made by an Australian Aboriginal person.
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The reason for that right now is there’s no one legislation that protects ICIP, but it’s a space
28:54
that is moving. There’s been a lot of development over the last couple of years around how to
28:59
ensure that ICIP can be maintained and protected? The productivity commission put out
29:06
a report called the ‘Aboriginal and Torres Strait Islander Visual Arts and Craft’ report and it was focused on visual arts and
29:12
crafts, which I know is not the breadth of what the creative industry is or what the breadth of what ICIP could be, but in
29:20
that particular report it also said there is a real need for ICIP legislation holistically.
29:27
There’s also the IP Australia report that looked into what would a stand-alone
29:32
legislation look like? In that report they detailed four elements of that legislation.
29:39
Such as having an authority, and there being enforceable communal rights. And then there’s also
29:46
Revive, which Claire spoke about at the beginning of today’s webinar. The national cultural policy, which has an
29:53
important declaration from the Australian Government on a commitm,ent to creating ICIP legislation which is currently
29:59
underway. And the first part of this year there were written submissions and consultations
30:05
that occurred in relation to what this legislation might look like and now they’re in the process of developing that
30:10
legislation. Two main focuses of it – one, Fake Arts. The second
30:15
component is ICIP more holistically. Really important progress here in Australia and
30:22
I encourage you to keep an eye out for how that develops.
30:27
Coming back to our scenarios after today, and thinking about
30:34
the scenarios there, whether you inserted yourself in them or whether you were thinking about a scenario where you engage with
30:39
First Peoples or their ICIP. I wonder if your answers have
30:44
changed? If you’d engage with First Peoples differently to how you would have said that at the beginning. If there are other
30:52
considerations that are coming to mind now? How would you
30:57
implement those best practice recommendations and again thinking about has your response changed?
31:04
Would you engage differently now having learned what we discussed today? So then coming
31:10
back to our best practice recommendations. Using this moving forward in all engagement with First Peoples and
31:17
their ICIP. Knowing there’s nine recommendations here. That’s not
31:22
everything that I wouild want you to be considering, but it’s a really great starting point. The first
31:29
is around using the True Tracks principles to inform your engagement. Use frameworks out there to
31:34
support you. Take those frameworks to First Peoples and collaborate on them and build on them together to inform that
31:40
engagement. Build those reciprocal and two-way relationships with First
31:45
Peoples. Moving away from the outcome or output focused and thinking about relationship building. There can be more
31:52
beauty that’s created from that focus. Important to understand your
31:58
why. Why are you wanting to engage with First Peoples? Why are you wanting to engage with
32:04
their ICIP? What is the purpose? Does this align with what First Peoples want to do?
32:12
Make sure you obtain free, prior and informed consent and that you record that consent as well.
32:20
Don’t use Indigenous Culture and Intellectual Property without that consent and remembering consent for one use
32:27
does not mean that you can use that ICIP for anything and everything. You have to go back and obtain that free, prior and
32:33
informed consent from First Peoples. Ensure First Peoples
32:39
own intellectual property or the rights to intellectual property.
32:45
Having an understanding of intellectual property rights is really important in that as well. Looking at contracts,
32:51
looking at understandings around that. Ensure that First Peoples are
32:56
recognised as the co-creators and collaborators. First Peoples
33:03
are not just cultural advisers but they’re bringing components
33:08
and building up the work you’re producing in a creative industry and should be recognised for that. Acknowledge and attribute
33:16
First Peoples for their contribution. Have a yarn with First Peoples about how they want to be attributed. What’s
33:21
the appropriate spelling? Do they want their clan groups referenced as well? How do you spell them appropriately? How
33:27
should that attribution be centred or placed if you’re doing an artwork? Where should
33:33
it be? Creating clothing, where should it be? And other things in the creative industry. Also
33:41
important to ensure First Peoples receive in benefit sharing. It’s not appropriate to learn or hear
33:48
knowledge from First Peoples and then not to receive any benefits for that. For thinking about
33:53
monetary benefits or non-monetary benefits. What’s appropriate, reminding yourself
33:59
you’ve got to consult and engage with First Peoples on that. Collaborate with them and what
34:04
it looks like because of that engagement.
34:10
That’s the content I wanted to focus on today and now I’ll look at the Q+A box and we can start
34:16
asking and answering some questions which I’m really excited for.
34:22
>> Catherine has asked a question about will the IP report provide suggested approaches to tailoring the IP clauses in contracts correctly?
34:31
I’m not sure about IP reports and which reports you’re speaking to specifically. But it
34:37
would be worth having a look at the protocols I did mention today because there is useful information in them around
34:42
things to consider for intellectual property clauses and also things to consider if you want to put in ICIP clauses
34:49
specifically into your agreement. I’d recommend as a starting points, going and
34:54
having a look at thos protocols. Another resource is there for First Peoples, for artists, is the
35:03
Arts Law Centre. They’re a great place that can provide you with advice about how you engage
35:10
with First Peoples and things to consider in your contracting as well. That might be another great place to go.
35:16
Dee’s asked: Do you have a an example of misuse of clan names? As in the ICIP challenges.Yes, I do. So examples of that might be
35:24
where a clan name has been used to talk about a business. So for
35:31
instance we talked about Wiradjuri before. I’ll use that as an example. Say it’s
35:37
Wiradjuri pottery, but that business, and that’s a business, and someone has that name and say
35:42
they trademark a logo and called Wiradjuri Pottery but, in fact, no one in that business is
35:48
Wiradjuri or a First Person and they’re using that as a way of misusing clan names, because
35:55
maybe they’re based on Wiradjuri country. That’s an example of ways in which clan names are misused.
36:03
Damien has asked an interesting question around best practice databases for respectfully storing data derived from ICIP. That’s a really great question.
36:12
There’s the ATSIDA data archiving protocols, it might not fully cover what your question is
36:17
talking about and I can appreciate that but it might be a great starting point to think about frameworks out there that
36:23
talk towards how do you store data, how do you collect data, how do you analyse data appropriately?
36:29
I’d start with the ATSIDA protocols as a starting point and see if that’s useful. But you might
36:34
find that through looking at the other protocols, even if they’re not specific to what you’re trying to do, they can provide
36:40
you with information that’s still transferrable, You might learn something and go I should think about that in relation to my engagement, even if it’s not
36:47
directly relevant. So I’d recommend starting there, Damien.
36:53
I see a question about an example of ICIP in contracts within the performing arts industry
36:59
as opposed to visual arts. I’d start with the Creative Australia protocol. The art
37:04
industry, not specifically visual arts. It talks about other things as well. So I’d recommend looking in there because it’s doesn’t just have
37:10
templates, it also has notices and other really useful information in there, as well as
37:16
case studies to think about how do you frame your good engagement practices.
37:21
Peter has asked an interesting question. Oh, I’ve just lost it. Sorry.
37:29
Tina has asked a question about engaging with or forming relationships with local government and registered
37:35
Aboriginal parties. Acknowledging that not all Aboriginal people are connected
37:41
to a RAP, as opposed to a reconciliation plan, when we’re talking about a RAP in that context.
37:46
We’re meaning Registered Aboriginal Party, if RAP is not a term that you’re familiar with. Really interesting question Tina, so I
37:53
appreciate you putting that through. When you think about your engagement and think about what you’re trying to
37:59
do, then that’s the net that you’re throwing out. You might actually have relationships with
38:04
First Peoples already that you’re wanting to engage with. As individuals, let’s collaborate, let’s create something together
38:10
but maybe your engagement requires authority, having custodians be able to provide
38:16
that consent with authority. A really great starting point is RAPs, noting not all Aboriginal
38:21
people do have a RAP. But then you can look at other advisory groups or bodies that have been
38:27
established that have those Traditional Owners on them but you can be able, you can consult
38:32
with and they can provide you with guidance on who else I should be speaking to or what other things I should be taking
38:38
in mind or in consideration of? I’d really recommend Tina that every time you consult with First Peoples or an
38:45
organisation, RAP, whatever, that you’re always asking the question who else should I be
38:50
consulting with? That’s something even everyone today, I want you to take that away, when you’re engaging with First
38:56
Peoples, ask is there anyone else I should be consulting with? Can you pass on their contact details? Thank you. I’ll have a
39:01
yarn with them as well. It’s a really important question and thing to consider.
39:09
Anna’s asked a question: You’re a design company and you want to
39:14
collaborate with a First Person illustrator. Curious as to how much or how little creative direction is appropriate. Really good question. I think your first
39:22
point is to discuss the vision or aspiration for what you’re wanting. And then to collaborate
39:27
with that illustrator on what that product might end up looking like. So there might be ideas, there might be a colour
39:34
palette or there might be certain things that you want expressed, or you want the illustrator to express and then it’s about the illustrator having
39:41
that freedom to express their culture in an appropriate way. Remembering principle four: interpretation, principle five: cultural
39:47
integrity. I definitely think you need to come with that idea and then having that relationship where you’re
39:53
collaborating and building on it together and ensuring that the product is still what you would like it to be but noting that there’s
40:00
going to be symbolisms or motifs that may be expressed because you’re engaging a First Person
40:05
illustrator that is not appropriate for you to say take out and use for something else.
40:11
Hope that answers your question. Kristen’s asked a really interesting question about is there somewhere to go
40:18
to find out who owns the IP? So that’s both a yes and a no question. For some
40:24
intellectual property there is a body, IP Australia. So for things like
40:29
trademarks and patents you’ve got to register them to obtain that intellectual
40:35
property protection. But for things like copyright, it happens automatically. When you create a copyright work, if it meets the
40:41
criteria under the Act, then you automatically you get a copyright protection and don’t have to register it with anyone.
40:48
Copyright protection’s really interesting. You’ve got a general rule and there are obviously opportunities to deviate from
40:54
the general rule. The general rule is whoever creates or makes a copyright
40:59
work, they are the owner. If two people come together and they’re equally collaborating and
41:05
developing it, they’re possibly considered joint owners. But if you’ve got a collaboration where, say,
41:13
you’re creating an intellectual property work and somebody else might be giving you some ideas, but they’re
41:19
not hands-on or pen to paper or brush to paper, they’re not creating it, they might not be
41:24
considered an owner. So it’s important to think about contracts and clauses around intellectual
41:30
property ownership. There’s not a body you can go to for copyright. Copyright is
41:36
generally the author or creator, but for instance there can be changes to
41:41
that. If you see an article or a book or something published and it generally has a name,
41:46
your first base would be seeing if they’re the copyright owner. If they’re not, they might be
41:51
able to direct you to who is. Not a body that you can go to necessarily.
41:59
Ashleigh has put in a question around when writing an assignment or report, are
42:04
there protocols around referring to a First Nations person who has passed? Yes, there are deceased mourning protocols,
42:11
which consider how First Peoples might have their name or image
42:17
or video referenced after they pass. Certain protocols are observed where it’s inappropriate for their name,
42:23
image or video to be shown. While Sorry businesses is taking place and even after Sorry business as
42:30
well. Important to be thinking about if you have images or references to First Peoples, and
42:38
they have passed, that you go and obtain consent from the family if you want to continue using that. That’s one important
42:45
protocol to keep in mind. Claire has asked a question about creating opportunities for
42:50
First Peoples and whether there are specific people that we have contacted to say we have
42:57
this opportunity, can you spread the word? That would depend, Claire, on exactly what you are working on
43:03
and what the opportunity is that you’re creating? It might be that your first point is
43:09
starting with protocols to guide what that opportunity looks like? But then there are avenues around how you might spread
43:16
the word and thinking of different First Nations networks. You have things like Koori Mail,
43:22
NITV, asking the local registered
43:28
Aboriginal party to put it in their newsletter. Putting it on
43:35
posters at the local Aboriginal community controlled health organisation can be another
43:40
idea. Thinking about localising when you want to promote that opportunity, what are the local
43:46
networks you’re trying to get to? If you’re wanting not just local networks and wanting
43:52
broader networks and thinking of other federal organisations that you might be able to get in contact with, then let them know about your
43:57
opportunity, like NIAA for instance.
44:03
Dale asked: Any there resources on using First Peoples language and words generally, outside of a specific
44:09
project? A lot of schools are increasingly teaching local languages? That is correct. A lot more
44:15
ICIP is being integrated into curriculum development and therefore taught in schools. For language,
44:23
use of language, generally looking at and ensuring you have
44:29
consent to use that language from the local Aboriginal community or the Aboriginal
44:34
community at which that language comes from before using it and ensuring that the word, for instance, knowing
44:41
you have the word that it’s spelt the way the community wants it to be spelt at that time and the meaning is correct. There are many examples
44:47
out there of language words being put online and the definition that is used with that word is actually incorrect.
44:53
I’d make sure that you get consent and you’re using the appropriate word as well.
45:02
Sue’s just asked a really interesting question about if our organisation has historical images or materials that represent or show First
45:07
Peoples, how do we engage with community to decide how to manage these and who to give them to? That’s a really interesting
45:13
question, especially as we’re dealing with archival records and materials.Organisations are
45:20
now going ‘I want to repatriate that’. There’s repatriation and there’s also digital repatriation. There are
45:25
repatriation of records that you have, as well, like images and materials and things. A good starting
45:32
point would be the local Aboriginal community that your organisation is based within. Having a yarn with them. Maybe
45:37
you’ve got an Aboriginal advisory group as part of your Aboriginal organisation or maybe they’re connected with one and talking
45:43
about an initiative you’d like to do, such as the one you’ve expressed, and getting guidance
45:48
from them about ‘who should I be consulting with’ or ‘who else should I be consulting with?’ which is always a really important question
45:54
to be asking. And understanding that the intention is to be able
46:00
to give those materials back to community. So I’d start with your local Aboriginal community
46:06
and go from there.
46:13
Anna has asked a question about wanting to include First Peoples as characters in their fiction.
46:18
And where can you go to get more information about that? If you
46:26
have a relationship with your editor and publisher, I’d ask if they know of any networks or supports that you can get in
46:32
contact with to support you in that, as well as using those protocols. Going back over all
46:39
the ones that I’ve discussed today and having a read through and pulling out things that are relevant to your situation,
46:45
noting not all the protocol itself might be relevant. But I’d ask your editor and
46:50
publisher as well. Catherine has asked a question
46:57
about wanting to engage with community and having little engagement, is there a better framework to
47:03
invite participation? Not entirely sure the avenues you went through to encourage that
47:08
engagement. Generally, registered Aboriginal parties and land
47:14
councils… there’s a lot of need placed on those organisations
47:19
and requests for engagement. So acknowledging that it might bow a period of time that be reached out where they’re
47:24
inundated or Sorry business might have been happening in community and your request wasn’t addressed. I’d be
47:31
thinking about the content today and what engagement style you went with and whether or not you
47:37
could use any of the tools discussed to change that. It’s hard to know, sorry, entirely
47:43
what you’ve done to know if there’s a better or different way to do it. I recommend using the content today. For everyone here today using the
47:49
content today to frame all engagement moving forward. I
47:55
think that’s all I’ve got time for today. I know there’s many more questions there and thank you to everyone who did put them in. It’s a great opportunity to
48:02
talk about this content in a practical way and how do you use this knowledge and think about it moving forward? Thank you
48:08
everyone for your questions. >> MADELEINE SWAIN: Thank you.
48:13
Hi, everyone. I’m the managing editor at ArtsHub. I’m a middle
48:18
aged Caucasian woman with slicked back dark hair. I’m a
48:24
she and her and I’m also speaking to you today from the lands of the Wurundjeri peoples. I’d also like to acknowledge the traditional owners of this land and I
48:32
pay my respects to their Elders past and present and extend that respect to any Aboriginal Torres Strait Islanders joining us here today. We’re coming
48:41
to the end of our time now. On behalf of the teams at ArtsHub and Creative Victoria, I’d like to thank everyone for joining
48:47
and for your questions which really added to the discussion and I’m sure you’ll all join me in
48:53
thanking the wonderfully informative Neane Carte, both for her insightful presentation and her detailed and considered responses to those questions and
49:01
I only wish we could have got to more of them because they were coming through thick and fast. This was the final webinar in
49:07
the current series and, if you haven’t yet, remember you can catch up with the six previous webinars via ArtsHub at artshub.com.au or
49:15
via Creative Victoria’s website and track them down on YouTube too. This one will be available
49:21
to view shortly with a full transcript. And don’t forget that the complete set of associated
49:26
Creative Exchange podcasts are also available to listen to now via Spotify and Apple podcasts. To
49:33
find out about upcoming events in the Creative Exchange series, please subscribe to the Creative Victoria eNewsletter or follow the organisation on social media. And please do
49:42
complete the feedback survey which helps us with future webinars. Thanks again for joining us today and we’ll see you
49:48
all next time.
