Call for new IP protections for Indigenous Australians

Trailblazer Indigenous businesswoman Terri Janke has urged the business community to better acknowledge Indigenous creators of everything from art to medicines, and called for new copyright laws to standardise protections.

Ms Janke founded her self-titled legal and consulting business in Sydney back in 2000, and admitted that particularly in the early days, it was a delicate balancing act between advocacy for Aboriginal and Torres Strait Islanders and building a sustainable business.

“I really wanted to have a work space that really recognised the needs of Indigenous creators, and I just felt that being able to have my own business would allow me to bring about the things that I wanted to do towards that goal. It was really all about empowering Indigenous creators,” she told My Business.

She said that the legal space at that point was largely inaccessible to Indigenous Australians, and she set about to bridge this gap and negotiate copyright protections on their behalf.

Some 20 years later and with a string of awards to her name — including being named Indigenous Business Leader of the Year at the 2019 My Business Awards — Ms Janke said the fight she embarked on is still not over for Indigenous Australians to receive due protections over their intellectual property (IP).

“If you look at copyright as a general law, if you’re acting for productions or projects in copyright, you might think that all the rights go to the producer. But when Indigenous people are working with creative things, they want to make sure that their rights are collectively owned,” she said, citing their ancestry story as one such example.

“Ordinarily… industry would just assign those rights; in Indigenous communities, we want to keep those rights [perpetually], so I would negotiate for licences rather than just assignments. That’s very important in our community.”

Ms Janke said early cases she worked on included a winemaker that used Aboriginal artwork without consent, but that traditional medicines, foods and culture continue to be used without giving Indigenous people due credit and ownership of the IP.

“There’s also still a whole lot of rip-offs that are occurring. Some are just ignorant, so more education needed, but some are done blatantly,” she said.

The lawyer and businesswoman said the impact of copyright ownership for Indigenous Australians extends far beyond simply money for an individual, but that it has enabled entire Indigenous communities to create their own economic opportunities and have control over how their culture is used and portrayed.

Industry, not government, leading the change

According to Ms Janke, there has been considerable progress within the private sector to better engage with and credit Indigenous IP owners for mutual benefit, and that certain protocols and rights have been negotiated that set a commercial benchmark.

“There have been businesses that have been able to use it as an advantage, that gives them a competitive edge. I’m seeing a lot of collaborations in design. They are putting out products that are very unique,” she said.

“Government obviously likes to see that have likes to have the status quo.”

However, she said regulatory change has been slow to keep pace, despite some government departments — such as the Australian Council for the Arts — actively embracing these protocols and processes.

“I still think there is a need for a new law: I think Indigenous people won’t use IP law to their advantage… you need a stand-alone law that recognises these protocols and rights [we have developed with the business community]. Companies are wanting to engage in best practice.”

Photo supplied. Photography by Jamie James. Background artwork: “Ancient Tracks and Waterholes” (2019) by Rene Kulitja.