Traditional Indigenous artworks are created in the context of customary law and are of great cultural significance, not only to the artist, but also the artist’s community. This is the case as artworks contain traditional knowledge, passed from generation to generation, that reinforces bonds between people, land and their ancestors. If a traditional Indigenous artwork is misused, the artist’s community has limited rights under intellectual property (Bulan Bulan v R&T Textiles Pty Ltd (1998) 157 ALR 193). Copyright is unable to deal with the cultural and communal interests inherent in traditional Indigenous artworks.
The thesis argues that cultural rights under international human rights treaties can afford protection to the interests of Indigenous communities in relation to traditional artworks. Cultural rights, in stark contrast to intellectual property regimes, focus specifically on the protection of culture and allow for communal interests.
The Declaration on the Rights of Indigenous Peoples contains many rights that are applicable to the protection of Indigenous culture. The most significant general cultural rights in this context are the right of every person to participate in cultural life (article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights), the right to protection of moral and material interests in artistic, literary and scientific works (article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights) and the rights of minorities to enjoy their own culture (article 27 of the International Covenant on Civil and Political Rights). Each of these rights is examined in detail, with emphasis on its drafting, historical development, the way the right is interpreted and used by various United Nations bodies, States, judicial bodies and commentators in order to develop a greater understanding of the rights and what they can offer Indigenous people in terms of protecting their culture.
Based on this detailed analysis, the thesis concludes that the right of every person to participate in cultural life allows Indigenous people to maintain, protect and develop their culture. States are under an obligation to create favourable conditions for Indigenous culture to flourish. Indigenous artists should be free to create artworks that reflect their culture in an environment in which their culture is respected and protected. Indigenous people should also be free from cultural harm being inflicted upon them as a result of a lack of respect or protection for their culture.
Indigenous artists have the right to the protection of moral and material interests in artistic works. This is generally seen in light of intellectual property protection. However, States have a degree of leeway in how they fulfil their obligations under the right opening up novel avenues of protection.
The right of minorities to enjoy their own culture is applicable to Indigenous people. It imposes a negative obligation on States not to interfere in the enjoyment of culture and a positive obligation to adopt legislative and administrative measures to protect the culture of Indigenous groups. The obligation to adopt positive measures is reinforced by the notion of non-discrimination, which may require special measures to ensure that Indigenous people are able to enjoy their rights. The enjoyment of one’s culture will encompass traditional cultural stories, the creation of artworks depicting those stories and their transmission from one generation to the next.
This thesis argues that there are four ways in which these cultural rights may be used in protecting Indigenous culture as embodied in traditional artworks.
The first recognises the increasing importance of the Declaration on the Rights of Indigenous Peoples and that the cultural rights contained in it should be used at every opportunity.
The second is the ability to make a complaint to the Human Rights Committee in relation to a violation of the right of minorities to enjoy their own culture. The federal government should also ratify the Optional Protocol to the ICESCR to ensure that there is an adequate dispute resolution mechanism in relation to the other cultural rights.
The third is ensuring that the rights are fully implemented and respected in the drafting of domestic policies. Such policies must ensure Indigenous people are able to preserve their heritage and that conditions are favourable for them to preserve, develop and express their culture, including languages, arts and crafts, music, dance and ways of life.
The fourth, and most novel, use to which these cultural rights can be put is as the basis for a sui generis regime of protection for Indigenous culture. A regime based on cultural rights allows a step away from the inadequate protection afforded by intellectual property law. Any such regime must result from significant consultation with Indigenous people, be tailored to their specific needs and flexible enough to allow Indigenous culture to continue to develop. The rights associated with ownership must allow the owners use their traditional culture and cultural expressions, to commercialise it, if they choose to do so, and to prevent others from misusing their culture.