Authorship, authenticity and intellectual property in Australian Aboriginal art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists’ relationship different to other artists’ individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006–8.

Traditional knowledge, traditional cultural expressions and intellectual property law in the Asia-Pacific region

Contents

* The international debate about traditional knowledge and approaches in the Asia-Pacific region / Christoph Antons
* How are the different views of traditional knowledge linked by international law and global governance? / Christopher Arup
* Protection of traditional knowledge by geographical indications / Michael Blakeney
* An analysis of WIPO's latest proposal and the Model Law 2002 of the Pacific Community for the Protection of Traditional Cultural Expressions / Silke von Lewinski
* The role of customary law and practice in the protection of traditional knowledge related to biological diversity / Brendan Tobin
* Can modern law safeguard archaic cultural expressions? : observations from a legal sociology perspective / Christoph Beat Graber
* Branding identity and copyrighting culture : orientations towards the customary in traditional knowledge discourse / Martin Chanock
* Being indigenous' in Indonesia and the Philippines / Gerard A. Persoon
* Indigenous heritage and the digital commons / Eric Kansa
* Traditional cultural expression and the internet world / Brian Fitzgerald and Susan Hedge
* Cultural property and "the public domain" : case studies from New Zealand and Australia / Susy Frankel and Megan Richardson
* The recognition of traditional knowledge under Australian biodiscovery regimes : why bother with intellectual property rights? / Natalie Stoianoff
* Protection of traditional knowledge in the SAARC region and India's efforts / S.K. Verma
* The protection of expressions of folklore in Sri Lanka / Indunil Abeyesekere
* Traditional medicine and intellectual property rights : a case study of the Indonesian jamu industry / Christoph Antons and Rosy Antons-Sutanto.

Traditional knowledge, biological resources and intellectual property rights in Asia : the example of the Philippines

The relationship between traditional knowledge and intellectual property rights has become a topic for intensive debates at the national level, in various international settings and within and among different UN agencies, including the World Intellectual Property Organisation (WIPO), the UN Food and Agriculture Organisation (FAO), UNESCO, UNCTAD and the United Nations Environment Programme (UNEP). However, a consensus on a definition of traditional knowledge has yet to emerge due to persistent differences in perception. On the one hand, indigenous communities hold locally specific and holistic views of traditional knowledge, which are difficult to place within the framework of current intellectual property rights. Governments of developing countries, on the other hand, mostly focus on clearly defined aspects of traditional knowledge and their interpretation in the national interest and as expressions of national culture. Asian governments, in particular, have advocated the latter view. The Philippines provide an exception due to a tradition of recognising indigenous people as separate "cultural communities". However, the practical implementation of so-called "community intellectual rights" thus far is largely confined to access and benefit sharing rules, compensation requirements for traditional farmers and defensive protection measures such as digital libraries documenting traditional knowledge.

At the crossroads : the relationship between heritage and intellectual property in traditional knowledge protection in Southeast Asia

Matters related to traditional knowledge (TK) and traditional cultural expressions (TCEs) are 'at the crossroads' in various respects. From a legal perspective, TK is discussed in several international forums and is at the intersection of several already established or still emerging fields of law. Of particular interest here is the relationship between heritage and intellectual property. It is discussed in international diplomatic negotiations on intellectual property (IP) protection for TK/TCEs in the context of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization (WIPO) and in the context of the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. Geographically, TK is also located 'at the crossroads'. It is linked to cultural spaces associated with certain peoples and certain territories and these are often not identical with the borders of nation states. Such borders are a colonial artefact that often fails to reflect the ethno-geographical reality of a region. The divergent national and ethnic boundaries create overlapping claims in situations that may be further complicated by both ancient and modern transmigrations and/or shared heritage. The Southeast Asian region, which is the geographical focus of this article, has been at the crossroads of trade and religious and cultural influences for centuries and it provides, therefore, excellent examples for such overlapping cultural spaces and resulting conflicting or competing claims. The article examines the legal and geographical intersections that have contributed to the current situation and the relationship between cultural and intellectual property in regional claims as well as examples of disputes that have arisen and the reasons for them.

Technology adoption : voices of teaching academics, educational designers and students

This folio presents three studies (a dissertation and two electives) which use qualitative case study methodologies to investigate technology adoption from three perspectives. Central to all three studies is the study context of Monash University. The Dissertation explores adoption of web-based learning and teaching approaches from the perspective of teaching academics as they incorporate these to facilitate their students’ learning. The study investigates teaching academics’ reasons for adopting these new technologies, the factors that influenced their adoption decisions, and the challenges they were confronted with, including the contributing factors that impacted on their adoption decisions. The study shows that while contextual factors such as power and politics of the school, department, faculty and the institution impact on adoption, supportive organisational infrastructures and policy frameworks are necessary to encourage adoption, including wider adoption. In turn, on going staff development, adoption of new work practices and being adaptive to changing work environments are key demands made on teaching academics as a result of adopting web-based teaching approaches. Elective 1, a smaller study, leads on from the dissertation and examines the impact of technology adoption on the evolving role of educational designers. The study identifies the educational designers’ role change in assisting teaching academics to move from more conventional forms of teaching to more technology based learner-centred collaborative models. An important aspect of the study is the managers’ perspectives of this role in a university that has adopted a strong flexible learning and technology policy. The findings show that educational designers now work as project managers in larger teams consisting of a wider range of professionals, their expanded role in introducing technology into learning designs, providing staff development in the area, and giving technical help including advice on copyright and intellectual property issues. Elective 2 explores student readiness to adopt these technologies for learning. The study is designed to achieve an understanding of three broad categories of learners from a first year design unit: (1) South East Asian and East Asian students, (2) all other international students, and (3) local Australian students are studied to examine their readiness for modes of learning that are flexible; their approaches to study in a creative discipline area; and their openness to using technology. Findings of the study are discussed under the key themes – dependence on the teacher and classroom environment, flexible learning and working alone, structure, communication and work patterns. The study concludes by discussing the possible cultural attributes that have an impact on the learning. The three studies found that the institution, its people, structures and processes must all adapt, evolve and grow in order to provide effective, engaging, student-centred web-based learning environments. Students in turn must be enabled to manage their study, make use of the technologies and maximise their learning experience. The findings revealed the stage of technology use reached at Monash University at the time of the study through the voices of the teaching academics, educational designers and students.

Australian cultural and innovation policies: never the twain shall meet?

 In recent years, Australian cultural policy-makers have begun to pay more attention to innovation policy. Several of the Australian states specifically address issues of innovation in their formal cultural policies, and the Australia Council for the Arts has published an Innovation Strategy which purports to constitute 'a coordinated approach to supporting creativity as one of Australia's most valuable assets' (Australia Council 2006).

However, despite this prima facie policy commitment to supporting and fostering innovation in the arts and cultural industries, there remains a disconnect between cultural and innovation policies in Australia. On the one hand, cultural policies in Australia are confused and incoherent in their approach to cultural innovation, and many policy settings as they apply to cultural industries are antithetical to the aims of fostering innovation and R&D. Meanwhile, innovation policies continue to pay only marginal attention to the creative arts and cultural industries. This disconnect will be briefly examined in three fields of cultural policy: arts and cultural funding; copyright and intellectual property policy; and broadcast media policy.

It is argued that rather than promoting innovation, existing policy frameworks in all three areas, when not specifically framed around the protection of vested interests, are often contradictory and inimical to the disruptive influence of innovative artists, technologies and firms. Possible reasons for the disconnect include pragmatic matters of busy ministers and low policy priorities, and conceptual confusion over the status and value of culture.

Intellectual property, creativity and innovation : IP models and the political economy of developing Asia

In advanced capitalist societies, intellectual property laws protecting such subject matter as copyright and patents are justified by a combination of theories, which include the provision of economic incentives to foster creativity and innovation and the prevention of unfair competition. IP academics and policy makers have differing views about the appropriate balance between these objectives and public interest considerations such as health, education and the protection of the environment. These different views entered the policy debate in Asian developing countries in connection with an unprecedented introduction and expansion of IP laws over the last 25 years. This paper will use case studies of law reform from Asia, in particular Southeast Asia, to show that the policy considerations of governments in reforming their laws were often quite different from the standard rationale mentioned above. As much of the IP was, at least initially, held by foreigners and introduced to attract foreign investment, national development considerations were joined with the more commonly quoted objectives to promote the rights, creativity and innovation of individuals. Such national development objectives at times coincided and at other times collided with official explanations and received wisdom about the effects of stronger IP rights.

Especially in the early postcolonial period, copyright laws and other IP laws were frequently restricted or simply not implemented, if they conflicted with development policies in areas such as education or public health. Such policies were slowly changing in the wake of WTO-TRIPS and other international agreements. Nevertheless, the implementation and enforcement of the IP laws has been uneven. Specialised institutions such as courts and IP administering agencies compete with other branches of government and administration for limited funding and a rich repertoire of informal dispute settlement procedures has kept the number of court cases relatively low. In some countries, censorship laws have influenced freedom of expression and led to quite idiosyncratic interpretations of intellectual property laws. Governments often also retain a role in the assessment of licensing and technology transfer contracts. And while there are many programs to foster individual creativity, in most cases R & D activities are still largely taking place in government institutions and this has influenced the thinking about intellectual property rights and creativity in the context of employment.

The paper uses a few case studies to examine the implementation of IP laws in selected Asian developing countries to point to the quite different institutional setting for IP law reform in comparison to European or American models. It reaches some tentative conclusions as to the likely effects on creativity and innovation under these different circumstances.

Professional artists in Vietnam : intellectual property rights, economic and cultural sustainability

The article outlines the legal context for Vietnamese artists that is not discussed in other literature, including the scarcity of data on the art market, the reasons for failure to enforce intellectual property (IP) rights and legal contracts, and the rapid growth of private-sector art dealing that makes an examination of the legal context so essential. The author's field research in Vietnam since 2003 is linked to analyses of Vietnam's art market and to civil codes and other international agreements that determine professional artists’ IP rights. This illustrates the reasons why IP rights have not been enforced or arbitrated in Vietnam. The author includes a discussion of the importance of enforcing IP law for the maintenance of artists’ incomes and careers, the development of a national art market, and for innovation and cultural sustainability in Vietnam.