Aboriginal people and the law - Legal Information Access Centre

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68 The Law HandbookHeritage Council of NSW maintains theState Heritage Register (s 31) and canendorse a conservation management planfor the management of the State HeritageRegister (s 38A).The Environmental Planning andAssessment ActAboriginal heritage and sites can sometimesbe protected by ensuring that appropriateguidelines are included in the local environmentplans that local councils must developunder the Environmental Planning and AssessmentAct 1979 (NSW). An order forcing aparticular council or shire to adhere to itslocal environment plan may then beobtained, if necessary, from the Land andEnvironment Court.[2.470] CommonwealthlegislationThe Environment Protection andBiodiversity Conservation ActThe Environment Protection and BiodiversityConservation Act 1999 (Cth) protects siteslisted on the World, Commonwealth andNational Heritage Lists. The National HeritageList includes some Indigenous culturalareas. A site can appear on both the stateand the national heritage list.The Aboriginal and Torres StraitIslander Heritage Protection Act 1984Under the Aboriginal and Torres Strait IslanderHeritage Protection Act 1984 (Cth) the federalMinister for Indigenous Affairs can makeorders protecting Aboriginal objects andsites from desecration or destruction, providedthat state-based laws do not adequatelyprotect the object or area. Theminister may also make emergency orderswhere an area or object is facing a serious orimmediate threat.The Protection of Movable CulturalHeritage ActThe Protection of Movable Cultural HeritageAct 1986 (Cth) attempts to regulate theexport of particular objects of significantcultural heritage, including some Aboriginalobjects. The NSW Environmental Defender’sOffice is a community legal centre specialisingin public interest environmental law. Ithas publications with further information onheritage and cultural protection, see:• EDO NSW Fact Sheets on ProtectingHeritage: www.edo.org.au/edonsw• EDO NSW Free publication, Caring forCountry (phone (02) 9262 6989 to order afree copy).[2.480] Copyright and other protectionsCopyrightThe Copyright Act 1968 (Cth) protects thework of Aboriginal and Torres Strait Islanderartists and creators in the same wayas it does that of other Australians (seechapter 13, Copyright). However, it haslimitations in protecting and recognisingIndigenous cultural and intellectual property(ICIP), especially in relation to Aboriginalconcepts of custodianship and communalownership. This has been a feature of anumber of court cases (see Recognisingcommunal rights at [2.510]).[2.490] Moral rightsIn December 2000, the Copyright Act wasamended to incorporate moral rights. Theseare personal, non-economic rights, whichcannot be assigned (transferred), and whichgive the author (the creator) the right:• to be identified as the author of a work(the right of attribution of authorship)• not to have authorship of a work falselyattributed (for example, to another author)• not to have their work subjected toderogatory treatment that prejudiciallyaffects their honour or reputation (the
2 Aboriginal people and the law 69right of integrity of authorship of a work).Moral rights apply to the authors of literary,dramatic, musical and artistic works, and offilms, but do not apply to sound recordings.The government introduced moral rights forperformers in July 2007. These rights applyto live performances or sound recordings oflive performances. Moral rights belong toeach person who contributed to the soundsof the performance, including the conductorof a musical work. There are still no moralrights for performers of audiovisual performanceseg actors and dancers. In 2012 a newinternational treaty, the Beijing Treaty onAudiovisual Performances was adoptedwhich will provide performers with greaterintellectual property rights but it is not yetin force internationally and has not beensigned or ratified by Australia.A moral rights case involving musiciansIn a recent case in the Federal Circuit Court Perez vFernandez [2012] FMCA 2 (10 February 2012), the Courtfound that the change made by DJ Suave (aka JamieFernandez) to Pitbull Perez' Bon Bon song was a material“distortion” or “alteration” (if not a “mutilation”) of thesong and that the Mixed Bon Bon Version was prejudicialto Perez's honour and reputation. Perez was awarded$10,000 damages for the infringement.Recourse for Indigenous artistsMoral rights provide individual Indigenousauthors, creators and performers with remediesfor infringement where the requirementsof the Act are met. These includesituations where:• the author has not consented to theinfringement• the infringing act occurred after the commencementof the legislation and• there is no statutory defence to theinfringement available.A moral rights case involving the wrongattribution of a visual artistThere has been only one moral rights case in Australiainvolving attribution. In September 2006, in Meskenas vACP Publishing [2006] FMCA 1136 (14 August 2006), thecourt found that the moral right of attribution had beeninfringed. The court found the infringement analogousto copyright infringement in terms of the compensationthat should be given, and awarded damages of $9100.Rights of communal ownersSection 190 of the Copyright Act states thatonly individuals have moral rights. Thisdoes not adequately recognise communalownership of Indigenous cultural heritage,and the rights of custodians, according totraditional practices, to maintain integrityand require attribution. Communal ownershipof pre-existing designs is notrecognised.[2.500] Breach of confidenceWhen copyright law is inadequate for protectingsecret–sacred knowledge or culturalknowledge, or a contract has not beenentered into, the law of confidential informationmay provide some protection.A breach of confidence caseIn Foster v Mountford (1976) 14 ALR 71, members of thePitjantjatjara Council took action under breach of confidencelaws to stop the publication of a book entitledNomads of the Australian Desert. Mountford, ananthropologist, made a trip in 1940 into remote areas ofthe Northern Territory, where Pitjantjatjara male eldersrevealed, in confidence, tribal sites and items of deepcultural and religious significance. Mountford latersought to publish the information, with photographs,drawings and descriptions of people, places and ceremoniesof the Pitjantjatjara people. It was argued thatthe dissemination of this information could cause seriousdisruption to Pitjantjatjara culture and society if itwas revealed to women, children and uninitiated men.The court granted an injunction in favour of the PitjantjatjaraCouncil.Copyright law could not have been used by the membersof the Pitjantjatjara Council to protect their secret–sacred knowledge, as they had not recorded theinformation in writing or some other material form, andwere thus not the copyright owners according to theCopyright Act.
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