Fair Use and Traditional Cultural Expressions

This paper analyses the ability of Indigenous communities to control the use of Traditional Cultural Expressions (TCEs) including use under ‘fair use’ exceptions to copyright infringement. TCEs include Indigenous or traditional artworks, music and songs, stories and performances and are generated collectively and cumulatively. Copyright law vests ownership of a work in the author of that work however, in the case of TCEs, this fails to recognise the rights of the Indigenous community to which the author belongs and the obligations that the author owes to their community. This obligation to community has been recognised in Australian courts as a fiduciary duty however this approach is insufficient to fully reflect the rights and responsibilities of an Indigenous community to TCEs. Both the Indigenous community and the author or creator hold the responsibility for maintaining and protecting TCEs and therefore the community has a particularly important role to play in the context of making decisions as to how a copyrighted work may be used and who may provide consent to such use. Fair use provisions provide exceptions to copyright infringement and are intended to ensure that fair access to content is available while still protecting and incentivising creators of copyright works. It is critical that any rights under fair use provisions are balanced with the rights of the Indigenous community to maintain, control and protect their cultural heritage and TCEs. In the Productivity Commission’s ‘Intellectual Property Arrangements Draft Report April 2016’, support was given for the Australian Law Reform Commission’s (ALRC) recommendation to replace the existing fair dealing exceptions in the Copyright Act 1968 (Cth) with fair use provisions. In the ALRC report ‘Copyright and the Digital Economy’ it was proposed that the introduction of a fair use exception be evaluated with reference to certain fairness factors including ‘(a) the purpose and character of use; (b) the nature of the copyright material; (c) the amount and substantiality of the part use; and (d) the effect of the use upon the potential market for, or value of, the copyright material.’ The authors argue that any fair use provisions must be subject to the right of an Indigenous community to control the use of TCEs without consent, especially in the case of sacred works. In particular, it may be necessary to carry out broad consultation with Indigenous communities in order to provide guidance on dealing with Indigenous cultural production. In addition, any amendment should make clear that any fair use is expressly subject to the moral rights regime in Part IX Copyright Act, including, in particular, the right of integrity of authorship that works are not subject to derogatory treatment. Indeed it may be said that respect for Indigenous works is a sub-set of the broader right of integrity of authorship.