BOURKE, Mr Brendan, Director, Trade and Policy Projects, IP Australia

CAMILLERI, Ms Eileen, CEO, Australian Copyright Council

COYNE, Ms Frances, Lawyer, Australian Copyright Council

MITRA-KAHN, Mr Benjamin, General Manager, Policy and Governance Group, IP Australia

SEFEROVIC, Ms Thea, Policy Officer, Trade and Policy Projects, IP Australia

Evidence was taken via teleconference—

CHAIR: I welcome representatives of the Australian Copyright Council and IP Australia. I understand that information about parliamentary privilege and the protection of witnesses and evidence has been provided to you. I remind senators that the Senate has resolved that an officer of a department of the Commonwealth or a state shall not be asked to give opinions on matters of policy and shall have the opportunity to refer questions asked of the officer to a superior officer or to a minister. This resolution prohibits only questions asking for opinions on policies and does not preclude questions asking for explanations of policies or factual questions on when or how policies were adopted. Officers are also reminded that any claim that it would be contrary to the public interest to answer a question must be made by a minister and should be accompanied by a statement setting out the basis of the claim.

Would either IP Australia or the Australian Copyright Council like to make an opening statement?

Ms Camilleri : We'll make a brief statement. The Australian Copyright Council welcomes the introduction of the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019. The historical limits of the Australian Copyright Act in protecting Indigenous cultural expression mean that the bill is a necessary part of a framework to protect and encourage the continuing tradition of Indigenous artistic works, which play a significant role in the cultural and economic landscape of creative Australia.

Making it an offence to supply or offer commercial goods that include Indigenous cultural expression as defined, unless supplied by or in accordance with a transparent arrangement with an Indigenous artist or relevant community group, will go a long way towards protecting the sacred ideas, methods and styles of Indigenous people while, importantly, promoting the voice of the group rather than the individual when it comes to creative and cultural expression. The Copyright Act 1968 is currently limited in its effect in doing this.

Copyright infringement causes irreparable harm to artistic communities, as seen in the case of John Bulun Bulun & Anor v R & T Textiles Pty Ltd in 1998. Mr Bulun Bulun is quoted as stating: 'Copyright infringement interferes with the relationship between people, their creator ancestors and the land given to the people by their creator ancestors. It interferes with custom and ritual and threatens people's rights as traditional Aboriginal owners of the land and impedes carrying out the obligations that go with this ownership and which require the telling and remembering of stories.'

The Australian Copyright Council's only suggestion in relation to the bill is that the definition of Indigenous cultural artefact be widened to include contemporary cultural and artistic practices such as clothmaking and printmaking, which appear to be currently excluded.

Mr Mitra-Kahn : IP Australia is pleased to assist the committee in its inquiry. We can provide information on the administration of registered IP rights and legislation in relation to trade marks, designs and patents. We are also undertaking work relating to Indigenous knowledge at the moment. Our work seeks to identify ways that the IP system can promote the cultural integrity and economic potential of Indigenous knowledge. We use the term 'Indigenous knowledge' to cover a range of knowledge originating from Aboriginal and Torres Straight Islander people, including Indigenous knowledge such as know-how, skills and practices in things like medicine, architecture and ecology, and also traditional cultural expressions such as arts, crafts and languages.

We had a series of consultations from September 2018 to February 2019, and we have had a range of stakeholders about the issues that arise in relation to Indigenous knowledge. Our consultations did not cover fake art issues in relation to copyright, as at the time of our consultation the House of Representatives Standing Committee on Indigenous Affairs was conducting an inquiry into the impact of inauthentic arts and crafts. Nevertheless, stakeholders raised with us their concerns and the hurt about the production and sale of inauthentic Aboriginal and Torres Straight Islander style products. That proliferation of inauthentic products denies Aboriginal and Torres Straight Islander people control over their Indigenous knowledge, and it can be deeply disrespectful. It's clear to us that this is an issue that important to many people, who call for action against those responsible for the sale of these fake products. We are also aware of concerns that the presence of these products can have an effect on economic opportunities for Indigenous communities.

The explanatory memorandum of the bill explains attempts to stop the proliferation of fake art and craft products, and does so by creating an offence under the consumer law. The creation of an offence is one avenue to address this problem. There are other steps, such as education and awareness about how Indigenous knowledge should be treated, and steps to help consumers identify and buy authentic products.

When it comes to defining what is or is not an authentic product, that can be a complex issue. One opinion that we heard in the consultations is that a national one-size-fits-all approach can take decision-making about cultural and local matters away from the community. The question of what is a traditional cultural expression—or an Indigenous cultural expression, to reflect the term used in the bill—is ultimately one that should be based on community views. These may vary. Our experience in the world of intellectual property organisation, the intergovernmental committee on intellectual property, traditional knowledge and folklore, has included extensive discussions of the term 'traditional cultural expression'. These discussions show that there can be a great diversity and views regarding how the term is best defined. It's really important for Aboriginal and Torres Straight Islander views to be guiding opinions and discussion, we believe.

IP Australia's work on Indigenous knowledge is focused on the IP system, but we know that IP laws are not applicable in all cases of inappropriate use. We don't have expertise in relation to the Competition and Consumer Act 2010 and the Australian consumer law. However, we can see that it is possible that similar IP laws and consumer laws do not apply in all cases of appropriation. This reflect the gap in protection that is referred to in our submission. Western legal norms are not always well suited to protection of Indigenous knowledge and the attached cultural protocols and context. For this reason we have heard support from some stakeholders for other options to protect Indigenous knowledge, such as standalone legislation or the establishment of a dedicated authority to act as a peak body to act for Indigenous issues. We understand that some of the suggestions are also made to the House of Representatives standing committee's inquiry into inauthentic products. We are happy to elaborate further on any items of interest to the committee in relation to the IP system and our work.

Senator URQUHART: I might start with a couple of questions to IP Australia and then move onto the Copyright Council. How does IP Australia currently work to help Indigenous Australians protect their cultural, spiritual and intellectual property?

Mr Mitra-Kahn : At present IP Australia has outreach and communication material targeting Indigenous producers of intellectual property. We provide advice and support to Indigenous entrepreneurs through that mechanism, called Dream Shield. We have also been involved in a large round of consultations over the last year, trying to see how the IP system can be better mended in order to support Indigenous expression and traditional cultural expression and knowledge.

Senator URQUHART: How did that consultation took place?

Mr Mitra-Kahn : From November 2018 we had seven roundtable sessions in Brisbane, Cairns, Sydney, Alice Springs, Darwin, Broome and Perth. We asked for written submissions over a four-month period and had an online survey. Through that consultation, particularly the round tables, we heard from 112 stakeholders who attended a round table and did interviews. We had 41 responses to our online survey and 70 written submissions, which are on our website. That was over a four-month period. This includes Indigenous and non-Indigenous people from a wide range of sectors and backgrounds—industry groups, government, tourism, arts. Even the people who responded to our survey identified themselves as being from a wide range of sectors. It was a very broad round of consultation asking about the outcomes of a discussion paper that we published in 2017 on Indigenous knowledge, which was put together for us by the Indigenous law firm run by Terri Janke called Terri Janke and Company.

Senator URQUHART: Does IP Australia have the right tools and resources to support Indigenous Australians in these endeavours?

Mr Mitra-Kahn : I think what we recognised through the consultation is that we need to do more and that we need to bring in more expertise from outside IP Australia and more Indigenous voices in how we engage with Indigenous communities. One of the big recommendations coming out of the consultation, which is now becoming a work plan for IP Australia, is around how we engage with Indigenous communities. One proposal that was put forward is that we create an Indigenous advisory body that would help us make decisions, particularly in the trade mark space, to inform that. At the moment we don't have all the things we need to have, but we have avenues for getting there.

Senator URQUHART: You have avenues for getting there?

Mr Mitra-Kahn : I think we have the avenues for getting there. We've started a process now that we can provide better and more support. There's never a perfect end point, but we're certainly evolving our offering and doing so in a more consultative way than we have in the past.

Senator URQUHART: Is there more to be done in terms of intellectual property law, that would then better protect Indigenous cultural expression and artefacts?

Mr Bourke : Ben mentioned a work plan that we are developing. Intellectual property can help promote authentic art and products, but it won't completely eradicate the sale of inauthentic products. It will allow people to sell the benefits of having an authentic product over other goods and services. In terms of the legal framework, some of the things that we get are around trademarks and whether there should be a requirement to identify that Indigenous art that has, for example, been used to obtain a trademark is being used with the consent of the relevant grouping. Those rules aren't currently in place but they are things that we have been consulting on.

Senator URQUHART: So there could be possible improvements in the IP law? Is that what I am hearing you saying?

Mr Bourke : Correct.

Senator URQUHART: I am happy to throw this open to both groups and bring in the Copyright Council. Can you tell me what the international best practice is in protecting traditional cultural expressions? When you do consultations or you are looking at other things, what's the best international best practice that you've seen?

Ms Camilleri : We couldn't take a position on that currently; we'd have to go away and have a look at that. But if I can go to your question to IP Australia in relation to the legislative framework—

Senator URQUHART: Yes, sure.

Ms Camilleri : We are part of the jigsaw puzzle that IP Australia doesn't cover. We are the copyright part of the jigsaw puzzle. The legislative framework—which I think we only touched on in our submission—is currently, in our view, inadequate. But, similar to the position taken, as I understand it, by IP Australia, the law surrounding intellectual property—that being trademarks, designs, patterns and indeed the Copyright Act—fall short where there is an element of misleading the public. That part of the puzzle is beyond the scope of the council, but I think it's a question of having a suite of legislative solutions around this issue and the notion of community ownership and community exploitation of what belongs to community.

Senator URQUHART: Thanks, Ms Camilleri. Does anyone from IP Australia want to have a stab at the international best practice?

Mr Mitra-Kahn : We would take the view that work coming through the World International Property Organisation's intergovernmental committee that relates to traditional knowledge represents best practice in terms of getting agreement cross countries. Often these are international issues and, admittedly, some of that progress can be slow. We think that is a good process and a good venue.

In respect of IP rights, particularly with trademarks, we've looked at the US, New Zealand and Canadian mechanisms. They've all got good parts to them, but I wouldn't go so far as saying that one is particularly directly translatable to the Australian context as a best practice.

Senator URQUHART: But they could be used as examples of what you could build on, could they?

Mr Mitra-Kahn : I think that would be very fair. And there are definitely models and gaps you can see in there. In the United States—this goes to the point made by the Copyright Council about inauthenticity—the Indian Arts and Crafts Act makes it illegal to offer or display for sale or sell any art or craft product in a manner that falsely suggests it is American Indian produced, an American Indian product, or the product of a particular American Indian or American Indian tribe or arts and crafts organisation, resident in the United States. There are very strict penalties on infringement. However, the scheme may not effectively address mass-produced inauthentic works, because in order to present it as being authentic they have no 'Made in China' sticker. There are things we can learn from this about where the gaps are and where the gaps have been. That's the point we make in our submission—that there are real gaps between Western law and IP systems and what is sought to be protected under traditional knowledge and cultural expression.

Senator URQUHART: Okay, thank you.

Senator HANSON-YOUNG: Can I go to the Copyright Council. You have been very clear in your opening statement and in the submission that you welcome the introduction of this bill as a way of dealing with some of the issues currently confronting not just Aboriginal artists but also the consumer. We have heard from other witnesses today that perhaps the bill should be amended slightly to exclude the element around sacred artefacts to make it simpler and more targeted directly to the marketplace at large. That is the bigger problem, with up to 80 per cent of fake products on the market. Would you agree with those recommendations?

Ms Camilleri : I'd have to see what that might look like. Whilst we would support anything to make reading of the legislation simpler, we don't want to be in a position where the gaps are not plugged. We want to be able to ensure that, in its simplicity, it's also as watertight as possible. We understand that that is a balancing act, but we would support IP Australia's position that we'd need to have a look at the community consultation process to ensure that we capture everything. It may be that the people with whom you consulted earlier today are closer to the relevant interest than we are here at the council, in a practical sense.

Senator HANSON: We have had submissions from the ACCC, and I think it's fair to say that there is some concern from the ACCC in relation to this legislation that rules such as this are too discrete in terms of the sector that they attempt to deal with. Do you accept that that is a reasonable concern or do you believe that this is such a significant issue that it does need a specific response?

Ms Camilleri : I think this goes to our earlier point that the existing intellectual property framework contains gaps which the existing laws cannot plug. So, if we're applying our Western notion of ownership of copyright—I only speak to the copyright issue here because that's the extent of our imprimatur—it doesn't fit the notion of community ownership which applies to the Indigenous communities. Unless we can come up with a legislative framework in existing legislation which redresses that and is proactive in protecting items that are born of community knowledge, then we will have to resort to what is currently, we would say, an inadequate system of protection for works of cultural expression.

Senator HANSON-YOUNG: One of the key parts of this bill, of course, is to provide for the need for licensing, particularly for those whose artwork would originate here in Australia and allow for them to be made overseas if that's what was needed or to be reproduced in some other form. Those gaps that you're talking about, particularly from a copyright perspective, obviously even having the requirement of licensing would help address some of those?

Ms Camilleri : Yes. I think that that's right. Certainly we would not want to see any proposed legislation or indeed any existing legislation which would set up a copyright owner's right to license work, nor would we want to see any legislation which may impede existing licensing arrangements which are proper. That would be the council's position.

Senator HANSON-YOUNG: If you have the legal requirements as under this legislation for licensing to have to occur, would it be appropriate for the ACCC, in consultation assumedly, to develop licensing guidelines as they do with franchises in other sectors?

Ms Camilleri : To be frank, I don't know that I can comment on that in my capacity representing the council, because copyright forms a suite of rights, and anything which would assist in the practical workings of any legislative scheme is of benefit, certainly insofar as copyright is concerned where there is a registration regime. But I say that in full knowledge that any license agreement would need to cover areas which fall under the remit of IP Australia.

Senator HANSON-YOUNG: Let me be clear: what I'm responding to are concerns raised by the ACCC in relation to not wanting to be caught having to police every souvenir shop. No-one's suggesting that that is what has to happen, but surely having proper laws in place and the ability to enforce them with guidelines that set up what an appropriate license would look like is the role of the ACCC?

Mr Bourke : From IP Australia's point of view, we note that this in relation to consumer laws, so I think we can't really comment on whether or not the Competition and Consumer Act is the right place for this legislation or how the ACCC might police it. What we would note is that, as I'm sure you're aware, this bill overlaps with some of the consideration that was given to this issue by the House of Representatives Standing Committee on Indigenous Affairs. They came up with plenty of recommendations in order to go some way to plugging the gap.

Senator HANSON-YOUNG: Of which this piece of legislation is part of.

CHAIR: As there are no other questions, I thank each of you for your evidence today. If you have agreed to take any questions on notice, they will be sent to you by the committee. If we could have your responses back by 27 November that would be much appreciated.