Working respectfully with cultural knowledge and material

Working with cultural knowledge

Indigenous Cultural and Intellectual Property (ICIP) describes First Nations peoples' interests in their cultural heritage, knowledge and cultural expressions. This includes cultural knowledge and material, which may be shared, used or represented in different ways.

Currently, ICIP cannot be fully protected under the Australian intellectual property (IP) system because existing laws do not specifically recognise or protect it.

While IP rights may protect certain creations or innovations, they do not protect every aspect of ICIP. For example, a design right may protect the visual appearance of a product, but not the cultural knowledge or meaning reflected in its design.

Cultural authority, permissions, agreements and practices therefore play an important role in how aspects of ICIP are respected and managed.

Before using, sharing or working with cultural knowledge and material, or ICIP, take time to understand who should be involved in decision-making and what permissions may be needed.

Free, prior and informed consent

Free, prior and informed consent, often shortened to FPIC, is an important principle for respectful engagement and decision-making.

It recognises that First Nations peoples should be able to make their own decisions about matters that affect them, through their own decision-making processes.

In practice, FPIC may be relevant when seeking permission to use cultural knowledge or material, developing a product or service, entering a collaboration or commercialising knowledge or material that has cultural significance.

In simple terms:

• Free means decisions are made voluntarily, without pressure, manipulation or coercion. People should have the time and space to consider a proposal and make decisions in their own way.
• Prior means engagement happens early, before work begins, commitments are made or important decisions are taken. It should not occur after key decisions have already been made.
• Informed means people receive clear and accessible information about what is proposed, including how knowledge or material may be used, any risks and benefits, potential commercial outcomes and who may have access to it.
• Consent means people with the appropriate cultural authority can agree, decline, set conditions or withdraw consent.

FPIC should not be treated as a one-off approval, signed form or administrative process. Depending on the circumstances, engagement, permission and consent may need to continue throughout the life of the related work.

Engaging respectfully

Respectful engagement helps build relationships, understand cultural responsibilities and support the appropriate use of cultural knowledge and material.

It can also help ensure your products, services or brand are developed in a way that is culturally appropriate and respectful.

Cultural practices, permissions and decision-making processes vary between communities. There is no single approach that applies in every situation, and different communities may have their own governance arrangements, expectations and ways of making decisions.

Before using or sharing cultural knowledge or material, it is recommended that you engage in a culturally appropriate consent process.

This could include:

• identifying the people or communities connected to it, recognising that this may take time
• taking time to build relationships and understand any cultural practices or protocols that apply
• clearly explaining how you would like to use the knowledge or material, including any potential risks, benefits or commercial outcomes
• listening to the views of the people involved and allowing time for community decision-making
• keeping communication ongoing as projects, relationships and circumstances change.

Cultural practices and responsibilities may still apply even where no IP right exists. Different communities, organisations and industries may also have their own guidance or expectations. Taking time to understand these can support more respectful and informed decision-making.

Permissions and consent

Before using cultural knowledge or cultural material, you may need permission from the people who have cultural authority to make decisions about it.

Cultural authority can sit with a particular person, family, clan, group, community or organisation, depending on the circumstances. One person or organisation may not be able to give permission on behalf of everyone connected to the material.

Finding the right people can take time. If you are unsure, seek guidance from appropriate community-controlled organisations, representative bodies or other trusted sources.

These organisations may help you identify an appropriate pathway but may not have the authority to provide permission themselves.

When seeking permission, you should clearly explain:

• what cultural knowledge or material you would like to use
• how it will be used, shared or adapted
• who will have access to it
• any risks, benefits or commercial outcomes
• how long the proposed use will continue and what may happen after the work ends.

Permission may come with conditions. For example, people may agree to some uses but not others, require attribution, restrict access, or ask to review material before it is published. If a proposed use changes, further discussion or permission may be needed.

Material being publicly available, such as online or in a publication, does not necessarily mean it is free to use. Cultural protocols and responsibilities may still apply.

Working together through licensing

Collaboration can take many forms, including licensing arrangements that allow cultural knowledge, artwork or other material to be used under agreed conditions.

Learn how Alperstein Designs and artist Mick Harding worked together through a licensing arrangement and made decisions about the use of Mick's artwork.