UAT Environment

Working respectfully with cultural knowledge and material

Learn about respectful engagement, permissions, consent and collaboration when working with First Nations cultural knowledge and material.

white, black and teal dot painting of hunting equipment using traditional indigenous art techniques

Artwork permission and credit: © Dalmarri.

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.

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.

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.

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.

Collaboration

Collaboration can bring together cultural knowledge, creativity, skills and business experience. It may involve First Nations artists, communities, businesses, researchers, designers, manufacturers or other organisations.

Strong collaborations are built on relationships, clear expectations and shared decision-making.

Before starting, it is helpful to discuss:

  • the purpose of the collaboration
  • what each person, community or organisation will contribute
  • who owns existing intellectual property
  • who will own anything new created through the collaboration
  • how cultural knowledge or material can and can't be used
  • what information must remain confidential
  • how people and communities will be acknowledged
  • how decisions will be made
  • how financial and non-financial benefits will be shared
  • what happens if the project or proposed use changes
  • how cultural material will be stored, accessed or used after the work ends.

Benefits are not always financial. They may also include employment, training, access to resources, recognition, increased capability, community outcomes or a long-term role in decision-making. The people and communities involved should help decide what fair benefits look like.

It can be helpful to document arrangements in writing. Depending on the circumstances, this may take the form of a contract, licence, consent agreement, confidentiality agreement or another written record.

These documents can help clarify matters such as ownership, licensing, permitted uses, attribution, confidentiality, decision-making processes and benefit-sharing arrangements.

However, an agreement does not replace respectful relationships or ongoing communication. Everyone involved should understand the agreement and have the opportunity to seek independent advice before signing it.

Learn more about collaboration.

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.

Alperstein Designs X Ngarga Warendj

Mick: It started just as a bit of a hobby. I've always been a bit of a woodworker. We went from making shields and boomerangs, mainly, and some clap sticks, then I started doing some drawing. People wanted artwork for reports and reconciliation action plans, and we're miles away from that now. So we're very, very busy now. Marc: It's very family business based in Melbourne and we wholesale a range of lifestyle gifts and homewares around Australia. We work with a lot of Indigenous artists and art centres. So we started working with Mick quite a while back, and Mick's work is very different. So we felt that it would be really complementary to what we do. Mick: Marc was really attracted to the black and white stuff that I do, because it was a point of difference as well from all the other licenses he has. We get to know one another and then we can bounce ideas off each other. And I always get to sign off on that stuff before it goes to production. It's a good relationship. Marc: There is a history of exploitation within the space so there is an element of having to build up trust. So when making a new product with an artist, the first thing is coming up with a license and setting the parameters of what you're able to do. When entering your licensing agreement, we're very mindful that we're not buying the copyright. We think it's really important that the artist always maintains the copyright of the license. A licensing agreement is essentially an agreement, so both parties have to be on board with it. And also for the artists to know that they're protected as well. Mick: I upright on licenses almost all the time. I've never sold my copyright to anybody. So the reasons why I do licensing for is the designs I'm using, now, some of them are similar to the way my old people expressed their connection to our country. So if I sell that to someone in terms of the copyright, no one else can use that then. Well, if our people using it in the past and we're using it today, I want to make sure that it's there for our children and children's children into the future. Marc: If you're looking at, I guess, licensing and artwork from an artist or a designer, I think it's important that you have a proper agreement in place. We sought legal advice from an IP lawyer to make sure that it was the correct document, but we suggest and we encourage the artists or the art centres to get external legal advice as well to make sure they understand it. From our perspective, we want to make sure that you understand what's going on and that you are a hundred per cent on board. Then it leads to a very productive relationship. Mick: If there was an Aboriginal audience, make sure you get advice. If someone wants you to sign something, take your time, understand it fully, otherwise you might be signing something that could be detrimental to you or your community.

Get help and find resources

These resources can help you understand, use and protect your IP and cultural knowledge.

  • Business resources – tools and guides to help First Nations businesses understand and protect their IP
  • IP First Response – help to understand your options if you think someone has used your IP without permission
  • Find an IP professional – independent advice on ownership, permissions, agreements and protecting your IP before you start working with others.

Communities and industries may have their own cultural protocols. Before you work with cultural knowledge or material, read guidance from First Nations organisations and cultural institutions:

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