What is Indigenous Cultural and Intellectual Property?

In simple terms, ICIP is Culture. For First Nations peoples, Culture means ways of knowing, being and doing. It is connection to the world and Country, including land, sky and waters. ICIP is deeply linked to Country, identity and community.

Culture links generations of First Nations peoples and communities. It enlivens a history of survival, resilience and interconnection since time immemorial.

The practice of managing and caring for Culture is at the heart of ICIP. First Nations peoples have cultural responsibilities to care for ICIP. These cultural obligations are about continuing and strengthening Culture and passing it on to future generations.

ICIP reflects the living heritage of First Nations peoples. It is defined and governed according to cultural practice, and doesn’t usually belong to any one person, but is subject to collective custodianship.

ICIP is living and changing, and is continuously nurtured. As people and their relationship to the world change, ICIP also grows, changes and adapts.

Types of ICIP

ICIP comprises everything that First Nations peoples need to express their Culture and identities. It is a broad term that incorporates, but is not limited to:

• Traditional Knowledge — such as scientific, agricultural, technical and ecological knowledge, and spiritual and ritual knowledge. Also included is knowledge of cultural practices, such as caring for Country
• Traditional Cultural Expression — such as stories, designs and symbols, artistic works, First Nations languages, and traditional methodologies
• Performances — such as ceremonies, dance, music and song
• Cultural objects — such as arts, crafts, ceramics, jewellery, artefacts, weapons, tools, photographs, textiles, or other objects often held in museums
• Immovable cultural property — such as historically significant and sacred sites, songlines, and burial grounds
• Ancestral remains — such as DNA and genomes
• Documentation of First Nations peoples’ heritage in all forms of media — such as dictionaries, research journals, transcripts, recording materials, photographs, film and sound, government archives and digital databases.

ICIP is linked to place and identity, and is communally owned by the group it collectively belongs to.

First Nations Cultures are living Cultures—dynamic and constantly evolving.

ICIP and the creative arts

ICIP in the creative arts enriches cultural expression by preserving and celebrating First Nations stories, knowledge, and traditions, offering opportunities to create vibrant artistic experiences that are authentic, and deeply connected to Country and community.

First Nations people may artistically and creatively express ICIP as a way of storytelling, preserving, reclaiming and maintaining Culture.

ICIP can be incorporated in any and all art forms. As art and culture evolves and society innovates, new art forms develop, and so do the ways in which First Nations people may express and create ICIP.

Here are some examples of where ICIP may be used in the creative arts industry:

• Visual Arts — through painting, drawing, printmaking, sculpture, photography, crafts and design such as weaving and carving
• Music — such as songs, playing traditional instruments, and performances. This also includes activities such as composing, recording, publishing music, and touring
• Dance — such as cultural dance, contemporary dance, traditional dance, intercultural dance
• Storytelling — sharing oral stories, written works such as fiction and non-fiction works, poetry, biographies, screenwriting and playwriting
• Community arts and cultural development — works or projects with a community focus such as exploring social themes with collective shared outcomes. Activities by, with and for communities
• Multi arts or cross-disciplinary art — works that touch on multiple art forms and may combine traditional practice with multimedia arts, installations, digital art, animation, etc
• Emerging and experimental arts — works and projects that challenge the traditional boundaries of art forms by using artificial intelligence and new technologies or processes
• Events-based projects — including art and cultural festivals, ceremonies, art fairs, venue-based projects, exhibitions and programming
• Live art — including plays, scripted works, physical theatre, artistic performance, media-based theatre work, other forms of cultural expression.

What are First Nations rights to ICIP?

First Nations peoples have the inherent right to maintain, control, protect and develop their ICIP.

These rights are not granted by external laws but exist as part of First Nations’ cultural authority and self-determination. They are:

• recognised internationally through the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
• further defined by the cultural protocols of each First Nation.

Under customary law, First Nations peoples also have cultural obligations to safeguard and care for their knowledge, stories, and heritage. ICIP rights support these responsibilities by providing a framework to protect and manage Culture in accordance with community protocols.

Understanding ICIP rights also helps ensure that both creators and rights holders are paid and credited fairly for uses of their ICIP.

First Nations ICIP rights include the rights to:

• own and control ICIP
• ensure that any means of protecting ICIP is based on the principles of self-determination
• give consent for use of ICIP based on full information and with sufficient time to make decision. This is also known as free, prior and informed consent
• be recognised as the primary guardians and interpreters of ICIP and Culture
• authorise or refuse use of ICIP, according to First Nations customary law
• benefit commercially from authorised use
• full and proper attribution of ICIP
• prevent derogatory use of ICIP
• maintain secrecy of ICIP and other cultural practices
• control the recording of cultural customs and expressions, the particular language which may be intrinsic to cultural identity, knowledge, skill and teaching of Culture.

These rights come from international declarations like UNDRIP and First Nations customary laws. They are not fully protected by standalone laws in Australia yet and therefore most are not legally binding.

— but there will be soon

The government has recently committed to making new standalone laws recognising and respecting ICIP, including to address harm caused by fake First Nations art, merchandise and souvenirs.

Learn more about how these laws are being developed and how to get involved at Office of the Arts.

In the meantime, there are other laws that offer protection

Some existing laws can protect ICIP.

For example:

• intellectual property (IP) laws (e.g. copyright law, design law and trade marks law)
• competition and consumer law
• cultural heritage law.

There are a range of legal and other advisory services that can offer information and advice about these areas of law. Try our legal support and help page to find a service that suits your needs.

Mind the gaps:

Misappropriation and misuse of First Nations Culture

First Nations Culture is increasingly sought after in various industries including the arts.

Often First Nations artists and creatives are not legally represented and may undervalue themselves or their work. Contracts are drawn up that do not properly respect ICIP, with little to no benefits accruing back to the artists or creatives and their community.

Individuals and organisations must understand how to work with ICIP with respect and integrity.

This will prevent misrepresentation, exploitation and loss of cultural knowledge, ensuring First Nations communities retain control over their stories, traditions and creative expressions.

Understanding where things have gone wrong in the past can help us to understand how to respect ICIP in the present.