Digitised Indigenous Knowledge in Cultural Heritage Organisations in Australia and New Zealand: An Examination
of Policy and Protocols
Kirsten D. Francis
New Zealand Law Society Library
Otago Branch, Private Bag 1901, Dunedin, New Zealand
Chern Li Liew*
Victoria University of Wellington, School of Information Management
P.O. Box 600, Wellington, New Zealand. (*Corresponding author: email@example.com)
This research project investigates the digital collections from selected heritage
organisations, exploring how and if the rights of Indigenous peoples are being protected by policy and protocol documents on the Web. It surveys selected heritage collections across Australia and New Zealand and explores digital collection policies at local and national level, investigating the extent of international pressure, socio-cultural influences, and legislative constraints. This research project uses qualitative methodology in an interpretive way for the collation for data and analysis. The major finding of this research project is that many cultural heritage organisations in the two countries investigated attempt to bridge the gap between Anglo-American development of legislation and Indigenous intellectual property rights by the inclusion of specific policy measures. These organisations thus in the process, are increasingly becoming in effect socio-cultural agents for change. The main themes that emerged from this study are that of cultural, legislative and structural influences. They outline the fundamental characteristics of the policies and protocols of cultural heritage organisations in Australia and New Zealand.
An increasing number of cultural heritage institutions in the Western world are exploring digitisation as a means of preservation and/or improving access and knowledge of their collections (McDonald, 2006). As a number of these institutions hold substantial collections of Indigenous cultural knowledge such as the case in Australia, New Zealand, North America, Latin America and northern parts of Europe, it is essential that these institutions build digital collections in consultation with Indigenous communities, putting in place internationally acceptable guidelines, policies and practices. Some researchers in fact view that heritage organisations have evolved not only to exist within a context but transform into their own cultural context (Macdonald, 1996). Some others describe the digitised item as a “sociotechnical artifact”
(Dalbello, 2005, p.392). In this way, cultural heritage organisations can be seen as a social reflection of the
de-colonising methodologies which are prevalent in recent literature on Indigenous issues, particularly by researchers in New Zealand and Australia (Nakata 2002; Smith, 1999; Wareham, 2001). This research explores the socio-cultural influences and issues involved with the digitisation of Indigenous cultural knowledge as portrayed through policy documents, copyright information, and/or protocols made available on the Web. Specifically, this research investigates the current climate of how digital collections are being created, and how/if the rights of Indigenous peoples are being protected and if so, in what ways. It surveys selected heritage collections across the Australia and New Zealand and explores digital collection policies at local and national level, and the extent of international influences such as the World Intellectual Property Office
(WIPO) and other international organisations.
The digitisation of Indigenous cultural information presents an interesting dichotomy of cross-cultural relationships between an ideology from a liberal Western ideology which developed from the 19th century (Joyce, 1999), and an Indigenous point of view; this intersection has been called by a leading researcher in the field, Martin Nakata as the “cultural interface” (Nakata, 2002, p.281). Some researchers contest that it is not a
hybridisation of Western knowledge systems mixing with Indigenous knowledge systems, (Brown, 2007) rather a natural evolution of
Indigenous appropriating convenient technological advances. The history of how items came to be held in heritage organisations can itself be contentious, as the information was often appropriated in the colonisation period when Indigenous people may have had limited control over what was collected and how it was interred and subsequently viewed (Sullivan, 2002). While in some Western eyes, an item may legally be owned by the
organisation, there is research which suggests cultural heritage institutions are in the process of decolonising and are often integrating Indigenous concerns into their procedures (Sullivan, 2002; Szeley &
Weatherall, 1997; Wareham, 2001). These articles held in cultural heritage organisations are as varied as photographs, oral histories, films, geographic and genealogical information, and flora and fauna.
While there is a number of case studies of particular digitisation projects and also a number of international Indigenous forums which outline the issues, the literature indicates a growing awareness for a need of consistent standards and protocols in digital collections (Nakata, 2002; Nakata et al., 2008). This research explores the digitisation landscape of New Zealand and Australia pertaining to Indigenous objects (Aboriginal, Torres Strait Islander and Māori), investigating the socio-cultural influences in the development of policy, to assess the accessibility of policies on the Web, and finally through analysis of the data collected, to draw some conclusions on the current practices of cultural heritage organisations up to 2008.
What are the fundamental characteristics of policies and protocols of cultural heritage organisations in Australia and New Zealand in relation to the digitisation of Indigenous cultural knowledge? We seek to provide some response to this via the following sub-questions:
- Do heritage organisations in Australia and New Zealand structure digitisation policies that include reference to Indigenous cultural knowledge? If so, how are these termed?
- What are the socio-cultural issues that are involved in digitising Indigenous cultural knowledge between different cultural heritage organisations in Australia and New Zealand?
- How accessible to the public are digitisation policies on the Web?
- What protection exists for the cultural and intellectual property rights of Indigenous people in Australia and New Zealand and is this reflected in organisational policy?
This research probes the gap in the current literature on this topic which is predominately limited to: case studies (Faulkner &
Lewincamp, 2003; Wu, 2006), individuals stating their perspective either as a developer of digitisation projects
(Janke, 2006), an Indigenous perspective (Nakata, 2002; Million, 2005) or from a macro level from a historical point of view which explores the societal influences over time (Joyce, 1999). This research investigates across different types of heritage
organisations, which is another gap in the literature, as the majority of studies are based separately on museums, libraries, and archives not on cross-institutional study. The author of this research project does not attempt to present an Indigenous perspective. Nevertheless, the study hopes to include the main issues that Indigenous people have by consulting works by Indigenous scholars, and exploring Indigenous methodology in particular extensively reading the literature which uses a ‘de-colonising’ methodology.
The research in this area can be divided into two main areas: law and policy, and the societal influences such as the historical, political and philosophical contexts in cultural heritage institutions.
Law and Policy
Copyright, Intellectual Property and the ‘soft-side’ of copyright
This research explores not only the Western ideas of legal in terms of copyright and intellectual property but also the ‘soft-side’ of copyright which includes the cultural expectations of the creators and users of intellectual property
(Seadle, 2002). A fundamental issue in copyright law is that Western law advocates protection for the individual, not for community owned information. However research in this area raises concerns of this ideological difference, and as such many Indigenous/cultural groups are attempting to change laws, guidelines and policy at national and international levels to identify and rectify their concerns (Nakata, 2002; Sullivan, 2002).
What is in the legal ‘public domain’ for one culture can be sacred for another. How do institutions synergise what is ‘legal’ to be digitised with what is ethical? This tricky grey area, is sometimes termed the ‘soft-side’ of copyright, and can be seen in historic legal test cases in the late 20th and early 21st century and is also reflected the literature of this period. In legal cases around the world, the importance of correct use of Indigenous information held within heritage institutions and its consequences if extrapolated to the digital context could be foreseen as devastating to a culture. For example in Australia in the 1976 case of
Mountford, the Federal Australian Court granted an injunction in favour of members of the Pitjantjatjara council, an Indigenous group, as it “was argued that the wide dissemination of this information could cause serious disruption to Pitjantjatjara culture and society should this material be revealed to women, children and uninitiated men”
(Janke, 2005, p.101). If this anthropological work had been published thirty years later as an open access book on the Web, one can see the opportunity for harm and serious lack of control by Indigenous people to secure important sacred knowledge. Apart from court cases, several countries also use laws within their national law systems to protect Indigenous cultural information such as the Republic of Panama
(Janke, 2005) and Toi Iho, a registered trademark of authenticity for Māori art in New Zealand
(Toi Iho, n.d.).
Special Interest Groups and forums on Indigenous cultural information
In the 21st Century, there have been a number of international forums which have been important for discussing the digitisation of Indigenous cultural information such as the 2001 meeting in Hilo, Hawaii on “Digital Collectives in Indigenous Cultures and Communities” (which sparked a special issue in
D-Lib Magazine in 2002) and also Sofia 2006: “Globalization, Digitization, Access, and Preservation of Cultural Heritage”. There have also been a number of special interest groups which have instigated policy guidelines such as the ATSILIRN protocols (the Aboriginal and Torres Strait Islander Library and Information Resources Network Protocols), and
Proceedings, the first international Indigenous librarians’ forum which endorsed the
Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples in 2002 and the
National Digital Forum in New Zealand.
Museums Australia have produced guiding documents and policies such as Continuous Cultures Ongoing Responsibilities in 2005 and in 2008 instigated a project which will take two years to complete entitled
Copyright and Cultural Institutions: Digitising collections in public museums, galleries and libraries which will “investigate copyright law in practice; namely, the digitisation practices in cultural institutions”. This project focuses on Australian cultural institutions and should be a valuable overview of state differences and national level policies.
From these forums and documents, there arises an apparent affinity and collaboration between Indigenous groups and organisations that foster development, share resources and provide suggestions to cultural heritage institutions on the relevant issues of Indigenous people.
At an international level, there are many non-profit organisations which have put forward policies to protect the rights of Indigenous peoples and knowledge. These include the
WIPO, which has released a resource on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Report. Also important is the International Labour Organization
(ILO), Convention No. 169 ratified in 1989 and the many protocols developed by the United Nations Educational, Scientific and Cultural Organization (UNESCO). Two recent key reports which were instigated by the WIPO have explored the Intellectual property rights in relation to cultural materials in the South Pacific
(Talakai, 2007) and North America (Skrydstrup, 2006). These two reports are important in the context of this research as they are the first examples of the growing cross-institutional surveys which are taking place.
While only two studies have been located thus far in the literature review which analyses cultural heritage policy and protocol
(Talakai, 2007; Skrydstrup, 2006) (at least in terms of Intellectual property), the discipline of policy analysis is useful for developing a suitable framework to decipher the text of documents. Lejano (2006) is a key policy analysis text which develops and explains frameworks, such as using qualitative, interpretivist and the hermeneutic circle methodology especially in terms of sociological context
(Lejano, 2006, p.105). A recent discussion paper from the National and State Libraries Australasia
Digitisation of Indigenous Resources (2008) contains a useful list of policy documents from libraries in Australia was completed during the course of this research. Although the survey is quite basic, (it only lists the name of the digitisation project, a short description, institution and year of policy) it could lead to a more developed publication of specifically the state of policy in the national and state libraries in Australia.
The Cultural Interface: Western Cultural heritage institutions - historical, political and philosophical influences and Indigenous research
Country by country, the relationships between Indigenous peoples and Western groups of society vary. However, the colonial nature of heritage institutions in North America, Australia, and New Zealand provide an interesting synergy of experience and development in the evolution and ideology of the heritage
organisation. Indigenous knowledge has only recently received an elevation specifically in terms of scientific and medical knowledge in the Western science realm (Nakata 2002; Reddy 2006). In the human sciences it has also been encouraged by the increased valuation of social and cultural diversity
(Agrawal, 1995). This recent evolution of ideology is termed by some to be a process of ‘de-colonisation’ and relies on Indigenous people retaking control of misappropriated items from the past. As such, some scholars see digitisation as a compromise or step towards repatriation and a positive influence linking Indigenous cultural information with Indigenous communities (Smith, 1999).
There is a noticeable contrast in the research by European scholars and those of Australia, New Zealand and North America. These differences seem to surface because of these countries evolution as ‘colonies’. Also a large portion of the research is written by Indigenous people, and as some historians suggest, heritage institutions cannot be separated from their historical evolution (Hanlon, 1999). An example of this difference is the article “Sacred” or “sensitive” objects
(Derlon & Mauzé, (n.d) p.1) (in relation to the ECHO database), Derlon and Mauzé state that Indigenous people are attempting to “reappropriate this notion” of the sacred anthropological item. This argument is quite Euro-centric in its view and purports to elevate the evolution of Western anthropological terminology above an Indigenous view of “sacred”. This is contrasted with local scholar’s views in New Zealand and Australia who see Indigenous ideas about sacred items as quite separate to anthropological theory (Anderson, 2005; Szekely &
Weatherall, 1997). Hence, there is differing viewpoints based on geographic locations around the world which needs further investigation. Much of the scholarship is based on case studies such as Faulkner & Lewincamp (2003), and Nakata, M., Byrne, A., & Nakata, V. (2005) and there is an obvious need to link, collate and consider these findings in a global context, or at least in part, by comparing Australian and New Zealand research.
Political and historical influences
There is substantial work in the area of the political and historical development of Western heritage institutions. The work of Patrick Joyce has been particularly important to this study as it helps in clarifying the understanding of this political and historical development. Joyce (1999) suggests that the idea of the ‘public space’ which was constituted by the 1850 Library Act, created a political technology which was passed onto colonial archives in various progressions. For example, local colonial libraries had a large amount of “anthropologization” of Indigenous communities which in-turn, helped colonial cultures identify and create their own unique self identity. However, this colonisation and appropriation of Indigenous knowledge is not without its conflict and it is this conflict is at the centre of this research. That is, the liberal democratic ideal that information is for all and access should be open, versus the ideology from an Indigenous point of view that some knowledge should be treated more protectively as suggested by Sullivan (2007). Other Indigenous scholars such as Nakata investigate this ideological area when West-meets-Indigenous which is immensely interesting and thought provoking area of information science. Another international non-profit organisation which is relatively new but gaining adoption by some digitisation projects (especially for shared content see Kete Horowhenua and New Zealand Electronic Text Centre), is the Creative Commons Corporation’s
Licence. This ‘one size fits all’ agreement can be seen as a more globalized approach to copyright, crossing the boundaries of national laws. However the Australian copyright council in May 2006 states “the CC licenses are ‘tone deaf’ to the special concerns [Indigenous creators] may have about letting people use material that contains sacred, secret, or otherwise sensitive material.”
The digitisation process raises issues about the nature of the digital product (Hoffman 2006; Russell, 2005). Does it have the same properties as the original object? In several recent scholarly works, this issue is investigated, and important questions are raised such as “How do we digitize material taking into account its metaphysical as well as its digital life?” (Sullivan, 2002, Digitizing cultural material,
para. 2). However, Deidre Brown (2007) suggests that technological advancement is quite separate from cultural values claiming that Indigenous cultures have always been evolving and appropriating different technologies. Other than this example, philosophical debates about the nature of a digitised object are otherwise surprisingly sparse and would benefit from further investigation.
A significant influence on this research is the literature of what is broadly defined as ‘de-colonising methodologies’ which appears in a wide range of different academic disciplines: cultural studies, historical methodology, anthropology, archaeology and ethnography. This methodology is developed by predominately Indigenous scholars who have contributed greatly to this field of study (for example, Nakata 2002; Smith 1999; Wareham 2001). By investigating the issues Indigenous scholars raise, the research hoped to provide insight on the cross-cultural issues which involve digitisation and see if they are adequately addressed, particularly in the policy documents of
Repatriation of items (especially human remains) which have been held in cultural heritage organisations is an example of the socio-cultural influence these organisations have as active participants of social and political change. For example, the National Museum of Australia has been involved in repatriation since its inception in 1980. According to their Web site
(http://www.nma.gov.au/collections/repatriation) “more than 1000 individuals and over 360 secret and sacred objects have been unconditionally returned to Indigenous communities. The museum continues to work closely with Indigenous communities to return remains and artifacts to their ancestral custodians.” This indicates important socio-political influences in the behaviour of cultural heritage organisation regarding sacred and secret items of Indigenous concern. Kelly and Gordon (2002) note that museums can make a difference in the reconciliation process and become a consequential influence on future practice and social change.
This research project uses the qualitative, interpretivist paradigm because its focus is on trying to understand the context of the historical and cultural settings in a complex environment. This complex environment involves exploring society in relation to the development and presentation of policy and protocol at an organisational level. Thus, the epistemological stance for this study is not developed from the technological innovation of digitisation or the physical process itself, but the societal influences behind the decisions and practice of
Data collection derives from two harvesting techniques: locating documents directly from the Web, and / or requesting documents from the institution. While harvesting policy and protocol information from the Web directly was seen as the easiest way to locate the data, institutions were also contacted by email to authenticate and locate policies which were harder to locate from the Web. Purposive sampling was used to ensure a cross-section of heritage institutions. Digitisation projects were chosen from the National Digital Forum’s registration of digitisation projects for New Zealand
(http://ndf.natlib.govt.nz/register/register.htm), and the National Library of Australia’s digitisation project Web page for Australia
(http://www.nla.gov.au/libraries/digitisation/projects.html). To supplement this, the Talakai (2007) WIPO report was also harvested for digitisation project and policy link information. Although the Web pages are not comprehensive, they provide a large enough sample of major and established digitisation projects in Australia and New Zealand to provide a suitable basis for analysis. The data collection focused on the harvesting of publicly available Web documents in the form of formal policies, protocols, terms and conditions or guidelines.
The data analysis started with open coding that deals with the labelling and categorising of phenomena as indicated by the data at a reasonably broad and abstract level (Strauss & Corbin, 1998) to identify the major themes. These first major categories were broadly identified as: ‘cultural influences’ ‘legislative influences’ and ‘structural influences’, which were then sorted into further themes. This was followed by selective coding that “involves the integration of the categories that have been developed to form the initial theoretical framework” (Wu, 2006, p.20). A weakness in this analysis is that the document data is based only one coding method which may lead to a one dimensional result. However, by using the hermeneutic circle - going from “context back to the text to seek a renewed, deeper interpretation”
(Lejano, 2006, p.103), it is hoped that a certain logical validity has become apparent over the course of analysing many different policy documents. Rich, thick description is used to convey the results (Creswell, 2003, p.196), using quotes from the documents collected to support the themes and coding decisions which has taken the form of a descriptive narrative.
The interpretation of data is presented in the form of a descriptive narrative with the use of quotes to validate the findings. A manual approach to analysing the data was taken instead of resorting to computer-aided software. This decision was based on the size of the data collated (under 100 pages of text) and also based on the structure and simplicity of the documents collated which was easily deconstructed by the use of highlighting key parts of the text. Instead of quantifying these results (for example, how many digitisation projects say theme x and how many times), this research project intends to report the themes that emerged from the data, what policy makers in cultural heritage organisations deem important in a purely qualitative manner. The interpretation of the data is separated in the three broad themes which emerged from the data: cultural, legislative and structural influences.
Discussion of findings
This category relates to the sub-question: What are the socio-cultural issues that are involved in digitising Indigenous cultural knowledge between different cultural heritage organisations in Australia and New Zealand? The question is the basis for attempting to investigate the relationship between policy makers (the cultural heritage institutions) and Indigenous cultural knowledge/people. During the coding of the data, four main themes emerged.
A common reoccurring theme across the policy and protocol documents examined is that of consultation. Consultation occurs not only with Indigenous groups, but with other stakeholder groups who may aid in the organisations’ understanding and treatment of digitised objects. Some of these groups were placed within the organisation itself such as the State Library of Queensland’s
State Library’s Indigenous Advisory Committee and the Torres Strait Islander Reference
Group. The Auckland Museum has a Taumata-a-Iwi
(Māori Advisory group) and a Maori values team and the National Library of New Zealand have an independent group
Te Komiti Māori and also the
Guardians/Kaitiaki of the Alexander Turnbull Library established under the National Library of New Zealand (Te Puna Mātauranga o
Aotearoa) Act 2003. These groups play an important part in representing the Indigenous point of view for policy creation and other Indigenous issues at the institutions guiding not only users of the collection, but the management of these artefacts as an evolving and continuing process. This type of consultation is also emerging in international literature (as reported in the literature review) and appears to relate to wider research outside of Australian and New Zealand. Worcman (2002) who is the founder and director of the Museum of the Person, sees that the “creation of collaborative programs might result in projects that communities can use as tools of social development rather than projects serving only the academic community”
(Worcman, 2002, Introduction, para. 5).
Another technique employed by organisations (Faulkner & Lewincamp 2003; Nakata, M., Byrne, A., & Nakata, V. 2005) is to conduct a case study on a particular digitisation project to understand the issues involved. The New Zealand Electronic Text Centre reported concerns and justify policy decisions for digitising certain sensitive material for a specific project, stating their intentions in the following quote: “We wished to better understand the sensitive issues around making publicly available online this work which, while recognised as a significant part of New Zealand's documentary heritage, contains Mātauranga that belongs to the wider Māori community and images of mokamokai and ancestral remains.” In this way, consultation reflects the varying relationships between cultural heritage organisations and Indigenous communities. This relationship is based on a shared history of change; from a time of colonialism and appropriation to a ‘de-colonisation’ process where control over Indigenous heritage items has shifted. This ‘de-colonisation’ methodology appears in the literature of predominately Indigenous scholars who have contributed to this field of study (for example, Nakata 2002; Smith 1999; Wareham 2001).
Consultation was however undertaken by varying degrees of importance depending on the
organisation. There were a number of sites which had digitised Indigenous objects which had no reference to consultation in their digitisation policy or protocol guidelines. While there is no ‘best practice’ of consulting with the Indigenous stakeholders either in Australia or New Zealand across organisational boundaries, there are some similarities/themes which include:
- statement of importance of involvement with community groups or expert individuals,
- providing an ongoing contact for concerned Indigenous communities to discuss issues, and providing a network/knowledge of support for smaller
Organisational culture / beliefs
Policy and protocol documents proved to be an interesting window into the organisational culture of an institution. Indeed, the more financially supported organisations are becoming resources in themselves by advising smaller organisations which would not be able to invest the time or investigation into constructing a model for policy development in relation to their Indigenous
artefacts. The Museum of New Zealand Te Papa Tongarewa (Te Papa) is an example of this by the amount of guidelines it produces and its community work to promote best practice. Te Papa’s policy and protocol framework is comprehensive and the museum is a leading advocate for the digitisation and care of Indigenous knowledge
Perceptions of the organisation as a socio-cultural agent for change
An interesting theme which emerged was the self-realisation of some organisations of being a socio-cultural agent for change. For example, on the National Museum of Australia’s Web page, they promote their own work: “[t]he Museum has been returning remains and objects since its inception in 1980 and is recognised nationally and internationally for its repatriation work”
(http://www.nma.gov.au/collections/repatriation/). This shows that cultural heritage organisations are aware of their own influence on the historic development of colonial and Indigenous relationships. This idea of the organisation as a socio-cultural agent for change is also elaborated in the section of the interpretation with regard to intellectual property rights of Indigenous people, where policy can be seen to bridge the legislative gap in the use of digitised knowledge (see p.9-10).
Perceptions about use of digitised Indigenous knowledge
While the perceptions of use that emerged were varied, a reoccurring statement in policies emerged as viewing certain images as having “special significance” for Indigenous groups. This led to protocol advice for the users of digitisation projects to treat such images with respect; the term “respect” was very prevalent in the data and can be seen as setting the tone for the use of digitised material and a key socio-cultural indicator. In some cases however, no mention about the use of digitised Indigenous knowledge was mentioned. A possible reason for the absence of any statements on the Web site is that permission for the use of each item had been granted at a previous time. Nevertheless, this should be reflected on the Web page to guide subsequent use.
Structural influences in the context of this study means the practical limitations that the format of displaying policy information on the Web. This includes how the policy is accessed (accessibility of policy on the Web) and the characteristics which emerged. This is indicated in the following sub-question: Do heritage organisations in Australia and New Zealand structure digitisation policies that include reference to Indigenous cultural knowledge? If so, how are these termed?
Accessibility of policy
The accessibility of policies on the Web was explored during the point of harvesting of the data, for example whether the policy was available from the digitisation home page, if it was negotiated by a number of mouse clicks, if it was hosted on a ‘sister site’ or if it had to be requested directly from the
organisation. The description of restrictions placed through the actual design of the organisations web site was also investigated. In particular, galleries in New Zealand provided a ‘stop-point’ where the database itself was bridged by formal acceptance of the correct use of the site. Part of the agreement went beyond the typical acceptance of copyright use in that the use of digitised Indigenous images would be used with respect and special qualities of images would be maintained. The Auckland Art Gallery Toi o Tāmaki, for example, stated the following: “The Auckland Art Gallery Toi o Tāmaki is grateful to all the descendants who have given permission for images of their ancestors to appear on this website. These images have a special significance for Māori and we ask users to treat these images, and other portraits, with respect. Please view and store these images in study areas only. The presence of food and drink or display in inappropriate ways will denigrate their spiritual significance.” Then visitors of the site had to click on a link which meant they accepted these conditions of use. The later statement in the policy from Toi o Tāmaki is particularly interesting: the philosophical idea that the digitised image maintains its ‘mana’ through its change in format (Sullivan, 2002, Digitizing cultural material,
para. 2). This could be an interesting avenue for further research.
The issue for protecting cultural heritage is multilayered and complex, especially in relation to exploring the legislation at national, state (within Australia) and at an international level. In investigating the different perceptions about legislation that emerged from the data, it was important to relate the findings to the legislature in place. For example, the state of Victoria has some protections for the governing Aboriginal cultural heritage from the Aboriginal Heritage Act 2006 (Vic), which came into force on 28 May 2007. This legislation is significant in that it recognises Victorian Indigenous people as the “primary guardians, keepers and knowledge holders of Aboriginal cultural heritage” (Aboriginal Heritage Act 2006 (Vic), s 3(b)). This Act in section 132(1)(a) also establishes the Aboriginal Heritage Council which is an important advisory group for the effective protection and management of Indigenous cultural heritage. This change in the statute law can be seen as an important shift in the balance in recognising the rights of Indigenous people as a collective group. However, when collecting data from the State Library of Victoria’s copyright and policy information, no mention of the Aboriginal Heritage Act 2006 was found by this researcher, nor was any policy on the recognition of Indigenous people as “primary guardians”. This may be seen in this specific case as simply an example of an organisation not being able to keep its policy documents up to date, or have its obligations clearly stated on the Web.
The investigation of the differing levels of detail of copyright and how this was placed next to policy about Indigenous cultural knowledge was an interesting theme. The copyright acts in both Australia and New Zealand only address copyright in the terms of the individual and as such does not address Indigenous ownership. However, the way in which cultural heritage organisations applied and divulged this information is a key finding in this research project. The statements followed a natural hierarchy from State law (Australia only), to national law, to mentioning International conventions, and then to list third party rights. The State Library of New South Wales copyright statement is an example of the usual flow of information:
© 2004. All rights reserved. Copyright in material contained within or comprising this website (including images, text, sound and video files, computer programs, databases and scripts) is administered by the State Library of New South Wales and is owned by the Library Council of New South Wales (the governing body of the State Library of New South Wales) or the State of New South Wales in accordance with the Copyright Act 1968
(Cth) and international copyright laws. Some material on this website may belong to third parties and is included on this website by arrangement.
After this segment the statement of consideration to Indigenous digitised images was usually placed in the policy or protocol document. This could be an important decision, as this placement added to the authenticity and formalisation of the allowed usage of the Web sites images.
A unique case of using different copyright protocols on different digitisation projects within the one organisation was demonstrated by the
NZETC. For example, for selections of its shared content, the NZETC chose the Creative commons
Attribution-NonCommercial-ShareAlike 3.0 New Zealand agreement so that it promoted a community of shared and open access. For other digitised collections it promoted a general policy which had copyright restrictions which strictly followed the New Zealand Copyright Act; for sensitive digital collections it was much more considered and consultative particularly for the
"Moko; or Maori tattooing" project (2007).
Indigenous intellectual property rights
The next emergent theme relates to the sub-question: What protection exists for the cultural and intellectual property rights of Indigenous people in Australia and New Zealand and is this reflected in organisational policy? The theme that Indigenous intellectual property rights is insufficiently protected in the legislation was present in many of the institutions, especially those that were previously identified from the socio-cultural influence section as having an organisational culture which recognised the unique rights of Indigenous people in some way. This key paragraph from the State Library of Queensland
Protocols for Aboriginal and Torres Strait Islander collections expresses this stance of the organisation allowing for the deemed inadequacies of the law:
Much of the material in the State Library’s collections, with the exception of material which is now in the public domain, remains subject to relevant copyright laws. In many cases the State Library is the owner of copyright, in others copyright is owned by the individuals or entities which created the particular work or material. However, the cultural and intellectual ownership rights of Aboriginal people and Torres Strait Islanders are, at the time of the development of these protocols, not enshrined in legislation, whereas copyright is well covered. The State Library recognises the lack of a legal underpinning for Indigenous cultural and intellectual rights but acknowledges the importance of these rights for Aboriginal people and Torres Strait Islanders.
This could be interpreted to mean that cultural heritage organisations could play an active role of being intermediaries between the law and Indigenous concerns which were not recognised in the current legislation. In this way, cultural heritage organisations could bridge the gap between Anglo-American development of legislation and Indigenous intellectual property rights.
Summary and conclusions
This research set out to investigate the current climate of policy and protocol development of cultural heritage institutions Web sites. It presented a study at the macro level between two countries and across different types of cultural organisations and discussed findings about the socio-cultural influences and the degree in which the organisational culture of the institution played in the creation of policy and protocol information. The many complex issues that relate to integrating an institution which is heavily structured with Western ideology, law, history and protocols with one of social inclusion and collaboration with Indigenous communities appears to be one which cultural heritage institutions seem open to and a number are readily embracing the challenge. The research project surveyed the ‘virtual face’ of many institutions which is important, as increasingly with the Web, researchers can experience digitised collections without visiting or touching the physical
artefact. It is recommended that these organisations make sure that their policy and protocol information is easily located on digitisation projects and that they sanction their web sites to appropriately adhere to both National and organisational policy. It also recommends that institutions recognise their influence as socio-cultural agents and actively submit recommendations for statutory development as opportunity arises, and continue building consultation networks with Indigenous stakeholders.
The changes in the last ten years and rapid increase in research and literature on this subject, indicate not only the growing Indigenous literary movement, but also recognition from non-Indigenous scholars and professionals in this area that this is an important issue. The main themes that emerged from this study are that of cultural, legislative and structural influences. They form the fundamental characteristics of the policies and protocols of cultural heritage organisations in Australia and New Zealand. The cultural heritage organisations also appear to play an active role of being intermediaries between the law and Indigenous concerns which are not recognised in the current legislation. Further research could include further cross-national studies and investigation of policy in the digitisation of Indigenous cultural knowledge by Indigenous people/groups.
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