Written by Managing Principal, Jennifer Tutty and PLT Student, Eugenia Stuart
Whether you are a game developer, arts worker, film maker or local business owner, Indigenous Cultural and Intellectual Property otherwise known as ICIP, could come across your desk in many contexts. This article breaks down what ICIP is, how to use it and best practice steps to engage with Traditional Knowledge and Culture in a considered way.
What is ICIP in Australia?
ICIP refers to rights Aboriginal and Torres Strait Islander people have in relation to their cultural heritage. It encompasses a broad array of traditional knowledge and expression including stories, songline, dance, language, sacred sites and material, bush food, ecological and spiritual knowledge, medicine, human remains and the documentation of Aboriginal and Torres Strait Islander peoples’ heritage.
Who is ICIP for?
ICIP protocols are for everyone to use when engaging Aboriginal and Torres Strait Islander suppliers or dealing with traditional knowledge and cultural heritage. It is relevant in many arts and culture contracts taking place in Australia.
Below are a few examples of activities that use ICIP.
– An outdoor site-specific artwork responding to Country
– Publishing a book with an image that contains cultural heritage information
– Releasing a compilation where a song uses Traditional Language
– Reproduction of a symbol on a limited run of promotional T-shirts
– Archiving images or documentation for an Aboriginal or Torres Strait Islander led project
– Redevelopment of a space using First Nations design principles
How to Identify ICIP?
ICIP appears in many forms and can be tricky to spot! So, here is a non-exhaustive list of mediums that may contain cultural heritage.
– A document, process or story where an Aboriginal or Torres Strait Islander person depicts or describes something in relation to their connection to Country.
– Images, stories, knowledge or Country are depicted.
– Anything that features Aboriginal or Torres Strait Islander language
– Refers to the history of Aboriginal and Torres Strait Islander people.
– Containing, depicting or describing Aboriginal and Torres Strait Islander cultural practice including ceremony and dance, performed by anyone.
– Any cultural object, including ephemeral objects such as smoke.
Does Australian Law Protect ICIP?
Australia’s legal framework provides limited protection of ICIP, with no dedicated ICIP legislation. As a result, we rely on intellectual property law, copyright law and contracts to safeguard ICIP rights in Australia.
Released in 2023, REVIVE: Australia’s Arts and Cultural policy announced an intention to introduce legislation to protect ICIP in domestic law. Consequently, IP Australia is leading a community consultation, which has identified the banning of art and souvenirs made without input from Aboriginal and Torres Strait Islander people as a priority law to be implemented.
There has also been a call to implement penalties for breaches of ICIP, education programs and resources outlining ICIP rights and increased financial support to assist Aboriginal and Torres Strait Islander community to respond to breaches of ICIP.
ICIP in International Law
ICIP is recognised in International law under the United Nations Declaration on the Rights of Indigenous Peoples. This declaration is a key document in the global human rights framework. While endorsed in Australia, it has not been implemented into law or policy. The Human Rights Commission has recommended that the Australian Government develop a program to implement the Declaration. Consequently, an understanding of international best practice will assist you ask the right questions when dealing with ICIP.
Article 31 outlines the rights that all First Nations people have regarding their cultural heritage. It is in full below.
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions
In summary, Article 31 outlines the overarching principle of self-determination to protect Indigenous cultural heritage. For that reason, coming back to this article throughout your project might keep you on best practice track!
Best Practice for Using ICIP
In 1997, Ms Terri Janke put forward protocols for the improved recognition and protection of Indigenous Cultural and Intellectual Property in Australia, in the paper Our Culture: Our Future (1997). These protocols remain Australian best practice for artists, organisations and institutions engaging with ICIP in their work.
When engaging with ICIP, and looking at the protocols, it is important to consider the vast array of Aboriginal and Torres Strait Islander Countries within Australia. Each community determines its own rules for sharing and using ICIP. For example, protocols differ across urban, rural and remote areas. Think of the protocols as a methodology rather than a rigid checklist.
What are the Protocols?
ICIP protocols ensure that cultural identity, knowledge, skill and teaching of Aboriginal and Torres Strait Islander culture is presented with adequate consultation, acknowledgement and compensation.
Below is an overview of the principles and responsibilities that govern best practice ICIP use.
| PRINCIPLE | DESCRIPTION | RESPONSIBILITY |
|---|---|---|
| Respect | The right of Aboriginal and Torres Strait Islander people to own, preserve and enjoy their cultural heritage is respected. | Acknowledge who owns and controls ICIP. Aboriginal and Torres Strait Islander people are recognised as the primary guardians and interpreters of their cultures. |
| Self-determination | Aboriginal and Torres Strait Islander people have the right to self-determination. | Ensure that your project and design process is based on the principle of self-determination |
| Communication, consultation and consent | Free prior and informed consent is given to the use of ICIP. | Allow ICIP holders the right to authorise or refuse to authorise the commercial use of ICIP, according to Indigenous customary law. Ensure use of language is approved by ICIP holders. Outline a consultation process to prevent offensive or inaccurate use of ICIP. |
| Interpretation | ICIP holders are the primary guardians of their culture. | Ensure ICIP holders control the recording of cultural customs and expressions. Acknowledge data sovereignty and give ICIP holders oversight of how files are stored and archived. |
| Cultural integrity and authenticity | Cultural authenticity is vital to the ongoing preservation of cultural heritage. | The correct groups design the project, and adequate time is scheduled to develop the design. You are telling an authentic story, led by Aboriginal and Torres Strait Islander voices. |
| Secrecy and confidentiality | Aboriginal and Torres Strait Islander people have the right to keep their cultural heritage secret. | Maintain the secrecy of Indigenous knowledge and cultural practices through consultation and co-design. ICIP holder have the power to reject sensitive information from being released. |
| Attribution | Aboriginal and Torres Strait Islander people have the right to full and proper attribution of their cultural heritage. | Ensure full attribution is reviewed and approved by ICIP holders. |
| Benefit sharing | ICIP holders have the right to benefit and control the sharing of their cultural heritage. | Pay ICIP holders for the use cultural heritage, especially if used in a commercial context. |
| Continuing cultures | Aboriginal and Torres Strait Islander culture is dynamic and will change. | Free, prior and informed consent is an ongoing consultation process. |
| Recognition and protection | Right to protect and preserve cultural heritage. | Harness copyright law, contracts and agreements to ensure ICIP rights are protected. |
Applying the Protocols to Your Project
If you are embarking on a project that might use ICIP here are seven things to remember:
- Talk to community! Get in touch with your local Elder’s Council or representative body. They can point you to the right person or group to talk to. Community structure will vary in your region. You may need to consult multiple groups depending on the type of ICIP use. Remember to schedule this into your project plan.
- Create a contract between you and the commissioning artist or Registered Aboriginal Party.
- Schedule a review process that includes discussions about ICIP use with community. Remember to look back on your notes from consultation. Is the final product in line with what you discussed?
- Community dictates the use of art, motifs, symbols, or images. Ask yourself: In what context does the cultural heritage appear? Is there any secret knowledge contained within this motif, image, symbol, etc.
- The product is sold, archived or displayed with proper attributes to traditional custodians
- The community benefits when their ICIP is used. This can be in the form of a one of payment or royalty payment. Where a royalty payment is appropriate, consider splitting gross income in thirds between community, director and producer.
- Remember – consultation is an ongoing process. Check back with the community after you complete your product, material, or documentation.
Thorough consultation is key to successful project using ICIP. While success comes in many forms, it often looks like good outcomes for all parties.
Where to begin?
Appropriate use of ICIP will vary from project to project. Accordingly, below are some prompts to begin thinking about ICIP in your early project stages.
– How does your project resource community involvement from beginning to end?
– Is your project investing in community participation?
– How is your project designed? Who is managing it? Is there true representation and power placed in the hands of community?
– How does your project provide creative and cultural autonomy?
– Does your project lead to more community led and managed projects?
– Does your project provide sustainable pathways community led projects in the future?
ICIP – Is Law Reform Coming?
Aboriginal and Torres Strait Islander cultural knowledge and skill has been preserved for over 60,000 years. Domestically, IP Australia is considering how law can support community to share, preserve and protect this knowledge.
Experts are pushing for better access and benefit-sharing agreements to support economic self-determination for Aboriginal and Torres Strait Islander communities. The Director of Community and Customer Experience at the Indigenous Business Association, Ms Stella de Cos, said, ‘[we] make sure they understand that that’s their asset. It’s not for anybody else to monetise or capitalise off.’
The IP landscape is evolving, and ICIP regulations will play a key role in advancing social and economic self-determination for Aboriginal and Torres Strait Islander communities. Implementing the protocols into your project will prevent legal misappropriation and infringements down the line.
Final Reflections
What to learn more about Intellectual Property?
Go to our Intellectual Property Lawyers page.
Go to our Copyright Lawyers page.
Check out these other blog posts:
– 9 Common Mistakes People Make About Copyright
– Identifying Your Business’ IP Assets: A Guide for Business Owners
– Copyright Law – A Guide for Publishers
If you have any copyright law related legal questions or would like legal advice on Indigenous Cultural Intellectual Property, please contact us through our online form, or via email at hello@studiolegal.com.au.
Written by PLT Student, Eugenia Stuart, and Managing Principal, Jennifer Tutty.
Published 11 April 2025.
Photo of Flinders Rangers, South Australia by Thomas Gabernig on Unsplash
DISCLAIMER
The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.