Human Rights, Copyright and Indigenous Cultural Collections

Abstract

On 22 March 2018, The Human Rights Council unanimously adopted a resolution (A/HRC/RES/37/17), which included a resolution calling upon all States to respect, promote and protect the right of everyone to take part in cultural life, including the ability to access and enjoy cultural heritage. The Mataatua Declaration of Indigenous Rights (the Declaration) in June 1993 reaffirmed the undertaking of United Nations Member States to “Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices.” The Declaration specifically provides for cultural institutions to “offer back” indigenous cultural objects to traditional owners. Offering back in the context of audio-visual recordings made in the field by anthropologists is problematic as layers of rights restrict the copying and sharing of the content. The displacement of indigenous communities from their homes by urbanisation, poverty, rising sea levels, inevitably leads to loss of culture. Preservation and digitisation of cultural works can provide these communities access to their cultural heritage and goes beyond enjoyment to an essential requirement for wellbeing. Opening up audio-visual archives may be a means of repatriating cultural objects to the traditional owners. Reconnecting communities with the history, values, and cultures of their Indigenous background is an important aspect of ensuring the mental health of indigenous people and their integration into society. Many of these communities have no means of preserving and curating these cultural objects. Copyright, however, threatens the ability of cultural institutions to reconnect with indigenous communities, given the requirements to negotiate multiple layers of rights and lack of documentation around the recordings. A possible solution lies in the Declaration, which further provides “that Indigenous Peoples of the world have the right to self-determination and in exercising that right must be recognised as the exclusive owners Of their cultural and intellectual property.” Would the enactment by the New Zealand Parliament of an exception in the upcoming review of the Copyright Act 1994 to enable the copying and sharing of works where the author is unknown or cannot be found with a diligent search, meet this obligation? Should Parliament should go beyond this to recognise that Indigenous Peoples are the exclusive owners of their IP and that recording and remastering these works cannot create a new copyright. These recordings were made for research purposes not potential markets, or in expectation that a monetary value would attach to these works.