The issue of Indigenous Cultural and Intellectual Property and the DCITA Program Funding Agreement PDF Print E-mail
In response to concerns raised by members, language centres, and Regional Language Management Committees, FATSIL has been involved in discussions with DCITA over aspects of this year's Program Funding Agreement.

It appears that in many cases Indigenous language centres and programs do not fully understand the PFA they have signed, nor have access to legal advice about its contents. Whether it is the intention of the Government or not, language centres and programs staff interpret the PFA to mean that the Commonwealth takes the position that it owns the intellectual property and copyright of all activity material which it funds.

The point of concern for recipients of DCITA funding who are required to sign the PFAs is found in clause I I of the Terms and Conditions, which relates to ownership of materials produced with government funding.

Clauses 1 1.2 and I 1.4 state:

You grant to us a permanent, irrevocable, free, world wide, nonexclusive licence (including a right of sub-license) to use, reproduce, adapt and exploit the Intellectual Property Rights in Activity Material for any Commonwealth purpose.

You grant to us a permanent, irrevocable, free, world wide, nonexclusive licence (including a right of sub-license) to use, reproduce, adapt and exploit the Intellectual Property Rights in Existing Material for any Commonwealth purpose.

FATSIL has received advice and assistance from the Arts Law Centre of Australia, while working closely with DCITA to examine the content of the PFA, before forwarding recommendations to the Australian Government Solicitor (AGS). A number of recommendations made by Arts Law on FATSIL's behalf have been accepted by the (AGS), eg. the addition of a program specific annexure for languages, including recognition of Indigenous Cultural and Intellectual and Property (ICIP).

However FATSIL has stated that it is unclear how the Commonwealth can recognise and support community control of ICIP while the above clauses (1 1.2 and 11.4) remain unchanged. The concern is that the Commonwealth is in a position to use the Activity materials without attributing authorship, supplement the material with other material and use the material in a different context to that originally envisaged.

Another of FATSIL's concerns relates to 11 .11. This states that the Commonwealth must tell the funded organization in writing of any proposed use of Activity or Existing material, and the funded organization can only request the Commonwealth to vary the proposed use if the material is of particular traditional significance. The Commonwealth must then consider this request and give the funded organization a response. It need not however do anything else.This puts language speakers, centres and programs in a

FATSIL has made the following recommendations regarding further revisions to the PFA

"As a result of the Australian Government Solicitor's response to some of the amendments suggested by FATSIL, the Arts Law Centre, the Network of Aboriginal Languages Centres (NALC) and others who have had input regarding Indigenous linguistic heritage rights, FATSIL believes the content of the funding agreement has been improved during the drafting process. Adaptations to the Standard Funding Agreement (SFA) used across several government departments have resulted in the development of a funding agreement which has begun to accommodate some aspects of Indigenous views of heritage and Intellectual Property. However, ICIP and copyright continue to be crucial issues for all Indigenous language centres and programs.

Despite the positive revisions to the PFA during the drafting process in May and June of this year, FATSIL remains concerned by the length, formality and complexity of the current version. In stark contrast, as an international and successful precedent, the Maori Language Commission funding agreement is short, workable and accessible to people without formal legal training.Yet it still has legal status with all the necessary and expected contractual terms. This is a much more manageable agreement and one that could be used in future as a helpful model.

The current version of the DCITA funding agreement remains a lengthy and impenetrable document, not understood by the majority of the people and organisations which have signed it, in this current funding term.
A great deal of work has been done, in recent years, on ICIP in relation to the protection and management of Indigenous art in Australia. By contrast, much work still needs to be done on Indigenous languages, their relationship to traditional knowledge and how Indigenous people, as custodians of their linguistic heritage, can legally protect their intellectual property. In the longer-term, FATSIL hopes that the recent discussions about the PFA provide a welcome catalyst to developing understanding and recognition of ICIP in relation to Indigenous languages.

In the shorter term, the Program Funding Agreement and the related issues will be a session topic at the National Indigenous Languages Forum in Alice Springs 17-19 November. FATSIL will continue to inform DCITA of community reaction to the funding agreement and will continue to have input into future revisions.

In line with Schedule 4.6 of the PFA, funding recipients must develop a register of activity materials which contain their Indigenous Cultural and Intellectual Property. Further,as outlined in annexure B of the Program Funding Agreement, by the end of the current term, all funding recipients are required to develop or adopt an intellectual property protocol or contract.

FATSIL is aware of the limited time and financial resources available to language centres and language project committees and therefore will support them by developing relevant model texts and make them freely available for general use. DCITA will also provide model IP policies. These documents will be available prior to the distribution of the next year's funding agreements.