Unlocking IP 2009 presentation - Louise Buckingham (Faculty of Law, UNSW) – Traditional Knowledge and the Public Domain: an overview

In a conference that was largely celebrating the notion of the public domain, Louise had a different perspective regarding how these notions affect traditional owners. I found her talk very interesting, because it highlighted the areas in which we must tread carefully. With our work with Creative Commons Australia, we are always careful to stress that CC is a choice only for those creators who want to share their work for free – it will not be appropriate for everyone. The same is true when we talk of the public domain – we should keep in mind that where indigenous culture is concerned, openness is not always the primary concern.

My notes:

• The notion of the public domain is reified and exulted
• In theory, it is important for democracy
• Connotations of openness and freedom and undeniably appealing
• But we when consider the intersection with tradition rights, it is problematic
• The Australia academic environment is wary of examining how traditional forms of expression are affected detrimentally by this area
• The appeal of the public domain has gained popularity on a global scale, but for indigenous people the issues are local
• If we ignore there concerns, we run the risk of falling into imperialistm and colonialism
• There is lots of talk about how traditional cultural expression does not fit within western copyright regimes
• But not much talk about how notions of the public domain can act as another way to disempower indigenous people
• Academics who have written in this area - Cathy Barry; Jane Anderson; others – highlight the cultural particularity of notions of the public domain
• In 2000, UK and Australian governments agreed (after long negotiations) that traditional works should be repatriated to their traditional owners; but this was contrary to the practice of about 30 large museums and galleries at the time and they were able to prevent repatriation on the basis that this was public knowledge

• Conclusions (tentative):

- Public domain is inherently global in its idealised form
- Protection for traditional knowledge must be local
- Currently dealt with at a global level, which only increases tension
- Public domain can be a domain of exclusivity and exclusion, as well as one of “openness” etc.
- It can legitimise the process of exclusion, “othering”, discrimination against indigenous people.