Many reports, documents and evidentiary material are produced throughout native title proceedings, such as genealogies, connection reports and other anthropological material (Native Title Documents).

Although often held by Native Title Representative Bodies (NTRBs) or in a solicitor’s office, Native Title Documents contain cultural knowledge, personal information about group members and other highly sensitive information. The management of these documents raises issues about copyright, legal professional privilege and confidentiality. Moreover, it raises broader questions about the rightful ownership of Indigenous Cultural and Intellectual Property (ICIP).

For these reasons, a clear access protocol should be in place to manage the use and disclosure of Native Title Documents, to protect the interests of native title members in relation to their information, and to ensure that communities are properly consulted on the use and disclosure of their cultural knowledge.

This article explains legal issues that are relevant in the development of an appropriate access protocol, once a native title claim has been fully resolved. Indeed, Native Title Documents should not be shared with or disclosed to, for example, native title claimants during native title proceedings for several reasons. This includes the need to avoid contaminating witness evidence, which may undermine the proper conduct of a trial. As a result, this article focuses on issues that arise after a claim has been resolved.

Copyright

Native Title Documents would constitute ‘literary works’ for the purposes of copyright,[1] and therefore may attract copyright.

Who holds the copyright?

Ordinarily, copyright is held by the creator of a work (‘the author’).[2] However, where the work is created as part of an author’s employment, copyright is held by the employer.[3] In contrast to this (and in the absence of an agreement otherwise), copyright in a work produced by an independent contractor remains with the contractor.[4]

The contract of services for the Native Title Document can be a useful tool in determining where copyright over the documents lay. A contract of services may expressly assign copyright to a Registered Native Title Body Corporate (RNTBC) or to the native title group members who contributed important traditional and cultural knowledge to the creation of the documents.

How can copyright be infringed?

The holder of the copyright to a work will have the exclusive rights to reproduce,[5] to publish,[6] to publicly perform,[7] to publicly communicate,[8] and to make an adaptation of that work.[9] If you do not hold the copyright, and neither have you the consent of the copyright holder, you can infringe the copyright of a work by doing any of these acts in relation to a substantial part of the material.[10] Importantly, copyright attaches to the specific expression of an idea or information, as opposed to the idea or information itself.[11]

Legal Professional Privilege

As part of civil litigation maters across Australia, all parties have an expectation to disclose documents relevant to the ongoing proceedings. As part of disclosure, the documents must be made available for inspection and copy by the opposing party. However, certain documents are exempt from being revealed to the opposing party. This includes documents which are subject to legal professional privilege.

Legal professional privilege attaches to confidential communication and documents made by  a legal representative for the dominant purpose of providing a client legal advice, or made for use in current or anticipated litigation. [12] More information on legal professional privilege in relation to a recent native title decision be found here.

Legal professional privilege is important to protect documents from any unwanted disclosure during litigation. As Native Title Documents contain highly sensitive information, including cultural information and personal information about members to an Indigenous group, it is important that the privilege is in no way waived.

How is legal professional privilege waived?

Legal professional privilege may be waived generally or in parts of a document.[13] The privilege can be waived expressly, or implicitly where it would be unfair to maintain it due to a document being dealt in some way that is inconsistent with the maintenance of the privilege.[14] An inconsistent dealing would be for instance where a client knowingly and voluntarily discloses the substance of the document to another person.[15]

However, it is important to note that disclosure to a third party might not waive the privilege if that third party has sufficiently close interest as the privilege-holder in the legal advice (‘common interest privilege’).[16] For instance, an RNTBC and its members may have common interest privilege, due to the RNTBC holding and managing the members’ native title rights and interests.

Confidentiality

Information that has the ‘necessary quality of confidence’ is protected by confidentiality.[17] Native Title Documents such as historical records, genealogies, oral histories and personal testimonies contain highly sensitive information which is necessarily confidential in nature. An obligation of confidence would therefore be owed to the native title group members who have an interest in the personal information contained in those documents.

Who owes the duty of confidentiality?

A contract that commissioned a Native Title Document may explicitly impose a duty of confidentiality on the contracting parties. An implied duty of confidentiality may also be inferred by the nature of the relationship between the parties.[18]

Upon a positive determination of native title, Native Title Documents are often handed over to third parties, such as to the RNTBC established to hold or manage native title. In these instances, it is important to note that a third party who comes into possession of confidential information may come under a duty not to disclose that information where it would be reasonably expected that that information was given in confidence.[19]

Who owns cultural information?

The management of Indigenous cultural knowledge contained in Native Title Documents raises ethical questions about ownership and rights of use and disclosure. Although ICIP is often not protected under Australian copyright law,[20] it has more generally been recognised for its importance in relation to indigenous heritage, cultural identity and self determination.[21] Article 31(1) of the United Nations Declaration on the Rights of Indigenous Peoples states:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions… They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.[22]

Policy considerations

The above issues may help to inform a clear access protocol for Native Title Documents.

The protocol should consider

• how express (and ideally written) consent from any copyright holders (as well as interested native title groups and members more generally) should be obtained;
• that, for the purposes of legal professional privilege, access should only be  granted on strict terms of confidentiality, limiting any further disclosure; and,
• that confidential information should only be accessed by individuals to whom the information relates, or from whom the information was given.

 For more information, contact Michael Pagsanjan (michael@mpslaw.com.au).

Footnotes

[1] Copyright Act 1968 (Cth) (‘Copyright Act’), Part III.

[2] Copyright Act, s 35(2).

[3] Copyright Act, ss 35(6) & 213(6).

[4] TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) (2007) 158 FCR 444.

[5] Copyright Act, s 31(a)(i) – to ‘reproduce a work’ means to produce an objectively similar work; Francis Day & Hunter Ltd v Bron [1963] Ch 587.

[6] Copyright Act, s 31(a)(ii).

[7] Copyright Act, s 31(a)(iii).

[8] Copyright Act, s 31(a)(iv); to ‘communicate’ a work means to make the work available online; see the definition of ‘communicate’ in Copyright Act, s 10(1).

[9] Copyright Act, s 31(a)(v).

[10] Copyright Act, s 14(1)(a) – a ‘substantial’ part is an essential or material part of the work; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.

[11] Hollinrake v Truswell [1894] 3 Ch 420.

[12] Evidence Act 1995 (Cth) (‘Evidence Act’), s 118.

[13] Mancorp Pty Ltd v Baulderstone Pty Ltd (1991) 57 SASR 87 at 95.

[14] Mann v Carnell (1999) 201 CLR 1 at 13; Evidence Act, s 122(2).

[15] Evidence Act, s 122(3).

[16] Network Ten Ltd (“NTL”) v Capital Television Holdings Ltd (“CTHL”) & Anor (together “CT”), Supreme Court of New South Wales, Giles J, March 9, 1995.

[17] Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 – in particular, the information should be private in nature, and not the matter of common knowledge; Burica Pty Ltd v Tops To Bottoms (Aust) Pty Ltd (1997) 39 IPR 447.

[18] Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (1996) 37 IPR 22.

[19] Duchess of Argyll v Duke of Argyll [1967] Ch 302; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587.

[20] ICIP often fails to satisfy the requirements for copyright, as the works are often not original, lack an identifiable author, and are not in material form; see Copyright Act 1968 (Cth), ss 22(1), 32 & 35.

[21] Australian Institute of Aboriginal and Torres Strait Islander Studies, Our Culture: Our Future – Report on Australian Indigenous Cultural and Intellectual Property Rights, (1999), XVII.

[22] United Nationals Declaration on the Rights of Indigenous Peoples, Article 31: <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>