The number of artistic projects which engage with simulated realities, immersive story-telling, and virtual world-building has surged over the past few years.1 With this growth has come an increase in the types of legal complexities of artist-led world-building projects. One complexity that hasn’t received much airtime to date is how Indigenous Cultural and Intellectual Property (ICIP) and cultural lore can be celebrated in, or conflict with, such projects.
ICIP, otherwise known as traditional cultural expressions by the World Intellectual Property Organisation (WIPO) are “the forms in which traditional culture is expressed; [they] form part of the identity and heritage of a traditional or Indigenous community; [and] are passed down from generation to generation.” ICIP can be dances, songs, handicraft, designs, ceremonies, tales, and many other artistic or cultural expressions. Importantly, ICIP is a live form of expression that is linked to the principle of self-determination for First Nations communities today. As Molly Torsen and Jane Anderson write in their report for WIPO, “Intellectual Property and the Safeguarding of Cultures” ICIP is “constantly evolving, developing and being recreated within the community.” In some instances, ICIP may be protected as intellectual property, and in other instances, it may not fulfill the requirements of protectable subject matter due to its communal and sometimes immaterial nature.
Many First Nations communities share a deep and enduring connection to nature. In Australian First Nations communities—being Aboriginal and Torres Strait Islander cultural groups—a community’s traditional land is generally referred to (in English) as “Country.”2 Where a world-building project is based on or inspired by real areas of land, should permission be sought from First Nations communities where such communities’ have a pre-existing connection to Country? And what about areas of land where native title is recognised and protected by Australian law, under the Native Title Act 1993?3 Dr. Vanessa Lee-Ah Mat, a Yupungathi and Meriam woman from the Torres Strait, Bibi Barba, a Birri Gubba woman from Central Queensland, Joni Pirovich, and Angelina Gomez asked these and other relevant questions in “First Nations’ Culture in the Metaverse” (2022). The authors raise the concern that “with no recognition of cultural significance, land or indigenous culture, there is a risk of repeating the mistakes of the past.” They discuss how sacred objects are an important part of First Nations cultures, often carrying or communicating the stories that shape culture lore. On gaming treasures and loot, they note that they could be totems or other objects associated with ceremonial, birth, or burial purposes to a First Nations community. They also explain that in Aboriginal cultures images of deceased people should not be viewed as a mark of respect. The authors explore how these truths play out with nonfungible tokens (NFTs) and avatars of passed Indigenous people.
On the other hand, world-building projects can also play an important role in empowering Indigenous communities and educating audiences about ICIP and cultural lore. One example is the work of Bilbie XR Labs, led by Brett Leavy, a Kooma man from Queensland, who develop gaming projects with First Nations communities. As Brett explained in a conversation in October 2022, “we design and animate authentic 3D cultural assets to support authentic rendering of cultural heritage and storytelling spaces. We often meet and discuss content and technical capacities and provide skills exchange within the timeframe as and when communities require.”
Virtual Songlines is an iterative project of Bilbie XR Labs, a “digital twin” concept which enables users to explore significant sites of traditional custodians using a “virtual 3D time machine.” Each mapped out region contains multiple virtual modalities—satellite and cultural maps in Google Earth style flatscapes and 360 degree videos—and numerous layers of time—from the moments of colonisation in the 1780s through to the 1910s. For Leavy, the Songlines project is a form of “serious gaming.” It combines gameplay with a serious attempt to “‘decentralizse and empower First Nnations data governance and indigenous sovereignty’.” Such sentiment is not limited to First Nations creatives based in Australia.
In January 2023, the Australian Government launched its five-year cultural policy, Revive (NCP). The NCP recognises that “current Australian law does not adequately recognise nor protect Indigenous Cultural and Intellectual Property Rights.” Drawing upon the principles underlying ICIP, it has committed to working “with First Nations peoples to establish stand-alone legislation to recognise and protect First Nations traditional knowledge and cultural expressions.” A key area of concern that the legislation will seek to address is “the harm caused by fake art, merchandise, and souvenirs.” This in turn is a direct response to the findings of the Australian Productivity Commission in 2022 that more than half of all purchased merchandise and souvenirs with Australian First Nations art and designs are inauthentic or are made without permission from Indigenous communities to use ICIP. While the impact of technologies like blockchain, AI, and VR has not been publicly addressed to date, it would be a sensible idea for it to be paid attention to by contributors to the legislation’s development.
In these ways we can see how ICIP has the potential to expand our understanding of the legally prescribed definitions of intellectual property. ICIP has already had an impact on the building of artist worlds, and perhaps will also positively influence future legislation that affects Indigenous communities in Australia and beyond.
- The term “world-building” predates the advent of blockchain, artificial intelligence and virtual reality, having existed for decades prior. Merriam Webster traces the term back to publications as far back as 1820.
- There are over 250 Indigenous languages including around 800 dialects in Australia alone.
- Current determinations of native title in Australia as of 1 April 2023 can be found here: http://www.nntt.gov.au/Maps/Determinations_map.pdf.