This page sets out some of the building blocks for protecting ICIP:
| Intellectual property (IP) laws | Protocols | Contracts | Notices |
|---|---|---|---|
|
IP ownership should vest with First Nations creatives. Moral Rights protect attribution and integrity of work. Learn about understanding IP laws. |
Align with cultural rules to set best practice standards. Can be incorporated into contracts for legal support. Learn about applying best practice protocols. |
IP and Moral Rights clauses. ICIP clauses and consents. Fair payment and benefit sharing. Learn about creating strong contracts. |
ICIP Notices advising of IP and ICIP rights. Content warnings. Learn about including notices on publications of ICIP. |
Understand intellectual property laws
First Nations creatives, communities and Traditional Custodians, and anyone working with them, can use intellectual property (IP) laws to protect ICIP.
Intellectual property is a ‘creation of the mind’. It is separate from physical property. For example, an artist who paints an original artwork may choose to sell the physical property (the physical painting) but keep intellectual property rights to the artwork.
Learn more about intellectual property.
IP ownership and licensing
IP laws create rules around ownership, licensing and use of intellectual property.
ICIP can be incorporated into IP, such as copyright (for example, when a traditional story is written down), trade marks and designs.
When ICIP is incorporated into IP works, it can be complicated, especially if the owner of the IP work is different to the cultural owners of the ICIP in the work. This is particularly important for creatives to understand – it can happen in all kinds of artworks, videos, photographs, written material, and other works and processes.
There are also gaps where IP does not protect ICIP. A good example of this is copyright.
Copyright and ICIP – when it does and doesn’t protect
| When copyright does protect ICIP | When copyright does not protect ICIP |
|---|---|
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Copyright can protect ICIP in limited circumstances, when the work incorporating ICIP meets the requirements under copyright laws. For example, original cultural artworks by First Nations artists, photographs or videos of traditional ceremonies, or written-down knowledge of Country, may be copyright works that include ICIP. Learn more about copyright. |
Other types of creativity and ICIP expression, such as ceremony, techniques and practices, may not be protected by copyright law. For instance, copyright focuses on material form (written or recorded works) and does not protect knowledge that is held in someone’s head or spoken verbally. Copyright protects the expression – it protects an original created work, not the knowledge that goes into it, or the style used to create it. ICIP that is passed on orally (and not recorded), styles and motifs, or languages are not protected by copyright. |
Collaborators — collaborators can use IP laws to protect ICIP where it is incorporated within an IP work. Collaborators can decide that First Nations creatives will own any IP containing ICIP. As the IP owner, the First Nations collaborator can then grant licences to allow other parties to use the work.
Contracts — contracts should include an IP clause that clearly sets out ownership and licensing rights.
IP provisions should always be subject to ICIP rights. This means ICIP rights are higher priority. This is important because ICIP can only pass by cultural practice, and can never be transferred or sold (like IP can).
Learn more about contracts.
Joint ownership — it is possible for collaborators (for example, a First Nations creative and the company engaging them) to be joint owners of IP. This is an alternative to First Nations creatives owning the IP outright. It means that both the First Nations creative and any other owners have to agree before the IP can be used.
However, joint ownership can be challenging in commercial contexts. It also might not be enough for the First Nations collaborator to meet their cultural responsibilities under ICIP.
Moral rights
All creators and performers already have the moral rights of attribution and integrity and the right against false attribution. Moral rights keep the connection between a creator and their work, even if the artist doesn’t own the copyright in their work anymore.
Learn more about moral rights.
Attribution — creators who have moral rights in their work have the legal right to be attributed. Attribution of ICIP custodians is separate and additional.
Collaborations — collaborations should avoid asking First Nations creatives to waive their moral rights, but support the recognition of moral rights in accordance with industry practice.
Keep learning:
Copyright Agency
Learn moreKeep learning:
Southern Cross University Law Review
The Bulun Bulun case: a copyright infringement (PDF)
Learn moreApply best practice protocols
Protocols are agreed guidelines or rules that set expectations for behaviour, processes, or interactions in a specific context. They help ensure consistency, respect, and accountability in how things are done.
ICIP protocols are community-defined best practice guidelines that outline how to respectfully engage with First Nations peoples, communities and ICIP. They provide procedures and recommendations to ensure that First Nations cultural knowledge, stories, creative works and other ICIP are handled in ways that align with community values and traditions.
Protocols can be embedded in contracts to require collaborators to follow best practice procedures as outlined when working with ICIP.
First Nations cultures are diverse and living cultures. Each First Nations community will also have its own cultural protocols. In each individual situation, collaborators should discuss any unique cultural rules that may apply and how the project will proceed. Always respect local cultural protocols and follow any guidance from those communities and Traditional Custodians.
Industry-leading examples of ICIP protocols:
Creative Australia
Protocols for using First Nations Cultural and Intellectual Property in the Arts (2019)
Learn moreScreen Australia
Pathways & Protocols: A Filmmaker’s’ Guide to Working with Indigenous People, Culture and Concepts (2009)
Learn moreCreate strong contracts
IP contract clauses are an important tool to empower First Nations creatives and communities.
An IP clause should deal with two main things:
| Ownership — who owns the IP that will be created? | Licensing — who has permission to use the IP? |
|---|---|
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When IP contains or incorporates ICIP, then that IP should be owned by the First Nations collaborator. This applies even when subcontractors, commissions, or funding agreements would normally give IP ownership to the paying party. |
Consider both new IP, and any background or pre-existing IP that collaborators are bringing to the table. Licences to use IP that incorporates ICIP should be:
|
Other clauses to consider including in a contract are:
- ICIP clause: This clause should recognise that ICIP is inalienable (cannot be taken away) and always owned by the Traditional Custodians. It should require parties to respect ICIP rights as set out in UNDRIP and to follow a specified protocol (such as Creative Australia’s Protocols for using First Nations Cultural and Intellectual Property in the Arts).
- Moral rights: This clause should recognise the First Nations creative’s right to be attributed, and to maintain integrity in their work.
- Attribution: This clause should outline how you will credit First Nations creatives, communities and/or custodians for their ICIP (in addition to any individual moral rights). Be sure to follow community preferences for wording, format and placement of the attribution.
- Confidentiality: This clause should describe how you will keep any Secret/Sacred materials private, as requested by First Nations creatives and communities.
- Benefit sharing: This clause should set out fair ways to share profits or other benefits.
- Cultural mourning: This clause should set out the plan for what happens if someone involved in a project passes away, and how to handle their information, photographs or ICIP they have contributed.
Types of contracts that can protect ICIP
ICIP clauses can be inserted into just about any contract. The following are some examples of common contracts used for ICIP protections.
Consent forms / clearance forms
These small agreements record Free, Prior and Informed Consent (FPIC) from community members involved in a project. They can deal simply with anything requiring consent, such as creating a recording or taking photos, using cultural knowledge or ICIP, or approving the final draft of a publication. They can be standalone contracts or attached to a main contract.
IP Licensing agreements
These contracts deal with IP works which may incorporate ICIP. They allow IP owners to grant permission for specific uses of the IP, while retaining ownership and control. They can set terms for reproduction, permitted use, adaptation, time limits, and royalties or other benefits.
Collaboration agreements
These agreements outline how people and organisations work together on a project. They define roles, responsibilities, ownership of any outcomes, and how benefits will be shared.
Non-disclosure agreements (NDAs)
NDAs protect confidential information by ensuring it is only shared with approved parties and used for agreed purposes. Confidential information can be defined to include ICIP. This is particularly important when discussing ICIP in early project stages.
Statements of Intent
Statements of Intent can formalise early project discussions between First Nations communities and organisations, setting out shared principles, expectations, and commitments to ethical engagement with ICIP.
Contractor or consultancy agreements
When First Nations peoples provide cultural expertise, storytelling, or artwork, contracts should clearly outline ownership, attribution, and payment terms. This prevents organisations from assuming control over ICIP without proper agreements.
ICIP clauses should therefore be present in any consultancy, contractor, subcontractor, or services agreement. Even where neither party is First Nations, it is reasonable to think that either may come across ICIP at some point – so it is beneficial to put protections in place from the start.
Employment contracts
Employment agreements can include clauses to cover how employees are expected to act in respect of ICIP they may encounter in their role. They can also consider how ICIP that the employee may bring to the role will be dealt with.
Important note: the copyright law usually gives employers ownership of work created in the course of employment. Learn more about bringing cultural contributions to the workplace.
Include notices on publications of ICIP
A notice is a published statement that informs people about their responsibilities when accessing or using certain materials.
Notices help people see where IP or ICIP is being used in a project. They remind viewers of their responsibilities for that IP or ICIP, and what they can and cannot do with it.
Examples of relevant notices include:
- ICIP notices — these alert viewers that ICIP is present and must be used or shared respectfully
- Copyright notice — these advise viewers that the work is protected by copyright. They usually include the copyright owner’s name and the year (i.e. © [name], [year])
- Content warnings — These are to be used where appropriate, if the project contains culturally sensitive information, images of deceased persons, or images/information that may be distressing to First Nations audiences.
ICIP notices should be used on any material containing ICIP that may be viewable by other people, organisations or the public. This could include:
- Public reports and publications — documents containing First Nations knowledge, cultural perspectives, or community-shared stories
- Websites and online resources — digital platforms sharing First Nations language, histories, or cultural content
- Exhibitions and artworks — museums, galleries, or displays featuring First Nations cultural materials, designs, or narratives
- Educational materials — teaching resources, curriculum content, or learning tools based on First Nations knowledge or storytelling
- Audio-visual content — films, recordings, or podcasts that include traditional knowledge, oral histories, or cultural expressions
- Databases and digital archives — collections of photographs, historical documents, or language records that contain ICIP.
Notices should always be created with guidance from communities and Traditional Custodians.
The content in the body of this page including text and graphics, excluding artwork, is owned and licensed by Terri Janke and Company. Learn more about copyright for materials owned by Terri Janke and Company.
More in this section:
About ICIP
Indigenous Cultural and Intellectual Property (ICIP) refers to all aspects of First Nations peoples’ cultural heritage, including the tangible and intangible. First Nations peoples have rights to maintain, control, protect and develop their ICIP. There are strategies that everyone can put in place to safeguard ICIP.
Respectful use and sharing of ICIP
ICIP has cultural significance to First Nations peoples and must be respected.
