Current IP law fails to protect TCEs---Australia proves
Stoianoff and Roy 15 [Natalie Stoianoff is a professor and director of the Intellectual Property Program at the Faculty of Law at the University of Technology Sydney, Alpana Roy holds a BA in Social Science and a MA in Journalism with the University of Technology Sydney and a Bachelors of Law with Honors from the University of Sydney, Dec. 2015, “Indigenous knowledge and culture in Australia – the case for sui generis legislation”, Monash University Law Review Vol. 41, Issue 3, https://go-gale-com.proxy.lib.umich.edu/ps/i.do?p=AONE&u=umuser&id=GALE%7CA458916059&v=2.1&it=r&aty=ip, accessed 7/5/24]staghi
Traditional cultural expressions such as expressions of folklore, Indigenous art and handicrafts and music and performance have received protection under the Australian Copyright Act 1968 (Cth)--albeit to a limited extent. The outcomes of the copyright cases of the 1990s discussed above in Part II make it plain that while individual Indigenous artists can easily be afforded protection under the Act, the communities to which the artist is responsible cannot. What this series of cases demonstrates is a clear inability of Australian copyright law to deal with the collective nature of traditional cultural expressions and knowledge, and reinforces its ineptness to accommodate customary law unless there is a specific provision to allow for it. This clearly emphasises the need for sui generis legislation for the protection of such customary and communal expressions and knowledge. This remains the case even though the folklore provisions of the Copyright Act 1968 (Cth) provided some recognition. These provisions were made available due to the Australia-United States Free Trade Agreement (entered into force on 1 January 2005), and were achieved through the definition of 'live performance'. The performer of the expression of folklore becomes a joint owner with the maker of the sound recording--acquiring moral rights in his/her performance--and is able to exercise performers' protection for a live performance. (114) While not a collective right, it does provide some protection for by the performers --although it must be kept in mind that it is jointly owned with the recorder of the performance.
(TCE – traditional culture expression)