Legal Protection of Cultural Artistic Works and Folklore in Australia

Paper by the Hon John von Doussa QC to the International Association for the Protection of Intellectual Property and The Malaysia Bar Council's Intellectual Property Committee - Joint Conference

Kuala Lumpur 1 September 2006



A tragedy of the European colonisation of Australia that commenced with the arrival of The First Fleet from England in 1778 is that the new arrivals did not recognise that the Indigenous population of Australia lived in and under a complex matrix of well established laws and practices based on a close spiritual relationship with the land; that their lives revolved around their communal clan ownership and connection with carefully defined land areas; and that sophisticated forms of "ceremony" or "folklore" encompassing creation stories,  art, dance and song, were of central importance to their way of life.

Save for a few missionaries and anthropologists who worked among the groups of Aboriginal people who had been displaced from their lands by the advance of colonial farming pursuits, or in remote areas of Australia, these realities remained largely unnoticed, and certainly were not formally recognised in government policies. It is only in the last forty years that this has changed, and in the meantime a lot of Indigenous heritage and knowledge has been "washed away with the tide of history"[1]

In the last forty years there has been a remarkable growth in the appreciation and demand for Aboriginal artistic works, both paintings and artefacts. The Aboriginal art market is presently estimated to be worth about $200 millions a year. Along with the demand has grown the need to respect and protect Aboriginal cultural ownership of images and spiritual stories embedded in the works, especially against unauthorised copying and misuse. This has led to litigation which has explored the application of principles of the common law and statutory based protections in the Australian legal system.

The concepts underlying these principles are not unique to Australia. The principles of equity that protect confidential information and fiduciary obligations are well known, and widely applied. The statutory regimes for the protection and exploitation of intellectual property reflect international conventions. What is interesting is the how these principles have been applied in the novel context of Australian Indigenous traditional laws and customs.

I propose therefore to say something about the origins of these traditional laws and customs and the central importance placed by them on protecting artistic expression of secret and sacred knowledge.  Then by reference to events that have given rise to litigation, I will consider the extent to which these legal principles been helpful, and where they have failed, in giving the protection which the Indigenous community seeks for its cultural heritage. Finally I will refer to reform proposals being considered, and other practical "self-help" measures that have been tried and found wanting.

The cultural setting, and Aboriginal spiritual connection to the land.

Aboriginal clans, or tribes occupied the whole of mainland Australia for more than forty thousand years before the arrival of white people. They were hunters and gatherers, living off the resources of the land, often in very harsh climatic conditions. They had a well developed, subtle and elaborate system of rules highly adapted to the country where the people led their lives, which provided a stable order for society. It has been described in one leading case as a "government of laws, and not of men".[2]

Traditional Aboriginal art in its different forms has been the medium through which laws and customs have been recorded and passed down through the generations. Rock art has survived for thousands of years. However, many forms of artistic expression have been transitory, like sand paintings and body paintings, but the designs and images used often carry deep religious significance invoking creation stories from the Dreamtime which convey the relationship of the clan with their land.

The following is a brief description of the significance of the Dreamtime:

"The Ancestral Past or Dreamtime is sometimes described as the beginning of the world. This was the period when the Ancestral Beings (who were spiritual beings) emerged from the ground to transform the earth and to determine the form of social life. The Ancestral Beings did not cease to exist with the creation of human beings; rather they moved aside, often merging into the land forms that they created, removing their physical presence to beneath the surface of the earth. The Ancestral Beings did, however, retain the power to intervene in the life of man and remain a vital force in ensuring the continuity of human existence and in maintaining the fertility of the land.

The Ancestral Beings, their travels and experiences (known as Ancestral Events), the things they created, and the places associated with them, form the subject matter of traditional Aboriginal art. Of fundamental significance are the pre-existing designs which are the artistic manifestations of one or more of an Ancestral Being, Ancestral Event, or area of country associated with such Being or Event. The forms of the pre-existing designs are believed to have been created in the Ancestral Past by the Ancestral Beings, and they have been handed down through the generations. A pre-existing design may be made up of many design elements - various specific images, motifs or stylistic depictions - each of which may itself be said to be a pre-existing design. According to traditional Aboriginal customary law, pre-existing designs cannot, and should not, be changed. Their efficacy, in the form of activating Ancestral power, would be impaired if they deviated too widely from socially accepted norms...

The power of particular Ancestral Beings can be manifested only through particular persons associated with the Ancestral Beings. A person's descent defines that association and conveys with it the right to reproduce particular material representations (subject also to other matters such as initiatory advancement and possession of the requisite religious knowledge). Those who have the right to reproduce pre-existing designs are members of clans or other relevant groups which are considered to be the traditional owners of the pre-existing designs. The reproduction must be acceptable to the relevant group, and hence the group has control over the reproduction of the pre-existing designs." [3]

If unauthorised reproduction of a story or imagery occurs, under Aboriginal law it is the responsibility of the traditional owners to take action to preserve the Dreaming, and to punish those considered responsible for the breach.  Even where the traditional owner is one of the artists, the other traditional owners have the responsibility of enforcing the Aboriginal law against the artist.  Notions of responsibility under Aboriginal law differ from those of the English common law.  If permission has been given by the traditional owners to a particular artist to create a picture of the Dreaming, and that artwork is later inappropriately used or reproduced by a third party the artist is held responsible for the breach which has occurred, even if the artist has no control over or knowledge of what occurred.  Severe consequences can occur to the artist if his or her artwork is misused without permission of the traditional owners, such as being prohibited from further painting, prohibited from participating in community activities, being outlawed from the community, or in serious cases, being speared.

In the earlier part of the last century, Aboriginal artworks were being acquired by missionaries and anthropologists.  Many Aboriginal communities were more than willing to share much of their culture with anthropologists, not realising the extent to which it was likely to be exhibited in books and museums. For many years the Aborigines were largely unaware of the inappropriate use of their culture that was taking place.  Often artistic works were displayed or reproduced outside the Aboriginal communities in ways completely at odds with the purposes intended by the author.

By the early 1970s the beauty of Aboriginal art was becoming recognised by a growing number of non-Aboriginal people.  Hitherto, the art had been treated as anthropological curiosity.  Not long thereafter copyright infringements appeared on the tourist market, designs being misappropriated for such things as T-shirts, clothing fabric, beer cans, postcards and cheap souvenirs.  Instances of misuse filtered back to the communities, but for a long time it was assumed in Australia that copyright laws provided no avenue for protection to Aboriginal artists, because the works of the artists that had been misappropriated were merely reproductions of ancient images and designs that had been passed down from past generations.  It was thought that the works were not "original".

The Australian Government and its agency, the Arts Council of Australia (known as the Australia Council) became concerned about the pirating of Aboriginal culture, and inquiries were instituted. The shortcomings in protection for Indigenous peoples' cultural heritage available under Anglo-European legal systems were well recognised. It was thought that intellectual property and consumer protection laws did not provide adequate remedies. The Government participated in working groups sponsored by the UN and WIPO,[4] and expressed interest in the development of a sui generis legal remedy. So far nothing has come of this, and the Government continues to participate in the meetings of the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore hoping that consensus will eventually be reached on an internationally binding instrument.

In the meantime, more promising developments have occurred at grass roots levels. Perhaps the first event of major importance which brought the question of Aboriginal ownership of traditional art forms to public attention occurred with the introduction of Australia's new dollar currency in 1966.  Designs on the reverse side of the new One dollar note involved the unauthorised use of designs from a bark painting by an Arnhem Land artist, David Malangi.  This was not seen as a copyright problem at the time, but the Governor of the Reserve Bank, Dr H C Coombes, was a person sympathetic to the protection of Aboriginal culture, and he was deeply embarrassed by the incident.  Those concerned with the design of the banknote had assumed that the design was the work of some "anonymous and probably long dead artist".  Dr Coombes directed that Mr Malangi be found, and arrangements were made for him to receive from Dr Coombes $1,000, a fishing kit and a silver medallion.  Mr Malangi became a very well recognised Australian artist.  The artwork which was copied had been bought from him by an overseas collector touring Arnhem Land in 1963.  The collector had later donated the work to the Museum of Arts of Africa and Oceania in Paris, but retained photocopies of the work, one of which had been given to a bank officer who passed it on to the designers of the banknote.

However it was not until litigation was taken against vendors in the tourist trade market who were selling blatant copies of Aboriginal imagery that any curb was placed on their activities.

The first case that received widespread publicity, though it was settled on the doorstep of the court, was an action in 1998 in the Darwin Registry of the Federal Court of Australia by a well known artist, Johnny Bulun Bulun.  He sued a T-shirt manufacturer who had copied his work "Magpie Geese and Water Lilies at the Waterhole" which had been reproduced from a book about Aboriginal heritage.[5] When the infringements were discovered the chairperson of the Aboriginal Arts Unit of the Australia Council took up the issue and publicised the plight of Aboriginal artists through the media.  A barrister specialising in copyright law was engaged in Melbourne.  The Federal Department of Aboriginal Affairs provided funds to prepare the case.  Mr Bulun Bulun based his action on copyright infringement.  Further inquiry disclosed thirteen other artists whose works had also been copied onto T-shirts by the defendant, and they were added as parties to the proceedings.  

At the first hearing the Court granted an interlocutory injunction to stop the manufacture and sale of the T-shirts, and rather than a trial the defendant agreed to pay $150,000 damages and to permanently withdraw the T-shirts from the market.  The damages were shared equally by the artists in accordance with Aboriginal custom. News of this had a major impact on the market.  The quantity of infringing material substantially decreased.

The first reported case that went to trial was Yumbulul v Reserve Bank of Australia in 1991[6].Yumbulul alleged that the Bank had included an image of a Morning Star Pole that he had created on a commemorative Ten dollar note without his permission. The Morning Star ceremony is a very important sacred one in which the Morning Star Pole is used. When the note went into circulation, Yumbulul received considerable criticism within his community for the publication of the image which it was claimed had diminished the importance of the pole. It turned out that he had sold the pole with the permission of his community for display in a museum, and had entered into an agreement through an agent that allowed certain reproduction rights, but he had misunderstood the scope of the licence. The Bank settled the claim against it. A claim against the agent failed.

The decision is important as it held that the pole was an original artistic work in respect of which the artist held copyright, even though the general design was a "pre-existing" one. The trial judge noted that the current copyright law may give inadequate protection to claims to regulate the reproduction and use of works expressing Aboriginal culture as the works are "essentially communal in origan", whereas the ownership of the copyright of the artist is held by him individually. The court also held that communal concerns about the role and authority of the artist had no relevance to the contractual arrangement he had entered into with the agent.

The next reported case is now widely known and referred to as "the carpet case" In 1992 a range of high quality hand made carpets depicting major Aboriginal artworks appeared on the markets in Perth and Sydney.  Inquiry revealed that these carpets had been made at the request of an Australian entrepreneur in Ho Chi Min City.  Carpet making is an age-old Vietnamese skill.  The images were taken without permission from a portfolio of major works prepared by the Australian National Gallery, and from a calendar published by the Australian Government Printer to promote Aboriginal artwork.  The carpets caused particular offence because the artwork on several of them contained secret and sacred knowledge, the unauthorised public display of which was contrary to Aboriginal law.  Moreover, it was considered offensive by the relevant communities for these images to be walked on, and the use of wool as a medium was not in accordance with Aboriginal custom.

The importer of the carpets refused to withdraw them from the market.  Proceedings were taken in the Federal Court in Darwin: Milpurrurru v Indofurn Pty Ltd (1994) 130 ALR 659.[7]  The case proceeded to trial, and a number of the copyright issues that in the past had been seen as obstacles were decided in favour of the artists.

At trial evidence was led that whilst images and stories employed by the artists were age-old and by Aboriginal custom were to be faithfully reproduced, it was not part of the custom that each work was to be a slavish copy of some earlier work.  Rather, custom and law required that artists creatively reinterpret the stories within the set parameters laid down in the Dreaming.  The defendant questioned the originality of the work, but notwithstanding an extensive review of published art literature, including in some instances pictures of the same Dreaming by other artists, the defendant was unable to identify any other work that bore close similarity to the plaintiffs' work.  The Court held that the plaintiffs' works were original artworks which attracted copyright.  This finding reflects the oft cited proposition that copyright protects the original expression of an idea, not the idea itself.

Three of the carpets were not exact copies, but had been substantially modified to increase the aesthetic appeal to those who were likely to buy them.  In one instance a portion comprising not more than five to ten per cent of the artwork had been taken and used to create an unusual border pattern on an otherwise plain carpet, the pattern being repeated with few modifications in sequence around the border of the carpet.  The colours, sizes and patterns in the border of the carpet were a very close copy of the portion of the artwork used.  The Court held that the carpet was a substantial reproduction which constituted an infringement.  The Court applied a test formulated by Brightman J in Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 at 203 where his Lordship said that in determining whether a copying is substantial there are four principal matters to be taken into account:

"First, the volume of the material taken, bearing in mind that quality is more important than quantity; secondly, how much of such material is the subject matter of copyright and how much is not; thirdly, whether there has been animus furandi on the part of the defendant; this was treated by Page-Wood v C and Jarrold v Houlston (1857) 3 K & J 708 as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourthly, the extent to which the plaintiff's and the defendant's books are competing works."

In Milpurrurru, the Court treated as the most important consideration the existence of animus furandi on the part of the defendants, that is to say an intention on their part to take from the artworks for the purpose of saving themselves labour.  

Further, the Court held that in relation to the substantial reproductions the part of the artwork that had been wrongly appropriated was so inextricably mixed with the fabric of the carpet that the two could not be separated.  Accordingly, orders were made for the delivery up of the whole carpets.[8]

The findings in relation to substantial reproduction were seen as significant as hitherto there had been a rule of thumb followed in the Australian market that if a product carried a design that varied by ten per cent or more from the original work, that degree of variation was sufficient to save the product from being an infringement.

In all, 246 carpets were imported into Australia.  An order was made to deliver up those which had not been sold, and compensation was awarded in respect of those which had been sold.[9]  The infringement was held to be flagrant, and additional damages of $70,000 were also awarded.[10]  The Court included in the assessment of additional damages an allowance for personal and cultural hurt suffered by the artists in their own communities


Commentators have treated the Court's approach to the assessment of compensation as an important recognition that the Australian legal system, based on English concepts and the common law, can take account of cultural harm caused by the misuse of traditional material.[11]

In Milpurrurru and Yumbulul, the only plaintiffs were the artists. Milpurrurru did not address the position of the traditional owners or of the communities whose Dreamings had been misapplied.  Copyright laws make provision for the ownership of copyright by joint authors where two or more people have collaborated in the creation of a work,[12] but presently make no express provision for communal ownership.

However, these rights of traditional owners were raised in another case commenced in Darwin in the Federal Court of Australia Johnny Bulun Bulun & Another v R & T Textiles Pty Ltd, Minister for Aboriginal and Torres Strait Islander Affairs intervening (1998) 157 ALR 93.  This case concerned clothing fabric which had been imported by an Australian company form a Japanese manufacturer. The infringing fabric substantially reproduced Magpie Geese and Water Lilies at the Waterhole, the painting copied in the T-shirt case.

Bulun Bulun as the artist and legal owner of the copyright sued for infringement.  The respondent immediately admitted an innocent infringement and returned some six or seven kilometres of cloth.  Milpurrurru was the most senior person of all Ganalbingu people.  He sued in a representative capacity for community claiming equitable ownership in the copyright of the artistic work.  One of the basis of the claims for equitable ownership was that Bulun Bulun held the copyright on trust for the Ganalbingu people as it represented sacred and important ritual knowledge. Extensive evidence was led about the cultural importance of this knowledge, and about harm likely to be experienced in the community from its misuse. Notwithstanding the respondent's capitulation, Milpurrurru wished to press on with his claim.  The Commonwealth provided counsel to act as a contradictor.  Evidence was given about the sacred nature of the subject matter of the painting.  It had been necessary for Bulun Bulun to get permission from the custodians of the dreaming, and by law and custom he was obliged to faithfully depict the dreaming.  The evidence established that the law and custom required him to do what was necessary to prevent misuse of the dreaming depicted in his artwork.  

A claim that the Ganalbingu people had some form of common law copyright failed as copyright law in Australia is entirely a creature of statute.  The claim based on equitable ownership of the copyright also failed as the evidence did not establish an implied or express trust.  On the contrary, the evidence showed that Bulun Bulun had sold the artwork for his personal advantage.

However, the Court found Bulun Bulun was a fiduciary according to general law principles because of the special relationship under which he received permission to use the dreaming, and the opportunity he had to exercise power or discretion to the detriment of the traditional owners.  It was held that equity required him, as a fiduciary, not to exploit the artistic work in a way that is contrary to the laws and customs of the Ganalbingu people, and in the event of infringement by a third party, to take reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work.

In the events that had happened Bulun Bulun had taken reasonable and appropriate action to remedy the infringement, and was not in breach of his fiduciary duty.  However in other cases if the artist failed to take action, or could not be found, the traditional owners by parity of reasoning could obtain at least injunctive relief.

The so called "Bulun Bulun equity" is no more than a right impersonam and as a "mere" equity, it does not constitute an equitable interest in the copyright.  The equity would not prevail against a bona fide purchaser of the legal estate without notice. Thus in Yumbulul, had the traditional owners of the Morning Star ceremony been parties, they would have failed on this ground

The recognition of copyright ownership by aboriginal artists reduced the volume of copyright infringements offered on tourist trade market, and in the more sophisticated end of the art market it is now generally understood that infringers can be sued. However remedies available under the Copyright Act fall well short of the protection that the Aboriginal community considers necessary.

There are fundamental inconsistencies between the concepts of ownership underlying copyright law, and the traditional practices and obligations arising under beliefs in the Dreaming stories. In particular tradition concepts of communal ownership do sit comfortably with assumptions in copyright law that authorship vests in the creator of the artistic work.

The Copyright Act assumes that an unpublished work is made only when it is "first reduced to writing or some other material form". With songs, dance, stories and knowledge about customs and native foods and medicines, little has been recorded by the clans themselves. On the contrary, part of their tradition is that all this knowledge is passed down orally. If it were now to be recorded, the recording could be by a non-Aboriginal person. Copyright would vest in that person, not in the traditional owners.

A further and significant limitation is that copyright protection usually subsists only for seventy years beyond the life of the author. For traditional owners, the protection will only accord with their laws and custom if it is permanent. Moreover, communities deeply resent the inappropriate use and commercial exploitation of their culturally important images and knowledge, and seek an effective means of controlling it. The "Bulan Bulan equity", in reality provides little comfort in this regard.

Before departing from the cases, it is necessary to mention one where relief was sought in respect of the inappropriate disclosure of closely guarded ceremonial knowledge.  In 1976, in Foster v Mountford[13] an interlocutory injunction was granted restraining the publication of a book entitled "Nomads of the Australian Desert" which contained revelations of Australian Aboriginal culture and secret religious ceremonies which had been disclosed in confidence by traditional owners to the author some thirty-five years before.  As the disclosure would have amounted to an actionable breach of confidence the proceedings were brought by the unincorporated council which represented all Aboriginal peoples inhabiting the Pitjitjinjara lands.  Although there was some doubt as to whether the action was properly constituted as a representative action, the injunction was granted as the plaintiffs also sued on their own behalf as individuals threatened with damage - damage of a cultural kind.  The plaintiff successfully argued that "revelations of the secrets contained in the book to their women, children and uninitiated men may undermine the social and religious stability of their hard pressed community".[14]  A copyright infringement could not have been alleged by the plaintiffs because the work in question (the book) was not written by them and it was not reproducing information that had been reduced by them to any material form.  There is no record of the case proceeding to trial.  It seems that the injunction was honoured, and the book was not published within the jurisdiction of the Supreme Court of the Northern Territory which made the order.

A general equitable jurisdiction to grant relief against actual or threatened unauthorised use of confidential information, not involving any tort, breach of contract or fiduciary duty, is now well recognised. In the case of secret and sacred knowledge not generally known (such as the information in Foster v Mountford) there could be little room for doubt about the requirement of confidential quality.  The case law recognises that the obligation of confidence may arise from a consideration of the nature of the information and the circumstances generally[15] and again the subject matter of the information may often leave little room for doubt about the second and the third of the requirements.

Equity provides a remedy even where the unauthorised use of the confidential information is by a third party where the third party knows, or ought to have known that the information is confidential information.[16]  There is even authority that an innocent third party may be restrained from publishing confidential information,[17] and that the defence of bona fide purchase for value does not apply as the confidential information is not "property" in the relevant sense.[18]

The remedies available in equity for the unauthorised use of confidential information may provide avenues of protection for cultural knowledge that so far have hardly been explored in the courts.

Another legal avenue that has been surprisingly neglected is Australia's consumer protection laws. In particular, the Trade Practices Act,1974 provides for wide ranging remedies to protect against conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive, and against false and misleading representations in connection with the supply of goods and services, including representations as to history, sponsorship or affiliation, or place of origin of goods. Had these provisions been relied upon in the T-shirts case and the carpets case remedies similar to those available under the Copyright Act would have been possible.[19]


Other developments
Native Title

For a time it was thought that the recognition of Native Title in Australia, first by the courts and then in the Native Title Act 1993 offered a new avenue for gaining protection of traditional knowledge, practices and art emanating from traditional laws and custom. The decision of the High Court of Australia in 1992 in Mabo v Queensland (No 2)[20]transformed the foundations of Australian law. It held that the common laws in Australia recognised the rights of indigenous peoples who had substantially maintained their connection with their. The Court held that traditional laws and customs could be a source of entitlements under Australian law. The governing principles were incorporated into the Native Title Act in s223 (1):

  (1)  The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

                     (a)  the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

                     (b)  the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

  • (c) the rights and interests are recognised by the common law of Australia.

However in Western Australia v Ward  (2002) 213 CLR 1 the majority of the High Court held that the native title rights and interests protected by s223(1)(b) are rights in relation to land or waters where the people concerned, by traditional laws and custom, have a connection with the land or  sea. In so far as claims for protection of cultural knowledge go beyond denial or control of access to land or water, they are not rights protected by s223(1)(b).[21]

Designs Act 2003

The Designs Act protects two and  three dimensional items for industrial or commercial purposes. It would be difficult and impracticable to use the design law to protect traditional Indigenous designs as most would not meet the registration requirements. This Act is not seen as being of assistance.

Trade Marks Act 1995.

A proposal which found favour in the late 1990's was to introduce a certificate of authenticity that would be attached to genuine Aboriginal artworks and artefacts.  This was put forward as a concept that would advance the commercial interests of Aboriginal artists by informing potential customers which works were genuine and which were not.  With advertising, it was thought that Certificates of Authenticity would direct sales to genuine Aboriginal works as well as discouraging "rip-offs".    Funds were made available to the National Indigenous Arts Advocacy Association (NIAAA) to develop the proposal.  In November 1999 NIAAA launched the Label of Authenticity Programme.  Registration of certification trade marks under Pt 16 of the Trade Marks Act 1995 was obtained covering a wide range of articles.  

Unfortunately the implementation of the scheme proved harder than had been anticipated.  The determination of what articles qualified for the Certificate of Authenticity proved very difficult and divisive.  By way of example, to illustrate the kind of difficulties that arose, NIAAA after consultation with artists and their communities suggested that the authenticity of Aboriginal and Torres Strait Islander artists should be determined through a five fold test:  (1), the artists identity with, (2) belonging to, (3) knowledge about, (4) respect for, and (5) responsibility towards the work of art in question.  There was obvious room to argue about each of these cumulative requirements.  Did the artist really qualify as an Aboriginal person?  Did the artist belong to the artwork in a cultural sense?  Did the artist have the requisite knowledge about the artwork and responsibility for it?  

The scheme seems to have founded.  It was not popular from the outset.  Some artists took umbrage about the identity issue and labelled the certificate a "dog tag".  Some did not want to use it, and some could not or would not pay the certification fee.  Artists not using the certificate potentially ran the risk that if others used the certificate their works would be disparaged as not authentic.  Further, for it to work, a significant enforcement regime would have been necessary.  If one considers the extensive regime which copyright collecting societies, like APRA, have put in place to protect copyright in music, enforcement was probably always beyond the capacity of the scheme.  The funding for NIAAA has since been cut off and NIAAA has all but disappeared, although it remains the registered owner of the certification marks.

Now participants in the souvenir and art market have developed all sorts of personal certificates or guarantees of authenticity, the worth of which, in many cases, may be open to question.

The Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Aboriginal sites and items of significant cultural importance are protected under Commonwealth and state legislation. The Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth),(the Heritage Act) deals with the preservation and protection of places and objects that 'are of particular significance to Aboriginals in accordance with Aboriginal tradition'. [22]

The Act was intended to operate as a 'last resort' to provide protection for Indigenous intellectual property to back-up state and territory legislation. Its effectiveness as a back up mechanism is compromised by inadequate state and territory protection and the Government's reluctance to exercise its powers under the Heritage Act. Currently the legislation provides this protection at the national level for all states except Victoria. The Commonwealth Minister delegates powers to the Victoria State minister to administer the provisions under Part IIA of the Act relating to matters of the preservation of Aboriginal places and objects in Victoria.

Many  inadequacies in the Heritage Act have resulted in three parliamentary reviews and a number of draft amendments but no action has yet been taken to give it the broad focus necessary to provide adequate protection to Indigenous culture and protection. A Bill to amend the Act introduced in October 2005, does not address these inadequacies.

The Heritage Act has seen little use. There have been some two hundred applications lodged seeking protection since  1984, but only twenty-two declarations have been made.

Amendments to the Copyright Act - Moral Rights and Communal Rights

The Copyright Act was amended in December 2000 to introduce moral rights provisions that entitle the original copyright holder to rights of attribution and integrity and protection from false attribution.[23] The right of integrity includes the right not to have the work subjected to "derogatory treatment" including anything that results in a material distortion or alteration of the work or anything that is prejudicial to the honour or reputation of the author. These are personal non-assignable rights. They do nothing to advance the protection of communal interests in the control of ritual knowledge and cultural material. Further, they only continue in force for as long as copyright subsists in the work.

In 2003 the Government prepared a draft for a Copyright Amendment (Indigenous Communal Moral Rights) Bill. This was circulated to selected stakeholders, but was not introduced into Parliament. The bill was to implement an election promise to "provide moral rights that give Indigenous communities a means to prevent unauthorised and derogatory treatment of works". In March 2006, the Attorney General wrote to stakeholders advising that the Government intended to introduce a new version of the Bill, but no details of its provisions were given. The Bill is still to be tabled.

In its 2003 form, the Bill proposed the new communal moral right would continue in force only during the subsistence of the author's copyright, and would be dependent on fulfilment of five requirements:

  • (i) There must be copyright subject matter;
  • (ii) The work must be drawn from a 'particular body of traditions, observances, customs or beliefs held in common by the Indigenous community';
  • (iii) Voluntary agreement must be entered into between the creator of the work and the indigenous community that communal moral rights exist;
  • (iv) There must be acknowledgement of the indigenous community's association (the community and the author are to give notice);
  • (v) Interest holders in the knowledge must give written consent to the indigenous communal rights in the work, otherwise no communal moral rights arise.

The rights so created would be exercised through a representative of the community. The Bill has been criticised by Aboriginal advocates as too complex and as likely to be ineffective. It is said that it is far too legalistic.

Driot de suite

A recurring and serious criticism of the structure of the Aboriginal art industry, at least until the last few years, was that most of the revenue did not percolate down to the artists and their communities. In the last five years there have been a number of resales of Aboriginal paintings at very high prices, for example Johnny Warangkula Tjupurrula's Water Dreaming at Kalipinya which was sold in 1973 for about $150, on its most recent resale in 2000 reached $486,000. More recently two paintings by Rover Thomas, Bugaltji,Lissadell Country and All that Big Rain Coming  from the Topside resold for $660,000  and $778,750 respectfully. No part of these high prices has been received by the artists or their estates. In 2002 the Report of the Contemporary Visual Arts and Craft Inquiry recommended the introduction of a "royalty resale arrangement". In 2004 a Government discussion paper canvassing options was released, but no decision was made. In its election policy in 2004 the Government said it was committed to 'work in partnership with artists, buyers and the community to further the development' of a scheme for a resale royalty. A private members bill was tabled to introduce a resale royalty, but it lapsed. Another introduced in 2006 is likely to meet the same fate.

A Parliamentary Inquiry

On 14 August the Minister for the Arts announced that he had referred to the Environment, Communications, information Technology and the Arts Legislation Committee for inquiry and report in early 2007: Australia's Indigenous visual arts and crafts sector. The terms of reference suggest that the inquiry will be concerned mainly with the size, structure and future opportunities for growth of the sector, rather than with issues of protection of cultural tradition, although unscrupulous practices by some people in the sector will be considered.

UN Declaration on the Rights of Indigenous People

On 20 June 2006 the United Nations Human Rights Council adopted the United Nations Declaration on the Rights of Indigenous People.

Articles 12, 13, 14, 24 and 29 of the Declaration protect Indigenous Heritage Rights. Article 12 states:

1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 29 states:

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

If the draft Declaration is accepted by the General Assembly later this year, the effect of the Declaration will be to encourage governments to formulate policy and legislation that recognises those Indigenous rights.

Unexpected consequences of the copyright successes

Publicity about the outcome of the successful cases reduced blatant copying of genuine works, but there were also unfortunate consequence. The National Gallery of Australia stopped publishing portfolios of quality prints of Aboriginal paintings as these had been the source of some of the images, and the portfolios were also being converted into table mats and other tourist gimmicks.  Entrepreneurs and copyright pirates then started to market images of their own creation that were said to be of an Aboriginal style.  Perhaps they were, but they lacked quality and I doubt that any Aboriginal person would claim the works. Unfortunately the style of artefacts of this kind continues to be sufficiently attractive to tourists and the uninformed to be saleable, denying Aboriginal people of any return. Boomerangs and didgeridoos are particularly popular in the tourist market.  As there is no protection available for the concept of either artefact, so long as a manufacturer or vendor does not claim Aboriginal authenticity for items that are not, these can be mass produced, sometimes overseas, decorated with look-a-like images, and put on the market at a price that undercuts genuine Aboriginal artefacts. Again, the Aboriginal community is the loser.

Conclusion

At present and for the foreseeable future, from the artist's viewpoint copyright and the Trade Practices Act seem to offer the best measure of protection.  

The cause of the communal owners of ritual knowledge used in artworks has not progressed beyond Bulun Bulun v R & T Textiles, and promises of legislation to come.

Consumers of Aboriginal artwork as well as members of the Aboriginal community,  are probably still being "ripped off".  A discerning buyer can gain a measure of protection by dealing through reputable art dealers, and insisting on photos of the artist holding the artwork.  However, the average tourist is probably going home happy with a poorly made artefact that has no input whatsoever from any Aboriginal person.

Beyond the available remedies discussed in this paper, more broadly based protection for Indigenous "folklore" is not available. An often expressed outcome from symposiums and enquiries dealing with folklore is a recommendation for sui generis legislation.  Legislation of the kind proposed would still fall short of providing general protection against the improper exploitation of folklore. Sui generis legislation that has been proposed would recognise communal ownership, grant copyright to truly traditional artworks in perpetuity (to overcome the life and 70 year protection) and somehow  give protection to cultural and artistic works that pass a threshold test as being cultural, traditional works of antiquity.

Apart from the enormous difficulties getting consensus amongst the many interest groups and countries who have an interest, I think there is a fundamental underlying problem which will deter governments from going down this road.  The problem lies in the Berne Conventions themselves, especially Article 5(1) of the 1971 Paris Act, which establishes the fundamental international principle of "national treatment".  A signatory State (and there are now over 130 of them including Australia) is obliged to extend similar protection to the cultural artworks and materials of other countries.  If Australia legislates to protect Aboriginal cultural artwork along the lines suggested, then under the Conventions, nationals of every other member State are entitled to a like protection in Australia.  The implications of this are wide ranging and unpredictable.  For example, religious icons would be one stark example of cultural artworks that might suddenly be protected in favour of overseas copyright owners.  Personally, I do not see sui generis legislation as a likely avenue for reform.  


[1] Yorta Yorta an first instance

[2] Milirrpum v Nabalco Pty Ltd (1971)17 FLR 141 at 267
[3] Dean Ellison, Unauthorised Reproduction of Traditional Aboriginal Art, 17 U.N.S.W.L.J. 327, 330-331 (1994).

[4] See "Indigenous Peoples and Intellectual Property Rights" Research Paper No 20, 1996-1997, Department of the Parliamentary Library. Commonwealth of Australia, and "Report on The Symposium on the Protection of Traditional Knowledge and  Expressions of Indigenous Cultures in the Pacific Islands"New Caledonia, February 1999 by Terri Jenke

[5] Artwork taken from Jennifer Isaacs "Australia's Living Heritage: Arts of the Dreaming" 1984, p 198.

[6] (1991)21 IPR 481

[7] An appeal from this decision in respect of liability imposed on two sleeping directors of the defendant company was allowed: King v Milpurrurru (1996) 136 ALR 327, but there was no appeal against the finding of infringement and the assessment of damages against the defendant company.

[8] Milpurrurru at 689 and see WH Brine Co v Whitton (Trading as Skoolsports Equipment) (1981) 37 ALR 170.

[9] Under s 116 of the Copyright Act 1968 (Cth).

[10] Under s 115(4) of the Copyright Act 1968 (Cth)

[11] The Court also held that the applicants were entitled to relief under consumer protection laws to restrain misleading advertising on a swing tag attached to the carpets which said that the Aboriginal artists who had designed the rugs were paid a royalty on every carpet sold, and carried the notation "PROUDLY DESIGNED IN AUSTRALIA BY AUSTRALIAN ABORIGINALS".  The swing tags were false in a number of respects.  These misrepresentations contravened provisions of the Trade Practices Act 1974 (Cth), which prohibit misleading and deceptive conduct in trade or commerce.

[12] See e.g. Copyright Act 1968 (Cth), s 10(1).

[13] (1976) 14 ALR 71

[14] At p 73.

[15] Attorney-General v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 189-190.

[16] Smith Kline French Laboratories v Department of Community Services (1990) 22 FCR 73 at 95-96 (affirmed (1991) 22 FCR 291); Attorney-General v Guardian Newspapers, above.

[17] See "The Principles of Equity", Patrick Parkinson, 1996 at para 1245; and Butler v Board of Trade [1971] Ch 680 at 690.

[18] Wheatley v Bell [1982] 2 NSWLR 544 at 549-550.

[19] The Australian Competition and Consumer Commission (ACCC) website reports that in September 2003 the ACCC commenced proceedings against an Australian Aboriginal Art Pty Ltd and its two directors for falsely describing products as "Aboriginal art" or "authentic". One of the defendants went into liquidation before trial, and the case was settled with the other parties.

[20] (1992) 175 CLR1

[21] [57-61]

[22] For the history and background to this legislation see Tickner v Bropho (1993) 183 FLR 183 at 221-225. For an example of where protection was frustrated by the procedural complexities of the legislation, and a change of Government, see Chapman v Luminis Pty Ltd and others (2001)REF

[23] This amendment belatedly implemented Australia's obligation under the Berne Convention as amended in 1929.

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