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Commission Commission – General

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.