The issue of whether there is adequate protection for indigenous cultural heritage and intellectual property is a live topic amongst Aboriginal artists and communities. It was been the focus of several papers commissioned by the former Aboriginal and Torres Strait Islander Commission (ATSIC). The most relevant of these is the report from 1997 Our Culture, Our Future.
What is Indigenous Intellectual Property?
Indigenous intellectual property consists of the intangible ideas and knowledge associated with artistic works and designs and other forms of cultural expression such as music, dance, song and story (see “Our Culture, Our Future”).
Indigenous people stress the strong connections between intellectual and cultural property and other parts of their cultural heritage, particularly to country and their sense of identity. Indigenous rights in cultural and intellectual property include the right to determine its nature and extent in accordance with their laws and customs, the right to manage and control it, and the right to exclude others from access to and use of this property.
The social and economic significance to Australia of the cultures and heritage of Aboriginal and Torres Strait Islander people often remain unacknowledged. Indigenous people are increasingly asserting their rights to have these contributions recognised and to share equally in financial and other benefits resulting from use of their culture. This includes being compensated where there has been unauthorised use or misuse.
There has been a long history of misuse and unauthorised reproduction of works of art, designs and other intangible cultural expressions (such as languages, oral traditions, songs and dances). These misuses were graphically shown in a challenging Web site called ‘The House of Aboriginality’. This was a multimedia project at Macquarie University about the ‘imitations industry’ which has arisen to exploit the popularity of Aboriginal art. It aimed particularly to curb such activities, including the unauthorised use of traditional Dreaming designs.
Recognising and Protecting Indigenous Intellectual Property
In recent years there has been increasing awareness of the need to prevent misuse of Indigenous cultural and intellectual property. Successive decisions by the courts have extended the protection given by the Copyright Act 1968. The decision in 1983 in favour of the Aboriginal Artists Agency set a precedent for the protection of copyright by Aboriginal artists by acknowledging that Indigenous works could be recognised legally as original works. The decision in 1994 in relation to copying of an Aboriginal design in carpets led to huge award of damages and established that copying part or whole of an original work was a copyright infringement. Recent court decisions provide a basis for extending copyright laws to better accommodate Indigenous perspectives.
However, it is the view of ATSIC that, despite these developments, effective protection of Indigenous intellectual property is beyond the scope of existing laws. This is because such laws do not provide for the recognition of collective rights, nor do they allow for the protection of the intangible expressions of culture. Indigenous peoples’ cultural expressions generally do not meet the requirement for ‘originality’ as defined by the Copyright Act. In their present form, intellectual property laws provide protection only for a fixed period, which is a further limitation on protection for Indigenous cultural knowledge, products and expressions.
Is the Copyright Regime Working?
Clearly the view of ATSIC and many Aboriginal artists is that copyright protection under current laws is not effective. Changes which have been supported by ATSIC include the reform of copyright and other laws and the establishment of an authenticity label for Indigenous art and cultural products and performances.
Others take a more positive view of the copyright regime. For example, Professor Jon Altman, Director of the Centre for Aboriginal Economic Policy Research at the Australian National University argues that Australian copyright law can work for the benefit of indigenous artists (Artlink Vol 20 #1, page 91). He suggests that “Effort is now needed to ensure adequate representation of artists and the utilisation, where appropriate of intellectual property for commercial gain. It is likely that the industry will need considerably greater scale before an Indigenous collection agency can be justified.”
One Response – A Label of Authenticity
Indigenous communities have been concerned about the production and sale of art and cultural products claiming to be made by Aboriginal or Torres Strait Islander artists. This concern led the National Indigenous Arts Advocacy Association (NIAAA) to develop and implement a Label of Authenticity – a national certification system for the authentication of works of Aboriginal and Torres Strait Islander people. The system was launched in late 1999 but was not widely adopted. Through lack of use the system collapsed and NIAAA has disbanded.
The Label of Authenticity was a certified trade mark that can be placed on art or cultural products and services to denote genuine Aboriginal or Torres Strait Islander origin. The intention was that it would help to encourage the sale of authentic products and also deter the sale of copied or “rip-off” designs and products. Any Aboriginal or Torres Strait Islander person who met the standard set by the rules for the Label could apply for certification entitling that person to use the Label in relation to their works.
While the positive intentions of the NIAAA were widely acknowledged, not all people involved with Indigenous arts and culture were persuaded of the value of such a label. For example, Brenda Croft (a member of the Gurindji nation and curator of Indigenous Art at the Art Gallery of Western Australia) raised several concerns, the most significant of which was the use of the term “authentic” (Artlink Vol 20 #1, page 85). Her concern was that the use of the term would require Indigenous artists to validate their identities to others. She pointed out that in her view the primary need is for public education – so that non-Indigenous people (including buyers of art and craft works) have a better appreciation of the complexities of contemporary Indigenous cultural expression.
Protection of Indigenous intellectual property rights is both a concern to indigenous communities and difficult to achieve in practice. Views differ over the answers to a number of key questions including:
- Can copyright law be shaped to meet the characteristics of Indigenous intellectual traditions?
- Does the labelling of works as “authentic” create further problems of its own?
- To what extent can Indigenous artists control generic aspects of their designs and works?