Copyright and other protections

Contributed by Greg McIntyre and Malcolm O'Dell and current to 1 September 2005

The Copyright Act 1968 (Cth) protects the work of Aboriginal artists and creators in the same way as it does that of other Australians (see COPYRIGHT). However, it has limitations in protecting and recognizing indigenous cultural and intellectual property, especially in relation to Aboriginal concepts of custodianship and communal ownership. This has been a feature of some recent court cases.

RECOGNISING COMMUNAL RIGHTS

Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481 concerned a morning star pole, a funerary object created by Mr Yumbulul under the authority given to him as a member of the Galpu clan group. The pole was sold to the Australian Museum for public display, a permissible use to educate the wider community about Aboriginal culture. However, Mr Yumbulul licensed reproduction rights to the Aboriginal Artists Agency, which subsequently approved the Reserve Bank reproducing the pole on the bicentennial $10 note. Mr Yumbulul was severely criticised by his community for exceeding his authority under customary laws. According to the traditional custodians, it was not culturally appropriate for such a sacred item to be reproduced on money.

Who can license reproduction rights?

Mr Yumbulul initiated action in the Federal Court, alleging that he would not have authorised the licence to the Aboriginal Artists Agency and the Reserve Bank had he fully understood it. While finding that Mr Yumbulul mistakenly believed the licence would impose limitations on the use of the pole similar to those in Aboriginal customary law, the court considered that “Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin”.

UNAUTHORISED REPRODUCTION OF ARTWORKS

In Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1993) 30 IPR 209, Von Doussa J discussed copyright infringement of indigenous artworks of cultural significance to the artist applicants and the cultural groups to which they belonged. The case involved the unauthorised reproduction of indigenous artworks on carpets made in Vietnam and imported into Australia.
Significant aspects of the case included:

• a work may be original if there is sufficient detail and complexity reflecting skill and originality, even if it is based on traditional designs;
• though not identical to the original artworks, the carpets reproduced centrally important parts. For example, the part taken from Tim Payunka Tjapangati’s painting Kangaroo and Shield People Dreaming depicted a sacred men’s story – one factor that led the court to conclude copyright had been infringed;
• part of the $188,000 awarded in damages was given in consideration of the personal hurt and cultural harm done to the artists. The court noted that their standing in the community could be affected because of the culturally offensive misuse of the works, regardless of whether they had authorised it.

The court made a collective award to the artists rather than individual awards so that they could distribute it according to their cultural practices.

COLLECTIVE OWNERSHIP OF ARTWORKS

Bulun Bulun & Anor v R & T Textiles Pty Ltd (1998) 3(4) AILR 547 discussed issues of collective ownership and copyright. John Bulun Bulun was successful in proving a copyright infringement for the reproduction of his work, Magpie Geese and Water Lilies at the Waterhole, on fabric imported into Australia by R & T Textiles. The matter was settled between the parties on agreement that the court would hear legal arguments raised by the second applicant.

The second applicant, George M (since deceased) brought proceedings claiming that the indigenous owners of Ganalbingu country were the equitable owners of the copyright subsisting in Bulun Bulun’s work, which embodied imagery sacred and important to the Ganalbingu people’s cultural heritage.

The Court’s decision

The Federal Court dismissed Mr M’s claim. However, it offered some interesting points on the application of copyright to indigenous culture, including that:

• evidence of customary law may be used as a basis for the foundation of rights recognized in the Australian legal system;
• the provisions of the Copyright Act effectively preclude any notion of group ownership in an artistic work, unless the artistic work is a ‘work of joint ownership’ within the meaning of s.10(1) of the Act;
• there was no evidence of any form of contractual agreement vesting an equitable interest in copyright ownership in Mr M or the Ganalbingu people;
• equity imposed a fiduciary obligation on Mr Bulun Bulun not to exploit the artistic work in a way contrary to the laws and custom of the Ganalbingu people and, in the event of infringement by a third party, to take reasonable and appropriate action to remedy the infringement. The court considered that Mr Bulun Bulun had done this by taking action against R & T Textiles.

INTELLECTUAL PROPERTY RIGHTS AND LAND RIGHTS

It was also argued by the second applicant that intellectual property rights are an incident of native title, and may constitute an interest in land. The court did not have jurisdiction to address this question, as all applications for a determination of native title must comply with the Native Title Act. Von Doussa J noted that such a claim would require the court to link ownership of land, governed by statute, and ownership of indigenous artistic works, recognised by common law, in a way that could ‘fracture a skeletal principle of our legal system’: per Brennan J in Mabo (No 2).

WHO CAN TAKE ACTION?

The court also found that if an artistic work embodying an Aboriginal clan’s ritual knowledge was used inappropriately, and the copyright owner failed or refused to take action to enforce the copyright, the clan could take action through the courts.

MORAL RIGHTS

In December 2000, the Copyright Act was amended to incorporate moral rights – personal, non-economic rights, which cannot normally be assigned.

The amendments incorporate an author’s right:

• to be identified as the author of a work (the right of attribution of authorship);
• to take action against false attribution (the right not to have authorship of a work falsely attributed); and
• to object to derogatory treatment of their work which prejudicially affects their honour or reputation (the right of integrity of authorship of a work).

Moral rights apply to the authors of literary, dramatic, musical and artistic works, and of films.

Recourse for indigenous artists

Moral rights provide individual indigenous authors and creators with remedies for infringement where the requirements of the Act are met. These include situations where:

• the author has not consented to the infringement;
• the infringing act occurred after the commencement of the legislation; and
• there is no statutory defence available.

Rights of communal owners

Section 190 states that only individuals have moral rights. This does not adequately recognize indigenous ownership of clan cultural heritage and the rights of custodians, according to traditional practices, to maintain integrity and require attribution. Communal ownership of pre-existing designs is not recognised.

LEGISLATING FOR COMMUNAL RIGHTS

On 19 May 2003, the federal government announced proposed amendments to the Copyright Act to introduce protection of indigenous communal moral rights in relation to a work or film based on an agreement between the author/artist and the indigenous community. The government indicated that it hoped to have the legislation introduced by the end of 2003. However, at the time of writing such legislation had yet to be introduced.

BREACH OF CONFIDENCE

In Foster v Mountford (1977) 14 ALR 71, members of the Pitjantjatjara Council took action under breach of confidence laws to stop the publication of a book, Nomads of the Australian Desert. Mountford, an anthropologist, made a trip in 1940 into remote areas of the Northern Territory, where Pitjantjatjara male elders revealed tribal sites and items of deep cultural and religious significance, in confidence. Mountford later published the information, with photographs, drawings and descriptions of people, places and ceremonies of the Pitjantjatjara people. It was argued that the dissemination of this information could cause serious disruption to Pitjantjatjara culture and society if it was revealed to women, children and uninitiated men. The court granted an injunction in favour of the council.

PROPOSALS FOR REFORM

Stopping the Rip-offs

In 1994, an issues paper, Stopping the Rip-offs: Intellectual property protection for Aboriginal and Torres Strait Islander peoples, was jointly released by the Attorney-General, the Minister for Aboriginal and Torres Strait Islander Affairs and the Minister for Communications and the Arts. The paper proposed several measures to overcome the inadequacies of current intellectual property laws in their application to indigenous arts and culture.

These included:

• amendments to the Copyright Act and the Aboriginal and Torres Strait Islander Heritage Protection Act;
• special legislation to protect indigenous arts and cultural expression; and
• development of a certification system to trademark authentic Aboriginal and Torres Strait Islander works.
Several submissions were received, but no findings or recommendations were made.

Our Culture: Our Future

In 1997, the Aboriginal and Torres Strait Islander Commission and the Australian Institute for Aboriginal and Torres Strait Islander Studies commissioned a report on indigenous cultural and intellectual property rights. The independent report by Terri Janke was released in 1999 as Our Culture: Our Future: Report on Australian indigenous cultural and intellectual property rights. It found that existing cultural heritage and intellectual property laws do not adequately protect indigenous interests and listed a range of proposals for recognizing indigenous cultural and intellectual property rights, including:

• developing new and amended legislation;
• adapting administrative systems to include monitoring and collection systems;
• developing cultural infrastructure, protocols and codes of ethics.
The Report is available at: www.icip.lawnet.com.au .

Label of Authenticity

In 1999, the then National Indigenous Arts Advocacy Association (NIAAA) launched a national certification trademark called the label of authenticity. It is registered with the Registrar of Trademarks and protected under the Trade Marks Act 1995 (Cth). The label of authenticity is put on art or cultural products and services to denote genuine Aboriginal or Torres Strait Islander origin. The intention behind the label was:

• to increase the awareness of people buying indigenous products and services;
• to encourage wholesalers and retailers to seek authentic products;
• to increase the return from sales for Aboriginal and Torres Strait Islander artists; and
• to reduce the number of copy-cat products.

COLLABORATION MARK

Another aspect of the labelling system is the collaboration mark, available for manufactured products and services produced under licence with Aboriginal or Torres Strait Islander artists. It is hoped that manufacturers and distributors will be encouraged to enter into fair licensing agreements with Aboriginal and Torres Strait Islanders artists.

FUTURE OF THE LABEL

In 2002, the association’s office closed and the future of the organisation and the label of authenticity is in doubt.

DEVELOPMENT OF CULTURAL PROTOCOLS

A number of cultural organisations have developed protocols to promote proper dealings with Indigenous intellectual and cultural property.

Research

The Australian Institute of Aboriginal and Torres Strait Islander Studies has also adopted research guidelines for research in Aboriginal and Torres Strait Islander communities. The guidelines are available from its website at www.aiatsis.gov.au.

Protocols for visual arts

The National Association for the Visual Arts has released an indigenous visual arts protocol booklet, Valuing Art, Respecting Culture: Protocols for working with the Australian indigenous visual arts and craft sector, by Doreen Mellor. The book includes a legal section (by Terri Janke) on copyright, trademarks, designs, export of indigenous art and cultural material.

Film-making protocols

The Australian Film Commission is also in the process of developing cultural protocols for non-indigenous and indigenous working in indigenous filmmaking. The protocols will provide a framework to assist and encourage recognition and respect for the images, knowledge and stories of indigenous people. A copy of the discussion paper, entitled Towards a Protocol for Filmmakers Working with Indigenous Content and Indigenous Communities, is available from the Commission. The final protocol document was still being developed at time of writing.

Australia Council Protocol Guides

The Aboriginal and Torres Strait Islander Arts Board (ATSIAB) of the Australia Council for the Arts produced a series of indigenous cultural and intellectual property rights protocol guides. A series of five protocol booklets on literature, music, new media, performing arts, and visual arts and craft outline cultural protocols to protect indigenous artistic and cultural intellectual property. The material is available at www.ozco.gov.au.

CONTRACTS

Many indigenous creators need legal advice on licensing and marketing of their arts and cultural goods and services.

Guidance for agreements, contracts and licences

The Arts Law Centre of Australia provides free legal advice to its members (the membership fee for individuals is $90). In 2003, the Centre received funding from the Australia Council to employ an indigenous solicitor and an indigenous information officer. A number of the centre’s information sheets are available online at www.artslaw.com.au. The centre also has a range of checklists and guides for making agreements, and sample licensing agreements with explanatory notes.

THE TRADE PRACTICES ACT – MISLEADING OR DECEPTIVE CONDUCT

The Trade Practices Act (Cth) prohibits corporations from engaging in conduct that is ‘misleading or deceptive or which is likely to mislead or deceive’ (s.52).

The ‘Aboriginal’ art Aboriginals didn’t make

The Australian Competition and Consumer Commission (ACCC) sought to take legal action under s.52 against a Queensland-based souvenir manufacturer that made a range of hand painted and carved products including didgeridoos, boomerangs and plates bearing ‘Aboriginal’ designs. Some of these designs were made by Aboriginal people and others were not. The ACCC was granted interim orders in April 2003 to prevent the manufacturer from describing a product as ‘Aboriginal art’ or ‘authentic’ if it is not created by a person of Aboriginal descent. The manufacturer subsequently went into liquidation and the matter has not been further pursued by the Commission.

COPYRIGHT INFORMATION

The Australian Copyright Council has published two books on legal issues relevant to indigenous intellectual and cultural property. They are:

• Indigenous Arts and Copyright, which includes general information on copyright and issues specific to indigenous people
• Indigenous Intellectual Property, which includes important common law developments and international research and organisations.

Further information on these and other publications can be found at www.copyright.org.au.

WORLD INTELLECTUAL PROPERTY ORGANISATION

In 2000, World Intellectual Property Organisation (WIPO) established an Inter-Government Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

The Committee discusses issues relating to:
• access to genetic resources and benefit sharing;
• the protection of traditional knowledge, innovations and creativity; and
• the protection of expressions of folklore.

Some of the work that the committee has developed includes:
• the compilation of a database of contract practices and clauses relating to intellectual property;
• access to genetic resources;
• benefit-sharing.

There has been limited participation in these meetings by indigenous Australians, but the organisation has published Minding Culture, a series of case studies about indigenous Australians’ use of intellectual property laws to protect cultural expression.

Documents, case studies and information are available on the organisation’s website at
www.wipo.org.

PROTECTING TRADITIONAL KNOWLEDGE IN THE PACIFIC

In July 2002 a new model law was drafted as a blueprint for Pacific nations wanting to enshrine ‘traditional cultural rights’ in national legislation.

The framework establishes traditional cultural rights for traditional owners over traditional knowledge and expression of culture. It would require owners’ prior and informed consent to actions including:

• reproducing or publishing traditional knowledge or expressions of culture;
• performing or displaying traditional knowledge or expressions of culture in public;
• making available online traditional knowledge or expressions of culture; and
• using the traditional knowledge or expressions of culture in any other form.