For the thousands of years that they inhabited the Australian continent prior to British settlement, Aboriginal and Torres Strait Islander Australians (known collectively as Indigenous Australians) have expressed their connection to the land and their customary laws through oral stories, songs, dance, and visual art and craft. With the commencement of British settlement in 1788 came the doctrine of terra nullius, or uninhabited land, which led to the extinguishment of the land rights and customary laws of the first peoples. In a landmark decision of Australia’s highest court in 1992, known as Mabo after one of the plaintiffs, terra nullius was overturned and native title rights based on traditional connection to the land were recognized.¹ While the High Court found that native title rights could be extinguished by a valid exercise of governmental power, such as the power to grant freehold title, these rights paved the way for Indigenous Australians to make claims over Crown land. Enabling legislation and the establishment of a tribunal to facilitate such claims followed. Some of the native title claims made since these developments have been assisted by the use of paintings depicting communities’ connection with the land.²

The High Court decision in Mabo prompted calls for legislation to recognize other aspects of Aboriginal law, such as that governing the use of traditional knowledge and cultural expression.³

An increasing interest in Aboriginal and Torres Strait Islander art coupled with ignorance about Indigenous culture and customary laws has led to some unfortunate examples of exploitation. One of the most notorious of these, decided a couple of years after Mabo, is known as the “Carpets Case.”⁴ Action was brought under the Copyright Act 1968 by eight Aboriginal artists, three living and five deceased, against an Australian carpet manufacturer that imported and sold carpets incorporating the artists’ works. The artists were all recognized proponents of their particular styles, including bark painting from Central Arnhem Land in the Northern Territory and the famous dot painting from Papunya in the Western Desert of Central Australia. The works used on the carpets had been published in authorized publications of the Australian government and the National Gallery of Australia, and all depicted subject matter of sacred and spiritual significance. Permission for these publications had been given by or on behalf of the artists for the purpose of educating the mainstream community about Aboriginal culture.

Importing an item that, if made in Australia, would constitute an infringement of copyright is itself an infringement if done for the purposes of sale or other commercial purposes.⁵ The Federal Court found that the defendant had infringed copyright by importing and selling carpets that, in all but one case, incorporated almost identical copies of the artists’ works. In the case of one of the works, only one element of the work had been reproduced to form the border of the carpet. The Copyright Act provides that the reproduction of a “substantial part” of a protected work is an infringement,⁶ and the courts have consistently applied a qualitative rather than a quantitative analysis to this question. In this case, the Federal Court had no difficulty in finding that a substantial part had been reproduced.

While the Carpets Case was, in many respects, a straightforward copyright infringement case, it served to highlight the stark differences between modern Australian law inherited from the British and Aboriginal cultural laws and practices. One of these differences concerns ownership of works and the cultural “property” contained within them. The Copyright Act provides that the first owner of copyright in an artistic work is the “author” of that work.⁷ Further, copyright law protects forms of expression and not information or ideas encompassed within that expression. In contrast, cultural laws dictate that sacred cultural knowledge is “owned” by the communities to which it relates. It also dictates that artists who derive their authority to depict cultural knowledge from membership in their communities owe duties to those communities to ensure that works incorporating such knowledge are faithfully reproduced and not used in any way considered offensive by those communities. Quite apart from the offense given by the lack of permission, the use of works on carpets designed for people to walk on was considered offensive to the artists and their communities. In addition to the artists’ responsibilities toward their communities, there was evidence that those artists could be subject to traditional sanctions if sacred cultural knowledge was misused.

What was particularly significant about this case was not so much the finding of copyright infringement but the way the court considered the cultural issues involved and took these into account in awarding remedies. As the artists would not have licensed their works for use on carpets, there were no significant damages awarded on the basis of lost license fees as is common in infringement cases. However, the court was able to award a substantial amount of damages under the “flagrant” infringement provision of the Copyright Act, which allows courts the discretion to award whatever amount they think appropriate in accordance with the seriousness of the infringement, taking into account various considerations, including deterrence and any other relevant matters.⁸ While the court acknowledged that “[t]he statutory remedies do not recognise the infringement of ownership rights of the kind which reside under Aboriginal law in the traditional owners of the dreaming stories and the imagery such as that used in the artworks of the present applicants,” it was prepared to take cultural considerations into account in awarding a total of A$70,000 to be apportioned in various amounts among the artists and estates for “plainly deliberate and calculated” infringements.⁹ In the case of living artists, the court found that the “[a]nger and distress suffered by those around the copyright owner constitute part of that person’s injury and suffering.”¹⁰

In addition to the monetary damages, the plaintiffs were awarded delivery up of the unsold carpets. These were used in a touring exhibition along with the original works to highlight the issues faced by Indigenous artists and their communities.¹¹

While the Carpets Case and other judgments have delivered some measure of justice, it is widely acknowledged that the interests of Indigenous communities are not well served by current intellectual property laws. In addition to the failure to recognize communal ownership of cultural property, as highlighted by the Carpets Case, there are a number of other concerns.

Copyright law’s requirement of material form means that oral and other ephemeral works lack protection unless and until recorded in some form. Depending on how works are recorded, the rights of third parties may come into play. Other issues include copyright’s threshold requirements of originality and identification of an individual author.¹²

One of the most significant problems is that copyright protection is limited by a term of years, currently the lifetime of the creator and 70 years in the case of most works.¹³ This limitation is at odds with perpetual protection under cultural laws and is a particular issue for Australia’s ancient rock art, which remains culturally significant for certain communities. One example is rock art depicting the Wandjina sprits connected to the Worora, Ngarinyin, and Wunumbul tribes that make up the Mowanjum people of the Kimberley region. Mowanjum elder Donny Woolagodja says, “The Mowanjum artists . . . know it is their job to pass on their knowledge to young people, to keep the spirit of the Wandjina alive.”¹⁴ Certain people of this community have the authority to repaint the rock art regularly to ensure its preservation and to produce art works based on the rock art.

A recent high profile misappropriation of this cultural property involved an art gallery in the Blue Mountains, west of Sydney, which installed a giant sculpture of a Wandjina figure in front of the gallery. This caused great offense to the Mowanjum peoples, who explored their legal options. Copyright law was unable to provide redress because the original rock art has no identifiable author and is time barred from protection. Further, it could not be established that the sculpture involved a reproduction of a substantial part of any more recent work depicting Wandjina. Ultimately, a group of Indigenous and non-Indigenous people succeeded in having the sculpture removed under planning laws.¹⁵

A further concern that has been identified by proponents of the need for change is the lack of protection by intellectual property laws for styles, methods, ideas, and information. One very common form of offensive misappropriation, for example, is the use of dots in the style of the Papunya Tula artists.

The shortcomings of intellectual property and other laws in protecting Indigenous cultural expression have led to calls for amendments to existing laws or the introduction of specific, sui generis, legislation. Another response has been the development of codes of practice that provide guidelines about the appropriate use of Indigenous art and other cultural property.¹⁶ While such codes can be useful as educational tools, their voluntary nature limits their effectiveness, particularly in relation to the most egregious examples of misappropriation.

One of the leading proponents of the introduction of specific legislation is Indigenous lawyer Terri Janke. In 1998, she authored an influential report entitled Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights, commissioned by the Australian Institute of Aboriginal and Torres Strait Islander Studies and produced after extensive consultation with Indigenous communities across Australia. Rather than attempting to amend the Copyright Act and other intellectual property legislation, the report called for a specific legislative framework to protect Indigenous cultural material, including ecological knowledge. The legislation would afford intellectual property-type rights to custodians of that material, prohibiting use without permission and payment. The report noted that a key underlying principle of such legislation should be the self-determination of Indigenous peoples, including their “right and duty . . . to maintain and develop their own cultures and knowledge systems and forms of social organisation.”¹⁷

While the Our Culture: Our Future report prompted the government to look at the issue, there have as yet been no moves to implement the recommendations. In 2003, the government attempted an amendment to the moral rights provisions of the Copyright Act to acknowledge communal rights of attribution and integrity for Indigenous communities.¹⁸ The draft legislation was criticized as being unworkable, and it did not proceed.¹⁹

Now the issue is back on the agenda with Australia’s intellectual property regulator, IP Australia, undertaking a consultation entitled Finding the Way: A Conversation with Aboriginal and Torres Strait Islander Peoples, which calls for submissions about how “Indigenous Knowledge” can work with the intellectual property framework and whether any changes are desirable.²⁰ The consultation document defines “Indigenous Knowledge” to mean “Traditional Knowledge and Traditional Cultural Expressions,” including “stories, dance, languages, symbols, crafts, cosmology, medicinal and environmental knowledge.”²¹ IP Australia administers the registration of trademarks, designs, and patents, but has no responsibility for copyright protection, which is not based on a registration system, although the consultation envisages that copyright law will also be under consideration. Terri Janke has published a comprehensive response to the consultation paper reprising her call in Our Culture: Our Future for sui generis legislation to protect Indigenous culture across the intellectual property spectrum.²²

In addition to the IP Australia consultation, the issue of Indigenous cultural property has arisen in the context of the current Australian Law Reform Commission (ALRC) inquiry into copyright and the digital economy. The government has given the ALRC a reference to conduct a wide-ranging review with a specific emphasis on whether new exceptions to the exclusive rights of copyright owners are desirable to facilitate innovation in the digital economy.²³ One issue being considered is whether Australia should adopt a U.S.-style fair use defense instead of, or in addition to, its fair dealing regime. In an issues paper released in August 2012, the ALRC looks at whether libraries and archives should have greater rights to digitize material in their collections. In posting this question, the issues paper acknowledges that greater rights to digitize works in libraries and archives may have implications for Indigenous works, rights over which may be claimed by communities and in perpetuity. The paper asks for responses to this issue.²⁴ The ALRC is due to deliver its final report at the end of 2013.

Further impetus for law reform in Australia may come from the international level. The World Intellectual Property Organization has been working for several years on a treaty for the protection of traditional knowledge, genetic resources, and traditional cultural expressions/folklore. The Australian government participates in the work of the intergovernmental committee, which is aiming to reach agreement on the text of a legal instrument in 2012/2013.²⁵

One area of recent intellectual property law reform that is seeing benefits flow to Indigenous artists is the introduction of an artist’s resale right. This was introduced in 2010 with Indigenous communities very much in mind. The right is based on the French droit de suite law dating from the 1920s, which gives artists the right to a royalty on resales of their art works. As in France, an important impetus for this law in Australia was redressing injustice toward artists whose works increase in value over time to the benefit of subsequent owners and art market professionals. A further rationale was greater regulation of the art market. In introducing the draft legislation, the Minister for the Environment, Heritage and the Arts said, “Introducing the right will significantly increase the transparency of the art market, which, of course, is particularly important for Indigenous artists, who have sadly continued to be exploited by some unscrupulous dealers.”²⁶

The Resale Royalty Right for Visual Artists Act 2009 came into effect in June 2010 and has generated royalties of over AUD$1 million as of October 2012. Artists are entitled to a royalty of five percent of the sale price on resales of their works involving art market professionals, where the sale price is over AUD$1,000. The scheme is administered by Copyright Agency, a copyright collecting society that was awarded the contract after an open tender process.²⁷

One peculiar feature of the Australian scheme is that royalties are payable only on the second and subsequent resales after commencement. This limitation was introduced to forestall a challenge by art market interests under the Australian Constitution. The federal government is prevented by the constitution from acquiring private property other than on just terms.²⁸ It was this provision that was the basis for the tobacco companies’ recent unsuccessful challenge to Australia’s groundbreaking plain packaging laws for cigarettes.²⁹ In that case, the High Court found that the laws did not amount to an acquisition of the companies’ intellectual property in their branding but rather a legitimate regulation of a product with adverse health outcomes.

In the context of the resale royalty legislation, the government was concerned that levying a royalty on works already purchased would result in an acquisition of property from the owners of those works when they brought them to market. This was a controversial limitation and was criticized at the time for being an unnecessarily cautious stance that would severely limit the operation of the scheme and threaten its viability.³⁰ There is no doubt that the royalty flow would be much faster were all resales eligible; however, it is interesting to note that Indigenous artists have been the biggest beneficiaries of the scheme to date. Copyright Agency reports that over 60 percent of royalty recipients are Indigenous artists or their beneficiaries.

One of the reasons for the particular benefit to Indigenous artists is the network of art centers across regional and remote Australia that supports the work of local artists and is a significant feature of the Indigenous art market. This author’s visit to art centers in the spectacular Kimberley region revealed the importance of these centers in fostering emerging and established talent as well as providing a community hub for a variety of services in often very disadvantaged environments. Art centers are community-based enterprises generally owned and managed by the local community with financial support from the federal government. They provide a place for artists to create work. Some art centers then take works on consignment for sale to the tourist market or to city galleries and dealers. Many, however, purchase works outright, providing artists with much needed income but also having the effect that any subsequent sale by the center is eligible for a resale royalty.

There has been increasing interest in Aboriginal works in overseas art markets of late, and Indigenous artists are expected to benefit from European and other foreign resale royalty schemes, once reciprocal rights are in place. Copyright Agency is in the process of working with the federal government to establish reciprocity with foreign schemes.

While the introduction of the resale royalty is showing early promise for Indigenous artists, it does not address the fundamental issue of the protection of Indigenous cultural property and the concerns expressed over many years that the mainstream intellectual property system is inadequate for that purpose. IP Australia’s consultation and the ALRC’s review provide further opportunities to examine this issue. International developments may also prompt Australia to action. It is to be hoped that these initiatives would lead to law reform in furtherance of the greater empowerment of Indigenous communities.

Endnotes

1. Mabo v Queensland (No 2) [1992] HCA 23, 175 CLR 1 (Austl.), available at http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html.

2. Kirsten Anker, The Truth in Painting: Cultural Artefacts as Proof of Native Title, 9 L. Text Culture 91 (2005), available at http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1106&context=ltc.

3. Michael Blakeney, Milpurrurru and Ors v Indofurn Pty Ltd and Ors—Protecting Expressions of Aboriginal Folklore under Copyright Law, Murdoch U. Electronic J.L., Apr. 1995, available at http://www.murdoch.edu.au/elaw/issues/v2n1/blakeney21.html.

4. Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240, 130 ALR 659 (Austl.), available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/1994/1544.html?stem=0&synonyms=0&query=milpurrurru.

5. Copyright Act 1968 (Cth) s 37 (Austl.).

6. Id. at s 14.

7. Id. at s 35(2).

8. Id. at s 115(4).

9. Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240, 130 ALR 659 (Austl.).

10. Id.

11. Vivien Johnson, Copyrites: Aboriginal Arts in the Age of Reproductive Technologies: Touring Exhibition 1996 Catalogue (1996).

12. Copyright Act 1968 (Cth) ss 31, 32 (Austl.).

13. Id. at s 33.

14. Mowanjum Aboriginal Art & Culture Centre, http://www.mowanjumarts.com (last visited Oct. 21, 2012).

15. Terri Janke & Peter Dawson, New Tracks: Indigenous Knowledge and Cultural Expression and the Australian Intellectual Property System (2012), available at http://www.terrijanke.com.au/documents/New_Tracks_Janke_Dawson_17Aug12_11am.pdf.

16. See, e.g., Austl. Council for the Arts, Protocols for Producing Indigenous Australian Visual Arts (2d ed. 2007), available at http://www.australiacouncil.gov.au/__data/assets/pdf_file/0004/32368/Visual_arts_protocol_guide.pdf.

17. Terri Janke, Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights (1998), available at http://www.terrijanke.com.au/img/publications/pdf/24.culture.pdf.

18. Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 (Cth) (Austl.).

19. See, e.g., Samantha Joseph & Erin Mackay, Moral Rights and Indigenous Communities, Arts L. Centre of Austl. (Sept. 30, 2006), http://www.artslaw.com.au/articles/entry/moral-rights-and-indigenous-communities/.

20. Indigenous Knowledge Consultation, IP Austl., http://www.ipaustralia.gov.au/about-us/public-consultations/indigenous- knowledge-consultation/ (last updated Sept. 21, 2012).

21. Id.

22. Janke & Dawson, supra note 15.

23. Copyright and the Digital Economy, Australian L. Reform Commission, http://www.alrc.gov.au/inquiries/copyright-and-digital-economy (last modified Aug. 20, 2012).

24. Australian Law Reform Comm’n, Copyright and the Digital Economy: Issues Paper 41–44 (2012), available at http://www.alrc.gov.au/sites/default/files/pdfs/publications/whole_ip_42_4.pdf.

25. Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore, World Intell. Prop. Org., http://www.wipo.int/tk/en/ (last visited Oct. 21, 2012).

26. Resale Royalty Right for Visual Artists Bill 2008: Second Reading Before H.R. Hansard (2008) (statement of Peter Garrett, Minister for the Env’t, Heritage & the Arts), http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2008-11-27%2F0011%22.

27. Copyright Agency Resale Royalty, http://www.resaleroyalty.org.au (last visited Oct. 21, 2012).

28. Australian Constitution s 51(xxxi).

29. JT International SA v Commonwealth of Australia, High Ct. Austl. (Oct. 5, 2012), http://www.austlii.edu.au/au/cases/cth/HCA/2012/43.html.

30. See, e.g., Viscopy, Going Once, Going Twice, Gone . . . : Submission to the Standing Committee on Climate Change, Water, Environment and the Arts on the Draft Resale Royalty for Visual Artists Bill 2008 (2009), available at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ccwea/resaleroyalty/subs.htm (follow “VISCOPY” hyperlink).