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January 16, 2024 Feature

Developments in the Protection and Use of Australian Aboriginal Art

Virginia J. Morrison

©2024. Published in Landslide, Vol. 16, No. 2, December/January 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

In Australia, Indigenous peoples “have been calling for stronger ways to protect their cultural heritage under the law.” They seek their place “as the rightful owners of their cultural assets—to negotiate use, to be recognised as the cultural source, to receive payment where benefits accrue, to protect culture from harm and destruction, and to ensure that culture remains intact so it can be handed on to future generations.”

This article looks at some recent developments in Aboriginal art, including the introduction of a new intellectual property right for cultural property, the impact of the artist’s resale royalty right, and the ownership and use of the Aboriginal flag.

Protection for Indigenous Cultural Assets

After many years of advocacy by and on behalf of Australia’s Aboriginal and Torres Strait Islander communities for a new form of protection for Indigenous cultural property, the Australian Government has recently acceded to this call. In January 2023, the government launched a new national cultural policy that recognizes the “crucial place of First Nations stories at the centre of Australia’s arts and culture.” A key measure of the policy is the plan to introduce stand-alone legislation to protect First Nations knowledge and cultural expressions, including addressing the harm caused by fake art, merchandise, and souvenirs. Specifically, the policy commits the government to provide a comprehensive response to the Productivity Commission’s December 2022 report on Aboriginal and Torres Strait Islander visual arts and crafts.

The Productivity Commission provides independent research and advice to the Australian Government on various issues affecting the welfare of Australians. It was tasked with inquiring into the value and structure of the market for First Nations arts and crafts, including the market value of inauthentic souvenirs and art sold in Australia. The commission’s work followed a 2018 inquiry by the House of Representatives Standing Committee on Indigenous Affairs into the impact of inauthentic arts and crafts in the style of First Nations peoples. In tabling this report in Federal Parliament, the committee chair highlighted the committee’s finding that “80% of the souvenirs sold in Australia purporting to represent First Nations cultures are in fact imitation products. These inauthentic items have no connection to First Nations peoples and are often cheaply made imports.”

The government’s response to the House of Representatives inquiry, which tasked the Productivity Commission with its work on the issue, was made in the context of the COVID-19 pandemic. Australia’s response to the pandemic, while widely supported, had a particularly adverse impact on the Indigenous visual arts industry due to the protracted national border closure as well as the closure of Indigenous communities and their art centers to local tourists.

The mismatch between customary laws in respect of the ownership and use of cultural assets and mainstream intellectual property protection has been well documented. The gaps in protection for cultural property under Australia’s copyright law in the context of visual art were explored in an earlier article. The Productivity Commission’s recommendation and the government’s policy response pick up on a long-standing recommendation for sui generis protection as opposed to amendments to the current intellectual property regimes.

The proposed legislation would give traditional owners the right to control their “cultural assets” and the use of those assets in visual arts and crafts. A “cultural asset” is “an underlying cultural idea or concept that embodies Aboriginal and Torres Strait Islander traditions,” such as a symbol or a motif. This might, for example, include a style or mode of painting, including the famous dot painting technique of the Papunya Tula art movement of the Western Desert region. Remedies for infringement of the rights in a cultural asset would, according to the proposal, be the same as those for copyright infringement, including damages and injunctive relief. In contrast to copyright, however, the rights in a cultural asset would not be time-bound so would subsist indefinitely. This new cause of action would give traditional owners of cultural assets the right to prevent, or seek financial compensation for, the use of those assets in a piece of visual art or craft where the proper authorization had not been obtained.

The problem of misappropriation and fake souvenirs highlighted by the parliamentary committee in 2018 was illustrated in the following year through the case of Birubi Art, a souvenir company which sold products including boomerangs and didgeridoos that bore the terms “Aboriginal Art,” “genuine,” and “Australia” but had in fact been made in Indonesia. Legal action was brought in the Federal Court by the consumer regulator, the Australian Competition and Consumer Commission, under consumer protection laws. Birubi Art was found by the court to have engaged in misleading and deceptive conduct and fined AUD$2.3 million, by which time the company had already entered voluntary liquidation. Had an Indigenous cultural assets protection been in place, it is likely that the traditional owners, such as the Yolngu people of Arnhem Land in the Northern Territory of Australia from where the didgeridoo emanates, would have been able to take action against Birubi Art.

The Australian Government has not yet committed to a time frame for the introduction of cultural assets protection legislation, and it remains to be seen how closely it follows the Productivity Commission’s proposed model.

The recent widespread adoption of generative artificial intelligence tools, including image generator Stable Diffusion, has created concern among visual artists whose works may have been used for training these tools without their consent and which tools may produce works that closely resemble their own. Artificial intelligence holds particular concerns for Australia’s Indigenous communities to the extent that it can, and likely will, be used to create look-alike, fake Indigenous artworks. Whether copyright law or a new cultural assets law will provide any relief from this threat remains to be seen. Australian creators and copyright lawyers are watching the U.S. copyright infringement cases, including Andersen v. Stability AI Ltd., with interest.

Artist’s Resale Royalty Right

Australia has now had an artist’s resale royalty right in place for 13 years, and it has generated over AUD$13 million in royalties. This right, provided in the Resale Royalty Right for Visual Artists Act 2009, affords artists, and their successors, the right to receive a royalty payment of 5% of a sale price of $1,000 or more when their works are resold on the secondary market. When it was first introduced, the Australian Government was particularly concerned about ensuring that First Nations artists and their communities would benefit from the scheme. In this regard, it has been a success as, to date, over 65% of the artists receiving royalties are Aboriginal or Torres Strait Islander artists, and they have received 38% of the total royalties.

The scheme has thus far been limited to Australian artists, so there have been no reciprocal arrangements with other countries that have a resale royalty right. This is about to change with the government committing, as part of its cultural policy, to extend the application of the Australian scheme to artists from other countries. This extension will trigger a reciprocal right for Australian artists, including First Nations artists, to receive royalties from the resales of their works in those countries. Reciprocity is first likely to be established with the United Kingdom and European countries. Canada and New Zealand both have plans to introduce schemes, so reciprocity with those countries is likely to follow.

Aboriginal Flag

In 2019, an unusual controversy arose in respect of the ownership and use of a flag that represents Aboriginal communities.

The flag was created by Aboriginal artist Harold Thomas in the 1970s for use at a land rights rally. Its design consists of a colored rectangle divided in half horizontally. “The top half of the flag is black to symbolise Aboriginal people. The red in the lower half stands for the earth and the colour of ochre, which has ceremonial significance. The circle of yellow in the centre of the flag represents the sun.” The flag subsequently became widely used and beloved as an emblem of Aboriginal Australia. In light of this widespread use and recognition, in 1995 the governor-general of Australia proclaimed the flag as an official flag of Australia. Following this proclamation, court proceedings regarding ownership of copyright in the flag ensued, with two other competing claimants. The Federal Court found in favor of Thomas, holding him to be the sole creator and copyright owner of the artistic work embodied in the flag.

Thomas received license fees from the Australian Government for official uses of the flag artwork under a statutory license in the Copyright Act; he also licensed the use of the flag to various other organizations and individuals, including commercial flag producers. Controversy arose when it became apparent that Thomas had granted certain exclusive licenses to non-Indigenous companies which then asserted their rights against other users, including Indigenous organizations and sporting codes wanting to use the flag on uniforms to be worn in Indigenous round football matches. The resulting outcry and media attention prompted the Australian Senate to conduct an inquiry into ownership of the flag, including whether it ought to be able to be freely used by the Australian public.

Following the inquiry, the government entered into negotiations with Thomas for the purchase of the copyright in the flag. As of early 2022, the Commonwealth of Australia owns the copyright, subject to some preexisting licenses granted by Thomas. The flag is now free to be reproduced by anyone.

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    Virginia J. Morrison

    Copyright Agency

    Virginia J. Morrison is a senior lawyer with Copyright Agency and has many years of experience in the field of copyright law, with a particular focus on the visual arts.

     

    The views expressed in this article are those of the author and do not necessarily reflect the views of Copyright Agency.