Aboriginal Law Bulletin
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by Robin Bell
Early in 1983 a report containing recommendations on the protection of Aboriginal folklore was released for public comment by Australia's then Minister for Home Affairs and Environment, the Honourable Ian Wilson, MP.
A summary of the report by the Department of Aboriginal Affairs was sent to interested parties. State and Territory governments, relevant Aboriginal organisations, interested non-Aboriginal groups and commercial users of Aboriginal folk art were all invited to comment.
The response was slow and uncertain. If the report's existence has now been forgotten by people whose comments could help decide what should be done, this article will serve as a reminder of what the report recommended and why. The report itself is still available from the Department of Arts, Heritage and Environment, and comments are still being received by them.
Robin Bell is an officer of the Attorney-General's Department and a former member of the Australian National Commission for Unesco. He has participated in studies of folklore protection at the international level and was a member of the interdepartmental working party which prepared the 1983 report on the protection of Aboriginal folklore.
The first national seminar on Aboriginal arts, held in Canberra in May 1973, recommended to the Australia Council's newly formed Aboriginal Arts Board that each tribal body should be able to protect its own particular designs and works and control the use of them by non-Aborigines.
As a result, an interdepartmental working party on the protection of Aboriginal folklore was established by the Federal Government in 1975 to consider 'whether existing copyright and design laws adequately protect Aboriginal artists and Aboriginal folklore and, if not, what legislative protection is required'.
The report of the working party was released in 1983 for public comment. It raised unique issues of intellectual property law, mostly concerning copyright.
The working party concluded that Aboriginal folklore is a national resource which should be protected in the interest of both Aborigines and the general public, but which also should be accessible to users. It identified two main areaswhere existing laws are inadequate: the use of traditional materials for commercial purposes without benefit to traditional pwners.
The working party found that possible solutions to these inadequacies raised complex issues beyond the ambit of copyright and design laws. Although these laws can provide a form of protection; they are inherently unsatisfactory because Aboriginal customary law has no distinct right of ownership equivalent to the Anglo - Saxon legal concept of property.
Use of the term 'folklore' recognises that the traditions which underlie the Aboriginal arts are tightly integrated within the totality of Aboriginal culture. Expressions, in a variety of art forms, comprise the folklore traditions built up in a community and evolving continuously.
Aboriginal traditions are sanctioned by reference to the'Dreamtime' - an era peopled by spirits who created the world and established the patterns of Aboriginal society and culture. Transmission of folklore from generation to generation is one guarantee of the authenticity of the Dreamtime and the legitimacy of contemporary Aboriginal society and its relationship to the land. The transmission process requires creative reinterpretation by individual artists. New themes may be received from the Dreamtime by individuals or neighbouring groups and are accorded the same respect as older themes.
Aesthetic motivation is not the sole consideration for an Aboriginal artist since other members of the community have vital interests in the correct transmission of folklore themes. This affects the selections of artists and the contexts of creativity. In Western society, ownership of a work of art can be transferred from one person to another by commercial transaction. In Aboriginal society, differentiated rights over a work of art are commonly distributed between several persons.
Traditional designs, music, drama and dance are intimately connected with Aboriginal religion. Forexample, certain works are regarded either as sacred in themselves or as so closely associated with sacred places that they cannot be shown, nor the themes in them disclosed, except to persons formally initiated to a status recognised in Aboriginal customary law.
Policing use of folklore in Aboriginal society is largely a matter of interpersonal relationships and tradition but the influence of European culture has weakened these traditional controls. Moreover, the effect has not been uniform and those who are more traditionally oriented may be disadvantaged or offended by those more motivated by Western values. Traditional themes may even be lost entirely if items are traded in a market unchecked bytraditionai Aboriginal constraints and if this were to happen. Aboriginal folklore could cease to be recognisable as a distinctive and rich artistic tradition.
There has been widespread commercial exploitation of Aboriginal designs which have been used, for example, on tea towels, wall hangings, postcards and souvenirs.
Generally, the artist's consent is not obtained and royalties are not paid. Some of the motifs reproduced are sacred and both the artist and particular Aboriginal groups may be gravely offended. Similarly, royalties are rarely paid to composers or owners of Aboriginal musical works. In 1983, for example, there were several press reports concerning sales or reproduction of sacred-secret items ordealings with items of special historical or anthropological value. Court actions were successfully used to stop some of these dealings.
A number of important issues were identified by the working party. One was whether Aboriginal folklore should be allowed to evolve as part of a continuing tradition unhampered by external influence. Another concerned the protection of the economic interests of Aborigines in their works.
The relationship between the artist and otherswith customary entitlements was also considered, particularly regarding the desirability of community control over the reproduction of works embodying local traditional themes, and the distribution of proceeds of any sales.
Further questions arose as to the extent of protection: should the works themselves be protected from reproduction or should the aim be to protect only idioms and themes?
A more specific problem concerned works which were sacred and secret under Aboriginal laws: should the aim be to forbid reproduction or disclosure of works where this offended Aboriginal beliefs?
The working party considered protection under existing laws, particularly the Copyright Act 1968. Copyright protection requires no formalities such as registration or deposit and gives the artist or author of a work, fore limited period, exclusive rights over reproduction, publication, performance and broadcasting of the work. Remuneration can be obtained by licensing or assigning these rights to others.
The working party concluded that the Copyright Act does not satisfactorily protect Aboriginal folklore because: it protects the individual artist but this can conflict with the claims of others under Aboriginal law; an individual artist might not even be indentifiable in the case of traditional works; the themes of Aboriginal folklore are often very old but copyright protection is limited in duration; Aboriginal legend, music and dance are not usually reduced to the permanent form which is a normal condition for copyright protection; most Aboriginal artists draw on pre-existing tradition and their works may not satisfy the requirement of originality for copyright porotection; many Aboriginal works of art are of great antiquity and many Aboriginal groups are extinct making the origins of such works difficult or impossible to trace.
Protection under the Designs Act 1906 is even more limited than under the Copyright Act. The duration is shorter, similar difficulties in relation to originality arise, registration is necessary and, in broad terms, protection only covers multiple uses of a work for decoration of useful articles in substantial numbers.
Australia belongs to the Berne Convention, an international copyright convention which sets standards which each member state agrees to observe. The Berne Convention contains a provision allowing member countries to designate a competent authority to represent the authors of works of folklore. The authority can assume full legal ownership or act merely as a royalty collection agency on behalf of the indigenous creative community.
The Copyright Act gives some effect to this convention by granting Australian copyright protection to unpublished anonymous foreign authors provided the law of the country of origin has a similar provision. Unfortunately this procedure can only be used to protectthe folklore of othercountries. Other Berne Convention countries which make similar provision give more protection to Aboriginal folklore than it receives in Australia.
The World Intellectual Property Organisation and Unesco are studying protection of folklore at the national and international levels. Australia has taken an active part In relevant meetings and considerable interest has been expressed in the Australian work on protection of Aboriginal folklore. The two organisations have produced 'model provisions' for the guidance of legislators and are working towards an appropriate international folklore convention.
There have been cases where Australian laws relating to confidential information were invoked to prevent publication of sacred-secret materials. However the utility of such actions is quite limited and they are difficult and uncertain from a legal point of view.
Australina customs (prohibited exports) regulations prohibit the export, without Ministerial approval, of archaeological and anthropological material (including articles of ethnological interest) deriving from or related to Australian Aborigines, or persons of South-east Asian or Pacific origin (other than Europeans) who were resident in, or visitors to, Australia before 1906.
The working party considered whether amendments to the Copyright Act could overcome the difficulties mentioned above and provide a satisfactory basis for protecting Aboriginal folklore. The arts are almost universally protected by some form of copyright legislation, the object of which is to secure an adequate reward to the artist by granting certain rights for a limited period. In return, when copyright expires, the works concerned fall into the public domain. In this way the law represents a balance between the claims of the artist and the needs of society.
However, when one considers the contribution of the individual Aboriginal artist to the body of folklore, it is important to remember that Aboriginal customary law, which gives the artist an entitlement to represent a particular theme, differs markedly from the general body of law recognising copyright.
Non-exclusive rights are a particular feature of Aboriginal law, and are not readily compatible with the exclusive rights of copyright. Therefore, to grant full copyright to an individual artist would be to deny the contribution of continuing living folklore to the particular artistic work and might enable him or her to give or refuse permission for reproduction of a work when he or she could not do so under traditional law.
It also seemed wholly unsatisfactory that copyright protection might be given to a person who merely adapted a traditional work by printing it, for example, on tea towels.
To give such free access to the body of folklore which is traditionally given only to certain Aborigines for certain purposes might abuse the rich heritage and even destroy it.
Where items of folklore are ancient and their origins cannot be traced, often because of the extinction of Aboriginal groups, the issues are clearer. In such cases there are no claims to ownership and use of such items becomes a heritage question not complicated by private rights. Copyright cannot conveniently protect such items from damage while still allowing the community the benefit of proper access.
The working party considered that, where works are sacred and their reproduction would cause grave offence to tribal people, reproduction shold not be permitted outside the customary or traditional context. Copyright cannot provide the degree of protection necessary for this.
The working party concluded that, from the Aboriginal viewpoint, there are important deficiencies in the existing law:
The working party also considered that the protection of Aboriginal folklore would give benefits to the Australian community as a whole in that acceptance by the community of responsibility for the protection of Aboriginal folklore would demonstrate a respect for the customs and tranditions of a significant segment of that community; Aboriginal folklore has considerable anthropological importance; Aboriginal folklore forms part of Australia's national heritage and if not protected will lose its separate identity; promotion of Aboriginal folklore should help general community understanding of the traditions and customs of Aborigines; and Aboriginal folklore is an important element in the promotion of tourism in Australia which benefits the whole community.
The working party concluded that special legislation was desirable and it proposed an administrative scheme (instead of copyright law) which would: protect the integrity of Aboriginal folklore; prevent uses of folklore which offend Aborigines; encourage acceptable uses of Aboriginal folklore; and secure a financial return to Aborigines for commercial use of their folklore.
The working party proposed that it would be an offence to use a sacred-secret item of folklore other than for traditional purposes. It would also be an offence to debase, mutilate or destroy an item of folklore.
The working party recognised that a non-Aboriginal person wishing to use an item of folklore might have difficulty in ascertaining whether his intended use would be an offence. It proposed that the user could, if he wished, seek a clearance from an officer to be known as the'Commissioner for Aboriginal Folklore'. The clearance would not amount to a permission but would protect the user from prosecution. The legislation would protect the right of Aborigines to use folklore in traditional ways.
There would also be special provisions permitting certain limited uses for research or conservation and export of significant items would be regulated.
The working party considered that it would be unjust if traditional owners received no benefit where their folklore was used by others to commercial advantage. Because of the legal impracticability of vesting a property right in traditional owners, the working party proposed that claims be made only through the commissioner for Aboriginal folklore. Intending commercial users of folklore would be obliged to inform the commissioner who would then seek to negotiate a fair payment which he would distribute to any traditional owners. Users would only have to negotiate with the commissioner, not all traditional owners. Failing agreement there would be provision for arbitration as to the amount of payment and for restraining orders preventing the commercial use without such payment.
The commissioner for Aboriginal folklore would in effect as an interface between the Aboriginal people and uses of items of their folklore. The working party proposed that an 'Aboriginal Folklore Board' would also be established to advise the commissioner and the Minister on folklore matters. It would consist entirely of Aboriginal members as geographically and culturally representative of traditional owners and customary users as possible.
The working party also proposed minor amendments to the Copyright Act and the Designs Act which would ensure the continuing freedom of customary users to exercise their customary rights in the use of items of Aboriginal folklore.
There had been press comment from time to time on the protection of Aboriginal folklore and the working party recommended that, if its proposals were accepted in principle, public comment should be invited and consultations be held with the Aboriginal people and with users of folklore.
When the report of the working party on the protection of Aboriginal folklore was released for public comment in January 1983, it was understood that State governments, the National Aboriginal Conference, the Australia Council and its constituent Aboriginal Arts Board, and current users of folklore materials would be invited to express view on the recommendations.
Since then, interest in Aboriginal arts has continued to grow (see Peter Ward's article 'Aboriginal-art: a crucial perspective' in The Australian, 18 September 1984). There is also continuing debate over Aboriginal land rights and protection of sacred sites, which raises issues broadly related to those considered by the working party.
For these reasons it seems likely that debate over protection of Aboriginal folklore will continue for some time as one important facet of the difficult task of reconciling two very different cultural and legal systems-a task which has, in a broader context, exercised the Australian Law Reform Commission since the reference to it in 1977 of questions concerning the application of Aboriginal customary law.
From UNESCO REVIEW, No. 10, 1985, pp 17-19.
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