Maddock, Kenneth --- "Copyright and Traditional Designs -- An Aboriginal Dilemma" [1988] AboriginalLawB 49; (1988) 1(34) Aboriginal Law Bulletin 8

• Copyright And Traditional Designs – An Aboriginal Dilemma

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Copyright and Traditional Designs – An Aboriginal Dilemma

by Kenneth Maddock

A comparative look at the complex traditional means of protecting intellectual or cultural property in Aboriginal society which highlights the integral relationship between Aboriginal art, law and social life.

It would be surprising if traditional Aboriginal societies had developed copyright rules resembling those of contemporary Australian law. Yet rights to what we have come to call "intellectual" or "cultural property" are not only present in these societies but have often been worked out in complex ways. The anthropological literature alone is full of information about regulated access to places, ceremonies and knowledge or lore. Through such regulation, which is expressed in terms of sex, moiety, initiatory status and the like, Aborigines are differentiated in their awareness of elements of the local culture and in the use they may make of those elements.

The result is a division of labour and responsibility which can vary according to area. Thus the Australian Law Reform Commission's warning against codifying the customary law is to the point here, too: there would be a danger of imposing uniformity where none exists and of freezing Aboriginal practice at an arbitrary date. Two examples may illustrate the problem.

First, musical instruments of the kind known as bullroarers in English are widespread in Aboriginal Australia. Knowledge is restricted to initiated men in many cases, but they are used in public in some communities. Neither a blanket permission for public use of these instruments nor a blanket prohibition on it would be appropriate on an Australia-wide basis. In addition, there is the difficulty that bullroarers are known in many other parts of the world, there being nothing uniquely Aboriginal about them.

Second, through a bold innovation at Elcho Island (northern Arnhem Land) in the 1950's, a number of carved and painted wooden figures were put on permanent public display. Previously such objects had been shown only to initiated men, who paid for the privilege. But now a collection of them stood in the open, set in concrete, for all to see. The point is that the secrecy of a thing is not intrinsic to it, but is ascribed by human convention, which may be altered by an influential local innovator or nonconformist.

Granting that difficulties lie in the path of codifiers, it is true that within a particular community access may be regulated in ways that could be set out as a code for that community or which, short of codification, could certainly be regarded as part of the locally applicable "living law". I can illustrate the regulation of access by discussing a case which I came across by chance.

One day, while sitting among some men who were getting ready for a ceremony, I noticed an unfinished design being rubbed off a man's body. It was explained to me that doubt had developed as to whether he was entitled to wear that design. Rather than run risks, it was decided to start all over again with a design about which there was no uncertainty. What were the risks? Had the use of the design really been wrong, and had the matter come to the attention of the people who rightfully controlled it, they could have "fined" the wrongdoers (ie required compensation in money or exchange goods such as tobacco). Failure to pay up would possibly result in the ultimate sanction of sorcery.

If we analyze this example in depth, several points spring to attention. First, there is the question of who is entitled to wear a design. In a male-controlled ceremony of the kind under discussion, the answer can be stated as a series of qualifications. The rightful wearer would be (a) a man who (b) has a achieved a suitable degree of initiatory advancement, (c) belongs to a patrilineal moiety, and (d) belongs to a patrilineal clan which is appropriately associated with the design. To explain these qualifications more fully would take us into kinship and mythology, as known to the local community and to other communities with which it is linked.

Second, there is the question of who is entitled to paint a design on another. The wearer is not entitled to apply it to himself, for there is a strict division of labour and responsibility in these matters. Once again the answer can be stated as a series of qualifications. The rightful painter would be (a) a man who (b) has achieved a suitable degree of intitiatory advancement, (c) belongs to the other patrilineal moiety, and (d) stands in an appropriate kinship relation to the wearer and, through him, to places mythologically associated with the wearer's clan.

Third, neither wearer nor painter is self-authorising. The right to wear or paint must have been conveyed to him by someone who already has the right. The exception is when new designs are "created", which normally occurs through spirit communication while the "creator" is in a dream state (or perhaps a state of trance or hallucination). In other words, legitimation is needed, either by transmission via human agency or by inspiration from the spirit world.

Fourth, as will be evident, the painting and wearing of a design does not take place in isolation but is part of a larger event in the form of a ceremonial performance.

Fifth, wearers are expected to pay painters for their services.

A comment on the question of secrecy may be useful. It is often said by Aborigines and others that ceremonies of the kind under discussion are secret, from which it might be concluded that the designs should be kept out of sight. This view rests on a partial misconception. Designs, for example, are publicly displayed after the ceremony is over for the day (or night), for the men go together from their secluded ceremonial ground to an open space where the women, who also have a part to play, are waiting. It would be wrong for a wearer to show himself at an earlier stage, but once he and his fellows have done what has to be done in seclusion, they are free to show themselves off. Indeed, it is expected that they will do so, and the display should really be treated as part of the ceremony.

It is true, of course, that the meaning of the design may be known in its entirety only to men. Moreover, even among them, there are differences in the extent of knowledge owing to the operation of such variables as moiety and degree of initiatory advancement.

These arrangements have been worked out historically in small-scale communities. Secrecy and publicity were processes which governed relationships among people who knew one another, who indeed were kin to one another. All Aboriginal communities are now touched, often to their core, by the outside world, which literally reaches to the ends of the earth. This wider world is overwhelmingly composed of non-Aborigines, many of whom seem to be attracted to designs of the kind which Aborigines paint on their bodies for a ceremony or corroboree or which they paint on objects. It is easy to reproduce them or to improvise from them.

I have no doubt that Aborigines with whom such designs are in use might strenuously object to reproduction (perhaps, also to improvisation) if no agreement had been obtained from the persons who, among themselves, enjoy the controlling rights. After all, they would almost certainly object to unauthorized use within their own Aboriginal community.

Whether their objections would be upheld by a court of law I do not know. It seems to me, however, that we need to distinguish several possibilities where use has or appears to have been made of an Aboriginal design.

Some designs are widespread in Aboriginal communities. It might be hard to show from which one they had been "pirated". These widely known designs are frequently (though not always) of a simple nature, and may well have counterparts outside Australia (compare the bullroarer). With other designs, however, it might be easy to trace the community of origin because of their unusual appearance. Europeans would probably be more likely to accept the "originality" of designs of the latter kind, and therefore more ready to grant them protection.

Aboriginal users of a design would mostly disclaim ultimate authorship. In a great many cases the user has learnt it from someone else, who in turn had been taught it. It would be difficult or impossible to identify the originator - he or she might be long dead. In a minority of instances the design is new, having been communicated to a person by a spirit. The first human user or users could readily be identified. The fact that they might not regard themselves as the true "creators" seems beside the point. European poets and artists will sometimes speak of "inspiration" or "the Muse" or "God-given talent", though in their case the language may be more figurative than literal.

Designs copied from Aboriginal rock art are in a special class, because it is common for rock paintings to be regarded by Aborigines as dating back to the Dreamtime; as for European students of rock art, many would regard the paintings as having great antiquity. Some designs found on rock resemble those which Aborigines paint on their bodies or on objects.

Although individual creativity is not stressed in traditional communities, it would be wrong to jump to the extreme and suppose that designs are subject to a generalized communal right Communities are internally differentiated to quite a high degree, and their members should not be seen as interchangeable units. On any matter, some people are likely to have rights of a certain kind, others rights of another kind, and yet others no rights at all.

It should not be beyond legal wits to devise some form of protection for at least some of the designs used in traditional communities. As in the case of land, however, one needs to ask whether rights are being recognized or created. Ideally the former would be the case, but it can be difficult to achieve in a situation where different bodies of law mingle and conflict. If rights are created rather than recognized, they need to be carefully phrased to ensure that there is more than a tenuous connection between them and the internal realities of the cultural milieu that is meant to benefit by their creation.

In this discussion of "copyright" problems, I have focussed on designs. But much the same could be said of the words and music of a song or the steps and movements of a dance. Nothing in my treatment of the subject is intended to apply to Aborigines who have taken up traditional art forms. If they make pots, write short stories or do watercolour landscapes, they can avail themselves of the same remedies against infringements of their originality as any other potter, writer or water-colourist. If, like some of their non-Aboriginal counterparts, they seek to enrich their art by making use of the traditional Aboriginal heritage, they could end up facing the same problems. I, for one, would want to know whether they transformed what they took (the genuine artist) or merely reproduced it without acknowledgement or authority (the plagiarist or pirate).