Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Colin Golvan
Though one could well understand Aboriginal people retreating from the white world in which they find themselves, the opposite is occurring in relation to the willingness of Aboriginal people to share their cultural heritage with the rest of Australia and the world. It is of little value seeking to address Aboriginal artistry in anything other than its cultural and political context - being the expression of association and identity with the land, and values which must be understood and protected, not just by Aboriginal people, but by all of us. There is nothing more foreign to an Aboriginal person than detachment from the land for which he or she is responsible, and it is worth observing that many of the leading painters of Arnhem land are people who have joined in the homeland movement and returned to their traditional lands after having lived elsewhere. This return has served as a key impetus for their artistry.
At a critically important level, Aboriginal painters are telling us how to look after our land. They are not people who trouble over the celebration of themselves. Their work is anonymous, except to the extent that they reveal their tribal origin in their work through, for eg., their rrark or cross-hatching. The lauding of individual Aboriginal painters is very much a western response to Aboriginal art, and a facet of Aboriginal artistry which Aboriginal people I know find quaint.
According to the 1988 report of the Review Committee on The Aboriginal Arts and Crafts Industry (July 1989), retail sales of Aboriginal art in 1988 amounted to $18.5 million, $7 million of which was distributed to the creators of the art (approximately 5000 people), who are otherwise largely dependent on government assistance for their income. Dealers report prices being fetched for Aboriginal artworks up to, and in excess of, $10 000, the most significant patrons being public galleries, although there are major private collectors as well.
The Aboriginal art industry gives work to thousands of people. In addition to the artists themselves, there are the craft centres through which the works are sold. Although generally managed by white advisors, they employ local Aboriginal people, who it is hoped will manage their own art centres in the future. Some Aboriginal communities have set up their own arts-based industries - for eg., the Tiwi community of Bathurst Island has a screen printing industry based on the designs of the Tiwi people.
On a general cultural level, Aboriginal artistry creates a window of recognition between white and black Australia. The works of Aboriginal artists have become our national artistic symbols. Australians who care, share a significant collective pride in the emergence of Aboriginal artistry in the community at large.
Wall paintings at Ubirr Rock in Kakadu National Park attest that Aboriginal people have the longest surviving artistry in the world. There is a lot to be said for a culture that has survived and protected itself and its integrity for tens of thousands of years. And indeed this paper is largely concerned with an examination of how this culture has protected itself, and argues that we would do well to seek to incorporate laws which reflect this mode of protection into areas of the legal system concerned with the protection of Aboriginal art and culture.
Having set the background, I hope you can better understand the concern and outrage felt in Aboriginal circles about the trivializaton of Aboriginal designs in the cheap tourist goods market.
What does the law have to do with Aboriginal painting? A number of cases have been brought to protect the copyright in Aboriginal art, the first being a case instituted by the Aboriginal artist, John Bulun Bulun (from Garmedi outstation in central Arnhem Land), in 1989. Bulun Bulun is among the best known Aboriginal painters in Australia. In 1987, a t-shirt manufacturer reproduced, without permission, one of his paintings on t-shirts. Subsequently, a revised version of the t-shirt design, which drew on another of his paintings, was created - again, no permission was sought. In 1989, Bulun Bulun took the unprecedented step of bringing an action in the Federal Court in Darwin for infringement of copyright and breaches of the Trade Practices Act 1974 (Cth) (Bulun Bulun v Nejlam Pty Ltd, unreported). The manufacturers of the t-shirts and two Darwin tourist shops which sold them gave undertakings to the court agreeing to cease manufacture and sale of the t-shirts and to deliver up all remaining stocks of such.
A series of actions followed involving another fourteen artists who brought similar claims against the same manufacturers, as well as against shops and distributors selling t-shirts bearing reproductions of their artistic works without permission. In an affidavit Bulun Bulun deposed - as to the unauthorized reproduction of his artistic works – as follows:
"This reproduction has caused me great embarrassment and shame and I strongly feel that I have been the victim of the theft of an important right. I have not painted since I learned about the reproduction of my art works and attribute my inactivity as an artist directly to my annoyance and frustration with the actions of the respondents in this matter. My interest in painting has been rekindled by the efforts made on my behalf to resolve this problem, and I am just starting to paint again although I am doing so in anticipation that this problem will be resolved in the near future. If it is not resolved satisfactorily, I have considered never painting again."
Bulun Bulun also deposed that:
"My work is very closely associated with an affinity for the land. This affinity is the essence of my religious beliefs. The unauthorized reproduction of art works is a very sensitive issue in all Aboriginal communities. The impetus for the creation of works remains very important in ceremony, and the creation of art works is an important step in the preservation of important traditional custom. It is an activity which occupies the normal part of the day to day activities of the members of my tribe and represents an important part of the cultural continuity of the tribe. It is also the main source of income for my people, both in my tribe and for the people of many other tribes, and I am very concerned about the financial well being of my family should I decide that I cannot go on painting."
The Bulun Bulun case and the related proceedings never went to trial. The proceedings were settled out of court, with a sum of approximately $150 000 being paid to the artists by way of compensation for damage to them and for their costs. The artists concerned decided they would share equally from this sum, notwithstanding that some of the designs were the subject of more widespread infringement than other designs in the group of cases. It was explained to me that they felt they had suffered equally because each of them had had a design which had been reproduced without permission. The resolution of the cases received a good deal of public attention and I perceived that there was much public support for the proposition that Aboriginal artists ought to be able to protect their designs from unauthorised reproduction.
Nevertheless, the limited resources available to fight the cases was stretched to breaking point. The bringing of the cases was supported by a limited allocation of funding made by the Federal Government and the Australia Council to the North Australian Aboriginal Legal Aid Service. This service is ordinarily engaged in defending Aboriginal people against criminal charges, and has few, if any, resources to pursue non-criminal matters. At the time the actions were proceeding there were a number of murder cases against Aboriginal defendants on foot in Darwin, and the Legal Aid Service was gravely concerned that it could not contribute any financial and human resources whatsoever on the copyright work while there was serious doubt as to its ability to carry out its duties on behalf of Aboriginal defendants facing the most serious criminal charges. Accordingly, the Legal Aid Service decided that it could no longer continue to instruct in the copyright matters and it became necessary to find another 'home' for the cases. At that time, early 1990, in addition to the abovementioned cases, there were a whole series of other claims made against people who had reproduced Aboriginal designs without permission, nearly all of which were resolved by the unauthorized producer making a payment of money which was then distributed to the artists concerned.
During the course of 1990, and partly as a response to the success of the copyright infringement proceedings and the need to provide a workable structure for copyright matters to be pursued, the Aboriginal Arts Unit of the Australia Council established the Aboriginal Arts Management Association Inc., to manage the copyright interests of Aboriginal people. This Association received some funding from the Aboriginal Arts Unit which was used to pursue the various copyright claims which remained on foot. It continues to act as an organisation to which requests for the reproduction of Aboriginal art are referred, and it provides advice and assistance in relation to the use of Aboriginal art. It is based in Sydney and managed by staff with extensive field knowledge of both Aboriginal communities and Aboriginal artists. The resources of the Association to support the bringing of copyright cases are extremely limited, and it is a matter of concern that the wherewithal does not exist within the Aboriginal Legal Aid framework for instructing in cases of this kind. Not only have the cases been important in Aboriginal legal and cultural terms, but they have represented a willingness on the part of Aboriginal people to look to the courts for redress in relation to matters of commercial significance, and an expression of an acceptance that the courts and legal proceedings can be used to commercial effect by Aboriginal people. This development represents a significant turnaround in thinking from notions of the law as an oppressor of black people.
Despite repeated requests on the part of various people with an interest in this matter, the relevant authorities - most particularly ATSIC - have indicated that they are unable to find the resources within the Aboriginal legal aid system to support the bringing of cases in this area by Aboriginal people to protect their cultural heritage and commercial interests.
One of the most significant developments arising from resolution of the t-shirt cases was that examples of unauthorised reproductions of authentic Aboriginal designs on garments, which had been endemic in 1988, ceased to be found in tourist shops. The cases made clear that such reproductions would be answered by copyright proceedings and people clearly did not want to invite that risk. Instead, the cheap end of the tourist market responded to the challenge, as it were, by creating their own versions of Aboriginal art. Most tourist shops today are replete with examples of t-shirts designs which may appear to be works of Aboriginal art, but are in fact caricatures of such - namely, the x-ray koala! One issue which justifiably arises for attention is whether there ought to be protection to prohibit this bastardization of Aboriginal art, and if so, how this protection would work.
In 1989, the Aboriginal artist, Terry Yumbulul, commenced an action complaining about the reproduction of his ceremonial Morning Star Pole' on the plastic 1988 commemorative $10 note. The action was brought against the Reserve Bank of Australia and an agent who negotiated the arrangements, Anthony Wallis, as well as the latter's company, Aboriginal Artists Agency Ltd., (Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481). The Reserve Bank relied on an agreement entered into between the applicant and the agent, whereby permission to reproduce the 'Morning Star Pole' was obtained.
Nevertheless, the Reserve Bank settled the dispute with the applicant by agreement, which involved the payment of a sum of money without admission of liability. The action continued between the applicant and the agent, but was dismissed by French J.
The applicant complained in the proceeding that he had been deceived into signing the agreement permitting the reproduction of his artistic work on the basis of certain representations which he said had been made by the agent. He also claimed that he was induced to sign the agreement and, furthermore, that the agreement was not binding on the grounds that it was entered into by mistake and/or arising from the unconscionable conduct of the agent. French J held that: the agent did not make the representations alleged by the applicant; that there had been no mistake as to the content of the agreement; and that the conduct of the agent was not unconscionable as the applicant had a sufficient understanding of the agreement to be bound by it. This finding is a significant one in legal terms as it sets a standard for the application of principles of unconscionability to tribal Aboriginal people. The decision is also of particular interest as the court indicated that it was concerned that the traditional Aboriginal rights attaching to the reproduction of the art work were not protected under existing law.
French J addressed the matter in relation to the defence sought to be relied upon by the agent, that the reproduction in question was permitted under statute because the provisions in ss.65 and 68 of the Copyright Act 1968 (Cth) permit the reproduction of a sculpture which is on permanent public display. In this case, the artistic work was a pole which was on permanent public display in the Australian Museum in Sydney. The applicant argued that the pole was not a sculpture. Whilst the Judge did not decide the question he said that if the agent's view of ss.65 and 68 was correct, "then it may be the case that some Aboriginal artist laboured under a serious misapprehension as to the effect of public display upon their copyright in certain classes of works. This question and the question of statutory recognition of aboriginal communal interests in the reproduction of sacred objects is a matter for consideration by law reformers and legislators."
While the action was unsuccessful for the Aboriginal artist in question as against the agent, the proceeding may have the beneficial outcome of stimulating debate about appropriate protection for Aboriginal art in the context of addressing the inadequacies which exist in the law as it stands.
The issue of the rights of tribal owners of designs arose in the Yumbulul case because the applicant stated that the right to permit the reproduction of the 'Morning Star Pole' rested with the tribal owners of the rights - being the elders of the Galpu clan in north-east Arnhem land - and not with himself as a creator and copyright owner of the pole. Thus, it was acknowledged by the applicant that the permission to reproduce the 'Morning Star Pole' had to be obtained from the relevant tribal owners. The applicant said that he was not able to give this permission, and that to the extent that the agreement he signed gave such permission, then he had not appreciated that this was the case.
The problem demonstrates a fundamental difference in approach between the ownership of rights in artworks as the notion is understood under the Copyright Act - being founded on the notion of the individual creator of a copyright interest having a property right in such interest - and the notion of the ownership of rights in Aboriginal law - being based on collective rights which are managed on a custodial basis according to Aboriginal tradition. Under Aboriginal law, only certain artists within a tribe are permitted to depict certain designs, with such rights being based on status. The right to depict a design does not mean that the artist may permit the reproduction of a design. This right to reproduce would depend on permission being granted by the tribal owners of the rights in the design.
The tribal owners of a design under Aboriginal law retain the right to permit reproductions of designs which belong to their tribe. Any reproduction rights granted by the artist who created the design are granted pursuant to licence from the tribal owners. The artist would need to consult with and get the permission of the tribal owners of the rights before agreeing to anyone else reproducing a design.
Applying copyright principles to the problem, it may be said that the tribal owners of design have an equitable interest in the copyright in such designs insofar as they, and not the legal owner of copyright per se, have the right to permit or refuse the reproduction of the designs. The tribal owners of rights do not have a legal interest in copyright in the absence of an assignment of copyright from the copyright owner to the tribal owners pursuant to the provisions of s.196 of the Copyright Act, which requires that any assignment be in writing.
There may be an answer to the problem posed by French J in considering the application of notions of equitable ownership of copyright. The courts recognize that an action for an interlocutory injunction to restrain infringement of copyright can be brought by an equitable owner of copyright in his own name - Sweet v Shaw 8 LJ 216, Hodges v Welsh (1880) 2 Ir. Eq. Rep. 266, Sweet v Cater 11 Sim. 572 and Ward Lock & Company v Long (1906)2 Ch 550.
Nevertheless, it is the case that a permanent injunction will not be granted to an equitable owner without joining the legal owner of copyright Performing Rights Society Limited v London Theatre of Varieties Limited [1924] AC 1. It follows from this well established principle that the tribal owners may, under principles of equity, protect their interests in the designs for which they are the custodial owners, and that they may obtain an interlocutory injunction to prevent the improper reproduction of a design without permission. In order to obtain any further relief, it will be necessary for the tribal owners to join the legal owner of copyright, who will in most cases be the artist who created the artistic work in question. It will be appreciated that there is a fundamental dichotomy of interests between the rights of ownership as they stand under Aboriginal law and the rights of ownership under western law.
It follows that in order to try and mesh the interests of Aboriginal communities with rights under non-Aboriginal law, it would be appropriate for tribal owners to be joined along with copyright owners in the bringing of copyright infringement proceedings. This does raise the difficult question of identifying the tribal owners on the basis of their claim of ownership, although these sorts of issues have been previously, and I believe appropriately, addressed in Foster v Mountford (1976) 29 FLR 233 where the Federal Court of Australia respected the rights of custodial owners of tribal secrets to protect those secrets under the principles of breach of confidence. The question of standing to bring proceedings to protect Aboriginal relics was resolved by the High Court in favour of people acting as representatives of their tribes in Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27. It also follows that those engaged in licensing of Aboriginal art ought to have regard to this issue and any licence affecting works which are the subject of tribal rights should be entered into by the copyright owner together with the equitable owners of copyright, being the tribal owners. While this may seem cumbersome, it does more properly reflect the way that things work under Aboriginal law.
The gap in this proposed approach is that there is a need for the equitable owners to join the legal owners in order to obtain any relief, although more often than not one would expect that there would be a sympathetic response as between the equitable owners and the legal owner in the event of any unauthorized reproduction. As an alternative, it is worth considering the legislative enactment path.
One alternative is the creation of a right attaching to a tribe as represented by the relevant tribal custodians, being rights which might sit alongside the individual copyright rights of artists. The parallel might be with claims of ownership of traditional Aboriginal land under, for eg., the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which provides for title in the Crown land, being traditional Aboriginal land, to be granted to Aboriginal Land Trusts.
The relevant procedure may be incorporated into the Aboriginal and Torres Strait Islander Heritage Act 1984 (Cth), which is concerned with the protection of areas, relics, remains, and objects of traditional Aboriginal significance. The Act generally provides for protection to be afforded to sacred sites and objects on application by interested persons to the Minister for Aboriginal Affairs, with the Minister having powers to make declarations to give effect to the protection sought. In 1987, the Act was amended to provide a unique set of provisions expressed to apply to Victorian Aboriginal Cultural Heritage, such amendment being made at the request of the Victorian Government. This amended legislation envisages a special role for what are referred to as 'local Aboriginal communities', which are defined as organisations specified in the Schedule to the Act, being mostly cooperatives and Aboriginal corporations, all of which have legal standing. A local Aboriginal community may inform the Minister that a place or object requires protection by way of Ministerial declaration. If the Minister refuses the application, the local Aboriginal community can apply for the appointment of an arbitrator to review the decision. A local Aboriginal community may also give advice to the Minister on the compulsory acquisition of any Aboriginal cultural property. No civil right of action, as such, is given. 'Aboriginal cultural property' is defined as meaning: 'Aboriginal places, Aboriginal objects and Aboriginal folklore.' 'Aboriginal object' is defined as an object 'of particular significance to Aboriginals in accordance with Aboriginal tradition.' 'Aboriginal folklore' means: 'traditions or oral histories that are or have been part of, or connected with, the cultural life of Aboriginals (including songs, rituals, ceremonies, dances, art, customs and spiritual beliefs) and that are of significance to Aboriginals in accordance with Aboriginal tradition.' This definition could well be extended to deal with the notion of artistic works (as understood in the Copyright Act) as well as designs generally. The minister has a right of compulsory acquisition to protect and preserve Aboriginal cultural property, which upon acquisition vests in the relevant local Aboriginal community. This right applies where cultural property is of an irreplaceable nature and is thus concerned with objects and not designs.
The notion of specified `local Aboriginal communities' in the case of the Victorian part of the Aboriginal and Torres Strait Islander Heritage Act, ought to be extended to the other states and territories. The Act should also be extended to give such corporate entities recognised by law the right to act to protect communal interests in cultural heritage generally, as well as artistic works and designs of traditional Aboriginal significance specifically. I would also like to see a civil right of action vest in the 'local Aboriginal communities' to protect artistic works or designs of traditional Aboriginal significance in a similar fashion to the protection of copyright interests generally under the Copyright Act (but not including the time limitation on copyright protection). Pursuant to this scheme, a recognised local Aboriginal community' could apply for an injunction to restrain the unauthorised reproduction or adaptation of one of its designs, and seek damages arising from such unauthorised reproduction or adaptation. The same principles which apply in relation to the standing of 'local Aboriginal communities' to claim heritage protection under the Aboriginal and Torres Strait Islander Heritage Act, in its present form, could apply in relation to the protection of artistic works or designs of traditional" Aboriginal significance.
I have noted that these changes should exclude the implementation of any time limitation as one finds in copyright law. Accepting this exclusion, the changes as proposed would mean that there is protection available in the case of artistic works or designs of traditional Aboriginal significance which are not protected at all under copyright, because, for eg., the term of copyright (being generally 50 years after the death of the author of a work) may have expired. Thus, cave paintings may be protected at the behest of 'local Aboriginal communities', with such protection extending to include the recognition of prohibitions on the reproduction of important cave art, such- as the Wandjina image of north west Australia. This image has been reproduced on many occasions on garments to the great concern of the tribal owners of the rights in question. The legislative protection suggested would provide an answer to this significant problem. The proposal is also responsive to the difficulty- which is sometimes encountered in trying to track down a copyright owner in order to bring a copyright proceeding. The interests of a tribe can be harmed, with an artistic work or design being unprotected under existing law because a copyright owner cannot be located or has died, with the estate being difficult to follow up. Indeed, tribal interests may be harmed where the copyright owner is uninterested in, an ',unauthorised reproduction for whatever reason.
While there is an approach available under equitable remedies to deal with matters (raised in Yumbulul) concerning the rights of tribal owners of designs, I strongly support the legislative path mooted above. It would focus on the protection of claims of communal ownership in a way which is directly consistent with Aboriginal notions of ownership of rights and would be a step towards developing the regime of rights being created by the Commonwealth to protect Aboriginal culture and heritage, providing an important legislative recognition of the vital connection between land rights, sacred sites, protection of heritage and relics, and artistry. An understanding of this nexus is critical to a full appreciation of Aboriginal art.
As a separate matter, it should be noted that there have been significant developments in recent times concerning the setting up of an authentication mark scheme to promote the identification of original Aboriginal works of art. The view is that an authentication mark (possibly registered under the provisions of Part C of the Trade Marks Register as a certification mark) will assist in the promotion of Aboriginal art generally, and in particular ought to have the effect of distinguishing the legitimate market for Aboriginal art from 'pretend' Aboriginal art. The Federal Minister for Aboriginal Affairs has recently called for the introduction of an authentication mark, and has agreed to support the taking of steps to investigate the feasibility of setting up an authentication mark scheme.
By way of conclusion, while we praise and respect Aboriginal art, there is a lot about it which is not well understood. Without an' understanding by the general community of the needs and requirements of those who create the art, then the show of confidence expressed by Aboriginal people in the world around them through their artistry may come to nothing, and the failure to properly respect rights might lead Aboriginal people to the view, initially formed by Bulun Bulun, that it is not worth the trouble and effort.
Our law generally does not respond well to ephemeral notions of cultural rights or rights of integrity, by contrast with notions of individual or, material rights. And yet the law has a very important role to play in overseeing the protection of the threatened culture of Aboriginal people, as it has done in relation to the protection of sacred sites and the recognition of land claims. It is strongly recommended here that the existing infrastructure of legal rights be extended to provide for protection of communal rights in artistic works or designs of traditional Aboriginal significance and to create civil remedies akin to remedies otherwise only available to copyright owners. Such extension should focus on developing existing protections in the Aboriginal and Torres Strait Islander Heritage Act.
Ultimately, the respect for, and protection of, Aboriginal culture has much to do with a coming to terms with the wisdom of the Aboriginal people, and learning about and incorporating some of their value system which has spawned the oldest continuous culture in the world. We only have ourselves to blame for not comprehending or being willing to comprehend the Aboriginal mastery of their world. In this sense, the need to work to protect the artistry of Aboriginal people is so important because we are dealing with a vital element of the ongoing process of reconciliation and understanding between white and black people through art, and furthermore we are concerned with the expression of the dignity, pride and continuity of the Aboriginal people.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1992/26.html