Aboriginal Law Bulletin
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`A few years ago, an old man from my area had a painting of his stolen to be reproduced on tea towels made by non-Aboriginal people. When the old man found out, he was heart broken, and he refused to paint again for more than three years. It wasn't just a simple case of a white person having broken his own copyright laws; he had also stolen a part of that old man's life, his ceremony and his land, and he had broken Aboriginal law as well.' Galarrwuy Yunupingu, 1989[1]
A quick trip down to Sydney's tourist trade mecca, the historic Rocks area, and one is seduced by a vast array of t-shirts, tea towels, boomerangs and clapsticks seemingly bearing the work of our Aboriginal artists and craftspeople. To the novice, the uninformed, the unfamiliar or uneducated, the tourist and the shopaholic, it is more than often impossible to discern the true origin of the product. As the appropriation of the works of Indigenous artists has now become uncontrollably extensive, the establishment of a national labelling system is a fundamental cultural necessity.
Often, trade mark law is used as a means of gaining some protection against `rip-offs' or passing off, through the acquisition of the exclusive use of a name and/or logo. A trade mark is a sign or logo which is used to distinguish the commercial origin of goods and services. Registration gives the owner of the mark exclusive use of the mark for the goods and services for which it is registered. Up until now, due to lack of access to advice and services, Indigenous individuals and communities have not made great use of the facility. Also, a trade mark is traditionally used as a marketing tool rather than a protective mechanism. The United Nations Development Program Report of 1994 notes that a trade mark affirming the authenticity of Indigenous peoples' work would serve a significant purpose if resources could be generated to allow communities to use the trade mark and make it widely known to consumers.[2] The Indigenous people of Australia have been in need of the introduction of a mark or `Label of Authenticity', which could be applied to goods and services which are of genuine Indigenous origin by virtue of their artistic craftsmanship or mode of manufacture.
With the assistance of the Australia Council and the Aboriginal and Torres Strait Islander Commission (ATSIC), the National Indigenous Arts Advocacy Association (NIAAA) has been developing a national system of labelling to identify authentic Indigenous cultural products which are sold to the public. Such a system is seen as a means of giving Indigenous people a marketing advantage in an environment where there is an increasing number of cultural products which are `Indigenous' in appearance, but in fact of non-Indigenous origin. The object of the Authenticity labelling system is to assist consumers in identifying authentic cultural products, and thereby improve the economic benefits flowing to Indigenous people from the commercial use of their cultures.
NIAAA is a national Indigenous arts and cultural service and advocacy association which advocates for the continued and increased recognition and protection of the rights of Indigenous artists. It supports initiatives for change to recognise and to protect all forms of Indigenous artistic and cultural expression. Its `flagship' projects, such as the development of the Label of Authenticity trade mark, are intended to provide Indigenous artists with significant inroads towards the ultimate cultural and legal protection of their works of art. Several years ago, NIAAA recognised that this need had become urgent with the increasing interest in and popularity of Indigenous culture. As a result, NIAAA has been carrying out research in this area, and has conducted widespread consultations with individuals and communities across Australia as to the usefulness of such a mark and as to the meaning of `authenticity'.
This paper examines the background to the development of the Label of Authenticity, and the issues surrounding its ultimate establishment as a national certification trade mark.
Clearly, consumers have become discerning and are demanding more information about the products they buy. People want to know what they are buying and what the product's origins are. Indeed, the existence of the swing tags on the carpets which were the subject of the Aboriginal Carpets Case[3] is indicative of the defendants' awareness of labelling. The swing tags on the carpets falsely and misleadingly represented that the products were of authentic Indigenous origin, and further, that the artists were being properly remunerated for the reproduction of their works onto woollen carpets. These two issues could be dealt with by the introduction of a national certification trade mark, that is, a trade mark which certifies that a product is of a particular standard with respect to its quality.
It should be noted that the protection which such a mark would afford is not to be confused with the inadequacies of the Copyright Act 1968 (Cth) with respect to Indigenous intellectual property,[4] nor is it intended as a means of compensating for those shortcomings. Rather than seeking to prevent copyright infringements, it addresses trade practices as marketing dynamics with a view to deterring passing off, and misleading and deceptive conduct. In other words, the presence of an Authenticity label at trading levels would identify, first, that the origin of the goods and services is authentic, and second, ensure that appropriate and adequate remuneration is channelled to the Indigenous people involved in the creation and/or the reproduction of the designs.
By way of comparison, to protect Inuit art producers as well as consumers, the government of Canada has registered the symbol of the igloo as a trade mark distinguishing original Inuit art from imitations. Products bearing this symbol are certified as handmade by Canadian Inuits. Only legitimate Inuit artists and their marketing agencies are entitled to use the igloo tag. Each agency is identified by a number printed on the label, and labels may be printed only with permission from the Department of Indian Affairs and Northern Development (DIAND)[5]. DIAND established the igloo tag to protect legitimate Inuit art from mass-produced igloos, polar bears and such subject matter made from plastic moulds. The certificate of authenticity that could be attached to Inuit work was thought to be more effective than legislation prohibiting imitations. At the market level, the presence of a certificate is an automatic and definitive indication of the product's authenticity. In contrast, the invoking of legislative protection involves a formal and extremely costly procedure.
It would be difficult, however, to reserve the use of the igloo and polar bear subject matter for Inuit producers alone.[6] Similarly, generic Indigenous Australian artefacts could not be exclusively produced by a particular community or clan. DIAND considers the igloo tag, together with the efforts to promote public awareness,s has been effective in protecting the market for genuine Inuit art. The igloo certificate serves to establish the authenticity of the work, and does not constitute a judgment on the artistic merit of any piece.[7] Naturally, seeking to affix a seemingly objective system of labelling on a product which is derived from an artistic work arguably involves an inherent dichotomy. Therefore, in attempting to arrive at an acceptable definition of authenticity, it is the history or particular Indigenous source of the work's creation which is of relevance, rather than its aesthetic appeal.
In the United States on the other hand, producers of Native American products have been successful in introducing new legislation[8] which requires that any material resembling older American Indian products must state the country of origin on the label. This protects the producer from foreign imitations, but not from fakes produced in the United States.[9] The law states that it is unlawful to offer or display for sale any goods, with or without a government trade mark, in a manner that falsely suggests that they are Indian produced, Indian products, or the product of a particular Indian or Indian tribe or Indian arts or crafts organisation, resident within the United States.[10] A person must be a member of an Indian tribe to be considered an Indian artist or, for those who are not members, must be certified as an Indian artisan by an Indigenous tribe. The Bureau of Indian Affairs maintains a list of federally-recognised tribes, which is published periodically in the Federal Register.[11] Such legislative provisions go far beyond Australian Trade Practices legislation, which do not address the specific cultural structure of Indigenous arts communities in such a direct manner. Under Trade Practices Act 1974 (Cth) provisions for misleading and deceptive conduct,[12] in connection with the supply of goods and services, corporations are prohibited from falsely representing that goods are of a particular standard, quality or past history. Although Indigenous artists may use these provisions to protect their forms of artistic and cultural expression, the process is not readily available to artists in remote communities or those unable to access proper representation.
In terms of the reproduction of Indigenous artforms, the element of `quality' is necessarily related to source or history. The main objectives of the Label of Authenticity as a national certification trade mark, although somewhat commercially oriented, are much determined by this precondition. They are as follows:
The result to date indicates that `authenticity' is a declaration by Indigenous Australian artists of identity with, belonging to, knowledge about, respect for and responsibility towards the works of art they create.[15]
Identity is about upbringing, beliefs, stories, cultural ways of living and thinking and knowing what it is to be Aboriginal or Torres Strait Islander.[16]
Belonging means to be either connected with stories about country or connected with the experiences of history in being in Australia.[17]
Knowledge is about both familiarity gained from actual experience and also having a clear and certain individual perception of expression.[18]
Respect and Responsibility is about having regard for and looking after culture. It is about acting in a way which is sensitive to others and which does not exploit other peoples' identity, knowledge and belonging.[19]
Wells' research and consultation process indicates that `authenticity' should not be confused with what is considered modern or `traditional' or `real' in Indigenous culture, as Indigenous people define and express these norms as part of their culture in a wide range of media.[20] It is then an integral part of the definition that the work of art has been created by an Indigenous person who claims a belonging to a particular story, based on respect for that person's particular culture.[21] An affiliation with a `story' is not to be misconstrued as involving folklore, mythology or fable. Instead, it is part of a cultural regime which embraces social, genetic, religious, gender-based and other considerations which might prescribe the right to tell or represent a story as a means of artistic expression. Although the criteria are intended to be simplistic in their practical application, they are not as unequivocal as those of other certification trade marks. For example, the Woolmark can be affixed to an approved user's product which is made of 100% wool. The material's origin is readily ascertainable and unlikely to be the subject of contention in this regard. In Aboriginal communities the traditional custodians have the collective authority to determine who may use, create, see and reproduce a pre-existing design, style or image. Therefore, the applicable criteria, in being reduced to five elementary but key words relating to source or history, are also inextricably bound to a complex cultural structure.
As the Label of Authenticity is intended to promote and market the origin and authorship of Indigenous cultural products, the labelling system will be a dual one whereby the mark will usually be attached to another label (trading or business name or other trade mark) indicating that product's source and the quality of authenticity.[22] As many suppliers are regionally based, their distinguishing artistic features are defined by their own trading name or label. The goods and services of authentic traders will start to become synonymous with the Label of Authenticity. In practical terms, Indigenous people wanting to sell and market their products and services would apply to the registered owner for permission to use the Authenticity trade mark as an approved user. Indigenous people would have to declare that their products were made by a person or group of people who identified, could claim a belonging to the story, had knowledge of and respect for culture, and took responsibility for what was created.[23] The registered owner may delegate its authority so that the mark could also be attached at a place where the artwork or product is taken before sale, for example an approved community arts centre, local gallery or Land Council. The mark will be usable on reproductions provided that the manufacturers meet the requirements of Authenticity. That is, a legitimate licensing arrangement must exist under which the manufacturing or distributing licensee is authorised or licensed by the original Indigenous creator.
(i) Rules governing use
In accordance with the regulations, rules governing the use of the trade mark must be filed with the Australian Industrial Property Organisation (AIPO). An approved user must use the mark in compliance with the rules. The rules should include:
Questions as to dispute resolution are likely to arise with respect to either the refusal to issue the use of the mark, or a refusal to certify goods and services. The determination of the most appropriate mechanism for resolution is dependant upon clear rules and guidelines as to authentic quality.
(ii) Certification trade marks and the definition of `authenticity'
The Trade Marks Act 1995 (Cth) provides for the registration of certification trade marks.[25] Their sole purpose is to indicate `quality, accuracy, or other characteristics including in the case of goods, origin, material or mode of manufacture'. Of critical importance to the establishment of the mark is reconciling the developed definition of `authenticity' with a certain manifestation of quality given the nature of a certification trade mark. Under the legislation, distinguishing a product by reference to the racial origin or community origin of the artist is not workable.[26] The certifiable quality or other characteristic must be inherent in the product. Accordingly, it is necessary to certify a quality of the goods themselves, for example that they contain an authentic design or story. At this stage, the five key words referred to above as determining `authenticity', seem to be based upon the existence of a particular `story' or history, as these words connote to Indigenous cultures in the ways discussed previously. This characteristic is not specifically provided for or defined in the legislation. Accordingly, the formulated definition of `authenticity' will prescribe eligibility.
(iii) Selection of design/logo
NIAAA is currently working with several Indigenous artists for the development of a design which will be registered as the mark's logo with AIPO. Ideally, such a mark should be simple yet distinctive. Arguably, it should also be decidedly `Indigenous'. This evokes some debate as to the use of a symbol which is generic or has cultural significance. Given the controversies surrounding what is perceived as `Indigenous' and what is not, NIAAA has been advised to opt for a logo which is recognisable in a simple yet distinctively objective manner. Further, a symbol which appears to be generic may be more vulnerable to potential infringements by people wanting to use the figure or design in their works or products.
As mentioned, the labelling system will be a dual one whereby the Label of Authenticity would hang alongside another registered trade mark, trading or business name. By necessity, that trader would have qualified to use the Label of Authenticity after having satisfied the requisite rules and criteria for registration.
(iv) Registration in classes of goods and services
Many forms of cultural expression will be eligible to attract the Label, including original works and reproductions of works (such as a bark paper, weaving, fabric product, boomerang, didgeridoo, shell necklace), artefacts, designs, stories, songs, dances, engravings, and so on. Under the current legislation, a separate application is required for use in each class of goods and services. The registered owner gains the exclusive use of the mark with respect to the classes in which it is registered.
(v) Administration
The registered owner of a certification trade mark does not normally carry on trade in the goods and services of the kind which are the subject of the mark. The owner's administering entity processes applications and registrations for the use of the trade mark by approved users.
As discussed, the authority to issue the mark may also be delegated to local community art centres or Land Councils, as it is considered important that Indigenous communities have the power to issue the mark to their own constituents. Therefore, the application of the mark may be at the point of production (as opposed to sale or distribution), as producers in these cases are likely to be those authorised to apply for the mark locally. In any event, the registered owner and approved certifiers with delegated authority to issue the mark must possess the skill required to assess whether or not the goods and services should qualify to attract the mark.
It is considered essential that extensive education on national and international levels be undertaken, as this will measure the effectiveness of the Label. NIAAA has forwarded the Draft Discussion Paper produced further to the consultations by Kathryn Wells to selected Indigenous arts and cultural industry practitioners for their comments prior to its finalisation and development into an Information Booklet. This is expected to occur over the coming months.
Further, a vital part of the development and implementation is the production of four promotional and educational videos by NIAAA, intended to be disseminated for viewing throughout the broader Australian community. The videos will illustrate all facets of the steps which might be involved, from the creation of a work of art through to the retail sale of a product which incorporates its reproduction. They will demonstrate representations of dealings between artists and agents, agents and manufacturers and distributors, transactions with wholesalers and retailers, associated contractual arrangements, and the process of registering and using the Label as a certification trade mark. The videos will also illustrate the use of existing `good practices' and legitimate ideas about business which Indigenous people across Australia have developed. These practices, together with general business practice and knowledge relating to trade marks, contracts and copyright law, will ideally become integrated. All parties dealing in these transactions will then be able to confidently participate in the use and promotion of the trade mark.
Filming has been done on location in several regional areas and involves artists and arts and cultural centres, communities and professional Indigenous actors. Post-production is dependent upon the gaining of required additional funding.
Thorough education of the broader Australian community and tourist population is considered intrinsic to the Label's potency. If an increasingly significant proportion of authentic suppliers are seen to be affixing the mark to their products, consumers will simply choose accordingly. Extensive education will promote the use of the mark by eligible suppliers, and the Label will be at its most effective when only non-authentic goods lack it.
As funding for this project to date was specifically granted for the purposes of research, development and video production, a considerable amount of additional funding is now required in order to complete the project. NIAAA is hopeful that the previous assistance of the Australia Council and ATSIC will continue so that the project can be implemented as soon as possible.
The Minister for Communications and the Arts, Senator the Honourable Richard Alston, has also expressed particular interest in this project and has acknowledged its importance to the nation's arts and cultural industry. NIAAA has conveyed to Senator Alston the importance of the trade mark in the protection and correct promotion of Indigenous art and culture as being of paramount concern. Further, NIAAA is naturally obliged to provide Indigenous communities with the tangible results of the research and consultation process undertaken over the last 3 years. It is also considered imperative for the Label of Authenticity to fulfil its purpose with respect to merchandising activities surrounding the Year of the Dreaming in 1997, and the Cultural Olympiad thereafter.
The development, implementation and maintenance of a national certification trade mark of this nature, although long overdue, is evidently also coloured by many factors. Apart from funding constraints, matters of a highly complex and subjective kind are also operative, as the above commentary would illustrate. Nevertheless, if the response of potential funding contributors is positive, NIAAA's aim is that the Label of Authenticity be established over the next year. It is thought that the project will constitute a significant step towards greater cultural and legal protection for Indigenous artists, and lead the way to more comprehensive refoems in Indigenous intellectul property.
[1] Galarrwuy Yunupingu, `The Black/White Conflict' in Windows on the Dreaming: Aboriginal Paintings in the Australian National Gallery by Wally Caruana (ed), ANG/Ellsyd Press, Australia, 1989.
[2] `Conserving Indigenous Knowledge--Integrating Two Systems of Innovation', Report by Rural Advancement Foundation International to United Nations Development Program, 1994, p 42.
[3] Milpurrurru and Others v Indofurn Pty Ltd and Others, Federal Court of Australia, December 1994, IPR Vol 30.
[4] `Stopping the Rip-Offs'--Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples Issues Paper, Attorney-General's Legal Practice, October, 1994, p 6.
[5] `The Igloo Tag', Inuit Art World, p 57.
[6] . Ibid.
[7] . Ibid.
[8] Indian Arts and Crafts Act 1990.
[9] `The Igloo Tag', Inuit Art World.
[10] Indian Arts and Crafts Act 1990 Title 1 of PL 101-644.
[11] US Department of the Interior--Indian Arts and Crafts Board, Fact Sheet, May 1991.
[12] Trade Practices Act 1974 (Cth) ss 52-53.
[13] Baker & McKenzie Solicitors, Sydney, preliminary advice to NIAAA, 15 June 1995, based upon Kathryn Wells' `Authenticity--Promotion and Protection of Aboriginal And Torres Strait Islander Art', December 1993 (Paper on Research and Development). Kathryn Wells MA was the research consultant appointed by NIAAA for the Label of Authenticity project.
[14] Wells, op cit.
[15] Kathryn Wells, Draft Discussion Paper on the Proposed Authenticity Trade Mark (Promoting and Marketing ATSIC Culture), October 1996, p 6.
[16] Ibid p 3.
[17] Ibid.
[18] Ibid.
[19] Ibid. p.4.
[20] Ibid. p.2.
[21] Ibid. p.6.
[22] Ibid.
[23] Ibid.
[24] TMO Draft Manual of Practice and Procedure, Part 35, Paragraph 3.4.
[25] Trade Marks Act 1995 (Cth), Part 16, SS168-183.
[26] Baker & McKenzie Solicitors, Sydney, preliminary advice, 15 June 1995 and continuing, which is most gratefully acknowledged by NIAAA.
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