Joseph, Samantha; Ayres, Robyn --- "lndigenous art: Current lndigenous arts law issues" [2004] AltLawJl 39; (2004) 29(3) Alternative Law Journal 143

• Indigenous Art
• Indigenous communal moral rights
• Resale rights and the impact on Indigenous communities
• Protocols
• Conclusion

Indigenous Art

Current Indigenous arts law issues SAMANTHA JOSEPH^[#] and ROBYN AYRES^[*] provide a snapshot of recent developments affecting Indigenous artists and their communities.

Over the last ten years various government reports and inquiries have considered the inadequate protection provided by the Australian legal system for Indigenous culture and intellectual property (ICIP).^[1] While recommendations have been made, to date little has been done to introduce effective protections.^[2]

The various reports have recognised the complex relationship between Indigenous community, heritage and the arts. Distinguished Aboriginal artist Banduk Marika made this comment about the relationship between her art and culture,

my rights to use this image arise by virtue of my membership of the land owning ·group. The right to use the image is one of the incidents arising out of land ownership.^[3]

In Our Culture Our Future Janke recommended the introduction of sui generis legislation to protect ICIP.^[4] There is little indication of any government intention to implement such legislation.

However during 2003, the Commonwealth government made several announcements about legislative initiatives aimed at increasing protection for Indigenous arts and cultural. expression. In May 2003 the Government said,Indigenous communities will be able to take legal action to protect against inappropriate, derogatory or culturally insensitive use of copyright material under new legislation proposed by the Govemment.^[5]

In October 2003, the former Arts Minister also announced the government's intention to introduce resale rights.^[6]

Perhaps to compensate for the lack of legislative protections available, some arts agencies have put energy into developing protocols for working with Indigenous people and using Indigenous content.^[7]

Indigenous communal moral rights

Since 2001 individual artists, writers and filmmakers have had moral rights in their work^.[8] During the parliamentary debate, the Democrats sought amendments to recognise Indigenous Communal Moral Rights (ICMR), noting the lack of protection for Indigenous communities whose traditional knowledge may be embodied in a work Following promises by the Government in 2001 to introduce such legislation, an exposure draft Bill was eventually circulated last December setting out the proposed scheme for ICMR. The draft Bill was narrowly circulated and was not made public.

The Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 to a large extent mirrors individual moral rights in the Copyright Act 1968 (Cth), providing

• a right of attribution (right to be identified as being connected to the work);^[9]

• a right of integrity (not to have work subjected to derogatory treatment that harms the honour or reputation of the community);^[10] and

• a right not to have association falsely attributed (right to not be falsely identified as being associated with a work).^[11]

While individual moral rights arise automatically when the work is created, the proposed ICMR will only arise if there is a voluntary agreement between the Community and the creator about the existence of ICMR in the work;^[12] a notice is shown on the work showing the community's association with the work and all people with an interest in the work have consented in writing to the fact that ICMR arise.^[13] These requirements effectively take control away from Indigenous communities over

their ICMR. In addition, where a work already exists and has been subject to a first dealing,^[14] no protection is provided. In effect this means that no ICMR will attach to many Indigenous works already in existence.

The duration of ICMR in a work is for the l1fe of 1ts author plus fifty years. This is also problematic given that Indigenous cultural heritage is thousands of years old. In contrast, 1f the ICMR were tied to the life of the community, rather than the artist, they would exist as long as there were Indigenous custodians of the ICIP.

The government's stated reasons for the introduction of ICMR legislation appear sound, but the devil is in the detail and the proposed scheme fails to deliver the protection promised.

Resale rights and the impact on Indigenous communities

Indigenous artwork is an important feature of the Australian art market and the sales an impressive,^[15] yet many Indigenous communities continue to live in appalling conditions. It has been suggested that one of the benefits of the introduction of resale rights in Australia would be the income stream that would flow to Indigenous artists and their communities. Resale rights^[16] entitle an artist to a percentage of the sale price when their work is resold on the contemporary art market Resale royalties are already law in over 30 countries around the world where they are considered an artist's right In 2001 the European Union (EU) issued a Directive on Resale Rights requiring all EU countries to implement resale royalties by 2006.^[17] In contrast there is no legislation requiring resale royalties to be paid in Australia. The issue has received new flare after the Myer Report recommended their introduction in Australia.^[18] Indigenous art is often first sold for low prices and then re-sold for substantially higher prices. The classic example is the sale of Johnny Warangula Tjapurrula's painting, Water Dreaming at Kalipiny. The painting was originally sold for $150 and later sold at a Sotheby's auction in July 2000 for $486, 500. Had there been a resale royalty scheme 1n place, the artist, and in all probability his community, could have benefited from the sale.

To what extent resale royalties will benefit Indigenous artists and their communities has been the subject of much debate. Resale royalties are paid to the individual artist who may then be able to provide financial support to their community. But not all agree that there will be a flow-on effect. A recent initiative of Lawson Menzies, Australia's oldest auction house, is to donate 2% of sale proceeds from Indigenous art auctions to a trust fund to benefit Indigenous communities. Their rationale is that a back-to-the-artist resale royalty would broaden the gap between the 'haves' and the 'have-nots' in the Indigenous community. As a result an artist will not have control over decisions on how best to use 'royalties' earned by their work. the foundation will make those decisions.^[19]

In March 2004 Labor Senator Kate Lundy introduced a private member's bill providing for a resale rights scheme for all Australian artists. This Bill provides for a 5% royalty being paid to the artist on all acts of resale in Australia. The scheme applies to artistic works created before or after its commencement.

Despite the fact that the former Minister for the Arts stated last year that the government would introduce resale rights, the response of new Arts Minister Darryl Williams, in a recent press release was less than enthusiastic. Concerns included the flat-rate royalty on all sales, its impact on art investors and the likelihood that there will be disproportionate distributions with successful artists benefiting more than the disadvantaged ones.^[20] The concerns appear to reflect those of some art galleries, art dealers and auction houses.

Protocols

Protocols are not legally b1nding, but they establish culturally appropriate ways of using Indigenous cultural material and interacting with Indigenous artists and communities. The development of written protocols is a practical way of putting into place some guidelines to assist people who want to act in a responsible and ethical way. Often Indigenous communities regard adherence to protocols of equal, if not of more, importance then compliance with the non-Indigenous legal system. Protocols are not new^[21] but there has been renewed commitment to the development of protocols possibly because of the lack of legally enforceable protections available to Indigenous artists and communities. Numerous agencies have developed protocols over the last two years including Australia Council,^[22] the NSW M1nistry for the Arts^[23] and the Australian Film Commiss1on.^[24]

The protocols take differing approaches but most contain some basic principles. The following are taken from the Australia Council protocol guides:^[25]

• respect

• Indigenous control

• consultation, communication and consent

• interpretation, integrity and authenticity

• secrecy and confidentiality

• attribution

• proper returns

• continu1ng cultures

The protocols provide a way of putting the principles into action and many of them are illustrated by case studies providing practical assistance.

Conclusion

While the protocols provide a useful interim measure, much of the cultural and intellectual property of Indigenous people remains unprotected by Australian law and the economic benefits often flow to people other than the Indigenous creators and their communities. ICMR legislation has the potential to provide some protection for the traditional knowledge of Indigenous communities but the current draft Bill will not achieve this goal. Meaningful consultation with the Indigenous stakeholders is a key principle in each of the protocols mentioned above and is as applicable in the development of legislat1on which aims to assist Indigenous people as in any other context. It is crucial for all the parties to work together to make these legislative initiatives workable before the proposed schemes become law.

ROBYN AYRES is the Executive Director of the Arts Law Centre of Australia (email: [e-mail])

SAMANTHA JOSEPH is a lawyer at the Arts Law Centre of Australia.

© 2004 Arts Law Centre of Australia

REFERENCES

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^[#] SAMANTHA JOSEPH is a lawyer at the Arts Law Centre of Australia.

^[*] ROBYN AYRES is the Executive Director of the Arts Law Centre of Australia (email: [e-mail])

^[1] Stopping the Rip-Off- Intellectual Property Protection for Aboriginal and Torres Strait Islander People Issues Paper,

Commonwealth Government of Australia (1994) Tem Janke, Our Culture Our Future Report on Australian Indigenous Cultural and Intellectual Property Rights (1998)Michael Frankel & Company, Solic1tors, for the Australian Institute of Abong1nal and Torres Strait Islander Studies (AIATSIS) and the Abong1nal and Torres Stra1t Islander Comm1ss1on (ATSIC) R Myer, Report of the Contemporary Visual Arts and Craft Inquiry (2002) Commonwealth Department of Communications, Information Technology and the Arts, (Myer report)

^[2] See recent WIPO report which examined eight Indigenous case studies on the adequacy of Intellectual property protection of traditional cultural expressions. Tem Janke, Minding Culture Case Studies on Intellectual Property and Traditional Cultural Expressions (2003) World Intellectual Property Organisation (WIPO), Geneva

^[3] Janke (2003) above n 2, 11.

^[4] Janke (1998) above n 1, 194

^[5] Annabel Crabb, 'Aboriginal Culture to Get Greater Protection' The Age, 19 May 2003, reporting announcement by Senator Richard Alston

^[6] Georgina Safe, 'Royalties to be paid on Art Sales', The Australian, 7 October 2003

^[7] Protocols state the most culturally appropriate ways of working with Indigenous cultural material and peoples There are a wide range of protocols available including the Australian Film Commission, Australia Council, NSW Community Cultural Development NSW and NSW Ministry for the Arts

^[8] Copyright Amendment (Moral Rights) Act 2000 (Cth)

^[9] Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003, Division 2, 195AZT

^[10] Above n 9, Division 3, 195AZZA

^[11] Above n 9, Division 5, 195AZZO

^[12] Above n 9, 195AZP defines 'work' to mean 'a literary work. a dramatic work, a musical work, an artistic work or a cinematographic film' Sound recordings are excluded

^[13] Above n 9, Subdivision 3, 195AZZN

^[14] Above n 9 Subdivision B 195AZY (4) states an interest is dealt with if it vests, it is transferred or granted or an agreement is made to transfer or grant it. No right arises if the first dealing occurs at the same t1me

the work is made

^[15] For example, Sotheby's sold $7 9 million worth of Indigenous art at its auction on July 2003

^[16] Resale rights are commonly referred to as resale royalties and we use the term interchangeably in this article. Arts law prefers the term resale rights as it more accurately reflects the nature of the right

^[17] European Parliament and the Council of the European Union, Article 2

^[18] Myer Report above n 1, 167

^[19] Georgina Safe, Arts Sales to Fund Indigenous Charity, The Australian 13 February 2004

^[20] Hon Darryl Williams M1n1ster for Communications lnformation Technology and the Arts, Press Release, 12 March 2004

^[21] Lester Bostock, The Greater Perspective protocol and Guidelines for the Production of Film and Television on Aboriginal and Torres Strait Islander Communities, SBS (1st ed 1990, 2nd ed 1997)

^[22] Janke, Tem, Visual Cultures, New Media Culture, Writing Culture Aboriginal and Torres Strait Islander Arts Board, Australia Council for the Arts, Cth of Australia 2002, Quiggin, Robynne, Song Cultures, Performing Cultures, Aboriginal and Torres Strait Islander Arts Board, Australia Council for the Arts, Cth of Australia 2002

^[23] Janke, Tem and Company and the Indigenous Arts Reference Group of the NSW Ministry for the Arts, Doing It Our Way Contemporary Indigenous Cultural Expression in NSW and Valuing Arts, Respecting Culture (2002) Sydney NSW, 2002 <www.nsw.arts.gov.au/pubs>

^[24] AFC protocols currently being developed. See also Hurley, Angelina, Respect, Acknowledge, Listen Practical protocols for working with Indigenous Community of Western Sydney (2003) Commun1ty Cultural Development NSW,<www.ccdnsw.org> at 10 June 2004, ABC Message Stick Cultural Protocols for Indigenous Reporting in the Media <abc.net.au/message/proper> at 10 June 2004.

^[25] T Janke above n 20.