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John Bulun Bulun & Anor v R & T Textiles Pty Ltd
Federal Court of Australia, Von Doussa J
Unreported
3 September 1998
by Martin Hardie
Early in his judgment, His Honour Justice Von Doussa observed that:
[T]hese proceedings represent another step by Aboriginal people to have communal title in their traditional ritual knowledge, and in particular in their artwork, recognised and protected by the Australian legal system.[1]
For the best part of the last ten years, senior members of the Ganalbingu clan of North-Central Arnhem Land have developed a relationship of legal reciprocity with the Federal Court of Australia by entrusting that Court with an understanding of the importance of their corpus of ritual knowledge. This relationship came about as a result of commercial appropriations of artistic productions embodying Ganalbingu law and custom. In order to protect the integrity of their law, senior members of the Ganalbingu clan have, on a case-by-case basis, introduced the Court progressively to further aspects of their customary law and tradition. The Aboriginal copyright cases represent a jurisprudential dialogue between men of high degree, and may result in the finding of common ground between Aboriginal law and the law administered by the Federal Court.
The T -Shirts case[2] and the Ten Dollar Note case[3] established that traditional Aboriginal artworks constituted 'original' works for the purposes of the Copyright Act 1968 (Cth) and were therefore protected against breach of copyright. In the Carpets case,[4] the Court took Aboriginal law and tradition into account in assessing damages for a breach of copyright. The present case involved notions of 'collective' or communal ownership of the material encoded in the artistic work. Each case involving the Ganalbingu has seen the senior men disclose to the Court deeper insights into the basis of their law and custom.
The copyright infringement for which the applicants sought relief was the reproduction of Bulun Bulun's bark painting Magpie Geese and Waterlilies at the Waterhole as a fabric print in Indonesia imported into Australia.
The first applicant, Bulun Bulun, sought and obtained full relief in respect of the respondent's infringement. The representative action brought by the second applicant sought relief by way of declaration that the Ganalbingu people were the equitable owners of the copyright subsisting in the artistic work created by Bulun Bulun.
Justice Von Doussa summarised the second applicant's claim and its relationship to the claim of the first applicant at page 15 of his judgement:
The statement of claim alleges 'on the reduction to material form of a part of the ritual knowledge of the Ganalbingu people associated with Djulibinyamurr by the creation of the artistic work, the first applicant held the copyright subsisting in the artistic work as a fiduciary and/or alternatively on trust, for the second applicant and the people he represents'. The foundation for this contention is expanded in written submissions made on second applicant's behalf. It is contended that these rights arise because second applicant and those he represents have the power under customary law to regulate and control the production and reproduction of the corpus of ritual knowledge. It is contended that the customs and traditions regulating this use of the corpus of ritual knowledge places Mr Bulun Bulun as the author of the artistic work in the position of a fiduciary, and, moreover, make Mr Bulun Bulun a trustee for the artwork, either pursuant to some form of express trust, or pursuant to a constructive trust in favour of the Ganalbingu people. The right to control the production and reproduction of the corpus of ritual knowledge relating to Djulibinyamurr is said to arise by virtue of the strong ties which continue to exist between the Ganalbingu people and their land.
The bark painting which was the subject of the proceedings is of the site Djilibinyamurr, which is part of a small complex of waterholes within the Arafura Swamp in Central Arnhem Land. Under Ganalbingu law and custom, Bulun Bulun's creator ancestor, Barnda the turtle emerged from Djilibinyamurr and created the Ganalbingu people, their language and all their ceremonies, songs and dances. Barnda created the local landscapes, and gave the land to Bulun Bulun's ancestors on the condition that they continue to perform and maintain, respect and protect these rituals, songs, dances and images. The painting embodies that story.
His Honour first considered whether it was possible, on the facts of this case, for Australian law to recognise collective ownership of artistic works by the Ganalbingu people:
Whilst it is superficially attractive to postulate that the common law should recognise communal title, it would be contrary to established legal principle for the common law to do so. There seems no reason to doubt that customary Aboriginal laws relating to the ownership of artistic works survived the introduction of the common law of England in 1788. The Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of Australia by the Crown. The question however is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community, either through recognition of those laws by the common law, or by their capacity to found equitable rights in rem. [In 1788] the common law of England gave the author of an artistic work property in unpublished compositions which lasted in perpetuity. That property was lost upon publication of the artistic work. Exhibition for sale or sale constituted publication This property interest was separate from the right recognised in equity to restrain a breach of confidence, a right which continues. The common law of England did not protect an author of an artistic work after publication. If the common law had not been amended in the meantime by statute, an interesting question would arise as to whether Aboriginal laws and customs could be incorporated into the common law. However, the common law has since been subsumed by statute. Copyright is now entirely a creature of statute. Section 35(2) of the Copyright Act 1968 (Cth) provides that the author of an artistic work is the owner of the copyright which subsists by virtue of the Act. That provision effectively precludes any notion of group ownership in an artistic work, unless the artistic work is a `work of joint ownership' within the meaning of s10(1) of the Act. In this case no evidence was led to suggest that anyone other than Mr Bulun Bulun was the creative author of the artistic work...
...The law and customs of the Ganalbingu people require that the use of the ritual knowledge and the artistic work be in accordance with the requirements of law and custom, and that the author of the artistic work do whatever is necessary to prevent any misuse. The artist is required to act in relation to the artwork in the interests of the Ganalbingu people to preserve the integrity of their culture, and ritual knowledge.
This is not to say that the artist must act entirely in the interests of the Ganalbingu people. The evidence shows that an artist is entitled to consider and pursue his own interests, for example by selling the artwork, but the artist is not permitted to shed the overriding obligation to act to preserve the integrity of the Ganalbingu culture where action for that purpose is required.[5]
In His Honour's opinion, the nature of the relationship between Mr Bulun Bulun and the Ganalbingu people was a fiduciary one which gave rise to fiduciary obligations owed by Mr Bulun Bulun:
The relationship between Mr Bulun Bulun as the author and legal title holder of the artistic work and the Ganalbingu people is unique. The `transaction' between them out of which fiduciary relationship is said to arise is the use with permission by Mr Bulun Bulun of ritual knowledge of the Ganalbingu people, and the embodiment of that knowledge within the artistic work. That use has been permitted in accordance with the law and customs of the Ganalbingu people...
...Having regard to the evidence of the law and customs of the Ganalbingu people under which Mr Bulun Bulun was permitted to create the artistic work, I consider that equity imposes on him obligations as a fiduciary not to exploit the artistic work in a way that is contrary to the laws and custom of the Ganalbingu people, and, in the event of infringement by a third party, to take reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work.[6]
However, these duties were not, as alleged in the statement of claim, commensurate with those of a trustee, and:
Whilst the nature of the relationship between Mr Bulun Bulun and the Ganalbingu people is such that Mr Bulun Bulun falls under fiduciary obligations to protect the ritual knowledge which he has been permitted to use, the existence of those obligations does not, without more, vest an equitable interest in the ownership of the copyright in the Ganalbingu people. Their primary right, in the event of a breach of obligation by the fiduciary is a right in personam to bring action against the fiduciary to enforce the obligation.[7]
In these circumstances, His Honour held that there was no occasion for the intervention of equity to provide any additional remedy to the beneficiaries of the fiduciary relationship. Furthermore:
[T]he conclusion that in all the circumstances Mr Bulun Bulun owes fiduciary obligations to the Ganalbingu people does not treat the law and custom of the Ganalbingu people as part of the Australian legal system. Rather, it treats the law and custom of the Ganalbingu people as part of the factual matrix which characterises the relationship as one of mutual trust and confidence. It is that relationship which the Australian legal system recognises as giving rise to the fiduciary relationship, and to the obligations which arise out of it.[8]
While he failed to find a relationship implying either an express or constructive trust between the first and second applicants, Justice Von Doussa did take the time to outline the circumstances necessary for the equitable remedies available for breach of trust to become available. He found that
[T]he extent of those remedies would depend on all the circumstances, and in an extreme case could involve the intervention of equity to impose a constructive trust on the legal owner of the copyright in the artistic work in favour of the beneficiaries. By way of example, had Mr Bulun Bulun merely failed to take action to enforce his copyright, an adequate remedy might be extended in equity to the beneficiaries by allowing them to bring action in their own names against the infringer and the copyright owner, claiming against the former, in the first instance, interlocutory relief to restrain the infringement, and against the latter orders necessary to ensure that the copyright owner enforces the copyright. On the other hand, were Mr Bulun Bulun to deny the existence of fiduciary obligations and the interests of the parties asserting them, and refuse to protect the copyright from infringement, then the occasion might exist for equity to impose a remedial constructive trust upon the copyright owner to strengthen the standing of the beneficiaries to bring proceedings to enforce the copyright. This may be necessary if the copyright owner cannot be identified or found and the beneficiaries are unable to join the legal owner of the copyright. It is well recognised that interlocutory injunctive relief can be claimed by a party having an equitable interest in copyright ... if the copyright owner of an artistic work which embodies ritual knowledge of an Aboriginal clan is being used inappropriately, and the copyright owner fails or refuses to take appropriate action to enforce the copyright, the Australian legal system will permit remedial action through the courts by the clan.[9]
While preparing this case note, I received a telephone call from Bulun Bulun from Ramingining to inform me of the death of the second applicant in this case.
This man was the most senior member of the Ganalbingu people, and was also the first named applicant in the Carpets case and the owner of the site Ngalyindi. His death will be deeply felt by his people. His art and his legacy will live on.
Martin Hardie is a barrister, solicitor and consultant who has his own private practice in Darwin.
[1] John Bulun Bulun & Anor v R & T Textiles Pty Ltd ('Bulun Bulun) FCA 3 September 1998 per Von Doussa at 5.
[2] Bulun Bulun & Nejlam, FCA 1998.
[3] Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481.
[4] M & Ors v Indofurn Pty Ltd & Ors [1994] FCA 975; (1994) 54 FCR 240.
[5] Id, above n.1, at 14, 18.
[6] Ibid 18
[7] Ibid 19
[8] Ibid 18
[9] Ibid 20
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/1998/87.html