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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | Michael Blakeney BA, LLB, LLM., Hons (Syd), MA, Hons (UNSW) |
| Issue: | Volume 2, Number 1 (April 1995) |
The recognition by the High Court in *Mabo & Ors v. State of Queensland*[1]
of the capacity of the common law to recognise traditional
Aboriginal land
law, has precipitated demands for legislation to acknowledge the validity
of other aspects of traditional Aboriginal
law.[2] A matter of increasing to
concern to Aboriginal peoples has been the utilisation of reproductions
traditional Aboriginal
designs as a means of decorating a host of mundane
products primarily developed for the tourist trade such as tea-towels,
pencil
cases, key rings, tee shirts and drink coasters. At the higher end
of the market, the current vogue for folkloric ornamentation has
resulted
in the use of Aboriginal designs on wall hangings, carpets and posters.
Concern had been expressed that the unauthorised reproduction of designs which
are of significance to Aboriginal culture could be
extremely damaging.
Obviously, where the designs reproduced were in the nature of tribal
secrets and for example, not to b e seen
by uninitiated tribe members the
potential damage to be caused by unauthorised reproduction would be self
evident and there would
seem to be no legal obstacle to seeking
redress. As early as 1976, the Supreme
Court of the Northern Territory had in *Foster v.
Mountford*[3] suppressed
the publication of an anthropology text which related matters of deep
religious and cultural significance
to the Pitjantjara People. Muirhead J.
had in that case called in aid the equitable jurisdiction in confidence to
prevent the dissemination
of tribal secrets through this text in the
Northern Territory where uninitiated members of the Pitjantjara might have
been exposed
to it. This equitable jurisdiction could not, however, be
called in aid to prevent the unauthor ised dissemination of Aboriginal
designs already in the public domain. This article examines the extent to
which copyright law may assist in preventing the unauthorised
reproduction
of Aboriginal designs.
This issue was first canvassed by the Federal Court of Australia in *Yumbulul
v. Reserve Bank of Australia.*[4] That case had concerned
the issue by the
Reserve Bank of Australia of a commemorative banknote which reproduced the
design of a Morning Star Pole created
by Terry Yumbulul, an Aboriginal
artist. Evidence was tendered which established that Morning Star Poles
had a central role in Aboriginal
ceremonies commemorating the deaths of
important persons and in inter-clan relationships. The particular pole
created by Mr Yumbulul
was carved from cotton wood and surmounted with a
crown of lorikeet and white cockatoo feathers, representing the rays of
the Morning
Star. Painted on the pole was a yam leaf design representing
the yam spirit man who would climb up the pole carrying the spirit of
a
deceased person to the Morning Star. The Court found the pole to be an
original artistic work of Mr Yumbulul, within the meaning
of the Copyright
Act.[5] Furthermore, the Court found the artist's copyright in the
artefact to have been validly assigned.
This was sufficient to dispose of the artists claim for breach of copyright.
A particular problem thrown up by this pre-*Mabo* case
was that Galpu
Clan, of which Terry Yumbulul was a member, jealously guarded the right of
a person to make a Morning Star Pole Mr
Yumbulul had passed through
various levels of initiation and revelatory ceremonies in which he learnt
the Clan's sacred designs and
their meanings. During the last initiation
rite in which he participated, Mr Yumbulul was presented with sacred obje
cts, conferring
his authority to paint the sacred objects of his people.
Following the depiction of Mr Yumbulul's Morning Star Pole upon the
commemorative
banknote Mr Yumbulul was subject to much criticism by his
people who submitted that the maker of suc h poles had a cultural obligation
to his clan to ensure that a pole was not used or reproduced in any way
which offended against their perceptions of its significance.[6]
Mr
Yumbulul's attempt to set aside the assignment of his copyright in the pole
on th e ground of unconscionability was unsuccessful.
In any event, the
assignee could have relied upon a special statutory defence to a copyright
infringement action. French J., the
trial judge, did acknowledge that it may be the case that
"Australia's copyright law does not provide adequate recognition of
Aboriginal community claims to regulate the reproduction and use of works
which are essentially communal in origin."[7] He concluded
by
suggesting that '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."[8]
This suggestion has been taken up by the Federal Attorney General's Department
which has issued a Discussion Paper which proposes
the creation of a
statutory custodian of Aboriginal folklore[9] along the lines proposed by
UNESCO and WIPO in their Model Pr ovisions
for National Laws on the
Protection of Expressions of Folklore Against Illicit Exploitation and
other Prejudicial Actions. The specific
problem in the *Yumbulul Case* might,
it has been suggested,[10] be dealt with by the importation of the Conti
nental European concept
of 'moral rights' in copyrighted works. Such rights
would render inalienable a creator's entitlement to prevent the adulteration
of the integrity of a work. This principle would be available, for
example, to prevent the use of works in culturally inappropriate
contexts.
The first post-Mabo consideration of the availability of copyright law to assimilate
Aboriginal concerns about the unauthorised reproduction
of Aboriginal
designs was the recent Federal Court decision in *Milpurrurru & Ors v.
Indofurn Pty Ltd & Ors.*[11] This case
concerned the importation into
Australia of a number of carpets woven in Vietnam which incorporated Aboriginal
designs. The applicants
were three living Aboriginal artists and the
Public Trustee claiming on behalf of the estates of five deceased Aboriginal
artists.
Each of the artists in question had works which were either
reproduced in portfolios of Aboriginal art which were produced for the
Australian National Gallery (ANG) or in portfolios published by the Australian
Government Printer for the Australian Information
Service (AIS).
The first four artists were leading exponents of bark paintings illustrating
legends of peoples of Central Arnhem Land. Three artists
painted legends
in the Papunya style from the western desert areas of Central
Australia. The final artist was Ms
Marika, a lino
cut artist who was the first Aboriginal person appointed to
the ANG and also to the Board of the Northern Territory Museum and Art
Gallery.
It was common ground that amongst the carpets which were the subject of the
action seven of the eight artworks were reproduced in
virtually identical
form and colour. The final artwork, it was held, was substantially
reproduced, albeit in a more simplified form.
Evidence was tendered that reproductions of their works were permitted by Aboriginal
artists in prestigious publications like the
ANG portfolio and the AIS
publication, which were designed for the education of members of the white
community about Aboriginal culture.
In each of the ANG and AIS publications
the descriptions of the works made it clear that the subject matter of the
works concerned
stories of spiritual and sacred significance to the
artist. It was additionally submitted that painting techniques and the use
of
totemic and other images and symbols were in many instances and invariably
in the case of important creation stories, strictly controlled
by
Aboriginal law and custom. Since artworks are an important means of recording
these stories, it was pointed out that errors in
reproduction could cause
deep offence. It was explained that the right to create paintings and other
artworks depicting creation
and dreaming stories and to use preexisting
designs and clan totems resided in the traditional custodians of the
stories.[12]
In the event of unauthorised reproduction of a story or design it was pointed
out that under Aboriginal law it was the responsibility
of the traditional
owners to take action to preserve the dreaming and to punish those
responsible for the breach. These p unishments
had included death, but in
more recent times included preclusion from the right to participate in
ceremonies and removal of the right
to reproduce the stories of the clan,
as well as in some cases spearing or ostracism. *Yumbulul* had establi
shed that Aboriginal
customary law on the right to reproduce works and the
concept of communal ownership of works were not matters relevant to the
validity
of an assignment of the copyright in works by their creator.
*Milpurrurru* establishes the principl e that where the unauthorised
reproduction of such works involves a breach of copyright, customary
Aboriginal laws on the subject may be taken into account in
quantifying
the damage which has been suffered.
The way in which this will be done, it is respectfully submitted, is not completely
clear. The trial judge commenced with the established
principle that the
measure of damages in copyright infringement cases is on a conversion
basis for those items not delivered up.[13]
In the typical copyright case
the measure of damages is usually related to the depreciation of the value
of the copyright as a chose
in action.[14] . Where, however this approach
did not provide an appropriate basis for assessing compensation for the
loss suffered,
*Autodesk Australia Pty Ltd v. Cheung*[15] established that
the damages should be treated as being "at large". In the
present
case the Court accepted that there was little evidence of the
likelihood of the applicants suffering a monetary loss from the
infringements
which had occurred. The sort of exploitation which the
artists had envisaged for their works had occurred, namely their use in
portfolios
or posters for educational purposes in connection with the promotion
of Aborigi nal culture. Licensing the use of their artworks
for depiction
on items like carpets was, for obvious reasons not something which the
artists would have countenanced. Therefore the
activities of the respondents
could not be said to have caused a palpable economic loss. On this basis a merely modest award of
damages was made to reflect the deleterious effect of the carpets on the
reputation of the artworks and their loss of "freshness",
to use
the language of *Prior v. Lansdowne Press Pty Ltd.*[16] However, his
Honour noted that in the circumstances of the instant
case the damages
sustained, particularly in the case of the living artists extended beyond
the commercial potential for monetary
return.[17]. He acknowledged that
the infringements had caused personal distress and potentially exposed the
artists to embarrassment
and contempt within their communities, if not to
the risk of diminished earning potential and physical harm.
This analysis applied particularly to Ms Marika whose depiction of the story
of Djanda and the Sacred Waterhole had been reproduced
on one of the carpets.
This story concerned her ancestral creator Djang'Kawu and his two sisters,
the Wagilag sisters at the end
of their journey from Burralku to Yelangbara.
Her right to use this imagery arose as an incident arising out of her
membership of
the Yalgnu Clan, the land owner group in that area. She
explained by affidavit that "as an artist, whilst I may own copyright
under
western law, under Aboriginal law I must not use an image or story in such
a way as to undermine the rights of all the other
Yolngu'. She submitted
that the reproduction of the artwork in circumstances where the dreaming
would be walked on, was totally opposed
to the cultural use of the imagery
in her artwork. She explained that the misuse of her artwork had caused
her great concern and
that if it had come to the attention of her family
she could have been subject to a catalogue of sanctions ranging from being
outcast
to a prohibition against further artistic production. Having found
an infringement in the copyright of Ms Marika's works, the potential
sanctions
to which she may have been subject by her people was a matter to be taken
into ac count in the quantification of her damages.
While enunciating the
qualifying principle that under copyright law damages could only be
awarded to compensate a loss to a copyright
owner, the trial judge
accepted that given the cultural environment of the artists the
infringement of their copyright was likely
to have far reaching
effects.[18] Applying the English case *Williams v. Settle*[19] his honour
noted that "anger and distress
suffered by those around the copyright
owner constitute part of that person's injury and suffering."[20]
Of possibly greater interest was the position of the deceased artists and their
respective communities. The deceased artists, whose
names, in accordance
with Aboriginal custom, could not be spoken at the trial and who for the
purposes of the proceeding were referred
to by their skin names, had for
the most part been unaware of the infringements. For this reason the trial
judge was not prepared
to make any award for personal harm suffered. The
subject of damages for their estates to cover the infringement of communal
rights
was not directly addressed beyond his Honour's incantation of the
fundamental proposition that in the event of an established infringement,
the Copyright Act detailed the available remedies. He explained that "the statutory remedies do not
recognise the infringement
of ownership rights of the kind which reside
under Aboriginal law in the traditional owners of the dreaming stories and
the imagery
such as that used in the artworks of the present
applicants."[21]
However, as an alternative method to permit this sort of recovery, the trial
Judge called in aid s.115(4) of the Copyright Act which
provides for the
additional grant of damages in a case of flagrant infringement. *Williams
v. Settle*[22] had upheld a substantial
award of 'vindictive' damages in a
case where purely commercial compensation would have dictated only a
minimal level of loss. This
case had concerned the sale of photographs by
a wedding photographer of a plaintiff whose father had been murdere d in
notorious
circumstances. The damages awarded were computed to reflect the
flagrancy of the infringement and the
"...total disregard not only of the legal rights of the plaintiff regarding
copyright but of his feelings and his sense of family
dignity and pride.
It was an intrusion into his life, deeper and graver than an intrusion
into a man's property."[23]
In the instant case the respondents had conducted themselves from the very first
in flagrant disregard of the applicants' rights.
Prior to the importation
of the carpets the principal respondent had been informed by a Mr
Horrocks, an office manager of the Aboriginal
Legal Service of Western Australia
Inc that the importation would constitute a copyright infringement and
that advice should be sought
from the Aboriginal Arts Management
Association (AAMA), which had been set up under the auspices of the
Aboriginal Arts Unit of the
Australia Council.[24] For a variety of reasons,
no contact was made by the respondents with the AAMA. That organisation
subsequently
became aware of the activities of the respondents following
its receipt of an inquiry from a New South Wales Aboriginal art dealer
as
to whether the carpets had received copyright approval. Following its own
investigation, the AAMA contacted the respondents, informing
them of their
infringements of copyright and breaches of ss.52 and 53 of the Trade Practices
Act and demanding an immediate cessation
of their activities, delivery up
of the carpets and an account of profits. The consistent posture of the
respondents was to deny
infringement and to impugn the good faith of the
AAMA. The trial judge note d that throughout the directions hearings and
the trial
the respondents continued to maintain that the AAMA was not
serving the best interests of the Aboriginal artists in its conduct of
the
proceedings.[25] The trial judge noted that this allegation was entirely
contrary to the truth and that not only were the AAMA
"acting
strictly in accordance with the wishes of the Aboriginal artists",
but that without the AAMA's support "a
very serious copyright
infringement of major artistic works could have remain ed
unremedied."[26] Additionally, the position
taken by the respondents
in refusing to admit the applicants' ownership of the copyright was
observed by the trial judge to be an
"extraordinary tactical stance."[27]
These tactical positions of the responde nts were relied upon by the
applicants as
matters relevant to the flagrancy of the infringement and to
the assessment of damages required to compensate the cultural and personal
hurt of the artists.
On the question of flagrancy, the trial judge ruled that the copyright infringements
were "plainly deliberate and calculated,"[28]
observing that from
the outset the source of the imagery on the carpets was known and the respondents
had been put on notice of some
copyright concern by Mr Horrocks and later
by the AAMA. Among other factors
mentioned by the trial judge was the fact that the carpet
manufacturing
venture was commenced as a means to curry favour with a potential business
associate in Vietnam " with complete
disregard for the copyright
issues,"[29] and that the carpets were promoted as Aboriginal
artworks with swing labels implying
endorsement or approval of prominent
artists of the carpet venture.[30]
In his computation of damages the trial judge awarded an amount of $1500 per
artwork against each of the respondents under s.115(2)
of the Copyright
Act, reflecting the low quantum of damage attributable to the commercial
depreciation which had been suff ered.
However, to mark the seriousness of
the infringements he awarded an additional sum under s,115(4) of $70,000
to be apportioned in
the amounts of $15,000 to each of the living
applicants to "reflect the harm suffered ...[by them] in their cultural
en vironment."[31]
Each of the estates of the deceased artists received
$5,000, but this was awarded in respect of the other aspects of flagrancy.
*Milpurrurru* represents a step forward from *Yumbulul* in the preparedness
of the Court to grant some recognition to traditional
Aboriginal concerns
in the protection of artistic works against unauthorised use. However, at
the end of the day the Copyright Act
is the controlling text. It requires
creators who are in a position to assert copyright ownership. This was not
a particular problem
in either case, but would be a problem where the
designs reproduced were in the public domain, having been created more
than a life
plus 50 years before the act of infringement. In the case of
ancient Aboriginal designs, some of which date back more than 40,000
years, identifying a copyright creator is impossible. Both *Milpurrurru*
and *Yumbulul* disentitle representatives of the Aboriginal
group of which
an artist is member from either asserting communal ownership or from
claiming in respect of communal harm. Although
the decision in
*Milpurrurru* may have achieved some measure of justice on its own facts,
the decisi on is illustrative of the importance
for comprehensive
legislation *sui generis* legislation to protect expressions of aboriginal
folklore.
NOTES
1. (1992) 175 CLR 1.
2. Eg see F. Brennan, '*Mabo* and
its Implications for Aborigines and Torres Strait Islanders' in M.
Stephenson and S. Ratnapala
(eds) *Mabo: A Judicial Revolution*
(Brisbane:1993), pp.24- 25.
4. [1991] FCA 332; (1991) 21 IPR 481.
5. Ibid., 484.
6. Ibid., 483.
7. Ibid., 490.
8. Ibid., 492.
9. Attorney General's Department,
*Stopping the Ripoffs. Intellectual Property Protection for Aborigine and
Torres Strait Islander
Peoples* (Canberra: 1994).
10. By Tanya Aplin, "Aboriginal Art and Moral Rights Law' in
Bur-ran-gur ANG. *Women and the Law.* Curated by Annette Pederson,
pp.
22-25.
11. Unreported, 13 December 1994,
per von Doussa J.
12. The Court referred to the scholarship on this subject in Ellinson, "Unauthorised
Reproductions of Traditional Aboriginal
Art" (1994) 17 *UNSW Law Jnl*
327.
13. Transcript, p.71.
14. Eg see *Sutherland Publishing
Co. Ltd v. Caxton Publishing Co. Ltd* [1936] 1 Ch. 323 per Lord Wright MR
at 336, cited Transcript, p.74.
16. [1977] VicRp 6; [1977] VR 65, 70.
17. Transcript 76.
18. Ibid., 78.
19. [1960] 1 WLR 1072, 1086-1087.
20. Transcript, p.78.
21. Transcript, p.66.
22. Op cit., n.19.
23. [1960] 1 WLR at 1082, per
Sellers LJ.
24. Transcript, pp.16-17.
25. See Transcript at pp.16-29.
26. Ibid., at 29-30.
27. Ibid., at 29.
28. Ibid., at 80.
29. Ibid., at 82.
30. Ibid., at 83.
31. Ibid., at 86.
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