Despite the breadth of Australia’s laws protecting intellectual property, there is a major fall short in affording substantial intellectual property rights to cultural groups, communities, traditional/indigenous owners, or manifestations of intellectual property that do not fit within the specified categories.
What about painting in dots and spots? What about the bold colours of the land, with white dots to outline and differentiate the patterns and colours? What about sharing painting activities, sharing Aboriginal stories or about copying the images of a culture as captured on rock art or in other tangible forms?
Australia’s copyright and other intellectual property laws do not protect the idea of painting in dots or using hashes, symbols and style that may be directly taken (but not copied) from Aboriginal and Torres Strait Islander (ATSI) art. There is no copyright protection for copying original images because the material being copied is determined to be “outside” the duration of copyright protection and there is no protection available to cultural symbols or the people whose totems they represent.
If an indigenous community paints as an unidentified group there is no copyright protection available unless the group can be named and identified. If an indigenous community tells its oral history and it is not transcribed, there is no copyright protection. If it is transcribed, the laws state that the writer owns the copyright – but of course, it may not be the scribe’s story.
Statutory intellectual property regimes in Australia are designed to encourage and protect the results of individual or joint labour (not necessarily creativity). The legal protection of intellectual property revolves around the intangible personal right to be acknowledged for, and gain commercial advantage for a finite period for ‘products of the human intellect’.
This article briefly canvasses the more relevant opportunities (primarily under Copyright and Design registrations) available to artists and others producing “works” to protect the representations of their traditional knowledge and styles as manifested in tangible works, such as paintings, weavings and stories.
Copyright Act 
Copyright law will protect individual indigenous artists and authors in the same way that it protects all individual artists and authors in Australia.
The appropriateness of the Copyright Act to intellectual property created by indigenous artists is questionable. Johanna Gibson outlines examples of where copyright laws just don’t work to protect indigenous rights.
- Copyright is of limited duration (up to 70 years after the death of the author of the work) after which the works enter the public domain. In contrast, Indigenous interests in traditional culture and artwork are integral to continuing Indigenous cultures and exist in perpetuity.
- Copyright vests ownership in the author as an individual having originated the form of expression, whereas Indigenous cultural identity/knowledge and artwork vests in the community as a whole.
This raises the question of “permission” and what permissions should/must be sought from the local ATSI community in respect of use of communal symbols which are identified with and belong to a broad group of persons. Thus, while the reproduction may ‘originate’ with the individual artist, the ownership and control of the design remains vested in the group according to customary law.
- Copyright law only affords protection of a material form and does not protect the idea, whereas traditional Indigenous cultural interests are captured more broadly in oral histories, dance, body painting, and methodologies.
- Commercial not cultural interests are protected under copyright law.
Not only are there the “Western” issues associated with copyright that need to be addressed but traditional cultures impose their own rules in relation to the appropriation of material.
Amendments to the Copyright Act in 2000 added the right of attribution and integrity. However, such rights still attach only to individual authors, and thus do not alleviate the difficulties in applying Australia’s intellectual property regime to communal indigenous artwork.
The Designs Act 2003 (Cth) also offers limited protection for communal ATSI IP, and has the same problems as the Copyright Act in that it offers only a limited period of protection, afforded only to the registered owner of the design.
Inherent in the Designs Act is the requirement that designs be registered to be afforded protection. As a mechanism this has significant limitations for people in indigenous communities when compared with the Copyright Act where protection is automatic on publication of the work or art; no registration is required.
Competition and Consumer Act 2010 (replacing the Trade Practices Act 1974)
The Competition and Consumer Act mayprovide some protection against false labelling and marketing practices affecting Indigenous cultural and intellectual property. No specific requirements operating in favour of ATSI traditional culture and knowledge are included.
The Indigenous Art Code 
Attempts have been made over the last twenty or so years to fill the void in respect of the lack of regulation applicable in the production and sale of ATSI artworks. The Indigenous Art Code addresses ethical commercialisation rather than intellectual property protection. The Code recommends guidelines to dealers in dealing with ATSI artists and communities.
Notably, participation and membership is voluntary and whilst the Code seeks to protect against “sharp” dealings it does nothing to directly protect traditional knowledge or cultural icons.
How the rules are applied
There are various examples of where claims have been made under the Trade Practices Act 1974 with mixed outcomes.
For example, ACCC v Australian Icon Products Pty Ltd (AIP) and others in which the sellers of souvenirs were prevented from making statements claiming that the souvenirs were made or painted by Aboriginal artists or were “Aboriginal art” when, in fact, they were not. A case like this raises the question of the protection and designation of the origin of artworks. Attempts have been made to introduce labels of authenticity.
The Bulun Bulun v R & T Textiles case dealt specifically with copyright infringement of Mr Bulun Bulun’s painting Magpie Geese and Water Lilies at the Waterhole. The Court held that the textiles (fabric lengths) which reproduced the work infringed the rights of the artist. The additional element to this case was the claim made on behalf of the traditional owners, the Ganalbingu people. Mr Bulun Bulun’s painting used cultural representations of the turtle and the depicted waterhole was where the descendants of the Ganalbingu people came from. The Court did not recognise any of the traditional rights or symbols included in the painting as being capable of being recognised under the Copyright Act. Whilst Mr Bulun Bulun’s claim succeeded, the traditional owners did not.
Why Copyright law doesn’t work
There is no protection currently available under Australia’s intellectual property laws for the stories that are incorporated into the work and which might be extracted and reproduced, albeit not in the same form, elsewhere.
A good illustration of this was in the exhibition “We Don’t Need a Map” as reported by Victoria Laurie which speaks to the link between the artists, the art and their land. In this exhibition, the Martumli Artists are the Martu women who document their history on the land. In respect of one work, which“… included dozens of white-rimmed circles”, the landscape as seen, documented and painted tells the stories of the Martu women and their land. Copyright only protects the artist (in this case several but identified artists) against their work being reproduced.
Australia need to enact much more than a voluntary Code of Conduct in respect of traditional culture is long overdue. The Courts can only do so much to extend the notions of statutory regimes to offer protection which is insufficient and which depends on the facts of a particular case. Australia needs to enact laws which acknowledge, respect and afford legal protection to traditional knowledge.
Jenni Lightowlers is one of FAL’s founding partners and one the World’s 250 Leading Patent and Technology Licensing Lawyers (Intellectual Asset Management).
Jenni has many years of experience dealing with a wide range of legal issues in relation to Australia’s indigenous communities. Over and above her IP expertise, she advises clients on mining projects, the acquisition and sale of projects, and on various joint venture arrangements.
As Jenni is currently undertaking a Bachelor of Indigenous Studies at the University of South Australia , we asked her to give us her views on certain topical issues that affect our indigenous communities. This article is edited from one of Jenni’s essays.
Black’s Law Dictionary.
Copyright Act (C’th) 1968.
Gibson, Johanna “Justice of Precedent, Justness of Equity: Equitable Protection and Remedies for Indigenous Intellectual Property ” (2001) 6(4) Australian Indigenous Law Reporter 1.
Golvan C ‘Tribal ownership of Aboriginal art’ (1992) 3 Arts and Entertainment Law Review 15 at 17.
In 2000 the Commonwealth was criticised for not recognising indigenous communal moral rights and not protecting communities’ traditional knowledge as expressed in cultural works. The Howard Government promised follow-up legislation and circulated a draft Bill for comment, the Bill was never introduced.
National Indigenous Arts Advocacy Association (NIAA) introduced a label of authenticity in 1999 but the system has subsequently failed after 3 years.
Bulun Bulun v R & T Textiles Pty Ltd.(1998) 41 IPR 513.
Laurie, V: “The Mapping of Memories” in Qantas Magazine November 2012 pp62-66.
Ibid p 68