Stamping out the fakes: new proposals for protecting Australian Indigenous IP
The Australian Productivity Commission recommends a new IP regime and mandatory labelling of inauthentic artwork to protect Indigenous Arts and Craft. This article reviews the Draft Report of the Australian Productivity Commission on Aboriginal and Torres Strait Islander Visual Arts and Crafts
The inability of traditional intellectual property regimes to protect the creative and traditional ownership of indigenous and cultural property has been and continues to be an ongoing social and legal conundrum in Australia. While neighbouring New Zealand has taken powerful strides to protect this property, the issue remains unresolved in Australia and the current statutory regime inadequate to prevent appropriation of the cultural assets of the Aboriginal and Torres Strait Islander peoples.
Against this backdrop, the Productivity Commission has investigated this problem, it has released a draft report on Aboriginal and Torres Strait Islander Visual Arts and Crafts. This report has come after widespread public consultations on the lack of legal and cultural protection offered to Indigenous Cultural and Intellectual Property (ICIP) and the lack of funding and support available to Aboriginal and Torres Strait Islander artists and art centres.
The report describes at length the serious issue of appropriation of Aboriginal arts and cultural products for use on souvenirs and inauthentic cultural products, such as Aboriginal paintings, boomerangs, and didgeridoos, which are often produced outside Australia by non-Indigenous people. As a result, Aboriginal and Torres Strait Islander communities and individuals are deprived of a substantial part of this $250 million industry in Australia.
The draft report recommends strategies to counter the sale of inauthentic Indigenous arts and cultural products, provide wider legal protection and support the underfunded Indigenous arts sector. Members of the public and interested parties can make written submissions to the Productivity Commission addressing the recommendations in the draft report up to 29 August 2022. The final report will be presented to the government in November 2022.
We summarise below the recommendations made in the draft report to counter the issue of appropriation of ICIP.
Australian copyright law, for example, protects the artistic work and the moral rights of only individual artists. There is no protection offered to underlying cultural expression. This means that tangible manifestation of ICIP in visual arts and crafts are only protected if an individual artist is identifiable. This also means that ideas or cultural expression that do not have a physical form are not protected. Often, ICIP belongs to or is identified by a community and not just an individual. Often, ICIP is an underlying idea or method or style of production of artwork. There is no protection under existing copyright laws in such situations.
Similarly Australian trade mark law protects marks such as letters, numbers, words, phrases, sounds, scent, shape, logo, picture, or movement upon registration with IP Australia. Protection through registration is only afforded to trade marks used “in the course of trade”. While it is possible for Aboriginal and Torres Strait Islander communities to register Indigenous words and symbols as trade mark, such trade marks must be used “in the course of trade” and not just for cultural expressions. This means that any use other than “in the course of trade” will not be protected and can be vulnerable to non-use cancellation actions.
Another limitation with trade mark law is that there are no provisions that specifically protect Indigenous marks from becoming registered trade marks. There is no requirement for an application to be rejected on the grounds that it consists of Indigenous elements or for an applicant to consult with and seek prior informed consent of traditional owners or Indigenous communities before filing a trade mark application.
The Trade Marks Act 1955 (Cth) allows opposition to the registration of a trade mark on the ground that it “contains or consists of scandalous matter”. This offers a mechanism to Indigenous communities to oppose the registration of ICIP trade marks on the basis that it contains scandalous matters that is offensive to Indigenous communities. This is merely an incidental protection which places onus on Indigenous communities to monitor and oppose trade marks. It is also upon Indigenous communities to bear the cost of these proceedings.
Other existing laws like the Australian designs law, the common law action of passing off, the Australian consumer law and heritage laws offer further limited protection in selective circumstances. The draft report identifies that ICIP is commonly misappropriated in the production of visual arts and crafts and calls for introduction of dedicated cultural rights legislation which gives Aboriginal and Torres Strait Islanders control over their cultural assets.
It is proposed that the interests and rights of Aboriginal and Torres Strait Islander communities and groups in ICIP will be formally recognised and accrue automatically, without the need for registration. Some inalienable rights akin to moral rights will also be recognised. The new legislation will also allow traditional owners of ICIP to give licenses/authorisations for the artistic innovation and continuous development of traditional arts and craft.
There are pending considerations and further public comments is requested on issues such as the scope of protection under the new legislation; standing to bring cultural rights action under the new legislation; conducts that will be considered an infringement and appropriate remedies for such infringement; and if a statutory cultural authority needs to be established for dispute resolution.
Instead, mandatory labelling of products that are not made by an Aboriginal and Torres Strait Islander artist, or under licence from an Aboriginal and Torres Strait Islander artist is proposed. The aim is to provide consumers with accurate information about the inauthenticity of products which may push the demand for authentic goods.
The draft report discusses the unsuccessful certification trade mark scheme that was launched by the National Indigenous Arts Advocacy Association (NIAAA) in 1999. The scheme included two certification marks that could be used as a label of authenticity on works created by or in collaboration with Aboriginal and Torres Strait Islanders persons. There were also requirements for the creator of the works to be certified as an Indigenous person and pay an annual renewal fee. This scheme was not adopted widely for reasons such as difficulty in proving Aboriginal and Torres Strait Islander status and the perception that the works of artists not participating in the scheme would be considered inauthentic.
It is expected that labelling inauthentic products would have lower compliance costs and the burden of compliance falls on those producing inauthentic goods. The failure to include a label of inauthenticity would enable regulators such as the Australian Competition and Consumer Commission to take action under the Australian Consumer Law.
The Commission has now requested public comment on how this mandatory labelling scheme for inauthentic products would operate in practice and what needs to be kept in mind for its implementation.
The IAC is voluntary, operates as a model for goods practice and supports ethical dealings in the market. The draft report states that making the IAC mandatory is unlikely to solve this problem. It would, in fact, impose administrative burden on artists and industry participants. The draft report also finds that the corporation administering the IAC is underfunded and overstretched.
There are several arts centres and programs facing serious financial and workforce challenges and as a result are struggling to provide appropriate support to Indigenous artists. Some artists and art organisations also face barriers such as limited literacy skills, internet and connectivity issues and difficulties complying with complex application procedures.
These issues could be countered with increased and improved government support. The Australian Government’s National Indigenous Visual Arts Action Plan is providing $25 million additional funding to the sector over the next five years which will include infrastructural and digital upgrades. The Government also funds professional development and training for workers in the visual arts and craft sector. However, this training is limited and often inaccessible by independent creators.
The draft report calls for a need to strengthen the Aboriginal and Torres Strait Islander visual arts and craft sector. The government should evaluate the effectiveness of the funding directed towards the sector in partnership with Aboriginal and Torres Strait Islander people. It is also expected that establishing formal shared decision-making relationships would help communities and governments identify pressing priorities and initiatives that can be taken to support the sector.
Further public comment is requested on issues like barriers and challenges being faced by Aboriginal and Torres Strait Islander people that wish to access training and professional development in the arts sector; what approach should be taken in establishing a formal shared decision-making partnership with the government; and a revaluation of the processes that governments, large corporations and non-government organisations use to purchase Aboriginal and Torres Strait Islander art and design services.
Against this backdrop, the Productivity Commission has investigated this problem, it has released a draft report on Aboriginal and Torres Strait Islander Visual Arts and Crafts. This report has come after widespread public consultations on the lack of legal and cultural protection offered to Indigenous Cultural and Intellectual Property (ICIP) and the lack of funding and support available to Aboriginal and Torres Strait Islander artists and art centres.
The report describes at length the serious issue of appropriation of Aboriginal arts and cultural products for use on souvenirs and inauthentic cultural products, such as Aboriginal paintings, boomerangs, and didgeridoos, which are often produced outside Australia by non-Indigenous people. As a result, Aboriginal and Torres Strait Islander communities and individuals are deprived of a substantial part of this $250 million industry in Australia.
The draft report recommends strategies to counter the sale of inauthentic Indigenous arts and cultural products, provide wider legal protection and support the underfunded Indigenous arts sector. Members of the public and interested parties can make written submissions to the Productivity Commission addressing the recommendations in the draft report up to 29 August 2022. The final report will be presented to the government in November 2022.
We summarise below the recommendations made in the draft report to counter the issue of appropriation of ICIP.
Misappropriation of ICIP – New legislation
Traditional cultural expressions and other forms of ICIP are often used in Aboriginal and Torres Strait Islander visual arts and crafts without permission of traditional custodians of such ICIP. Economic benefit from such use almost never flows back to Aboriginal and Torres Strait Islander people or communities. The draft report recognises that “legal recognition and protection of ICIP is patchy and incidental” as there exists no legal framework that governs its use. This is despite of Aboriginal and Torres Strait Islander ICIP being unique to Australia and forming big part of Australia’s national identity.Australian copyright law, for example, protects the artistic work and the moral rights of only individual artists. There is no protection offered to underlying cultural expression. This means that tangible manifestation of ICIP in visual arts and crafts are only protected if an individual artist is identifiable. This also means that ideas or cultural expression that do not have a physical form are not protected. Often, ICIP belongs to or is identified by a community and not just an individual. Often, ICIP is an underlying idea or method or style of production of artwork. There is no protection under existing copyright laws in such situations.
Similarly Australian trade mark law protects marks such as letters, numbers, words, phrases, sounds, scent, shape, logo, picture, or movement upon registration with IP Australia. Protection through registration is only afforded to trade marks used “in the course of trade”. While it is possible for Aboriginal and Torres Strait Islander communities to register Indigenous words and symbols as trade mark, such trade marks must be used “in the course of trade” and not just for cultural expressions. This means that any use other than “in the course of trade” will not be protected and can be vulnerable to non-use cancellation actions.
Another limitation with trade mark law is that there are no provisions that specifically protect Indigenous marks from becoming registered trade marks. There is no requirement for an application to be rejected on the grounds that it consists of Indigenous elements or for an applicant to consult with and seek prior informed consent of traditional owners or Indigenous communities before filing a trade mark application.
The Trade Marks Act 1955 (Cth) allows opposition to the registration of a trade mark on the ground that it “contains or consists of scandalous matter”. This offers a mechanism to Indigenous communities to oppose the registration of ICIP trade marks on the basis that it contains scandalous matters that is offensive to Indigenous communities. This is merely an incidental protection which places onus on Indigenous communities to monitor and oppose trade marks. It is also upon Indigenous communities to bear the cost of these proceedings.
Other existing laws like the Australian designs law, the common law action of passing off, the Australian consumer law and heritage laws offer further limited protection in selective circumstances. The draft report identifies that ICIP is commonly misappropriated in the production of visual arts and crafts and calls for introduction of dedicated cultural rights legislation which gives Aboriginal and Torres Strait Islanders control over their cultural assets.
It is proposed that the interests and rights of Aboriginal and Torres Strait Islander communities and groups in ICIP will be formally recognised and accrue automatically, without the need for registration. Some inalienable rights akin to moral rights will also be recognised. The new legislation will also allow traditional owners of ICIP to give licenses/authorisations for the artistic innovation and continuous development of traditional arts and craft.
There are pending considerations and further public comments is requested on issues such as the scope of protection under the new legislation; standing to bring cultural rights action under the new legislation; conducts that will be considered an infringement and appropriate remedies for such infringement; and if a statutory cultural authority needs to be established for dispute resolution.
Mandatory label on inauthentic products v label of authenticity on authentic products
The draft report recognises that inauthentic Aboriginal and Torres Strait Islander arts and crafts are pervasive and cause significant cultural and economic harm. A blanket ban on the sale of these products is not a viable solution as it is costly and difficult to monitor.Instead, mandatory labelling of products that are not made by an Aboriginal and Torres Strait Islander artist, or under licence from an Aboriginal and Torres Strait Islander artist is proposed. The aim is to provide consumers with accurate information about the inauthenticity of products which may push the demand for authentic goods.
The draft report discusses the unsuccessful certification trade mark scheme that was launched by the National Indigenous Arts Advocacy Association (NIAAA) in 1999. The scheme included two certification marks that could be used as a label of authenticity on works created by or in collaboration with Aboriginal and Torres Strait Islanders persons. There were also requirements for the creator of the works to be certified as an Indigenous person and pay an annual renewal fee. This scheme was not adopted widely for reasons such as difficulty in proving Aboriginal and Torres Strait Islander status and the perception that the works of artists not participating in the scheme would be considered inauthentic.
It is expected that labelling inauthentic products would have lower compliance costs and the burden of compliance falls on those producing inauthentic goods. The failure to include a label of inauthenticity would enable regulators such as the Australian Competition and Consumer Commission to take action under the Australian Consumer Law.
The Commission has now requested public comment on how this mandatory labelling scheme for inauthentic products would operate in practice and what needs to be kept in mind for its implementation.
Unfair market treatment and struggles obtaining funding
It has been pointed out that many artists successfully navigate complexities of the Aboriginal and Torres Strait Islander visual arts and crafts markets. However, there are some instances where artists are exploited by being underpaid or their work being reproduced without permission. Such instances have become less prevalent over the past 10 years because of government funded support systems such as the Arts Law Centre, the Copyright Agency, and the Indigenous Arts Code (IAC) but they do still exist.The IAC is voluntary, operates as a model for goods practice and supports ethical dealings in the market. The draft report states that making the IAC mandatory is unlikely to solve this problem. It would, in fact, impose administrative burden on artists and industry participants. The draft report also finds that the corporation administering the IAC is underfunded and overstretched.
There are several arts centres and programs facing serious financial and workforce challenges and as a result are struggling to provide appropriate support to Indigenous artists. Some artists and art organisations also face barriers such as limited literacy skills, internet and connectivity issues and difficulties complying with complex application procedures.
These issues could be countered with increased and improved government support. The Australian Government’s National Indigenous Visual Arts Action Plan is providing $25 million additional funding to the sector over the next five years which will include infrastructural and digital upgrades. The Government also funds professional development and training for workers in the visual arts and craft sector. However, this training is limited and often inaccessible by independent creators.
The draft report calls for a need to strengthen the Aboriginal and Torres Strait Islander visual arts and craft sector. The government should evaluate the effectiveness of the funding directed towards the sector in partnership with Aboriginal and Torres Strait Islander people. It is also expected that establishing formal shared decision-making relationships would help communities and governments identify pressing priorities and initiatives that can be taken to support the sector.
Further public comment is requested on issues like barriers and challenges being faced by Aboriginal and Torres Strait Islander people that wish to access training and professional development in the arts sector; what approach should be taken in establishing a formal shared decision-making partnership with the government; and a revaluation of the processes that governments, large corporations and non-government organisations use to purchase Aboriginal and Torres Strait Islander art and design services.
