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Janke, Terri --- "Intellectual property Arts for money's sake" [2000] AltLawJl 69; (2000) 25(4) Alternative Law Journal 189

Intellectual property: Arts for money’s sake

TERRI JANKE[*] reports on a seminar on protecting the cultural rights of Indigenous artists.

On 12 July, a seminar was held in Melbourne on Indigenous intellectual and cultural property rights. Entitled Arts for Money’s Sake, the Seminar was jointly hosted by the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Australian Centre. A range of stakeholders in the Indigenous Arts Industry attended including representatives of the Victorian Koori Community, Indigenous artists, staff from cultural institutions such as the Museum of Victoria and Koori Heritage Trust; academics and art galleries and auction houses. The seminar aimed to discuss the issues and recommendations presented in Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights, a report commissioned by the Australian Institute of Aboriginal and Torres Strait Islander Studies for ATSIC.

Cultural integrity and moral rights

I outlined the recommendations of Our Culture: Our Future and focused on the Moral Rights Amendment Bill. The Our Culture: Our Future Report noted that the introduction of the moral rights may further the interests of Indigenous peoples.[1] Under the Berne Convention for the Protection of Literary and Artistic Works,[2] moral rights are the inalienable personal right of a creator of a work or maker of a film to:

• claim authorship of the work or film (Right of Attribution); and

• object to any distortion, mutilation or other modification of the work which would be prejudicial to the creator’s honour or reputation (Right of Integrity).[3]

Since Our Culture: Our Future was written, the Copyright Amendment (Moral Rights) Bill 1999 has been introduced. The Bill, presented to the House of Representatives on 8 December 1999, proposes to amend the Copyright Act 1968 to provide protection for the moral rights of authors, artists, playwrights, composers, screenwriters, directors and producers. In its current form, the Bill falls short of protecting Indigenous cultural interests in the following areas.

Under the 1999 Bill, the right of attribution will apply to specified acts for each art form area. For artistic works, the creator of an artistic work will be entitled to be attributed each time their artwork is reproduced, published, exhibited or transmitted. The right of attribution lasts for the period of copyright protection. For Indigenous artistic works, a significant issue is whether the clan group is entitled to be attributed as communal owners of the clan designs embodied in an artistic work.

The Bill provides that the right of integrity is infringed if the work or film is subjected to derogatory treatment that is prejudicial to the author’s honour or reputation. Derogatory treatment has been defined for each class of work or art form. For artistic works, the artist may be able to object to the manner or place in which his or her work is exhibited, or where a work is altered in a derogatory manner. The right of integrity would provide redress to many Indigenous artists given that preserving the overall integrity of the work and underlying ritual knowledge is paramount. However, the Bill proposes that the right of integrity will cease on the death of the creator or filmmaker.

Another significant issue with the current Bill is that moral rights will only apply to works and films created after the new laws come into force. This means that existing important cultural works that are currently housed in our nation’s galleries and museums will not be protected.

Greater access to services

The Seminar identified that Indigenous people need greater access to legal services to explore how the legal system protects their Indigenous Cultural and Intellectual Property Rights. Cases like the Carpets cases[4] have proved useful in not only expanding the parameters of existing laws but have also served to raise awareness of the issues in the general public.

Resale royalty

The Seminar supported the establishment of a national resale royalty for all Australian artists and called for a detailed investigation on the implementation of a resale royalty within Australia.[5]

The resale royalty (droit de suite) gives the creator of a work the right to share in the increased value of a work if it is later resold. The scheme would provide economic returns to artists generally but would be of great benefit to Indigenous artists and their communities given the increasing prices paid for the resale of Indigenous art which were acquired at relatively low costs and without proper recognition of the Indigenous artists and their groups.

Some countries have introduced the resale royalty including France, Germany and in the US, the State of California. In France, the artist is entitled to a 3% of the total resale price with a threshold of 100 francs, for sale at public auction or through a dealer.[6] In California, the US California Resale Royalties Act 1977 makes it compulsory to pay 5% of the resale price of fine art, resold over $1000. Resales must have occurred either during the life of the artist or within 20 year after their death.[7] The European Union has also recently debated the feasibility of adopting the resale royalty.

Tim Klingender, Director of Sotheby’s, although supportive in principle of a resale royalty, stated that for such a system to work it must be national as State-based legislation will be encouraging sellers to go to the next State to sell works. In his opinion, a resale royalty will only benefit a few artists because the value of the work has to be sufficiently high to justify the administrative outlay. Furthermore, Klingender noted that the system would have to ensure that the costs of tracking artists, families and clan representatives do not outweigh any benefits. The California laws have dealt with these issues by placing the onus on the seller to locate the artist.[8]

Development of codes of ethics

Professor Marcia Langton advised that many research centres have developed guidelines and ethical principles for Indigenous cultural and intellectual property. She noted that the Centre of Indigenous Natural and Cultural Resource Management (CINCRN) developed a set of research ethics after the release of Our Culture: Our Future.[9] Most of the research projects at CINCRN are collaborative projects between Indigenous and non-Indigenous people. The research ethics have provided a guide, however the effectiveness of ethics rest on the good faith of individual researchers.

Individual vs communal rights

In relation to Indigenous arts, Professor Langton noted that there is a distinction between the individual and creative output of Indigenous people and the communal and cultural knowledge of an Indigenous clan. All creative and intellectual activities that are undertaken by Indigenous people do not necessarily fall in the ambit of traditional knowledge of the kind dealt with in the Bulun Bulun v R & T Textiles.[10]

Native title

Dr Mick Dodson made the point that Indigenous cultural and intellectual property principles rest in the fundamental right of Indigenous people to own and control their knowledge and ideas. Dr Dodson stated that the challenge for the non-Indigenous community is to recognise and respect Indigenous cultural and intellectual property rights. Intellectual property is a legal western concept and is not necessarily appropriate for discussing the rights of indigenous people. Property and notions of ownership issues relate to commercial transactions. He stressed the need to investigate Mabo-style rights as a means of recognising collective rights to traditionally owned intellectual and cultural property. Dr Dodson noted that the deliberations for the Native Title Act should have included Indigenous cultural and intellectual property issues. In his opinion, rights to cultural heritage material is an aspect of Indigenous attachment to land.

Label of authenticity

There was great discussion of the label of authenticity and how it relates to Indigenous artists. The label of authenticity is a labelling system which makes use of a registered certification mark[11] to identify authentic Indigenous products. Keven Francis, Executive Director of the National Indigenous Arts Advocacy Association (NIAAA) noted that to apply and use the label of authenticity, an artist must be an Indigenous person. Also, if the work embodies communally owned designs or stories, the artist must show they have permission or approval to depict these.[12]

A second mark, the collaboration mark is for use with manufactured products made under legitimate licensing agreements. The purpose of the label is to drive out fake products and increase returns to Indigenous artists. The label is a tool by which the customer can make a decision at the point of sale. Deceased artists’ estates cannot apply for use of the label.

One Indigenous commentator at the Seminar expressed concerns that the label was like a dog tag. Others, however, considered that it provided some clarification in the market, particularly the souvenir market. Already NIAAA has received over 300 applications to use the label and approximately 100 artists have been certified for use of the label.

Issues for Indigenous arts practice

The issues for Indigenous arts practice in Victoria included:

• lack of knowledge of the law including contracts and intellectual property laws;

• lack of knowledge concerning Indigenous cultural and intellectual property issues;

• lack of marketing, distribution, knowledge;

• limited negotiating skills;

• development of styles issues vs appropriation;

• maintaining cultural integrity;

• selling at a loss, rip offs and exploitation issues.


A hot topic for discussion was the appropriation of styles and designs. While there is appropriation by Indigenous artists and non-Indigenous artists, there has also been appropriation of Indigenous arts styles, motifs and designs by Indigenous artists who have no claim to these images or the originating country. For instance, the appropriation of styles and schools of artistic work such as the Papunya Dot Style is common by artists not belonging to this group or country. Participants felt that contemporary artistic works should take into account the dynamic nature of Indigenous cultures and that the copying of the more popular Indigenous styles is not appropriate. Indigenous artists need to be encouraged to develop their own styles.

Support for Koori Arts

The Seminar called for greater support and commitment for local Koori artists.

Esmai Manahan from Koori Business Network noted that most galleries in Victoria display Indigenous art from northern Australian and rarely local Koori artwork is on sale. Part of the problem is educating gallery owners about Victorian Indigenous artists.

Paricipants also called for greater support from educational institutions to support artist development and advance artists’ careers. Many participants considered that Koori artists could benefit from having something in place like the Boomalli Co-operative that exists in Sydney.

Greater legal protection

Support was also given for the development of an Indigenous artists’ organisation or network for Victoria which could provide information to Koori artists on legal issues such as contracts and intellectual property laws as well providing guidance on cultural issues such as development of cultural expression and styles. The organisation or network could also assist with industry matters such as marketing and distribution of Indigenous arts.


[*] Terri Janke is a Sydney lawyer.

[1] Janke, Terri, Our Culture: Our Future — Report on Australian Indigenous Cultural and Intellectual Property Rights, The full report is reproduced at <<>>.

[2] The main international convention on copyright administered by the World Intellectual Property Organisation.

[3] Article 6(1) bis Berne Convention.

[4] George Milpurrurru, Banduk Marika, Tim Payunka & the Public Trustee for the Northern Territory v Indofurn Pty Ltd, Brian Alexander Bethune, George Raymond King and Robert James Rylands [1997] 438 FCA.

[5] See Janke, T., Our Culture: Our Future, p.209 for discussion on resale royalty.

[6] As cited by the Australian Copyright Council, Droit de Suite, The Art Resale Royalty and its Implications for Australia, A Report Commissioned by the Australia Council and the Department of the Arts, Sport, the Environment, Tourism and Territories, February 1989.

[7] Civil Code 986 enacted in 1976. See << artistrights.htm>>.

[8] For information on Californian model see << resale.htm>>.

[9] << ethics.html>>.

[10] John Bulun Bulun & Anor v R & T Textiles Pty Ltd [1998] 1082 FCA; [1998] AUIndigLawRpr 39; (1998) 3(4) Australian Indigenous Law Reporter 547.

[11] Section 169(b) Trade Marks Act 1995.

[12] Rule 4.1, National Indigenous Arts Advocacy Association, Label of Authenticity, Certification Rules.

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