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Over the past twenty years, and the last ten especially, much has been written about the protection of Australian Aboriginal "folklore", or materials based on traditional indigenous Australian culture. This has been parallel to a similar interest in indigenous cultures overseas. (See Davis 1997 for a useful overview). In Australia this interest has been associated with an increased use of the courts by Aboriginal artists to enforce their rights under the Copyright Act 1968 (Cth); Mulpurrurru v Indofurn being an example we will return to below.
Concerns continue to be raised, however, that the tools provided by the Australian intellectual property law are inadequate to protect Aboriginal interests. These interests have been distinguished by McKeogh and Stewart (1997a 53) as in the first place financial and in the second (more intangible) place to "preserve spiritual and cultural integrity." As the following discussion will tend to show, the first objective can in principle can be achieved through existing (or only slightly modified) intellectual property law. The second objective, however, would appear to be beyond the scope of this type of law. As McKeogh and Stewart (1997b 126) note elsewhere, Australian copyright is essentially a commercial right, and the projected grafting upon it of some degree of authors 'moral right'is not expected to fundamentally alter that. Many authors (for example Davis 1997 26) end by supporting some kind of sui generis legislation to protect Aboriginal culture, a position which in my view should be rejected.
This subject raises broad and disturbing issues which I cannot do justice do within the confines of this discussion, so I will in the main avoid them. It would be unreal however to discuss Aboriginal intellectual property issues without some mention of the wider context in which they occur. Here I don't mean so much the well-known economic deprivation and political marginalisation of the Aboriginal people, although obviously that is a vital part of the background. Nor even the clear connection with the struggle for 'cultural and spiritual integrity' with the broader movement for land rights and the like (see Puri 1995 for a discussion from this point of view). Rather I ask that the discussion proceed with awareness of the subtle forms that exploitation can take. Gray (1996) criticises the law's focus on 'traditional' Aboriginal art, a category which he argues is, in an important sense, a construct of non-Aboriginal law. McKeogh and Stewart (1997a) refer to urban and other 'non-traditional' Aborigines only as potential poachers of Aboriginal culture, although to be sure they do imply that these poachers are relatively benign. They also quote with apparent approval the following remarks from a 1984 Department of Aboriginal Affairs report on "The Aboriginal Arts and Crafts Industry":
"There is clear evidence in remote communities that only where there is access to adequate markets will significant production of art and craft be maintained. In these areas, market participation assists in the reproduction of culture. These are also the regions, of course, where distinctly Aboriginal religious systems are maintained."
In what ways, exactly, "market participation assists in the reproduction of culture" is a question worth keeping in mind as we proceed to look at the Aboriginal copyright cases considered below.
In the case Mulpurrurru v Indofurn Pty Ltd (1995) AIPC 91-116, Aboriginal artists successfully asserted ownership of traditionally based artwork which had been appropriated by a carpet company. Damages included an award for 'cultural hurt' . Von Doussa J made a point of awarding damages to the group of artists, rather than to individuals, so that the money could be distributed according to the plaintiffs' appreciation of the relevant Aboriginal law. Although recognising copyright as an individual right which does not directly protect against the "pirating of cultural heritage", von Doussa J (at 39,082) nevertheless found that he was able to take the 'cultural environment' of the artists into account in setting damages. Apart from these demonstrations of sensitivity the case was essentially a straightforward assertion of copyright (and of rights to relief under the Trade Practices Act 1974) and what is mostly remarkable about is that it has been found worthy of remark. (This case has been discussed in numbers of places; McKeogh and Stewart (1997a) will be sufficient as an example.) It is sobering to note that the first such action, for copyright in traditionally-based Aboriginal art work was brought in 1989 by Johnny Bulun Bulun who successfully prevented the sale and manufacture of t-shirts utilizing unauthorised reproductions of his works. (Bulun Bulun v Nejlam Pty Ltd 1989, this case is unreported but discussed in Golvan 1992) 14 similar actions followed closely on Mr Bulun Bulun's success.
Golvan's (1992) discussion of this case sheds light on the factors that prevented such action from being taken earlier. It had to be funded through the North Australian Legal Aid Service (with 'limited' help from the Australia Council and the Federal Government for this particular case). The Legal Aid Service was more than fully stretched already doing its primary job of defending Aborigines against criminal charges; including at that time two murder charges. The problem in short was not the lack of legal rights but the lack of economic resources to enforce those rights-perhaps also (but here I am only speculating) a lack of confidence in the legal system.
In an affidavit (as quoted by Golvan 1992) Mr Bulun Bulun made some interesting comments; that he had ceased to paint as a result of the copyright infringement, and if he lost the action he expected not to paint again. This would be a problem as he and his family depended in large measure on their income from artistic work. But Mr Bulun Bulun made it clear that the traditional and ceremonial aspect of his work was such that that he was prepared to forgo that income if it was the only way to prevent cultural abuse. This is of course the statement of only one man, and moreover a statement made to influence a lawsuit. But it does articulate some of the basic overlapping issues underlying this discussion. Before returning to look at those issues I will one more specific copyright case, that of Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481.
In this case Terry Yumbulul took action against the Reserve bank (who settled) and the Aboriginal Artists Agency Ltd, which, as its name implies, had handled copyright negotiations in his work. The work in question was a "Morning Star Pole", an object with ritual significance, that Mr Yumbulul had sold to the Australian Museum for $500, continuing however to hold reproduction rights. The Aboriginal Artists Agency obtained a licence from Mr Yumbulul to authorize reproductions and collect copyright fees, and indeed authorized the use of a picture of the Morning Star Pole on a ten dollar note commemorating the Bicentennial. Mr Yumbulul got into trouble with his own community over this use of the Pole, hence his legal action alleging that the copyright licence he'd signed was invalid on various grounds. The basic reason that this use of the a Pole was found offensive appears to be the simple fact of its reproduction by unauthorized hands (at 483), although I do imagine its particular use was an aggravating factor. Mr Yumbulul lost his case, but it must be noted that he lost it because he had in fact signed over copyright, and was unable to convince the court of any reason in law to void this contract. There was an undecided question remaining as to whether the Pole was exempt from copyright in any case, under the provisions of ss 65 and 68 of the Copyright Act 1968 (Cth), because of its status as a work of 'artistic craftsmanship' on permanent public display. So far as I can tell the respondents have the best of this particular argument; but if so it seems that the Act could be amended without much difficulty.
If sacred material is going to be made available on the market for purchase by people who do not share the beliefs that validate its sacred character then it seems probable that there will be a constant risk of insensitive use, or outright abuse. This risk could be addressed to some extent by changes to the law of copyright. The account of Aboriginal law repeated in French J's judgment (at 482-3) amounts to a claim regarding works produced as an expression of Aboriginal sacred, and secret, tradition. The claim is in effect that moral rights in such works should remain perpetually with the recognised custodians of that tradition. This need not involve a copyright in the idea; the idea is by hypothesis secret. While the exact scope of the moral rights involved would have to be clarified their general character is clear enough.
I am not so much advocating this proposal as noting that the claims of Aboriginal law as expressed in Yumbulul v Reserve Bank can be translated without difficulty into terms familiar to 'Western' intellectual property law. The protection of Aboriginal work possible under this proposal would be fairly limited in that it would only apply to work that was in fact produced by artists privy to secret material, and that was based on that material. Precisely because of this limitation, though, this proposal may not be found to be a significant burden on freedom of expression even if not restricted to Aboriginal material. (Such a restriction might be thought undesirable, both in itself and to avoid conceivable problems with s116 of the Australian Constitutuion.) Its main disadvantage would be the danger of indecorous and divisive litigation about who should be recognised as the custodian of a particular tradition and the like. Other (less limited) proposals have been made rather along the same lines as this; Golvan (1992) suggested that Aboriginal communities should have an equitable (and perpetual) interest in the copyright of traditionally-based designs, and the applicability of moral rights concepts to this matter has also been discussed elsewhere (eg McKeogh and Stewart 1997a 68, and references found there). All these proposals are in part directed to avoiding the limited duration of copyright protection as currently provided for under s33 of the Australian Act,p>
One of the arguments that Muirhead J accepted in reaching his decision was that publication of secret material would undermine the social stability of the Pitjantatjara, in effect that it would disturb their power relations. The difficulty I see here is that one would not like to see the protection of existing social systems become a general legal ground for concealing information. This concern may not be as fanciful as it perhaps appears. Its interesting to note for example that de Zwart (1996) uses Milpurrurru v Indofurn as a stalking horse in her defence of copyright in software in the context of the Internet. Measures taken to protect Aboriginal culture may have unintended ramifications. This should be borne in mind when considering another possibility that has been mooted; the development of the common law offence of blasphemous libel to protect Aboriginal religion. This possibility is discussed a by Miller (1995), who makes a good argument based on English cases that such a development is possible. He finds Lord Scarman's comments in R v Lemon 1979 All ER to be especially helpful. R v Lemon is the once famous, or notorious, private criminal prosecution of the magazine Gay News. The prosecution was successful. Lord Diplock in his dissenting judgment in that case remarked (at ) that the offence of blasphemy had a sometimes "inglorious" history, and with that remark I can only respectfully agree.
As Golvan (1992 ) notes; the immediate consequence of the success of Johnny Bulan Bulan's case was that the unauthorized reproduction of genuine Aboriginal art works was replaced with phony ones. "One issue which justifiably arises for attention" as he puts it is whether such 'bastardization' (or, to use a neutral term, pastiche) of traditional Aboriginal work should be prohibited. Of course, there are remedies available when it is falsely claimed that work is produced by Aborigines, or constitutes Aboriginal folklore, or that its publication has been authorized by its creators. These matters can be dealt with under ss52 and 53 of the Trade Practices Act 1974 (Cth) and in fact this was one of the successful grounds of action in Mulpurrurru v Indofurn.
Another form of protection that has been suggested is an Aboriginal trade mark, as advocated by for example O'Brien (1997 75) ,and where authenticity is the commodity for sale then this seems to me a promising form of protection. O'Brien also advocates that Australia should imitate United States legislation , the Indian Arts and Crafts Act , which makes falsely passing off work as of 'Native' provenance a criminal offence. The UNESCO/WIPO "Model laws" for the protection of folklore are of much the same general effect (UNESCO 1982); and several writers have made similar recommendations. If false attribution is the intended target then I doubt that such a law would much extend protection that already exists under the Trade Practices Act.
Proposals, such as those of Golvan (1992), to go further and outlaw pastiche should not be lightly supported. Ian McDonald (1997 ) came back form a world congress on the protection of folklore with some pertinent observations on the possibility of such provisions being used against indigenous people. This should be considered even if one does not find offensive the notion that certain artistic styles are the property of certain races (or cultures), or that Aboriginal artists have nothing to sell but their authenticity.
Davis,M 1997 "Indigenous Peoples and Intellectual Property Rights" Department of the Parliamentary Library Research Paper 20 (http://www.aph.gov.au/dpl/pubs/rp/1996-1997/97rp20.htm#INTELL)
de Zwert, M 1996 "Copyright in Cyberspace: is copyright dancing on its own grave and singing halellujah?" 21(6) Alternative Law Journal 266
Golvin,C !992 "Aboriginal Art and the Protection of Indigenous Cultural Rights" Aboriginal Law Bulletin June,56(2)
Gray,S 1996 "Squatting in Red Dust: Non-Aboriginal Law's Construction of the 'Traditional' Aboriginal Artist" 14 (2) Law in Context 29
McDonald, I 1997 "UNESCO/ WIPO World Folklore Forum: Some Reactions and Reflections" 15(3) Copyright Reporter, 128
McKeogh,J and Stewart,A 1997a "Intellectual Property and the Dreaming" in Hinton,M Johnson,E and Rigney,D (eds) Indigenous Australians and the Law ,Cavendish ,Sydney
McKeogh,J and Stewart,A 1997b Intellectual Property in Australia Butterworths, Sydney
Miller,D 1995 "Collective Ownership of Copyright in Spiritually Sensitive Works: Milpurrurru v Indofurn Pty Ltd" 6 Australian Intellectual Property Journal 185
O'Brien ,C 1997 'Protecting Secret-Sacred Designs- Indigenous Culture and Intellectual Property" 2 (2) Media and Arts Law Review 57
Puri, K 1993 "Copyright Protection for Aborigines" in Stephen,M.A. and Ratnapala,S (eds) Mabo: A Judicial Revolution University of Queensland Press
UNESC0/WIPO 1982 " [Report of the] Committee of Government Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore " Copyright , October
Foster v Mountford (1976) 29 FLR 233
Milpurrurru v Indofurn(1995) AIPC 91-116
R v Lemon [1979] 1 All ER 898
Yumbulul v Reserve bank of Australia, (1991) 21 IPR 481
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