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Post #6 of our Top 10 of IP in 2020

Australia may be taking its first steps on a pathway to broad protection of Indigenous cultural and intellectual property, which would be a huge step.  But this year, we’ve seen attempts to pass legislation aimed at preventing the sale of “fake art”, and controversy over copyright ownership in the Aboriginal flag. Let’s look at both these topics below.

Inauthentic art → Protection of indigenous cultural and intellectual property

The sale of inauthentic indigenous art, usually in the form of cheap souvenirs to tourists unaware of the inauthenticity, seems to be the touchstone on which the broader issue of general protection of indigenous cultural expression may be built.  Broader legislative protection for indigenous cultural expression may even be on the (distant) horizon.  

If so, and if done well, this would be a very important and significant advance in the recognition of Indigenous peoples’ cultural and intellectual property rights, and, I suspect (and hope), another major step toward eventual reconciliation. 

Progress during 2020 has stemmed from the December 2018 report of the House of Representatives Standing Committee on Indigenous Affairs titled “Report on the impact of inauthentic art and craft in the style of First Nations peoples”.

According to that report, 80% of the souvenirs sold in Australia purporting to represent First Nations cultures are in fact cheaply made imported imitation products, with no connection to First Nations peoples.  The introduction to the report summarises the problem as follows:

First Nations artists and their communities feel completely disrespected and cheated by what is going on at the moment, particularly in the souvenir trade. They feel that their cultures are being stolen through the supply of these imitation products. In addition, they are being denied the opportunity to make a living from the obvious interest and market demand for First Nations art and craft.

This unacceptable misappropriation of First Nations cultures cannot be allowed to continue unchecked. These imitation products exist solely to make money. They demean the rick and ancient history of Australia’s Indigenous peoples.  These items have a profound and harmful impact on First Nations peoples.  They do not teach or inform the buyer about Indigenous heritage as they have no connection to it. Beyond the immediate consequences mentioned above, this situation has a negative impact on Australia’s image abroad.

A series of recommendations in the report propose steps (most non- legislative) to deal with imitation or fake Indigenous artwork.  These recommendations are important.  Yet it is the final recommendation that addresses the broader picture.  It recommends that “a consultation process be initiated to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions”.

In September 2020, the government responded to the recommendations in the report, and in response to this recommendation, it agreed.  This was while noting that developing stand-alone legislation will be a “complex and long-term project, requiring significant engagement and consultation with Indigenous communities“. No doubt that is true.

In the meantime, perhaps jumping the starter’s gun on longer term legislative intentions have been two well-intended private member bills, each with the intention of adding new provisions to the Australian Consumer Law to prohibit the supply of goods to consumers that include “Indigenous cultural expression” unless supplied under an agreement with an Indigenous artist or community. 

The first bill was introduced in the Senate last year, the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019.  A Senate Committee reviewing the bill recommended in April 2020 that it not proceed, recommending more consultation with Indigenous artists, and other policy reform to work toward “a comprehensive, standalone legislative framework to protect the various complex forms of Indigenous cultural expression”.  This is consistent with the 2018 report recommendation (now agreed by the government).

The second bill, the Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2020, was introduced in the House of Representatives, and, I suspect, will meet the same fate for the same reason.

Nonetheless, in both these bills, the concept of protecting “cultural expression” would be novel in Australia.  Bringing that protection within the scope of consumer protection law would perhaps have been a little clunky, but certainly less difficult than using existing intellectual property laws.  For example, copyright law does not protect a style of artwork or generally protect traditional knowledge. 

But then, how to always recognise authenticity in respect of artwork?  To be clear, “authentic” is not a term used in the bills (I only use it here as a shorthand way of referring to how misuse of cultural expression would be tackled), but it remains quite a difficult issue to grapple with, particularly where traditional art moves toward more contemporary styles.

That is the type of complex issue that consultation and engagement will need to address on the road to any future stand-alone legislation.  We could perhaps look to some of our Pacific neighbours to see how they have tackled protection of traditional knowledge, for example with Vanuatu passing its Protection of Traditional Knowledge and Expressions of Culture Act 2019.  (There is also a news story about that here.)

The Australian government has already been conducting consultations in relation to a developing an Indigenous Visual Arts Action Plan to support Aboriginal and Torres Strait Islander artists, and their cultural and economic interests.

IP Australia has also commenced some initiatives to guard against the misuse of traditional knowledge and cultural expressions in registered intellectual property rights, and is looking at use of certification trade marks to protect authentic products. 

I think that there will be quite a way to go on this, but it is definitely worth watching possibly emerging intellectual property rights.

Flag controversy

Meanwhile, there has been significant controversy during 2020 around ownership of copyright in the Aboriginal flag, and what impact this has on free use of the flag by Aboriginal Australians.  The underlying fundamental tension is the unique legal situation where a privately owned copyright work has been proclaimed a national flag under the Flags Act 1953.  

The Aboriginal flag has been proclaimed under the Flags Act “to be the flag of the Aboriginal peoples of Australia”, recognising that is it “the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally”. The first proclamation was in 1995, although these quotes are from a further proclamation dated 25 January 2008.

I posted one example of a copyright licensee taking legal steps against someone it suspected of infringing the copyright here.  

A Senate Select Committee was formed to report on this.  It recommended not compulsorily acquiring the copyright in the flag, but instead, working towards negotiating an independent body that would be responsible for maintaining the integrity, dignity and use of the Aboriginal flag.  The designer of the flag, Mr Thomas, is reportedly in confidential negotiations with the government.  So satisfactorily resolving this topic also remains a work in progress.

(These issues ought to be front of mind if ever there is a competition to design a new national flag – following New Zealand’s example a few years ago – as the designer of any winning entry would likewise own copyright in the winning design.) 

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