LEGAL PROTECTION OF INDIGENOUS CULTURE
IN AUSTRALIA
“Traditional Knowledge, Intellectual Property and Indigenous Culture”
Conference
Benjamin N Cardozo School of Law
Yeshiva University, New York
21-22 February 2002
by
JUSTICE RONALD SACKVILLE
Judge, Federal Court of Australia
Introduction
On 14 February 1966, Australia took one of many steps in a still incomplete journey towards
severing the ties to its colonial past. On that date, Australia introduced decimal currency in
place of the imperial system (pounds, shillings and pence) inherited from the United
Kingdom.1 The brand new one dollar note, later to be a casualty of inflation, incorporated an
“Aboriginal theme” in its design. The theme included a “line interpretation” of a bark
painting by a distinguished Aboriginal artist from northern Arnhem Land, together with
motifs adapted from ancient rock paintings and carvings.2
The Governor of the Reserve Bank of Australia at the time was H C (“Nugget”) Coombs, a
revered figure in Australian history, renowned as a vigorous supporter of Aboriginal
autonomy.3 Yet it apparently did not occur to Coombs or anyone else at the Reserve Bank to
ascertain whether the work of an indigenous artist had been reproduced on the dollar note
and, if so, whether the artist, or his people, had any objection to this form of reproduction.
The story broke in the media nine days before the changeover date. Fortunately for the new
dollar note, the artist was willing to accept an apology and modest recompense. In a special
ceremony held in August 1966, he received $1,000, a fishing kit and a silver medallion in
recognition of the nation’s appropriation of his work.
Much has changed since this demonstration of official insensitivity to indigenous artists and
culture. The following year, the Australian Constitution was amended to remove
discriminatory references to Aboriginal people.4 Thereafter, attitudes within the non-
indigenous community towards indigenous artists and culture began to change, albeit slowly.
In consequence, as will be seen, Parliament and the courts began to respond more
sympathetically (or at least less unsympathetically) to the desires and aspirations of
Aboriginal and Torres Strait Islanders. This process has been tied closely to the belated
recognition of “native title” in traditional lands and to the demands of indigenous people for
greater autonomy and “ownership” of their culture.
1
The material in this and the following paragraph is largely drawn from V Johnson, Copyrites:
Aboriginal Art in the Age of Reproductive Technologies (Touring Exhibition Catalogue, National
Indigenous Arts Advocacy Association and Macquarie University, 1996), 13-14.
2
The designer worked from photographs of the bark paintings. The photographs, curiously enough, had
been taken by a Hungarian art collector and anthropologist who had visited Arnhem Land in 1963. The
most influential of the bark paintings referred to the mourning cycle of the Manharingu people.
3
For a brief biographical note on Coombs, see Monash Biographical Dictionary of Twentieth Century
Australia (1994), 123-124.
4
See note 26 below.
Copyright paper Cardozo clean copy 2 4302.doc 1
The changing relationship between indigenous and non-indigenous peoples in Australia has
also coincided with increased international attention to the protection of indigenous culture,
although it is a moot point as to how far international developments have affected events in
Australia. Over a long period of time, bodies such as the United Nations and the World
Intellectual Property Organisation(“WIPO”) have attempted to formulate principles for the
protection of “folklore”.5 The issues have proved difficult to resolve, at least in a form that
commands general acceptance among nation states. This is perhaps not surprising. The
policy questions are complex, not least because the cultures and histories of indigenous
peoples are strikingly diverse, as are the societies in which the indigenous peoples of the
world live.
Regardless of international efforts to protect “folklore”, each country with its own indigenous
population must grapple with the need to provide workable mechanisms for the protection of
indigenous culture. The Australian experience can hardly be held up as a model for other
countries with substantial indigenous communities to follow. After all, it took the Australian
legal system more than two hundred years after European settlement to acknowledge the
dispossession of Aboriginal peoples which “underwrote the development of the nation.”6
Progress has often been slow and important developments, such as the judicial recognition of
native title, have generated intense controversy. Certainly the aspirations of indigenous
communities in Australia have not been satisfied and it may well be that “sui generis”
legislation is required to satisfy some of those aspirations. Even so, over the past three
decades Australian law has afforded a significant measure of protection to expressions of
indigenous culture.
In part, protection has been extended by means of a broad interpretation of the statutory
intellectual property regimes, notably the law of copyright. Orthodox common law and
equitable principles, such as the law of confidential information and fiduciary doctrines, have
been relied on in particular cases, with some success. These approaches have been
supplemented by legislation specifically designed to protect, albeit to a limited extent,
5
See, for example, UNESCO/WIPO, Model Provisions for National Laws for the Protection of
Expressions of Folklore, Against Illicit Exploitation and Other Prejudicial Actions (1985); WIPO,
Intellectual Property Needs and Expectations of Traditional Knowledge Holders: Draft Report on
Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1988-1999) (2000).
6
The striking words of Brennan J in Mabo v Queensland (No 2) 175 CLR 1 (“Mabo”), 69.
Copyright paper Cardozo clean copy 2 4302.doc 2
expressions of indigenous culture. More recently, the acknowledgment by the High Court in
Mabo of the concept of native title, a concept subsequently endorsed by Parliament, may
have opened up further possibilities for the protection of indigenous culture. The Australian
experience suggests two things:
first, common law and other Eurocentric legal concepts have proved to be more flexible
and responsive to the legitimate concerns of indigenous peoples than conventional
wisdom might suggest; and
secondly, while intellectual property regimes have an important part to play in protecting
expressions of indigenous culture, they are not the only legal mechanisms that can be
invoked for that purpose.
Aboriginal Spirituality
Before addressing legal issues relating to the protection of indigenous culture in Australia,
some background is necessary. It is generally accepted that Aboriginal peoples have
occupied the Australian continent7 for at least forty thousand years, having arrived from south
east Asia. The term “Aboriginal peoples”, unless explained, is, however, apt to mislead. The
culture of the Aboriginal peoples of the Australian mainland is distinct from that of the
Torres Strait Islanders. The latter are people of Melanesian origin who came to the Torres
Strait Islands relatively recently, probably from Papua New Guinea. Indeed the Torres Strait
Islands only became part of the then Colony of Queensland in 1879, although European
contact predated the annexation.8 It is one of the great ironies of recent Australian history
that the High Court’s acceptance of the doctrine of native title in Mabo occurred in relation to
the people of the Meriam (or Murray) Islands in the Torres Strait, not in relation to the
Aboriginal peoples of the mainland.9 In this paper I shall use the term “Aboriginal peoples”
to refer to the indigenous peoples of the mainland, although some of the issues addressed also
apply to the indigenous Torres Strait Islanders.
The artistic and spiritual legacy of ancient Aboriginal peoples includes some of the earliest
rock art known to the world. Engravings from Cape York Peninsula (Queensland), for
7
Including Tasmania, which was connected by land to the present mainland until about twelve thousand
years ago.
8
Mabo, 113-114.
9
As to the background of the Meriam people, who lived a settled life based on gardening and fishing,
see id, 190.
Copyright paper Cardozo clean copy 2 4302.doc 3
example, date back more than thirteen thousand years. Aboriginal society was relatively
stable prior to European contact, at least if measured in terms of technology. It is, however, a
mistake to assume that Aboriginal culture remained static before European influences had
their effect. As one commentator has noted:
“Waves of change swept the entire continent – changes in tools and implements, in
social organization, and in ceremonial practices and mythological concepts”. 10
Since European contact, the important changes have included the urbanisation of a significant
proportion of the indigenous population and the consequent loss for many of knowledge of
traditional culture and practices.11
Allowing for these changes, traditional Aboriginal art can be said, in European terms, to be of
religious significance, in the sense that it invokes the Ancestral Past or Dreamtime. 12 The
significance of the Dreamtime has been explained this way:
“The Ancestral Past or Dreamtime is sometimes described as the beginning of
the world. This was the period when the Ancestral Beings (who were spiritual
beings) emerged from the ground to transform the earth and to determine the
form of social life. The Ancestral Beings did not cease to exist with the
creation of human beings; rather they moved aside, often merging into the
land forms that they created, removing their physical presence to beneath the
surface of the earth. The Ancestral Beings did, however, retain the power to
intervene in the life of man and remain a vital force in ensuring the continuity
of human existence and in maintaining the fertility of the land.
The Ancestral Beings, their travels and experiences (known as Ancestral
Events), the things they created, and the places associated with them, form the
subject matter of traditional Aboriginal art. Of fundamental significance are
the pre-existing designs which are the artistic manifestations of one or more of
an Ancestral Being, Ancestral Event, or area of country associated with such
Being or Event. The forms of the pre-existing designs are believed to have
been created in the Ancestral Past by the Ancestral Beings, and they have
been handed down through the generations. A pre-existing design may be
made up of many design elements – various specific images, motifs or stylistic
depictions – each of which may itself be said to be a pre-existing design.
According to traditional Aboriginal customary law, pre-existing designs
10
P Sutton (ed), Dreamings: The Art of Aboriginal Australia (1988), 5.
11
The 1996 Census estimated that the resident Aboriginal and Torres Strait Islander population was then
386,000. Of this population, 72.6% lived in “urban” areas having a population of 1,000 or more. Just
under a third (30.3%) lived in major cities with a population of more than 1000,000. Australia’s total
population in 1996 was 18,310,700. Thus the indigenous population comprised 2.1% of the total.
Source: Australian Bureau of Statistics “Aboriginal and Torres Strait Islander Australians: A Statistical
Profile from the 1996 Census” (Year Book Australia, 1999).
12
D A Ellison, “Unauthorised Reproduction of Traditional Aboriginal Art” (1994) 17 UNSWLJ 327, 330.
Copyright paper Cardozo clean copy 2 4302.doc 4
cannot, and should not, be changed. Their efficacy, in the form of activating
Ancestral power, would be impaired if they deviated too widely from socially
accepted norms….
The power of particular Ancestral Beings can be manifested only through
particular persons associated with the Ancestral Beings. A person‟s descent
defines that association and conveys with it the right to reproduce particular
material representations (subject also to other matters such as initiatory
advancement and possession of the requisite religious knowledge). Those who
have the right to reproduce pre-existing designs are members of clans or other
relevant groups which are considered to be the traditional owners of the pre-
existing designs. The reproduction must be acceptable to the relevant group,
and hence the group has control over the reproduction of the pre-existing
designs.” 13
It is critical to appreciate that traditional Aboriginal art reflects the significance of the
relationship between Aboriginal peoples and the land:
“In traditional Aboriginal thought, there is no central dichotomy of the spiritual and
material, the sacred and secular, or the natural and supernatural. While each of the
Dreaming Beings and their physical counterparts and manifestations (as animals,
plants, water holes, rock formations, or people) are distinguishable, Dreamings and
their visible transformations are also, at a certain level, one.
The centrality of place – particular lands and sites of significance – in this imagery
enables even the religious sculptures to be regarded as „landscapes‟. For the
tradition-minded, the art works themselves may belong on a continuum of
manifestations of the Dreaming, together with the artists who made them, the natural
species projected in the totemic designs, and the topographic features of the
landscape. Landscape features themselves are the marks made by the Dreaming
Beings, elements of a larger system of meaning. The single most common subject
matter of Aboriginal art is landscape-based myth.” 14
For this reason it is difficult to consider the protection of indigenous culture independently of
the belated recognition in Australian law of the concept of communal native title.15
Terminology
The expression “folklore” has gained currency in international forums as the English word
appropriate to refer to the traditional artistic and cultural heritage of indigenous peoples.16 In
1985, a UNESCO group of Government Experts adopted a broad definition of the term:
13
Id, 330-331.
14
P Sutton, note 10, above, 76. For a recent account of evidence relating to the Dreamtime in the context
of a native title claim, see Hayes v Northern Territory (1999) 97 FCR 32, 39-41.
15
See text at notes 104-106, below.
16
For example, Model Provisions, note 5, above, s 2.
Copyright paper Cardozo clean copy 2 4302.doc 5
“Folklore (or traditional and popular culture) is the totality of tradition-based
creations of a cultural community, expressed by a group of individuals and
recognised as reflecting the expectations of a community in so far as they reflect its
cultural and social identity; its standards and values are transmitted orally, by
imitation or by other means. Its forms are, among others, language, literature, music,
dance, games, mythology, rituals, customs, handicrafts, architecture and other
arts.”17
In Australia, largely in deference to international usage, the word “folklore” was employed
for some time to describe Aboriginal culture and heritage. For example, an inter-
Departmental Working Party on the Protection of Aboriginal Folklore, which reported in
1981, perhaps not surprisingly, endorsed its own name.18 The Working Party considered that
the expression “Aboriginal Folklore” was appropriate because
“the term „folklore‟ recognises that traditions, customs and beliefs underlie forms of
artistic expression, since Aboriginal arts are tightly integrated within the totality of
Aboriginal culture. In this sense, folklore is the expression in a variety of art forms of
a body of custom and tradition built up by a community or ethnic group and evolving
continuously.”19
The Working Party acknowledged that the word “folklore” could be misinterpreted, but the
report expressly disclaimed any intent to imply that Aboriginal peoples possessed a
rudimentary or unsophisticated artistic tradition or that Aboriginal “folklore” was closely
related to artistic traditions elsewhere in the world.20
Later reports, prepared both for Government and for indigenous organisations, have
repudiated the use of the word “folklore” in relation to indigenous culture and heritage,
reflecting the fact that indigenous Australians do not or use or endorse the use of “folklore” to
refer to their own cultures.21 Current terminology employs expressions such as “indigenous
culture”, “indigenous intellectual property” (referring to material that indigenous
17
UNESCO, Recommendation on the Safeguarding of Traditional Culture and Folklore adopted by the
General Conference at its twenty-fifth session (1989).
18
Report of the Working Party on the Protection of Aboriginal Folklore (1981) (“Aboriginal Folklore
Report”.
19
Id, par 502.
20
Id, par 503. A later report adopted the expression “folklife”: Committee of Inquiry into Folklife in
Australia, Folklife: Our Living Heritage (1987). This report adopted a definition closely resembling
that used in the American Folklife Preservation Act 1976: id, 14. It concentrated, however, on non-
indigenous folklife and the need to conserve folk materials and encourage folk activities.
21
T Janke, Our Culture: Our Future (Report on Australian Indigenous Cultural and Intellectual Property
Rights, 1998) (“Our Culture: Out Future”), 10 n 33.
Copyright paper Cardozo clean copy 2 4302.doc 6
communities themselves regard as subject to rights and duties)22 and “indigenous Cultural
and Intellectual Property Rights”.23 I shall adopt this language or variations of it in this
paper.
Constitutional Arrangements
In a federal system, the starting point for determining legislative responsibility for the
protection of indigenous culture must be the constitutional arrangements for the distribution
of powers. In this respect the Australian Constitution broadly follows the pattern of the
United States Constitution, in that specific powers are conferred on the Commonwealth,
while the residue of legislative authority remains with the States. 24 In the event of an
inconsistency between a valid Commonwealth law and the law of a State the latter, to the
extent of the inconsistency, is invalid.25
The most general legislative power available for the protection of indigenous culture is that
conferred by s 51(xxvi) of the Constitution, which enables Parliament to make laws with
respect to the
“people of any race for whom it is deemed necessary to make special laws.”
This might be thought to be a curious provision to have in a modern constitution, since it
authorises legislation based specifically on the criterion of race. Like much else in the
Constitution, s 51(xxvi) is explicable only by reference to peculiar historical considerations.26
Section 51(xxvi) allows considerable scope for Parliament to enact laws designed to benefit
indigenous peoples, although the cases suggest that the power is not confined to laws that are
22
Id, 14.
23
Id, 7.
24
See, in particular, Constitution, s 51, 107.
25
Constitution, s 109.
26
In its original form s 51(xxvi) included the words “other than the aboriginal race in any State” after the
word “race”. The contemporary understanding of the founders was that the provision would authorise
laws discriminating against people of so-called “coloured races”: see Kartinyeri v Commonwealth
(1998) 195 CLR 337, 363, per Gaudron J. In consequence of a referendum held in 1967, the
Constitution was amended to remove the reference to the aboriginal race. The amendment was
universally seen as removing a source of discrimination against Aboriginal people, a view not
necessarily correct as a matter of law.
Copyright paper Cardozo clean copy 2 4302.doc 7
beneficial to indigenous interests.27 In general, it is for Parliament to determine whether
“special” law is deemed necessary for the people of any race.28 Laws supported, at least in
substantial part, by this power include, for example, the Native Title Act 1993 (Cth) (“Native
Title Act”), which recognises but qualifies the concept of native title acknowledged by the
High Court in Mabo in 1992 and the Heritage Protection Act, to which I refer later.29 It is
therefore open to Parliament to pass legislation expressly designed to protect indigenous
culture and, in particular, expressions of that culture. The conventional constraints of
intellectual property law do not limit the scope of the power in s 51(xxvi).
A second source of legislative power potentially significant for the protection of indigenous
culture is conferred by s 51(xxix), which empowers the Commonwealth Parliament to make
laws with respect to “external affairs”. In rulings that many have seen as transforming the
character of Australian federalism, the High Court has held that the external affairs power
enables Parliament to enact legislation implementing Australia’s obligations under
international treaties or conventions even if the subject matter of the treaty or convention is
not otherwise within Commonwealth power.30 The Racial Discrimination Act 1975 (Cth), for
example, is within Commonwealth power because it implements Australia’s obligations
under the Convention Prohibiting All Forms of Racial Discrimination.31 It follows that if
Australia were to ratify any convention that might be drafted along the lines of the draft
Declaration on the Rights of Indigenous Peoples,32 the Commonwealth Parliament could
implement in domestic law Australia’s obligations under the convention without reliance on
any other head of constitutional power.
Much of the discourse concerning the adequacy of legal measures to protect indigenous
culture revolves around the relatively narrow area of intellectual property law. The
Commonwealth Parliament has extensive powers to enact intellectual property law regimes.
27
The High Court held in Kartinyeri v Commonwealth that a law enacted pursuant to s 51(xxvi) did not
necessarily have to be for the benefit of the particular race (the law upheld by the Court restricted the
operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) in relation to
a particular site).
28
Western Australia v Commonwealth (1995) 183 CLR 373.
29
See text at notes 79-90, below.
30
The foundation case is Commonwealth v Tasmania (“Tasmanian Dams Case”) (1983) 158 CLR 1.
31
Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
32
United Nations Working Group on Indigenous Populations, Draft Declaration on the Rights of the
World‟s Indigenous Peoples (1991).
Copyright paper Cardozo clean copy 2 4302.doc 8
In particular, s 51(xviii) of the Australian Constitution provides that the Commonwealth
Parliament may make laws with respect to:
“Copyright, patents of inventions and design, and trade marks.”
The High Court has taken a broad view of the power in s 51(xviii). In Grain Pool of Western
Australia v Commonwealth,33 the Court upheld the validity of the Plant Variety Rights Act
1987 (Cth).34 The Court emphasised that the language of s 51(xviii) is not to be confined to
species of intellectual property recognised by statute or the common law at the time of
Federation (1901).35 The Court also rejected a submission that the Writings and Discovery
power in the United States Constitution36 was expressed more generally than s 51(xviii),
pointing out that the Australian provision lacks the “express purposive element” of its United
States counterpart.37 The significance of these observations is that the power in s 51(xviii)
might well be broad enough to support legislation protecting aspects of indigenous culture
regardless of whether the legislation can be said to encourage or advance current artistic,
literary or scientific endeavours. Of course, such legislation might find independent
constitutional support, for example in the external affairs and race powers.
Legislation
Legislation Relating to the Protection of Indigenous Culture
A full survey of legislation relevant to the protection of indigenous culture in Australia would
require reference to a large body of statute law. Some, such as the principal enactments
governing intellectual property rights, are laws of general application. None of these makes
provision for the protection of indigenous culture, although of course each is capable of
protecting the work of indigenous artists and other manifestations of indigenous culture.
Laws of this kind include the Copyright Act 1968 (Cth) (“Copyright Act”), the Patents Act
1990 (Cth), the Trade Marks Act 1995 (Cth) and the Designs Act 1906 (Cth). Other statutes
33
(2000) 202 CLR 479.
34
Creating intellectual property rights where the breeding of a plant variety constitutes an “invention”.
35
Grain Pool v Commonwealth 496.
36
Art I, s 8, cl 8, which is in the following terms:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and Discoveries.”
37
Grain Pool v Commonwealth, 498. The “express purposive element” comprises the introductory words
“To Promote the Progress of Science and useful Arts”. Compare the Trade Mark Cases (1879) 100 US
82.
Copyright paper Cardozo clean copy 2 4302.doc 9
are concerned specifically with the protection of indigenous peoples and indigenous culture,
such as the Native Title Act38 and the Heritage Protection Act.
In this paper I shall deal briefly with one example of each category of legislation. The first is
the Copyright Act, the provisions of which have frequently been invoked to protect
Aboriginal art works. The second is the Heritage Protection Act, which illustrates the extent
and limitations of legislative protection of particular sites of significance to indigenous
people.
The Copyright Act
The Legislative Scheme
The scheme established by the Copyright Act is the exclusive basis for the subsistence of
copyright in Australia.39 The Act follows a pattern familiar enough in the common law
world. Copyright subsists, among other things, in an “original literary, dramatic, musical or
artistic work”, either published or unpublished.40 Copyright, in relation to a literary, dramatic
or musical work is the exclusive right to do a number of acts, including reproducing the work
in a material form, publishing the work, performing the work in public or making an
adaptation of the work.41 The legislation takes a broad approach to the circumstances in
which a work is “reproduced in a material form”. A literary, dramatic or musical work, for
example,42 is deemed to have been reproduced in a material form if a sound recording or film
is made of the work. Special provision is made for the reproduction of a work in electronic
form.43
Copyright in a work is infringed by a person, not being the owner of the copyright, who,
without the licence of the owner, does any act comprised in the copyright. 44 With some
qualifications, copyright in a literary, dramatic, musical or artistic work continues for fifty
38
As to which see text at notes 109-113 below.
39
Copyright Act, s 8. This is a matter of some significance: see text at notes 141-142, below.
40
Id, s 32. The work must meet certain requirements. For example, the “author” of an unpublished work
must be a “qualified person” (an Australian citizen or resident) at the time the work is made: s 32(1)(a).
A statutory reference to an “author” includes all authors of the work: ss 78, 79. An unpublished work
is made at the time it was first reduced to writing or to some other material form: s 22(1).
41
Id, s 31(1)(a). As to copyright in an artistic work, see s 31(1)(b). As to copyright in subject-matter
other than works, such as broadcasts, films and sound recordings, see Part IV of the Act.
42
Id, s 21(1).
43
See the definition of “material form” in s 10(1).
44
Id, s 36(1).
Copyright paper Cardozo clean copy 2 4302.doc 10
years after the expiration of the calendar year in which the author died. 45 The subsistence of
copyright in a work does not require any form of registration. Copyright is, however, subject
to a variety of qualifications, including fair dealing for purposes of research or study,
criticism or reporting news.46
The remedies that may be awarded for infringement of copyright include injunctive relief,
damages and an account of profits.47 In the case of a flagrant infringement of copyright, the
count may award “additional damages” as it considers appropriate.48 The owner of copyright
may also bring an action for conversion or detinue in relation to infringing copies.49
Moral Rights
The Copyright Act has recently been amended to introduce moral rights provisions for the
benefit of authors of copyright works and films.50 The legislation establishes three moral
rights: an author’s right to be identified as the author of a work; the author’s right not to have
a work falsely attributed; and an author’s right of integrity of authorship of a work, including
the right not to have his or her work subjected to derogatory treatment which prejudicially
affects his or her honour or reputation.51 In relation to an artistic work, “derogatory
treatment” includes doing anything that results in a material distortion of or alteration to the
work, or doing “anything else in relation to the work” that is prejudicial to the artist’s honour
or reputation.52The legislation is designed to implement, albeit belatedly, Australia’s
obligations under the Berne Convention.53
The moral rights conferred by the legislation are subject to limitations. Moral rights are
available only to individuals54 and they exist only in relation to works in respect of which
45
Id, s 33(2).
46
Id, Part III, Div 3.
47
Id, s 115(2).
48
Id, s 115(4).
49
Id, s 116(1).
50
Id, Part 9, in force as from 21 December 2000: For analysis of the moral rights provisions in relation to
indigenous people, see C Banks, “The More Things Change the More They Stay the Same” (2000) 9
Griffith L Rev 334.
51
Id, Part 9, Divs 1, 2 and 3. Derogatory treatment is not actionable if reasonable in all the
circumstances: s 195AS. See also ss 194AR, 195AT.
52
Id, s 195AK.
53
Art 6bis. The Berne Convention was amended in 1928 to include provision for moral rights.
Legislative implementation of this aspect of the Convention in Australia therefore took 72 years.
54
Copyright Act, s 190.
Copyright paper Cardozo clean copy 2 4302.doc 11
copyright subsists.55 In general, an author’s moral rights in respect of a work continue in
force until copyright ceases to subsist in the work (that is, for fifty years after the author’s
death).56 The court is, however, empowered to grant a wide range of remedies in an action
for infringement of moral rights, including an order that the defendant make a public apology
and an order that any false attribution of authorship or derogatory treatment of the work be
removed or reversed.57
The Limitations of Copyright Law
It is generally taken for granted that copyright law provides inadequate protection to
indigenous culture in Australia.58 It is certainly true that copyright law has obvious
limitations although, as will be seen, the courts have not entirely been powerless to protect
expressions of indigenous culture from unfair or insensitive exploitation. Commentators
have identified five principal, albeit related, deficiencies in copyright law.
The first is the fundamental incompatibility between the assumptions underlying copyright
law and the practices, beliefs and aspirations of indigenous communities. It is, of course,
necessary to recognise that traditional (as opposed to urban) indigenous communities have
different languages and different expressions of cultural identity. Moreover, as has been
noted, expressions of indigenous culture change over time. Even so, the gulf between the two
systems is a large one. Professor Blakeney has put it well:59
“The intellectual property paradigm… involves the incentivisation of creativity. If the
beliefs and practises of Australian indigenous peoples are any guide, authorship may
reside in pre-human creator ancestors, such as the Wandjina of the Kimberley region.
Authorship is replaced by a concept of interpretation through initiation. Ownership
yields to a concept of custodianship of dreamings, or legends. Alienation is
contradicted by the concept of immutable community property. Exploitation is subject
to cultural restraints and taboos. Incentivisation also has to yield to concerns about
spiritual adulteration.
Another problem with the intellectual property discourse is that it is often considered
rather too sectional….
55
Id, s 189 (definition of “work” and associated definitions).
56
Id, s 195AM.
57
Id, s 195AZA.
58
See, for example, Australian Copyright Council, Protecting Indigenous Intellectual Property (1998),
40-47; K Puri, “Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into
Action” (1985) 9 IPJ 293, 305-320; D A Ellinson, note 12 above, 332-334.
59
M Blakeney, “Protection of Traditional Knowledge under Intellectual Law” [2000] EIPR 251, 252.
Copyright paper Cardozo clean copy 2 4302.doc 12
„Underpinning the concept of Indigenous intellectual property is a holistic
view that cultural products are intimately connected to Dreamings, ceremony,
sacred sites and objects and also land‟.60”
Secondly, the assumption underlying copyright law, that rights are vested in an author or joint
authors of a work, does not sit well with Aboriginal beliefs concerning the source of authority
to reproduce creation stories and dreamings. The evidence given in a seminal Australian case
on infringement of copyright in Aboriginal works (bark paintings) is illuminating on this
issue.61 The evidence explained the significance of the creation stories and dreamings in the
cultures of the particular clans involved. The trial Judge, von Doussa J, made these
findings:62
“Those stories are represented in ceremonies of deep significance, and are often
secret or sacred, known only to a few senior members of the clan chosen according to
age, descendence, sex, initiation, experience in the learning of the dreamings and
ceremonies, and the attainment of skills which permit the faithful reproduction of the
stories in accordance with Aboriginal law and custom. Painting techniques, and the
use of totemic and other images and symbols are in many instances, and almost
invariably in the case of important creation stories, strictly controlled by Aboriginal
law and custom. Artworks are an important means of recording these stories, and for
teaching future generations. Accuracy in the portrayal of the story is of great
importance. Inaccuracy, or error in the faithful reproduction of an artwork can cause
deep offence to those familiar with the dreaming.
The right to create paintings and other artworks depicting creation and dreaming
stories, and to use pre-existing designs and well recognised totems of the clan, resides
in the traditional owners (or custodians) of the stories or images. Usually that right
will not be with only one person, but with a group of people who together have the
authority to determine whether the story and images may be used in an artwork, by
whom the artwork may be created, to whom it may be published, and the terms, if
any, on which the artwork may be reproduced.” (Emphasis added.)
The concept of individual or joint authorship as a precondition to the subsistence of copyright
contrasts starkly with the emphasis in Aboriginal customary law on group or community
control of images and symbols.63
Thirdly, the Copyright Act assumes that an unpublished “work” is made only when it is “first
reduced to writing or some other material form”.64 This assumption appears to preclude
60
Australian Copyright Council, note 57 above, 14.
61
Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240. See text at notes 130-136 below.
62
Id, 245-246.
63
Puri, note 57 above, 310.
64
Copyright Act, s 22(2).
Copyright paper Cardozo clean copy 2 4302.doc 13
intangible items of cultural heritage, such as dances, songs, stories and knowledge of
traditional medicines or foods (“bush tucker”) being the subject of copyright. Indeed,
copyright in a traditional song, for example, subsists in the first person to record the notes and
words regardless of his or her association with the relevant community or group. 65 The
absence of protection for ephemeral manifestations of indigenous culture is a major source of
concern to indigenous communities,66 although in some cases arrangements have been made
to compensate communities for permission to use themes derived from traditional songs and
dances.67
Fourthly, the period for which copyright subsists is ordinarily limited to a period of fifty
years after the death of the author. As the Australian Copyright Council has pointed out, in
“Indigenous discourse…cultural rights may not have any fixed duration” and, indeed, include
cultural expressions that have come from the Dreaming and which continue forever. 68 Many
examples of rock art are sacred to Aboriginal people, yet are hundreds or thousands of years
old. Access to particular examples of rock art may be restricted in consequence of a grant of
native title or other forms of land rights or heritage protection. But much rock art is not
protected in this way and, in any event, Aboriginal people cannot control the use of existing
photographs or other reproductions of pre-existing designs.69
Fifthly, many indigenous people deeply resent their inability to prevent the commercial
exploitation of traditional designs or symbols, often in a manner which shows scant regard
for the cultural and religious sensitivities of the communities affected. Evidence accepted in
one of the important indigenous copyright cases illustrates the point.70 The case concerned
the reproduction of Morning Star Poles which, according to traditional beliefs of the clans of
north east Arnhem Land, are imbued with the power to take the spirits of the dead to the
Morning Star and from thence to their ancestral home.71 The uncontradicted evidence was
that a Morning Star Pole could be made only by men of particular clans who had been
properly taught the rules relating to their production.72 French J accepted that the maker of a
65
Subject to questions such as breach of confidentiality or passing off.
66
Our Culture: Our Future, note 21 above, 34-35, 56.
67
M Rimmer, “Bangarra Dance Theatre- Copyright Law and Indigenous Culture” (2000) 9 Griffith L Rev
274, 278.
68
Australian Copyright Council, note 57 above, 43.
69
See D A Ellinson, note 12 above, 334.
70
Yumbulul v Reserve Bank of Australia (1991) 21 IPR 481. See text at notes 126-129, below.
71
Id, 482.
72
Id, 483.
Copyright paper Cardozo clean copy 2 4302.doc 14
Pole for public display had an obligation to the relevant clans to ensure that it was not used or
reproduced in a way that offends against the members’ perceptions of the Pole’s
significance.73 Yet the Copyright Act would of itself not prevent a non-indigenous person
reproducing a Morning Star Pole by a long-dead artist (that is, one in respect of which the
artist’s copyright no longer subsists), or utilising ideas derived from traditional designs.74 It
is trite law that there is no copyright in ideas.
It is also sometimes said that the requirement in copyright law that a work be “original”
creates difficulties for indigenous artists whose work utilises traditional images or pre-
designs.75 This reflects a concern, manifest in early cases, that an artist who works within a
traditional framework would not be creating an “original” work. The test for originality is,
however, easily met in the case of artistic, literary or dramatic works. Indeed, the threshold
in Australia may be even lower than the “minimal degree of creativity” required under United
States law.76 The High Court has said more than once that the requirement in copyright law
that a work be original simply means that the work emanates from the person claiming to be
the author, in the sense that he or she has originated it or brought it into existence and has not
merely copied it from another.77 It follows that whatever difficulties other aspects of
copyright law may present for the protection of expressions of indigenous culture, the
requirement of originality of itself will rarely, if ever, create a major obstacle.78
The recently introduced moral rights provisions in the Copyright Act may well prove to be of
benefit to individual indigenous artists. The right of integrity of authorship, for example,
gives the indigenous owner of copyright in an artistic work a remedy if the work is
reproduced in a manner that is “prejudicial to the author’s honour or reputation”. But the
moral rights exist only if the author already holds copyright in a work. The legislation does
not extend the scope of copyright itself. In particular, it does nothing to recognise the interest
73
Id, 483-484.
74
The absence of legal remedies does not necessarily mean that the protests of indigenous custodians will
be disregarded: see B Goldsmith, “A Positive Unsettlement: The Story of Sakshi Anmatyerre” (2000) 9
Griffith L Rev 321 (telling the story of the mass marketing of the work of an artist who falsely claimed
to have Anmatyerre ancestry and the efforts made by the publisher to atone for the offence caused to
the Anmatyerre people).
75
For example, Attorney-General’s Legal Practice, Stopping the Rip-Offs: Intellectual Property
Protection for Aboriginal and Torres Strait Islander Peoples (Issues Paper, 1994), 6.
76
Feist Publications Inc v Rural Telephone Service Co, Inc 449 US 358 (1991), 369.
77
Data Access Corporation v Powerflex Services Pty Ltd (1999) 202 CLR 1, 41-42; Victoria Park Racing
and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, 511.
Copyright paper Cardozo clean copy 2 4302.doc 15
of indigenous groups or communities in protecting expressions of culture; nor does it extend
the period of protection.79 To overcome some of these difficulties an amendment was
proposed in Parliament which would have conferred moral rights in relation to an Australian
cultural work created by an indigenous author under the direction of an indigenous cultural
group.80 The rights would have been capable of assertion by a custodian nominated by the
group. The amendment was rejected, but it illustrates the form a possible extension of the
moral rights legislation might take in advancing the interests of indigenous people.81
Cultural Heritage
The early legislation protecting land-based cultural heritage of Aboriginal people was enacted
by the States. This legislation extended protection beyond archaeological sites, which had
been the subject of statutory regulation since the 1960s, to sacred, ritual or ceremonial sites of
significance to Aboriginal people.82 State authorities were empowered to make declarations
in relation to particular sites, including those located on private land, the effect of which was
to limit access to the sites. No provision was made in the early statutes for the involvement
of Aboriginal people themselves in the protection process. Some later State legislation has,
however, vested a significant degree of responsibility to local indigenous people, for
example, in identifying and initiating measures to protect heritage sites, although the relevant
State Minister retains ultimate discretionary authority to determine what action should be
taken.83
It was against the background of State cultural heritage legislation that the Commonwealth
enacted the Heritage Protection Act. The objects of the Heritage Protection Act, are:
78
A T Kenyon, “Copyright, Heritage and Australian Aboriginal Art” (2000) 9 Griffith L Rev 303, 311-
314.
79
See C Banks, note above, 343-345.
80
The form of the proposed amendment is reproduced by T Janke, “Berne, Baby, Berne: the Berne
Convention, Moral Rights and Indigenous Peoples’ Cultural Rights” (2001) 5 Indigenous Law Bulletin
14, 17.
81
Ibid.
82
The first such legislation was the Aboriginal Heritage Act 1972 (WA). See generally M Tehan, “To Be
or Not To Be (Property): Anglo-Australian Law and the Search for Protection of Indigenous Cultural
Heritage” 1996) 15 U Tas L Rev 267, 280 ff.
83
See, for example, the Aboriginal Heritage Act 1988 (SA). The legislation is summarised in E Evatt,
Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1996) (“Evatt
Report”), Annex VIII.
Copyright paper Cardozo clean copy 2 4302.doc 16
“the preservation and protection from injury or desecration of areas and objects in
Australia and in Australian waters, being areas and objects that are of particular
significance to Aboriginals in accordance with Aboriginal tradition.”84
The expression “Aboriginal tradition” is defined to mean:
“the body of traditions, observances, customs and beliefs of Aboriginals generally or
of a particular community or group of Aboriginals, and includes any such traditions,
observances, customs or beliefs relating to particular persons, areas, objects or
relationships.”85
The Heritage Protection Act is not intended to exclude or limit the operation of State laws
capable of operating concurrently with it.86 Commentators have said that the Heritage
Protection Act is intended to be a measure of “last resort”.87 This observation reflects the fact
that State laws are preserved and that the Minister, in determining whether to make a
declaration in relation to an area, must consider the extent to which State laws already
provide adequate protection.88
A declaration in relation to an area can be made only where the Minister
receives an application from an Aboriginal or group of Aboriginals seeking the
preservation of an area from injury or desecration;
is satisfied that the area is of particular significance to Aboriginals in accordance with
Aboriginal tradition (and is under threat of injury or desecration); and
has considered a report that deals with matters such as the significance of the area and the
nature of the alleged threat.89
The Heritage Protection Act expressly deals with “Aboriginal folklore”, but only for very
limited purposes. In 1987, the then Victorian Government, requested the Commonwealth to
enact legislation applicable only to Victoria.90 The Commonwealth responded favourably.91
The amendment defines “Aboriginal cultural property” to include not only Aboriginal places
and objects but “Aboriginal folklore”. The definition of “Aboriginal folklore” is as follows:
84
Heritage Protection Act, s 4.
85
Id, s 3(1).
86
Id, s 7(1).
87
Tehan, note 77 above, 286; Australian Copyright Council, note 57 above, 64.
88
Heritage Protection Act, s 10(1)(c), (4)(g).
89
Id, s 10(1).
90
R G Nettheim, “Victoria Requests the Commonwealth” (1987) 25 Aboriginal Law Bulletin 8.
91
See now Heritage Protection Act, Part IIA.
Copyright paper Cardozo clean copy 2 4302.doc 17
“traditions or oral histories that are or have been part of, or connected with, the
cultural life of Aboriginals (including songs, rituals, ceremonies, dances, art, customs
and spiritual beliefs) and that are of particular significance to Aboriginals in
accordance with Aboriginal tradition.”92
The only potentially practical significance of the expanded definition appears to be that the
Minister may compulsorily acquire any “Aboriginal cultural property” in Victoria if satisfied
that the property is of such significance that it is irreplaceable and that no other arrangements
can be made to ensure its proper preservation.93 Since no action has been taken under this
provision, the potential scope of the compulsory acquisition power is unclear.
The Heritage Protection Act has been the subject of much criticism, particularly from
Aboriginal groups. The principal criticisms were summarised in the Evatt Report which
reviewed the legislation in 1996:94
“Aboriginal people consider that the Act has not protected their heritage. Few
declarations have been made and only one is now in force.95 They say that the
administration of the Act has given too much deference to ineffective State and
Territory processes which do not recognise their role in the identification,
management and protection of heritage. In some situations negotiations by the
Commonwealth with the State/Territory government have resulted in arrangements
being made without adequate consultation with Aboriginal people. In addition, the
Act does not recognise that there are Aboriginal restrictions on information which
play an important role in the protection and maintenance of their cultural heritage.
The Act does not protect confidential information or respect Aboriginal spirituality
and beliefs which require that confidentiality be maintained. Its failure to deal with
all aspects of heritage, including intellectual property was another subject of concern,
though the Review has been unable to deal with this issue in detail…. Nor does the
Act adequately recognise or provide for the involvement of Aboriginal people in
negotiation and decision-making about their cultural heritage. Aboriginal people
want the Act to be maintained and strengthened.”
In addition to these criticisms, in practice the statutory procedures have afforded considerable
scope for administrative law challenges by parties whose interests are adversely affected to
the validity of declarations.96
92
Heritage Protection Act, s 21A(1).
93
Heritage Protection Act, s 21L. See also s 21K dealing with Aboriginal Cultural Heritage Agreements.
94
The Evatt Report, Annex VII details the fate of applications for declarations made under the Aboriginal
Heritage Act up to 1996. As at July 2000 only two long-term declarations were in force, one relating to
Junction Waterhole near Alice Springs and another to Boobera Lagoon in northern New South Wales.
95
Evatt Report, xiv.
96
Examples are Norvill v Chapman (1995) 57 FCR 451 (concerning Hindmarsh Island) and Minister for
Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 (concerning a
crocodile park).
Copyright paper Cardozo clean copy 2 4302.doc 18
The Evatt Report addressed a number of issues troubling Aboriginal groups. It did not,
however, suggest a substantial change in the concentration on protecting sites, areas and
objects of cultural significance. In particular, it did not address claims by Aboriginal groups
for greater protection of intellectual property in accordance with traditional laws.
Nonetheless, the Report proposed a broader definition of “objects” under the Heritage
Protection Act to include those
“which are of significance to Aboriginal people because they record, describe or
portray an aspect of Aboriginal tradition”.
The recommendations of the Evatt Report have not been implemented.97
Towards Recognition of Indigenous Culture
It would not be correct to infer from this brief and necessarily incomplete account of the
workings of the Copyright Act and the Heritage Act that the Australian legal system has been
entirely unresponsive to the claims of indigenous peoples to protect their culture and
associations with traditional lands. Far from it. Important changes have occurred since the
1970s which, although falling far short of satisfying the legitimate aspirations of indigenous
peoples, have transformed the relationship between indigenous culture and the legal system.
The extent (and limitations) of the changes require reference to both the recognition under the
general law of indigenous laws and customs and to the decided cases in which intellectual
property issues have been raised and judicial responses to claims made by or on behalf of
indigenous claimants.
Aboriginal Laws and Customs
Although it did not seem so at the time, a turning point in the recognition of indigenous laws
and customs under Australian law was the decision of Blackburn J in Milirrpum v Nabalco
Pty Ltd in 1971.98 In that case, Aboriginal clans asserted that the common law recognised
their rights under native law or custom to land on the Gove Peninsula in the Northern
Territory. The claim founded on the doctrine of communal native title was dismissed.
Blackburn J, however, comprehensively rejected an argument by the respondents that
97
The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 was designed to repeal and
replace the Heritage Protection Act. The Bill did not pass the Senate, in part because it was not
thought by opponents to address the concerns identified in the Evatt Report.
98
(1971) 17 FLR 141.
Copyright paper Cardozo clean copy 2 4302.doc 19
Aboriginal law and custom were “too low in the scale of social organisation” to be
recognised under the general law. He found on the evidence that the social rules and customs
of the clans constituted
“a subtle and elaborate system highly adapted to the country in which the people led
their lives, which provided a stable order of society, and was remarkably free from
the vagaries of personal whim or influence. If ever a system could be called „a
government of laws, and not of men‟, it is that shown in the evidence before me”.99
Blackburn J’s analysis of Aboriginal laws made it impossible for later courts simply to
dismiss them as too “primitive” or undeveloped to be accorded recognition.
One consequence of the Milirrpum decision was that the Commonwealth appointed a
Commissioner to investigate the feasibility of recognising traditional Aboriginal claims to
land in the Northern Territory. The report100 led to the Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth) which, for the first time, established a mechanism under federal law
for vesting title in Aboriginal groups on the basis of a “traditional land claim” by the
“traditional Aboriginal owners”.101 The statute thus recognised claims founded on Aboriginal
law and custom and the acknowledged significance of “common spiritual affiliations to a
site” of Aboriginal clans or groups.102
These developments coincided with a renaissance of Aboriginal art and the emergence of
commercial interest in traditional art forms. It is a common misconception that the creation
of traditional Aboriginal art forms had somehow fallen into abeyance in colonial times, only
to be revived in the 1970s. In fact, traditional practices continued, although many
expressions of Aboriginal culture, such as sand and body paintings, ceremonies and
perishable bark paintings, did not survive because of their ephemeral nature. Indeed there
were individual Aboriginal artists whose work was well-known in colonial as well as post-
Federation times.103 Until the 1970s, however, there was relatively little interest among the
99
Id, 267.
100
Aboriginal Land Rights Commission, Second Report (Parl Paper No 69, 1974). The report was
prepared by Mr Justice Woodward who had been counsel for the claimants in Milirrpum.
101
See definition of “traditional Aboriginal owners” in s 3. In general, claims were limited to unalienated
Crown lands or lands held on behalf of Aboriginals: s 50(1)(a).
102
The first case to reach the High Court under this legislation concerned a claim to Utopia Station, an
area of 2,000 square kilometres situated some 200 kilometres from Alice Springs: The Queen v
Toohey; Ex parte Attorney-General for the Northern Territory (1980) 145 CLR 374. Utopia is home to
a number of very well known Aboriginal artists.
103
See A Sayers, Aboriginal Artists of the Nineteenth Century (1994).
Copyright paper Cardozo clean copy 2 4302.doc 20
non-indigenous community in Aboriginal culture or art. At about that time, interest in
Aboriginal art among non-indigenous people began to increase, stimulated in part by the use
of new materials and techniques by Aboriginal artists.104
As commercial interest in Aboriginal art increased, so the incentives and opportunities to
appropriate artworks or images used in artworks multiplied. A national seminar on
Aboriginal Arts was held in 1973 and drew attention to instances of the unauthorised use of
Aboriginal paintings and designs. In 1975, at the suggestion of the Australia Council, the
peak arts body, a Working Party was established to consider the nature of legislation required
to protect Aboriginal artists in relation to copyright. It ultimately reported in 1981.105
The Working Party concluded that Aboriginal folklore106 was inadequately protected by
copyright law. It also expressed the view that “abuses”, such as the use of sacred-secret
material otherwise than in accordance with custom and the destruction of items of folklore,
had to be addressed. The Working Party recommended criminal sanctions to curb abuses.
These were to operate alongside a system whereby a statutory officer could grant “clearance”
(immunity from prosecution) for persons proposing to use items of folklore.107 The proposals
have not been implemented.
During the 1980s, important inquiries explored the relationship between Aboriginal laws and
customs and the general law.108 In 1992, however, the High Court’s decision in Mabo
transformed the very foundations of Australian law. The effect of the decision was that the
common law in Australia for the first time recognised the rights of indigenous peoples who
had substantially maintained their traditional connection with the land.109 Native title could
be extinguished in any one of a number of ways, for example, by the grant to a third party of
the fee simple estate in the land. But the decision opened the way for indigenous groups to
claim interests in large segments of their traditional lands if they could demonstrate the
104
Perhaps the best example is Western Desert dot painting, exemplified by the Papunya Tula Artists
whose “modern” work commenced in 1971: H Perkins and H Fink, Papunya Tula – Genesis and
Genius (Art Gallery of New South Wales in association with Papunya Tula Artists, 2000).
105
Aboriginal Folklore Report, note 18 above.
106
See text at notes 18-23, above.
107
Aboriginal Folklore Report, pars 1208, 1209.
108
See, for example, Australian Law Reform Commission, The Recognition of Aboriginal Customary
Laws, (Report 31, 1986); Royal Commission into the Aboriginal Deaths in Custody (National Report,
1991).
Copyright paper Cardozo clean copy 2 4302.doc 21
required continuing connection with those lands. The Court’s reasoning acknowledged that
native title rights derived from indigenous laws and customs. Native title was seen neither as
an institution of the common law nor as a form of common law tenure. 110 Rather, it was said
to have its origins in, and to be given its content by, the traditional laws and customs
observed by the indigenous inhabitants of a particular area.
The decision in Mabo made it clear beyond argument that indigenous laws and customs
cannot simply be regarded as separate from and irrelevant to the general body of Australian
law. On the contrary, those laws and customs can be the source of entitlements enforceable
in Australian courts. Moreover, the language used by members of the High Court left no
doubt about their view that a grave historical injustice had been done to the Aboriginal
peoples.111 It is true that Mabo and successor cases112 have attracted intense controversy.
Nonetheless, the High Court’s acceptance of native title demonstrated that indigenous laws,
customs and traditions could be accommodated within the common law paradigm.113
Much has happened since the decision in Mabo. The Native Title Act 1993 provides for the
“recognition and protection of native title”114 and prevents extinguishment of native title
contrary to the provisions of the legislation.115 It also defines “native title” to mean the
communal, group or individual rights and interests of Aboriginal peoples or Torres Strait
Islanders “in relation to land or waters”.116 To be protected under the Native Title Act, the
rights and interests must have three characteristics:
“First, they [must be] possessed under the traditional laws acknowledged, and the
traditional customs observed, by the peoples concerned. Secondly, those peoples, by
those laws and customs, must have a „connection’ with the land or waters. Thirdly,
the rights and interests must be recognised by the common law of Australia.”117
109
See generally R Sackville, “The Emerging Law of Native Title: Some North American Comparisons”
(2000) 74 ALJ 820.
110
Mabo, 58.
111
See the reference by Deane and Gaudron JJ to the “conflagration of oppression and conflict
which…leave a national legacy of unutterable shame”: id, 104.
112
Notably Wik Peoples v Queensland (1996) 187 CLR 1.
113
Fejo v Northern Territory (1998) 195 CLR 96, 128.
114
Native Title Act 1993 (Cth), s 3(a). The Act has been heavily amended, especially by the Native Title
Amendment Act 1998 (Cth).
115
Native Title Act 1993 (Cth), s 11(1).
116
Id, s 223(1). Waters include the territorial sea: Commonwealth v Yarmirr (2001) 184 ALR 113 (Croker
Island Case).
117
Id, 120.
Copyright paper Cardozo clean copy 2 4302.doc 22
While a substantial body of jurisprudence has built up in the decade since Mabo was decided,
there is considerable uncertainty about the outer limits of native title rights and interests that
may be protected under the Native Title Act. In particular, it has been argued that the nature
and incidents of native title under Aboriginal law can extend far beyond rights that a common
lawyer would consider relate to land.118 Stephen Gray points out that, from an Aboriginal
perspective, paintings or other art works are very often part of the land itself, both being the
creations of ancestral beings.119 He also notes that Mabo requires the specific “nature and
incidents” of native title to be determined by reference to indigenous laws and customs. It
follows, so Gray argues, that indigenous intellectual property rights can be said to exist “in
relation to land and waters” where indigenous laws and customs acknowledge the
relationship between the rights and the land. On this approach, just as the right to hunt
estuarine crocodiles can be an incident of native title,120 the right to protect indigenous,
cultural expression of a kind inextricably linked to land can also be an incident of native
title.121
There are difficulties confronting this approach. The obstacles include a decision by a single
Judge of the Federal Court that rights in cultural expression under indigenous laws and
customs have been extinguished by modern intellectual property statutes.122 Even so, it is by
no means clear that native title cannot extend to indigenous rights in relation to cultural
expression. The point is illustrated by a determination of native title made by the Federal
Court in a recent case. It provided that the subsisting rights and interests included
“the right to manage the spiritual forces and to safeguard the cultural knowledge
associated with [the claimed land and waters].123
The precise scope and significance of determinations in this form have not yet been the
subject of close analysis.124 It may well be the case, however, that native title determinations
will encompass forms of indigenous culture that have usually been thought of as being
protected, if at all, only by the statutory intellectual property regime or related principles.
118
S Gray, “Peeking into Pandora’s Box: Common Law Recognition of Native Title to Aboriginal Art”
(2000) 9 Griffith L Rev 227.
119
Id, 237.
120
Yanner v Eaton (1999) CLR .
121
Id, 238-239.
122
Bulun v Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244; see text at notes below.
123
Hayes v Northern Territory (1999) 97 FCR 32, 148-149.
Copyright paper Cardozo clean copy 2 4302.doc 23
In October 1994, not long after Mabo was decided, the Commonwealth Government released
a short Issues Paper designed to put forward ideas to stop what was described as the
“unacceptable exploitation of indigenous works”.125 The Issues Paper outlined the protection
available to indigenous “arts and cultural expression”, a term which was “intended to
encompass all forms of artistic expression which are based on custom and tradition derived
from communities which are continually evolving”.126 Options were presented for reform.
These, however, were put in very general terms. For example, the Issues Paper suggested
that the Copyright Act could be amended so as to omit the material form requirement and
“address the collective ownership of Aboriginal and Torres Strait Islander creative works”. 127
The authors of the Issues Paper recognised that such a proposal would encounter
considerable practical difficulties, including the need to comply with the requirement of the
Berne Convention that copyright protection afforded to Australian nationals also be afforded
to nationals of Convention countries.128
One of the purposes of publishing the Issues Paper was to facilitate consultation with
indigenous communities to ascertain their views on the protection of indigenous art and
cultural expression. The consultation process129 led to the establishment of an Indigenous
Reference Group on Intellectual Property under the auspices of the Aboriginal and Torres
Strait Islander Commission (ATSIC). In turn, ATSIC funded a study by consultants which
was published in 1998.130 This report recorded the views expressed by indigenous
respondents on a wide range of issues, including protection of what were described as
“indigenous cultural and intellectual property rights”, and proposed a variety of strategies to
recognise and protect those rights.
124
The High Court expressly declined to comment on a determination made in the Croker Island Case
which acknowledged the claimants’ right of access to the sea and sea-bed to safeguard cultural and
spiritual knowledge: Croker Island Case, 118.
125
Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander
Peoples (Issues Paper, 1994), v.
126
Id, 2.
127
Id, 7.
128
Berne Convention, Art 3(1).
129
Summarised in Intellectual Property Council, note 57 above, 37-38.
130
Our Culture: Our Future, note 21 above.
Copyright paper Cardozo clean copy 2 4302.doc 24
Case law
Recourse to the courts in Australia to protect indigenous culture from exploitation coincided
with the recognition of indigenous claims to traditional lands and the renaissance of
Aboriginal art. While the limitations of the current law are undeniable, the decided cases
demonstrate that the law is capable of a flexible response to novel claims made by indigenous
peoples.
In Foster v Mountford,131 the Supreme Court of the Northern Territory applied equitable
principles relating to confidential information when making orders restraining publication of
a book in the Territory. The book was a scholarly work entitled Nomads of the Australian
Desert. The author, an anthropologist, had undertaken extensive field work in 1940.
Members of the Pitjantjatjara people had taken the author into their confidence and explained
to him sacred sites and objects and paintings and rock engravings. He had recorded this
information and photographed objects and sites. The confidential information found its way
into the book. Muirhead J accepted that the book was a “magnificent publication” that
acknowledged “the traditional dignity and wisdom of the Pitjantjatjara people”. 132 He
nonetheless found that the plaintiffs, who claimed to represent all Aboriginal people
inhabiting the traditional lands of the Pitjantjatjara, would suffer damage and dislocation if
confidential information in the book came into the hands of the uninitiated.
The status of Foster v Mountford as a precedent is limited because the application to the
Court was made ex parte. But there is no reason to doubt the correctness of the analysis.
Once a finding is made that sensitive cultural material has been imparted to a person on a
confidential basis, established principles are likely to afford a remedy for any publication of
the confidential information by that person in breach of confidence. To that extent the law
can provide a remedy in respect of hurtful disclosures of indigenous culture.133
131
(1976) 29 FLR 233 (Muirhead J).
132
Id, 236.
133
This does not mean that cultural information imparted on a confidential basis will necessarily be
confined to the recipient: cf Aboriginal Sacred Sites Protection Authority v Maurice; Re The
Warumungu Land Claim (1986) 10 FCR 104.
Copyright paper Cardozo clean copy 2 4302.doc 25
The first case in which an Aboriginal artist complained of infringement of copyright appears
to have been brought in 1983. The claim involved the reproduction of an original bark
painting on fabric. The action was successful but attracted little attention.134
A second case, in 1989, received much greater publicity. Johnny Bulun Bulun, a well-known
bark painter from central Arnhem Land, and a number of other artists, sued a T-shirt
manufacturer and two retailers.135 Their complaint was that the manufacturer’s T-shirts had
reproduced or adapted bark paintings and that the retailers had sold the offending articles.
The litigation was funded by the Department of Aboriginal Affairs and was ultimately settled
on terms favourable to the artists. The outcome alerted many in the non-indigenous
community to abuses that were taking place in the form of authorised reproductions of
Aboriginal works and to the possibility of legal remedies being available.
The first reported case involving indigenous copyright was Yumbulul v Reserve Bank, to
which reference has already been made.136 It concerned the reproduction of the design of a
Morning Star Pole on yet another Australian banknote, this time a special ten dollar note
issued to commemorate the bicentennial of the first European settlement of Australia. The
Reserve Bank had reproduced the artist’s design under a sub-licence granted by a collecting
agency for Aboriginal artists to which the artist had previously granted a written licence. The
artist had been criticised within the Aboriginal community for permitting reproduction of the
design on a banknote. His response was to sue the Reserve Bank for infringement of
copyright and to take action against the agency to set aside the licence by reason of what was
said to be misleading and deceptive conduct and unilateral mistake.
The claim against the Reserve Bank was settled, while that against the agency failed on the
facts. Apart from the evidence relating to the cultural constraints on the use of Morning Star
Poles, the case is significant in three respects:
134
The case is noted in Copyrites, note 1 above, 15-16.
135
An account of the case is given in C Golran, “Aboriginal Art and Copyright: The Case for Johnny
Bulan Bulan” (1989) 10 EIPR 346.
136
See text at note 68, above.
Copyright paper Cardozo clean copy 2 4302.doc 26
first, French J held that the Morning Star Pole created by the artist was an original artistic
work in respect of which the artist held copyright, notwithstanding his use of traditional
motifs;137
secondly, he decided that communal concerns about the artist’s possible departure from
his cultural obligations had no impact upon the effectiveness of contractual arrangements
into which he had entered with third parties; and
he observed, in a passage often cited by commentators, that the current law may give
inadequate recognition to Aboriginal community claims to regulate the reproduction and
use of works which are “essentially communal in origin”.138
Yumbulul, then, shows that Aboriginal artists have the protection of copyright law, but also
are bound by any agreements into which they enter voluntarily. Communal claims to control
the dissemination of sensitive cultural information by members of the community are less
susceptible of recognition under principles of intellectual property law although, as will be
seen, those claims may still be recognised to some extent.139
The next case, Milpurrurru v Indofurn Pty Ltd,140 is instructive, not least for its detailed
explanation of the cultural restraints on inappropriate use of reproductions of creation stories
and dreamings. The applicants were three living Aboriginal artists and the representative of
five deceased artists. Each artist had a national and international reputation. The respondent
company imported into Australia some 246 carpets manufactured in Vietnam, each of which
reproduced either the whole or some part of an art work created by one of the artists.141
No issue was raised as to originality of the art works for copyright purposes. The Court took
a broad view of what constituted a taking of a substantial part of a copyright work. It was
held that even where the carpet designs had been substantially modified, in one instance so
that no more than ten per cent of the work had been used to create a border pattern on an
otherwise plain carpet, the carpets infringed the copyright of the artists.142 In these
circumstances, the Court concluded that the company had infringed the artist’s copyright by
137
Yumbulul v Reserve Bank, 484.
138
Id, 490.
139
See text at note 146, below.
140
(1994) 54 FCR 240. See text at note 60, above.
141
Four bark paintings, one lino cut and three “Papunya”-style dot paintings in acrylic paint on canvas.
142
Milpurrurru, 262-263.
Copyright paper Cardozo clean copy 2 4302.doc 27
importing the carpets for the purpose of sale.143 The directors of the company were also
found liable as having authorised the infringement.
The major legal significance of the case is the form of relief granted to the applicants.
Conventional orders were made for delivery up of the infringing carpets and damages in
conversion144 and for diminution in the value of copyright. von Doussa J accommodated a
request made by counsel for the applicants that the orders be in a form which enabled the
fruits of the action to be shared, in accordance with Aboriginal law, equally among the
artists.145 Moreover, he considered that the Copyright Act permitted the Court to award
damages for personal suffering caused by the copyright infringement. 146 While damages
could not be awarded for the pirating of cultural heritage as such, von Doussa J held that,
having regard to the flagrant violations of copyright, additional damages could be awarded to
reflect the culturally based harm suffered by the three living applicants. Thus in a case
involving infringement of the copyright of Aboriginal artists, the award of damages took
account not only of the artists’ financial losses but the hurt caused by the appropriation of
culturally sensitive material.
Bulun Bulun v R & T Textiles Pty Ltd147 is an illustration of both the potential scope and the
limitations of orthodox principles of law when invoked to protect indigenous culture. There
were two applicants. The first was the artist who had been involved in the 1989
148
proceedings; indeed his complaint concerned “Magpie Geese and Water Lilies at the
Waterhole”, the very same bark painting that had been the subject of the earlier proceedings.
The second applicant, the senior member of the Ganalbingu people of Arnhem land, sued in
his own right and as a representative of his people.
The artist’s case was straightforward. He complained of the importation of fabric which
reproduced his painting. The importer admitted infringement of copyright and consented to
appropriate orders.149
143
Copyright Act, s 37.
144
Id, s 116(1).
145
Milpurrurru, 272-273. The judgment expressed the aggregate liability of each respondent to the
applicants as a group.
146
Copyright Act, s 115(2).
147
(1998) 86 FCR 244.
148
See text at note 125, above.
149
Bulun v Bulun, 247. Although the importer did not appear, the Court had the benefit on other aspects
of the case of arguments by an intervener and amicus curiae.
Copyright paper Cardozo clean copy 2 4302.doc 28
The second applicant’s claim was more complex. He sought relief against the importer on
the basis that the Ganalbingu people had the equitable title to the copyright in the artistic
work, the legal title only vesting in the artist. The equitable title was said to arise because the
representatives of the community had the power under customary law to regulate and control
the production and reproduction of the corpus of ritual knowledge. On this argument, the
artist was in the position of a trustee or fiduciary and, accordingly, held his own title as
copyright owner in trust for the community.
The Court accepted the factual foundations of the representative claim. In particular, it
accepted evidence that
“[u]nauthorised reproduction „at the Waterhole‟ threatens the whole system and
ways that underpin stability and continuance of Yolngu society [Aboriginal people of
Arnhem Land]. It interferes with the relationship between the people, their creator
ancestors and the land given to the people by their creator ancestor. It interferes with
[the people‟s] custom and ritual, and threatens [the people‟s] rights as traditional
Aboriginal owners of the land and impedes…the carrying out of the obligations that
go with this ownership and which require [the people] to tell and remember the
story…as it has been passed down and respected over countless generations”.150
The Court concluded, however, that the representative claim could not succeed against the
importer.
First, von Doussa J rejected an argument based on Mabo, to the effect that the common law
recognises communal Aboriginal title in relation to artistic works.151 He saw no reason to
doubt that
“customary Aboriginal laws relating to the ownership of artistic works survived the
introduction of the common law of England in 1788. The Aboriginal peoples did not
cease to observe their sui generis system of rights and obligations upon the
acquisition of sovereignty of Australia by the Crown. The question however is
whether those Aboriginal laws can create binding obligations on persons outside the
relevant Aboriginal community, either through recognition of those laws by the
common law, or by their capacity to found equitable rights in rem”.152
von Doussa J answered the question in the negative, at least in relation to indigenous
collective ownership in artistic works. At the time of European settlement in 1788 there may
150
Id, 251.
151
For development of the argument, see S Gray, note above, 232-236.
Copyright paper Cardozo clean copy 2 4302.doc 29
have been scope for the continued operation of a system of indigenous collective ownership.
That system arguably might have been incorporated into the common law, since it recognised
that the author of an unpublished artistic work had property in the work which lasted in
perpetuity or until publication. But the common law had since been subsumed by statute, in
particular by legislation which abolished the common law right in unpublished works until
first publication.153 von Doussa J also held that the Gunalbingu people could not collectively
be regarded as the joint authors of the artistic work for the purposes of the Copyright Act,
since merely supplying an artistic idea does not, of itself, establish joint authorship of a
work.154
Secondly, the Court found that, on the evidence, no express trust had been created in favour
of the community by the artist as owner of the copyright. von Doussa J accepted that no
formalities were necessary for an express trust and that the critical issue was whether the
artist had intended to create a trust. He considered, however, that the fact that the artist had
sold the work and retained the proceeds of sale for himself was inconsistent with an intention
to create an express trust. On the evidence, there was nothing to suggest that ownership and
use of the work itself was to be treated separately from ownership in the copyright. In these
circumstances, the permission granted by the senior Gunalbingu people to create the work
could not establish the existence of an express trust.155 Furthermore, since a copy of the work
had been reproduced with permission in an important book, there could be no suggestion that
the imagery incorporated into the work was sacred or secret.156
Thirdly, notwithstanding the first two holdings, the Court considered that the unique
relationship between the artist and the Gunalbingu people could be characterised as fiduciary
in character. The artist was required to act, in relation to the artistic work, in the interests of
the Gunalbingu people in order to preserve the integrity of their culture and ritual knowledge.
The artist was entitled to consider and pursue his or her own interests, for example by selling
the work, but was not permitted to shed the overriding obligation to preserve the integrity of
the Gunalbingu people.157
152
Id, 257.
153
Copyright Act 1911 (UK), adopted in Australia by the Copyright Act 1912 (Cth), s 8. See now
Copyright Act, s 8. For criticism of this reasoning, see S Gray, note above, 243-245.
154
Bulun Bulun, 257-258.
155
Id, 259.
156
Ibid.
157
Id, 262.
Copyright paper Cardozo clean copy 2 4302.doc 30
As a fiduciary, the artist was subject to an obligation not to exploit the artistic work in a
manner that was contrary to the laws and customs of the Gunalbingu people. This obligation
extended to taking reasonable and appropriate action to restrain and remedy infringement of
the copyright in the artistic work by a third party. These obligations were not, however,
sufficient to vest equitable title in the copyright in the Gunalbingu people. Their remedy, in
the event of a breach of obligation by the artist was to bring an action in personam against
the artist to enforce his or her fiduciary obligations to the community. Since the artist had
successfully taken action against the third party in respect of the infringement of his
copyright, there had been no breach of his fiduciary duties and no occasion for the
intervention of equity.
Although the representative claim failed, the reasoning leaves open the possibility that, in
somewhat different circumstances, a claim by a community to restrain inappropriate
dissemination of culturally sensitive material might succeed against a third party, even one
who reproduces a work with the consent of the copyright owner. The facts in Bulun Bulun
did not support the existence of an express trust. If, however, an artist expressly or by
implication agreed to hold the copyright in a work based on traditional motifs in trust for the
community, it is by no means out of the question that a representative claim by the
community against a third party might succeed.158 If such a trust is valid, reproduction of a
work by a third party, even with the consent of the legal owner of the copyright might not
extinguish the rights of the community against the third party. Similarly, a third party who is
aware of the circumstances giving rise to fiduciary duties to a community of the kind
recognised in Bulun Bulun, may become liable to the community if, for example, he or she
becomes knowingly involved in the copyright owner’s breach of fiduciary duty. 159 The
introduction of a national system for the labelling of Aboriginal works to identify authenticity
of indigenous cultural products160 may well provide a factual basis for affording wider
protection to the cultural integrity of indigenous communities than hitherto has been the case.
158
von Doussa J pointed out that the purported creation of a trust in favour of a particular Aboriginal
group might raise an issue as to whether the trust has the requisite certainty of objects.
159
Consul Developments Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373.
Copyright paper Cardozo clean copy 2 4302.doc 31
Conclusion
It is undeniable that the Australian legal system, for the best part of 200 years, did very little
to protect indigenous culture in any of its forms. The consequences of that long history of
neglect cannot be reversed. Nonetheless, much has changed in a relatively short period of
time. The recognition of indigenous culture by the legal system has sometimes been sudden
and dramatic, as with the High Court’s decision in Mabo. Mostly, however, the process of
recognition has been gradual, with a consequence that many claims advanced on behalf of
indigenous interests have not been successful. Mirroring the situation in the international
arena, a steady stream of reports and inquiries has failed to produce comprehensive
legislative action. Even so, the general law, including but not limited to intellectual property
law, has proved more adaptable to indigenous claims than many might have thought possible
only a decade ago.
Constructive engagement between indigenous culture in Australia and the wider legal system,
in a sense, has only just begun. However imperfect and halting the process, it has at least
provided an opportunity to fashion particular solutions that take account of the unique
circumstances of indigenous Australians and the painful history of dealings between
indigenous peoples and the non-indigenous community. There is much to be said for
continuing along that path.
160
J von Doussa, “Legal Protection of Cultural Artistic Works and Folklore” (unpublished paper,
Conference on Legal Developments in the Pacific Island Region, Vanuatu, 2000), 18; M Annas, “The
Label of Authenticity” (1997) 3 Aboriginal Law Bulletin 4.
Copyright paper Cardozo clean copy 2 4302.doc 32