The concern for the rights of Aboriginal artists for their copyrights has been brewing overtime. Aborigines in Australia feel excluded in term of protection for their indigenous cultural heritage as well as intellectual property. However, this debate is as alive as before. In one stance, the issue came up for debate in the famous 1997 paper commissioned by Aboriginal Torres Strait Islander Commission titled “ Our Culture, Our future”. Before venturing into the debate of the copyright of the Australian Aboriginal rights, it is prudent to understand meaning of Aboriginal art (Arts Law Centre of Australia).
In the aboriginal society, art is considered as one of the key rituals of culture and is always used to mark territory, record history, and tell stories about the dreamtime. Indigenous Australian art is art made by the Indigenous peoples of Australia. It includes works in a wide range of media including painting on leaves, wood carving, rock carving, sculpture, ceremonial clothing and sand painting. Indigenous Australian art is produced by Indigenous Australians, covering works that pre-date European colonization as well as contemporary art by Aboriginal Australians based on traditional culture.
Because of the evolvement of copy right laws in Australia and the development of capitalism as a way of culture courtesy of Europeans who settled in Australia, Aboriginal artists are no longer perceived as ‘long dead’ tribesmen, but as named individuals and contemporary artists, their works are hung alongside the work of their non-aboriginal contemporaries as well as in special sections dedicated to abo art in every major art gallery in the country. Nowadays the Aboriginal artists are now becoming the introducer of the authentication for commercial to help consumers distinguish products which involve Aboriginal artwork from the illegal uses of Aboriginal artists’ work crowding onto the market. Even though the recognition for the Aboriginal art as property of individuals has been a subject of debate, there has been little effort to honor the integrity and the pieces of work as intellectual property.
Kenyon (2001) reported that the aboriginal people in Australia have stressed the undeniable connection between intellectual and cultural property as well as other parts of cultural heritage that are pertinent to the country and its history. It is important to understand that Abo rights in the laws of Australia, includes the freedom or right to determine its nature and extent according to the laws of the land. This law also leaves a channel for the exclusion of others for the use if the art without their permission or knowledge. Still, the social and economic significance of Aborigines to the Australian population remains unnoticed as well as unrecognized. While the aboriginal work of Australia has played a critical role in the development of the Aussie culture in addition to playing a significant role in the economy, particularly tourism, little has been done to acknowledge the place of Australian Aborigines in the society.
In fact, there has been a long history of unauthorized use and duplication of art, designs and other intangible expressions of the Aborigines without due recognition of the copy rights. Some of these misuses have been reported while others have remained accepted in the norms of the Australian culture. For example, on the website “The House of Aboriginality”, the misuse of Aboriginal arts without their copyright became a subject of great debate. Similarly, the original Aboriginal art works and their unauthorized reproductions onto fabric, T-shirts and carpets which confront each other in the physical space of the ‘copyrights’ exhibition represent opposite ends of the spectrum of commercial uses of Aboriginal visual cultures. Aboriginal art is now a highly priced and keenly sought after commodity on the local and international art market.
While examining Aboriginal arts, one must reckon that Aboriginal arts stems from the designs that were made by long dead ancestors. Art for this matter becomes a key aspect of the identity of the native Australian. Abo artist activist propose the argument that aboriginal paintings ought not be “slavish copies of others, but original designs”. The contemporary Aboriginal arts must be a continuation of the aboriginal traditions and culture. In the aspect of the corporate and copy right of the Abo arts, the name Wandjuk Marika comes to mind. Wandjuk Marika was one of the first Abo artist to come to contact with the locals. In the recent times, many Abo artists have been sentisitized on the need for copy righting their work so that they can earn a penny out of them (Wardrop, 2002).
Abo artists’ only avenue of redress for infringements of their Abo copyright by outsiders to their culture is the Australian legal system. In certain respects, such as the attribution of copyright to individuals, the Australian copyright act in 1968 is in total than light. The facts of each case need to be understood against the long and continuing struggle of abo artists to obtain for their work is the recognition, respect and acknowledgement.
Not only the cases have been important in Aboriginal legal and cultural terms, but they have represented a willingness on the part of abo people to look to the courts for redress in relation to matters of commercial significance. This development represents a significant turnaround in thinking from notions of the law as an oppressor of Aboriginal people. However, the recent years has witnessed a surge in the awareness of the need for preventing misuse of art belonging to indigenous people. The Australian courts implemented decisions that favored the protection of aboriginal arts from exploitation. The 1968 Copyright Act was perhaps the beginning towards the protection of aboriginal rights. The same route was followed in 1983 when the court ruled in favor of the Aboriginal Artist Agency that set the precedence of protection of aboriginal communal arts by acknowledging could have the same recognition as legal original work. In 1994, the court case involving the use of aboriginal design in carpets led to huge awards in terms of damages leading to the establishment that partial copying or full copying of material was equivalent to the infringement of rights. In recent years, the court decisions have provided basis for the extension of copyright laws to accommodate indigenous perspectives.
Still, these developments have not been enough. It is still common knowledge that effective protection of indigenous intellectual property for aboriginal art is still not fully covered by the existing laws. Perhaps one of the greatest challenges from the legal stand point is the lack of communal or collective rights as well their limitation or protection from the society from intangible expressions of culture. In most cases, or as often understood by the conventional society, the communal art do not meet the requirement of originality. Copyright is provided only for a limited period of time which is not guaranteed for communal art done by indigenous people.
Another question that has been subject to controversy is whether it is possible to produce aboriginal art within the framework of western traditions without necessarily stepping on the rights of the aboriginal people? According to Margret Preston’s Abo-inspired works incorporated heavy outlining with earthy colors but remained within the pictorial traditions of Western art as did Albert Namitjira’s watercolors of the MacDonnell ranges which were formerly despised by the art establishment. Byram pointed the way in works such as the kangaroo. The original mural was painted with earth colors on Australian timber and using the ‘line technology’ of the aboriginal. The key here is appropriateness. The earth colors, timber and technique were intended to establish a sense of the primitivism of the aboriginal life-style but the landscape figures of the aboriginal spearmen and the kangaroos does created a jarring note.
In general, it must be understood that the question for aboriginal arts and their copyright is a question of a people deeply hurt by continual exploitation from the majority culture. The Australian community must come out and in humility say sorry to the whole community. Tony Albert introduces the concept of sorry from his movie made from Prime Minister Kevin Rudd’s formal apology.
Inasmuch as Tony Albert’s forest of faces introduces to the history of the Aborigines, it is also opening wounds for a people coming to terms with reality. Each also represents a false identity; a manufactured black face made to fit a white society. Harth (2010) argued that while Albert can argue that his action is a representation of the modern Australia, it’s a mere mockery of the truth. While aboriginal art is Australian art, its owners still deserve to be accorded the special respect that they require.
Arts Law Centre of Australia, The Gunnery, 43-51 Cowper Wharf Rd, Woolloomooloo NSW 2011;
Phone 1800 221 457, 9356 2566, fax (02) 9358 6475, www.artslaw.com.au
Australian Indigenous Art Trade Association, www.arttrade.com.au
Board of Studies NSW. (2001). Protecting Australian Indigenous Art: ownership, copyright and marketing issues for NSW schools. Retrieved September 14, 2013, from Board of Studies NSW website: http://ab-ed.boardofstudies.nsw.edu.au/files/protecting-australian-indigenous-art.pdf
Kenyon, A. (2001). Copyright, Heritage and Australian Aboriginal Art. U of Melbourne, Public Law Research Paper, No.11(1), 134-189.
National Indigenous Arts Advocacy Association (NIAAA). (1996). riginality: Contemporary Aboriginal Paintings and Prints. Retrieved September 14, 2013, from Powerhouse Meseum website: http://www.powerhousemuseum.com/hsc/paperbark/symbols.htm
Wardrop, M. (2002). Copyright and Intellectual Property Protection for Indigenous Heritage. Retrieved September 14, 2013, from Land and Cultures website: http://www.aboriginalartonline.com/resources/debate.php