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Pham, Lan; Janke, Terri --- "Codifying Culture: Indigenous Australian Art Commercial Code of Conduct" [2009] IndigLawB 31; (2009) 7(13) Indigenous Law Bulletin 25
Codifying Culture: Indigenous Australian Art Commercial Code of
Conduct
By Lan Pham and Terri Janke.
In 2007, an Inquiry was held
by the Senate Standing Committee on Environment, Communications, Information
Technology and the Arts
to report on the widespread occurrence of unethical
trade practices in the Indigenous visual arts
industry.[1] The key recommendation
from the Inquiry was the introduction of an Indigenous Art Commercial Code of
Conduct to set minimum national
standards for appropriate and ethical
trade.[2] The Code would aim to
specify best practice for the industry and to clearly define the terms of trade
for agreements between artists,
dealers and agents. It is hoped that the Code
will protect the rights and integrity of Aboriginal artists and their
communities.
The Australia Council’s Aboriginal and Torres Strait Islander
Arts Board (‘ATSIAB’) is responsible for drafting
the Code, taking
over from the National Association for the Visual Arts (‘NAVA’).
ATSIAB released a draft version of
the code in December
2008[3] (‘the
Draft’).
The Draft has been established as a voluntary
guideline and is intended to be used in the formation of agreements between
artists, agents
and dealers. The focus of the Draft is to protect each
party’s respective commercial interests and to regulate their mutual
dealings and professional
relationships.[4] A division of the
Draft specifically sets out agent and dealer responsibilities to protect
Aboriginal and Torres Strait Islander
artists from exploitation and unfair
treatment and includes provisions for a ‘minimum terms’ template
agreement.[5] Another section deals
with agreements with artists and identifies key points that the dealer must
disclose to the artist, including
the capacity in which the agent or dealer is
acting, terms of payment, as well as associated timeframes for their production
and
delivery.[6]
The Draft
indicates that artists entering into agreements with art galleries must be
thoroughly informed of the terms and processes
when making agreements and that
they must be given the opportunity to seek advice if
necessary.[7] Respect for Indigenous
cultural practices and artists’ rights is also included, requiring dealers
to follow applicable Indigenous
cultural practices and ensuring that artists are
correctly attributed, and that permission is properly obtained for the use of
photographs
on websites. The Draft specifically establishes that secret and
sacred works ought not be marketed, promoted or
sold.[8] The Draft also has provisions
for dispute resolution.[9] By clearly
setting out each entity’s rights and responsibilities in concluding trade
agreements, the Draft attempts to protect
the integrity of Indigenous artists
and to assist them in negotiating fair terms of an agreement.
In 2009,
development of the Draft continues. ATSIAB has released a discussion
paper[10] explaining its key
substantive provisions and seeking industry comment and response. ATSIAB has
received 20 formal submissions and
has conducted public forums across Australia
to gather further feedback. The main issues emerging from the discussion paper
and national
consultations are discussed below.
To Whom Should the
Code Apply?
The Draft currently only applies to commercial relationships
between artist, agent and dealer. In our opinion, this could limit its
effectiveness. As the National Association for the Visual Arts
(‘NAVA’) comments, the Indigenous visual arts industry
is a complex
network of relationships, extending beyond this traditional three party paradigm
to include ‘transactions between
commercial, not for profit, public and
private entities.’[11]
In reality, all affected entities should be adhering to the ethical
standard if fair trade and the sustainability of the art industry
are to be
achieved. Whilst it is not their core business to resell artworks for profit,
publicly funded galleries ought to develop
an acquisitions policy that operates
within the prescribed ethical
standards.[12] Further, there is no
code of conduct applicable to music or the performing arts; the Draft could be
further expanded protect artists
working within these spheres. Extending the
Draft to include all industry players will lead to better protection of the
rights and
integrity of all artists.
Can a Voluntary Code be
Effective?
The Draft depends for its effectiveness on the diligence and
commitment of its signatories. The Senate Inquiry has indicated that
the Code
would be voluntary initially but would be evaluated two years after its
implementation. At that time, the Code could become
a prescribed code of conduct
under the Trade Practices Act.[13]
For this reason, the Draft Code has been prepared in line with the Australian
Competition and Consumer Commission’s (‘ACCC’)
best practice
principles for voluntary codes. Notably, the Draft does not offer a monitoring
system to govern the behavior of dealers
and galleries. Nor does it stipulate
strict sanctions for breaches of the terms and conditions of formulated
agreements.
The Arts Law Centre of Australia submission doubts whether a
voluntary code can inhibit the unethical behavior of dealers and galleries.
Unscrupulous dealers are unlikely to sign
voluntarily.[14] Without statutory
sanctions and proper evaluation of the Code’s efficacy, any attempt to
protect the commercial interests of
artists may be hindered. Nevertheless, a
voluntary code can assist consumers who wish to purchase artworks from galleries
and dealers
that adhere to the standards set by the Code. To that end,
industry-wide endorsement will be pivotal to its success.
The Use
of Written Agreements
The Draft does not require agreements between
parties to be concluded or evidenced in writing. The use of written agreements
and the
presence of a third witnessing party could ensure that settled terms of
an agreement are not later varied; such a measure could also
assist in future
dispute resolution.
But for written agreements to have any impact, their
key terms, definitions and concepts need to be understood by Aboriginal and
Torres
Strait Islander artists so they can make ethical and informed choices.
For this to happen, artists need access to appropriate resources.
A clear
understanding of the terms of an agreement may also be fostered by translating
the Code into Indigenous
languages.[15] Commitment to proper
understanding is essential to transparent negotiation processes; only when
parties stand on equal footing can
business practices shift to protect
artists’ commercial interests in a way that is fair and ethical. A
national education program
would need to be undertaken to ensure that Indigenous
artists, dealers and galleries all properly understand the Code and its
implications
for their practice.
The Exclusion of a Pricing
Benchmark
The exclusion of a price and commission standard may limit the
Code’s practical value. Artists have a right to be appropriately
remunerated for their work and this right is compromised by the Draft’s
lack of clear guidelines as to what constitutes appropriate
market payment. The
Arts Law Centre’s submission suggests that independent verification for
the value of an artwork will assist
artists to negotiate fair
remuneration.[16]
Copyright,
Authenticity and Indigenous Cultural and Intellectual Property
The
ethical representation of artists and their work is another aspect of the Code.
To cover moral rights, the Draft specifies minimum
standards for the treatment
of works in sale, promotion and
reproduction,[17] stating that
authenticity of an artwork, its history and place of creation, should each be
attributed to the artist.[18]
However, the Draft does not require dealers to respect protocols governing
Indigenous Cultural and Intellectual Property (‘ICIP’).
ICIP refers
to Aboriginal and Torres Strait Islander people’s rights to their
heritage, including arts, dances, stories, languages,
designs and knowledge.
Importantly, these rights belong to a community rather than any one
individual. Accordingly, Indigenous artists who depict ICIP in their art may
have special duties and responsibilities
to their communities.
While
ICIP rights are not yet recognised in Australia, they are gaining momentum
internationally. The World Intellectual Property
Organisation is currently
examining the status of traditional cultural expression rights under
intellectual property law.[19]
Further, Article 31 of the Declaration on the Rights of Indigenous
Peoples, provides that Indigenous artists have a cultural right to
‘maintain, control, protect and develop’ their cultural heritage,
including the way in which their work is used, made available to the public and
adapted. While not binding under Australian law,
the Federal Government’s
formal endorsement of the Declaration in April this year demonstrates
recognition of its validity.
Accordingly, the finalised Code should provide
proper protection for ICIP to strengthen this emerging right. Requiring
compliance
with ATSIAB protocols relating to ICIP is one way of approaching
this.[20]
Dispute
Resolution
The Draft sets minimum standards for the resolution of
complaints and disputes.[21] Again,
as there are very few sanctions stipulated by the Draft, fair and equitable
dispute resolution may not always be provided to parties in disagreement.
The Draft states that sanctions are not applicable for the
first three months
during which an agreement is in
force.[22] Clearly, this exemption
may compromise an artist’s rights where a breach has occurred within that
timeframe. The Draft also
states that mediation costs ought to be divided
equally between the parties
involved.[23] Ostensibly in pursuit
of equitable dispute resolution, this provision does not reflect the often
unbalanced financial resources of
the parties. Strict enforcement of such a
requirement could compromise effective and efficient dispute resolution where
artists cannot
afford mediation. The Arts Law submission suggests that dealer
registration fees be used for this
purpose.[24]
Looking
Forward
While the introduction of a formal system of ethics could lead to
a fairer standard of business trade in the visual arts sector, the
issues
discussed above require further attention before final implementation of the
Code. To ensure effective and appropriate industry
standards, certain matters
ought to be revisited and reconsidered. This includes the draft Code’s
failure to incorporate significant
players in the visual arts sector, as well as
the exclusion of music and performing arts. On a practical level, appropriate
resources
should be made accessible to artists so they can gain a comprehensive
understanding of the Code, the way it operates and its implications.
The
use of written agreements will be necessary if the Code is to have a real effect
on the industry. A future revision of the Draft
is to include a template
agreement setting out acceptable terms and
conditions.[25] Whether this element
of the Code is likely to be effective depends entirely on the substance and
detail of each clause. To reset
standards, and ensure wide use in the Indigenous
visual arts industry, the agreement must be drafted in plain English, following
a logical and straightforward structure. To further assist relationships between
the artist and dealer, the Code could provide case
studies or minimum standards
to guide pricing; it may be that an independent commission is the best mechanism
to ensure that artists
receive fair remuneration for their work.
In its
final form, the Code has enormous potential to protect the rights of Indigenous
artists and their communities but, as it is
currently a voluntary standard, this
will require industry-wide support and promotion. A comprehensive education
program for artists,
agents, dealers and consumers about the Code will set it on
a strong path. However, to implement the Code at all levels, and to encourage
dealers to take on more onerous commercial standards, requires an adequately
resourced team. The Indigenous Australian Art Commercial Code of Conduct,
if effectively administered and supported, will be key to fostering the
development of a system that promotes fair and ethical business
trade.
Lan Pham graduated from Sydney University with a BA
majoring in Film Studies and History. Lan is Professional Assistant to Terri
Janke.
Terri Janke is Solicitor Director at Terri Janke and
Company, a law firm that specialises in Indigenous Cultural and Intellectual
Property. Terri is currently completing a PhD at the Australian National
University.
[1] Australia Council, Aboriginal
and Torres Strait Islander Arts Board (‘Australia Council’),
Indigenous Australian Art Commercial Code of Conduct Consultation Draft,
(2009)
<http://www.australiacouncil.gov.au>
.
[2] Senate Standing Committee on
Environment, Communications, Information Technology and the Arts, Indigenous
Art – Securing the Future (2007)
<http://www.aph.gov.au/Senate/committee/ecita_ctte/indigenous_arts/report/report.pdf.>
[3] Australia Council, above n
1.
[4] Ibid.
[5] Ibid, 8-11.
[6] Ibid, Division 2.2, Clause 8,
8.
[7] Ibid, 9 - 10.
[8] Ibid, Division 2.3, Clause 15,
13.
[9] Ibid, Clause 22, 17.
[10] Australian Council for the
Arts (‘ACA’), Discussion Paper: Indigenous Australian Art
Commercial Code of Conduct March2008, (2009) Sydney
<http://www.australiacouncil.gov.au>
.
[11] National Association for the
Visual Arts(‘NAVA’), Response to the Call for Comment on the
Australian Indigenous Art Commercial Code of Conduct Consultation Draft-December
2008, (2009), 1
<http://www.visualarts.net.au>
.
[12] Australia Council, above n
1. 8.
[13] Ibid, 1.
[14] Submission to the Senate
Standing Committee on Environment, Communications, Information Technology and
the Arts, Parliament of Australia,
Canberra, 25 March 2009, 1 (Robin Ayres, Arts
Law Centre of Australia),
<http://www.australiacouncil.gov.au>
.
[15] Submission to the Senate
Standing Committee on Environment, Communications, Information Technology and
the Arts, Parliament of Australia,
Canberra, 25 March 2009, 17 (D Cullen)
<http://www.australiacouncil.gov.au>
.
[16] Ibid 5.
[17] Australia Council, above n
1, 17.
[18] Ibid, 12
[19] See World Intellectual
Property Organisation, ‘Draft Provisions on Traditional Cultural
Expressions/Folklore and Traditional
Knowledge’
<http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html>
.
[20] Australia Council for the
Arts, Visual Arts: Protocols for Producing Indigenous Australian Visual
Arts, (2nd edition, 2008),
<http://www.australiacouncil.gov.au/publications/indigenous/visual_arts_protocols_for_producing_indigenous_australian_visual_arts>
.
[21] Australia Council, above n
1, 17.
[22] Ibid.
[23] Ibid.
[24] Ayres, above n 14.
[25] Australia Council, op
cit.
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