Golvan, Colin --- "Aboriginal Art and the Public Domain" [1998] JlLawInfoSci 9; (1998) 9(1) Journal of Law, Information and Science 122

• Aboriginal art and the public domain
• Abstract
• Addendum

Aboriginal art and the public domain

Colin Golvan^[∗]

Abstract

Care needs to be exercised in making use of Aboriginal art. While Australian courts favour the protection of Aboriginal art under copyright law, difficulties arise due to a strong divergence of understanding about the scope of the ‘public domain’ from an Aboriginal as opposed to a non-Aboriginal perspective.

This paper explores recent cases on infringement of copyright in Aboriginal works and concludes that if the level of interest in Aboriginal works by non-Aboriginal Australians continues to rise, then the issue of providing further protection for the reproduction of Aboriginal works should be addressed.

The Commonwealth has a special role to play in the protection and enhancement of Aboriginal culture. It is imperative that the law provide adequate protection for Aboriginal copyright, not least for that reason. In that regard, care needs to be exercised in making use of Aboriginal copyright works, which may be on the ‘fringes’ of copyright protection. This is a relevant consideration in the present context to the extent that the public domain might be considered to include usage (albeit not copyright usage) of copyright works. By that I am referring to the concept of the free use of ideas, as it is understood in copyright law. The general rule here should be that those advising on the uses of Aboriginal copyright works should err on the side of the copyright owner in making judgments about substantial reproduction or adaptation or fair dealing.

Wherever possible, appropriate permission should be sought for the copyright uses of Aboriginal copyright works. In doubt, users should check with communities. It is one of the special features of traditional Aboriginal copyright that communities may have rights in such works.

There are a number of unresolved issues involving Aboriginal art and culture in the public domain. By application of ordinary principles, most rock art is in the public domain, as are ‘the styles’ of particular clans. The design of the boomerang is in the public domain, as is the didgeridoo. Aboriginal dance, save in notated form, is in the public domain.

Aboriginal interests have brought copyright principles to bear on problems of infringement, and in recent years they have been engaged in stopping infringement of their copyright on fabric and carpets. Well noted examples include an action involving large scale copyright infringement on T-shirts in 1988 and the carpets case of 1994.^[1] As the Milpurrurru case shows, courts, not surprisingly, have had no difficulty in applying ordinary copyright principles to claims of copyright infringement based on traditional Aboriginal art, but in doing so they have had to interpret the ambit of the notion of infringement as it applies in cases of substantial rather than exact reproduction. The carpets case is worth exploring further.

It might be said that Von Doussa J in that action took a generous view of what is not in the public domain in favour of ‘protecting’ Aboriginal artists. Certainly Von Doussa J had no difficulty with the concept that contemporary works of Aboriginal art can be protected under copyright law though such art depicts ancient images which have been reproduced over countless generations.

There is a strong divergence of understanding about the scope of ‘the public domain’ from an Aboriginal as opposed to a non-Aboriginal point of view. Traditional people speak of the artwork and culture of their community as being the property of the community. In traditional opinion, it is not correct for people who are not appropriately authorised by the clan group to utilise images of mythical creatures, for example, in their art work. Only certain people, for example, have the right to paint the image of the fruit bat in Central Arnhem Land tradition. That tradition is generally respected throughout Arnhem Land. The same applies to paintings using X-ray images of wallabies, which have their home in Western Arnhem Land, and is not copied by clan groups in other parts of Arnhem Land, even though the copying of the art form might not constitute in any sense an infringement of copyright. It would offend Aboriginal law and custom.

Traditional people find that there is a big gulf between their concept of clan ownership of rights in images and ceremonies and western notions of ownership of rights. They generally observe the protection of western law with a high degree of concern about lack of protection for the future of their fragile cultures, significantly under threat as they are from the many challenges to traditional ways of life. That concern is, in my view, only in part justified.

Is there a case for a different public domain for traditional Aboriginal people, as compared with the public domain as it is understood in conventional Australian law? For example, should there be an extended or even unlimited time for protection of certain images, such as important works of rock art, at the behest of communities as custodians of such rights? Copyright law does not really allow for exceptions in relation to sectional interests, let alone laws which depart significantly from principles required to be enacted pursuant to international treaty. Rather, I would suggest that problems of this kind need to be addressed from an Aboriginal perspective.

It is impossible to consider Aboriginal art and culture in any meaningful way without addressing ownership and right of use of land. In many Aboriginal traditional societies, the right to paint images is an incident of the right of ownership of land and indeed important artworks are often spoken of as titles to land. This communal interest in traditional Aboriginal artworks was recognised by von Doussa J in Milpurrurru when he said,

‘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.’

In traditional Aboriginal societies the private ownership of rights in artworks is unknown but rather rights to reproduce artworks are understood to be owned by the traditional owners of land. This issue has been recently before the Federal Court in the case of John Bulun Bulun v R & T Textiles Pty Ltd (heard by von Doussa J in Darwin in September 1997). This case involved a claim that the communal interest in a copyright work be respected under long-standing copyright principles governing the protection of equitable interests in copyright, involving the right of a beneficial owner of copyright to seek protection for such work.

The term ‘public domain’ becomes very appropriate in this context. In Aboriginal terms the public, as the clan group, has its right or domain over artworks by virtue of land ownership. That domain is required to be respected by other clan groups, and there are strong sanctions in Aboriginal law to prohibit clan groups from breaching the domain of other clan groups.

The private domain is essentially unknown, save for the application of western legal principles. Works, and the right to reproduce works, are owned in the public or clan domain.

Clearly, we have different cultural views here about domains and notions of private and public ownership. This is a very challenging concept in itself when one considers the meaning of public domain. In Aboriginal terms, the private domain is not understood. Painting, dance and culture generally is part of the community’s domain, and subject to community ownership, such ownership being perpetual.

The experience of conflict between the public domain, in the sense of the free use of works out of copyright term, and the interests of individual owners of rights under copyright Aboriginal artworks, is not well known in the Aboriginal context, because fundamentally there are not many, if any, identifiable Aboriginal copyright owners who died over fifty years ago, whose works are sought to be reproduced. The problem will become of greater practical relevance only as time passes. Instead the problem of the public domain and old, often ancient, artworks is one for communal management. That is, there are works created by artists who died well over fifty years ago which are sought to be reproduced, such as rock art. In some cases, the artists lived some tens of thousands of years ago. In Kakadu National Park, there are examples of amongst the first artworks created by mankind.

Is it appropriate that there be free reproduction of such works, from a cultural perspective? In some cases, the answer will be ‘no’ from an Aboriginal point of view, for religious or cultural reasons. The reproduction of some ancient sacred images of Aboriginal art on tourist trinkets has been likened to the reproduction of the Shroud of Turin on oven mitts. I have elsewhere suggested that this problem might be addressed under Aboriginal heritage protection legislation, vesting rights in communities to prohibit inappropriate uses of sacred images.^[2] This issue is really part of the overall land ownership and rights problem, which is being played out so painfully at present.

Save for that matter, I would like to urge that copyright law works for Aboriginal people. Years of copyright infringement proceedings have shown this to be the case. Infringements of copyright have been stopped under existing legal principles. I am not in favour of placing Aboriginal art in some glass cage of excessive or, to address the point, overwhelming protection.

There is an argument for recognising the rights of communities to claim interests in copyright works created for their benefit and under their control. This is particularly so if we are to have a system of law in this area which recognises ancient social and communal practice. The decision in R & T Textiles may assist in resolving the question of standing of communities to protect their interests as beneficiaries.

Aside from the issue of proper cultural heritage protection, the further narrowing of public access to Aboriginal works, by way of some special exception argument, may prove to be an unsatisfactory process, removing Aboriginal art and culture from the process of engagement which occurs with unrestricted vigour in the lawful public domain. The financial independence of Aboriginal communities, where possible, is an enormously important objective at many levels, and a dynamic, rather than unduly closeted, art scene is one of the keys to the solution of the problem of total dependency on government experienced by many Aboriginal communities. The Aboriginal art scene, and in particular the market for copyright usage of Aboriginal artworks, provides almost a classic case study in the enabling power of copyright.

Aboriginal arts are continuously developing ways of fitting into the market place in which they find themselves. Communities and artists have been enormously resourceful in this area over many years now. Part of this process has involved contemporary Aboriginal artists, such as Lin Onus, making reference to Aboriginal imagery, such as rarrk or cross-hatching images of central Arnhem Land. It would be totally wrong for this access to be cut off, although in many cases, including that of Lin Onus, the usage is totally appropriate and made with community agreement.

We need a vigorous Aboriginal art scene, and a vigorous cultural encounter with that scene, as should follow from the usual rules about public domain, save for the exception I have noted. The sound of the didgeridoo is part of our musical culture, Aboriginal dance belongs to our national dance culture. Dreaming stories are part of literary culture. Aboriginal images dominate our national visual iconography. There is nothing wrong with the use of Aboriginal cultural inputs as part of the national cultural expression. I draw the line at improper uses of sacred imagery, and of course copyright uses requiring permission of copyright owners in the ordinary way. I am also troubled by problems of forgery, as arise from time to time (a reflection perhaps of the buoyancy or excesses of the Aboriginal art market), and the occasional case of deception about origin. On a positive note, could I suggest that there is also nothing wrong with the impact of contemporary western culture on the traditional Aboriginal arts—as has been particularly noteworthy in the music and dance areas.

The inspiration and dynamism of the Aboriginal arts is the message which needs to be conveyed, not the further closeting of the artform, other than as may be required to further protect the communities from inappropriate dealing (including unauthorised reproduction) with sacred images. I see this further protection as very much part of a growing awareness of the special relationship existing between people and land.

The current dynamism of the Aboriginal arts has a lot to do with the engagement of the market place, which places value on the ancient symbols of traditional Aboriginal arts as a focus or inspiration for contemporary images of ourselves and our sense of nationhood. Aboriginal art gives depth and context to images of ourselves as a people whose homeland has an ancient history. One of the great ironies of the present situation is that the nation has now formed a deep affection and need for Aboriginal imagery through which many of us seek a sense of special identity with our land. The year 2000 Olympics cannot be conducted from a cultural perspective without strong input from the Aboriginal arts. The circumstance puts the Aboriginal arts in an excellent negotiating position.

Of course, copyright protection has been and remains of great importance. I would leave it to do its work. The outcome in the R & T Textiles case is awaited with interest on the communal rights question. The pragmatic truth is that amongst the most pressing problems facing the Aboriginal arts is the need to address solutions to the problem of Aboriginal arts receiving a fairer go in the market place, through improved management and promotion of the Aboriginal arts, and the elevation of Aboriginal people to positions of management and control over the art. This is an issue of very serious concern. Lawyers (white, and I am pleased to say, increasingly black) can and do play an important role in ensuring improved contracting practices, and through their educating role in ensuring due regard for legal rights. We can also be remorseless litigators for our Aboriginal clients as the need arises. More laws cannot ensure the prosperity of communities—wealthier artists and art centres can and do. Art gives pride and strength to communities, including bread and butter sustenance generally on the table.

My own view, based on my experience of copyright litigation in this area, is that we should not begin to invent new ways for paternalising the Aboriginal arts, through the erection of bigger and more fearsome legal boundaries, where best this course can be avoided. The balance between private rights and the public domain in copyright terms has been effectively construed by the courts. The case for providing further protection outside of copyright law in connection with the inappropriate reproduction of sacred images remains to be addressed. The case for recognition of communal rights in copyright works is being considered by the Federal Court, with judgment awaited.

Addendum^[*]

Most recently, von Doussa J has given consideration to the proposition of clan groups have an interest in copyright works depicting imagery in John Bulun Bulun v. R & T Textiles Pty. Ltd. ((1998) [1998] FCA 1082; 41 IPR 513).

This proceeding involved claims by an Aboriginal artist and a clan group in respect of copyright infringement. The copyright owner Mr. Bulun Bulun, of T-shirt case fame, received remedies to which a copyright owner is normally entitled by way of settlement of claims against R & T Textiles.

Nevertheless, as a test case, the action proceeded on behalf of the clan owners of rights in the art work in question on the basis of the proposition that they were equitable owners of copyright in the art work.

They asserted such right on the basis that they, in effect, controlled the copyright in the art work, and that they were the beneficiaries of the creation of the art work by the artist acting as trustee on their behalf.

Accordingly, they claimed to be entitled to a form of collective right with respect to the copyright in the work over and above any issue as to authorship.

The case provided an opportunity for the Court to give consideration to the nature of relationships between clan groups and artists with respect to the creation of traditional art works. In so doing, the Court had an opportunity to give attention to one of the shortcomings of copyright protection to date addressing private rights of ownership in artworks in a manner inconsistent with notion of communal ownership which corresponded with perceptions of ownership held by artists and their communities. In other words, it was sought to bridge an obvious gap in the treatment of the problem of infringement as between western and communal law.

While von Doussa J held that there was no need for any order as such in favour of the clan owners of the claimed rights, he considered that the clan group was nevertheless entitled to claim to be able to protect the copyright in the art work. In doing so, the Court gave detailed attention to the customary law pertaining to the relationship between the artist and clan group. This involved the taking of evidence from clan leaders in Ramingining in Arnhem Land, rather than in Court, and also an inspection of the site the subject of the art work in question.

Of particular interest, the respondent in the proceeding did not take any role in the case brought by the clan group, but rather the claims being made by the clan group were challenged by the Federal Minister for Aboriginal and Torres Strait Island Affairs and the Attorney General for the Northern Territory, both of whom sought to intervene in the proceeding.

Much of this intervention was concerned with the issue of claims of native title and rights attaching to native title in land, but in the case of the Federal Minister extended to the issue of the remedies available to the clan group.

Von Doussa J considered that a fiduciary relationship existed between the artist and the clan group and that the artist had a fiduciary duty towards his community accordingly. Whilst the artist was entitled to pursue the exploitation of the art work for his own benefit, he was still required by reason of this fiduciary obligation to not take any steps which might harm the communal interests of the clan in the art work.

Having found the existence of a fiduciary relationship, von Doussa J considered that equity imposed on the artist as fiduciary an obligation not to exploit the artistic work in a way which was contrary to the laws and customs of his clan and to take action required to protect the artistic work pursuant to his standing as copyright owner.

His Honour noted that, whilst the artist had availed himself of the appropriate remedies, had he not been in a position to do so equitable remedies would have been available to the clan. Thus, had the artist failed to take necessary action, a remedy might be extended in equity to the beneficiaries by allowing them to bring an action in their own names against the infringer and the copyright owner. In such circumstances equity would impose a constructive trust on the legal owner of the copyright in favour of the clan as beneficiaries. A practical application of these principles would involve a clan group being entitled to take steps to protect an artwork of a deceased artist where the trustee of the artist's estate failed or refused to take action appropriately required by the clan.

This judgment represents a novel approach to the protection of interests under copyright principles outside of the conventional bounds, as they are understood, of copyright protection pertaining solely to the rights of authors or assignees. Whilst the judgment is specifically directed to the rights of clans arising under customary Aboriginal law and practice, there may be other applications of these principles in circumstances where it could be said that a copyright work was created pursuant to fiduciary duties and obligations.

---

[∗] BA LL.M. Barrister, Owen Dixon Chambers, Melbourne.

^[1] Milpurrurru v. Indofurn Pty. Ltd. [1994] FCA 975; (1994) 54 FCR 240

^[2] (1992) 7 EIPR 227

^[*] The author suppled this addendum on the decision in John Bulan Bulan v R & T Textiles Pty Ltd which was handed down after the paper was written.