A dedicated Indigenous cultural and intellectual property regime would recognize Aboriginal and Torres Strait Islander peoples’ ownership of their cultural assets, ensure that traditional owners can control the use of those assets, and create direct sanctions for cultural abuse and mechanisms for the resulting damage.

The Productivity Commission, in its most recent draft report, has turned its attention to the issue of inauthentic visual arts and crafts of Aboriginal and Torres Strait Islander people. In doing so, he recommended that indigenous cultural and intellectual property rights require dedicated legislative protection. The Commission is currently seeking comments on how this legislation should be drafted in order to establish appropriate protections for this important and unique form of intellectual property.

On July 19, 2022, the Productivity Commission released its Aboriginal and Torres Strait Islander Visual Arts and Crafts Report Project.

The draft report makes recommendations to address the prevalence of inauthentic Aboriginal and Torres Strait Islander visual arts and crafts. In 2019-20, Aboriginal and Torres Strait Islander visual arts and crafts generated sales of $250 million. However, non-authentic products accounted for approximately 55-61% of that spend.

A recommendation in the draft report is for the creation of a new legislative regime, designed to deter the creation and sale of inauthentic Aboriginal and Torres Strait Islander visual arts and crafts. Currently, legislative protections against the making and selling of inauthentic cultural art are limited and fragmented. These protections reside in existing legislation such as the Copyright Act 1968 (Cth) and the Australian Consumer Law, which were not drafted with the nuances of cultural considerations in mind.

To ensure that protections are fit for purpose, the draft report considers the need for dedicated Indigenous cultural and intellectual property (CIPI) regime. A main feature of the regime would be stand-alone legislation, which specifically focuses on the protection of ICIP rights. This contrasts with the alternative approach of integrating relevant cultural protections into existing legislative frameworks. Implementing dedicated ICIP legislation would create direct sanctions for cultural abuse and mechanisms for resulting harm. The legislation would recognize Aboriginal and Torres Strait Islander peoples’ ownership of their cultural assets and ensure that traditional owners can control the use of those assets. In turn, this would prevent instances of cultural misappropriation.

According to the proposed legislative framework, to successfully bring an infringement action relating to inauthentic visual arts and crafts, the following elements should be established:

  • that the cultural property falls within the scope of what is protected under the legislation;
  • that the plaintiff is the traditional owner of the asset (or has standing); and
  • that the rights of the traditional owner have been violated.

What would constitute cultural property?

According to the draft report, the definition of “cultural property” should be left to the discretion of the Court. Ultimately, the list of what might constitute cultural property should be non-exhaustive and should be assessed according to legislative criteria rather than an established definition. Similar to the requirements set out in the Native Title Act 1993 (Cth), the Commission recommended that the question of whether something is cultural property should be assessed according to the strength of its connection to tradition or custom. This would require the claimant to provide evidence of patterns of behavior or intergenerational knowledge transfer relating to the asset. However, the Commission noted that this connection should not be exclusive, given that traditions and customs are often shared between Aboriginal and Torres Strait Islander groups.

The draft report also discusses the possibility of creating a “registered rights” approach, similar to trademarks and designs. It is possible that a registration-based regime creates a level of certainty as to what cultural property is protected and who is the relevant owner. However, it is recognized that such a system would be administratively burdensome for traditional owners whose ICIP rights should be automatically protected, by virtue of their existence. Further, a publicly accessible registry would not respect aspects of Aboriginal and Torres Strait Islander culture that emphasize secrecy and sacredness.

Who could be an applicant?

The draft report also examines the problems that could arise by requiring the claimant to be the traditional owner of the asset. Cultural assets tend to be linked to groups and communities. In general, only certain entities have legal personality in the Australian legal system and are therefore entitled to rights and obligations under the law. To overcome this obstacle, the Commission has suggested either a system of recognizing one or more individuals as acting on behalf of a community or group (similar to a representative procedure), or formalizing the recognition of a community or group through an official register. However, the shortcomings of the registration requirement (similar to those explored with respect to cultural property) were recognized by the Commission.

In establishing whether a claimant is the traditional owner, the Board suggested that evidence be considered as to the strength and nature of the claimant’s connection to the cultural property. Similar to the Aboriginal title regime, the claimant would have to establish that this connection is contemporaneous and can be demonstrated in ongoing cultural practice.

What would be considered a violation?

The claimant would be required to prove that their cultural property was used to create a cultural expression, without their authorization. The Commission invites comments on issues such as whether there should be a requirement that the use be in a “material form” to allow for the protection of cultural property used in performances or broadcasts live. In addition, the Commission recommended that valid forms of authorization should not be prescribed by legislation. This would make it possible to rely on proof of authorization conferred orally or through rites or ceremonies.

Should there be exceptions?

The draft report also recognizes the need to strike a balance between the rights of traditional owners and the interests of those seeking access to these cultural assets. The adoption of copyright-type exceptions has been recommended to allow for research, education, criticism, news reporting, legal proceedings and personal use. The Commission recommended an additional exception for customary and traditional uses. This would leave space for further cultural developments, especially in light of the forced disruption of Aboriginal and Torres Strait Islander peoples’ connection to tradition by European occupation.

What remedies would be available?

Remedies available under copyright law, including injunctive relief, damages, and accounting for profits, are offered for the ICIP regime. The Commission recognized that non-monetary losses, such as cultural harm and distress, will need to be taken into account and compensated appropriately. This may take the form of a provision similar to those in existing intellectual property law which allows for the award of additional damages even where only nominal damages can be established. The Commission has also recognized the possibility of making available customary law remedies and processes as a means of resolving disputes under the legislation.

Take away key

The Commission is currently seeking comments on a variety of topics, including what should be protected by new cultural rights legislation, how the legislation should address the issue of standing to bring a cultural rights action, and the types of behavior that should be considered a violation of a traditional owner’s cultural rights. Written comments on the draft report should be submitted to the Commission by Monday, August 29, 2022. The Commission will send its final report to the Australian Government in November 2022.

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