Australia: Australian Law Relating to Communal Indigenous Intellectual Property

Last Updated: 30 March 2013
Article by Jenni Lightowlers

Despite the breadth of Australia's laws protecting intellectual property, there is a major fall short in affording substantial intellectual property rights to cultural groups, communities, traditional/indigenous owners, or manifestations of intellectual property that do not fit within the specified categories.

The issue

What about painting in dots and spots? What about the bold colours of the land, with white dots to outline and differentiate the patterns and colours? What about sharing painting activities, sharing Aboriginal stories or about copying the images of a culture as captured on rock art or in other tangible forms?

Australia's copyright and other intellectual property laws do not protect the idea of painting in dots or using hashes, symbols and style that may be directly taken (but not copied) from Aboriginal and Torres Strait Islander (ATSI) art. There is no copyright protection for copying original images because the material being copied is determined to be "outside" the duration of copyright protection and there is no protection available to cultural symbols or the people whose totems they represent.

If an indigenous community paints as an unidentified group there is no copyright protection available unless the group can be named and identified. If an indigenous community tells its oral history and it is not transcribed, there is no copyright protection. If it is transcribed, the laws state that the writer owns the copyright – but of course, it may not be the scribe's story.

The rules

Statutory intellectual property regimes in Australia are designed to encourage and protect the results of individual or joint labour (not necessarily creativity). The legal protection of intellectual property revolves around the intangible personal right to be acknowledged for, and gain commercial advantage for a finite period for 'products of the human intellect'.1

This article briefly canvasses the more relevant opportunities (primarily under Copyright and Design registrations) available to artists and others producing "works" to protect the representations of their traditional knowledge and styles as manifested in tangible works, such as paintings, weavings and stories.

Copyright Act 2

Copyright law will protect individual indigenous artists and authors in the same way that it protects all individual artists and authors in Australia.

The appropriateness of the Copyright Act to intellectual property created by indigenous artists is questionable. Johanna Gibson3 outlines examples of where copyright laws just don't work to protect indigenous rights.

  • Copyright is of limited duration (up to 70 years after the death of the author of the work) after which the works enter the public domain. In contrast, Indigenous interests in traditional culture and artwork are integral to continuing Indigenous cultures and exist in perpetuity.
  • Copyright vests ownership in the author as an individual having originated the form of expression, whereas Indigenous cultural identity/knowledge and artwork vests in the community as a whole.

This raises the question of "permission" and what permissions should/must be sought from the local ATSI community in respect of use of communal symbols which are identified with and belong to a broad group of persons.4Thus, while the reproduction may 'originate' with the individual artist, the ownership and control of the design remains vested in the group according to customary law.

  • Copyright law only affords protection of a material form and does not protect the idea, whereas traditional Indigenous cultural interests are captured more broadly in oral histories, dance, body painting, and methodologies.
  • Commercial not cultural interests are protected under copyright law.

Not only are there the "Western" issues associated with copyright that need to be addressed but traditional cultures impose their own rules in relation to the appropriation of material.

Moral rights

Amendments to the Copyright Act in 2000 added the right of attribution and integrity. However, such rights still attach only to individual authors, and thus do not alleviate the difficulties in applying Australia's intellectual property regime to communal indigenous artwork.5

Designs Act

The Designs Act 2003 (Cth) also offers limited protection for communal ATSI IP, and has the same problems as the Copyright Act in that it offers only a limited period of protection, afforded only to the registered owner of the design.

Inherent in the Designs Act is the requirement that designs be registered to be afforded protection. As a mechanism this has significant limitations for people in indigenous communities when compared with the Copyright Act where protection is automatic on publication of the work or art; no registration is required.

Competition and Consumer Act 2010 (replacing the Trade Practices Act 1974)

The Competition and Consumer Act mayprovide some protection against false labelling and marketing practices affecting Indigenous cultural and intellectual property. No specific requirements operating in favour of ATSI traditional culture and knowledge are included.

The Indigenous Art Code 6

Attempts have been made over the last twenty or so years to fill the void in respect of the lack of regulation applicable in the production and sale of ATSI artworks. The Indigenous Art Code addresses ethical commercialisation rather than intellectual property protection. The Code recommends guidelines to dealers in dealing with ATSI artists and communities.

Notably, participation and membership is voluntary and whilst the Code seeks to protect against "sharp" dealings it does nothing to directly protect traditional knowledge or cultural icons.

How the rules are applied

There are various examples of where claims have been made under the Trade Practices Act 1974 with mixed outcomes.

For example, ACCC v Australian Icon Products Pty Ltd (AIP) and others in which the sellers of souvenirs were prevented from making statements claiming that the souvenirs were made or painted by Aboriginal artists or were "Aboriginal art" when, in fact, they were not. A case like this raises the question of the protection and designation of the origin of artworks. Attempts have been made to introduce labels of authenticity.7

The Bulun Bulun v R & T Textiles 8 case dealt specifically with copyright infringement of Mr Bulun Bulun's painting Magpie Geese and Water Lilies at the Waterhole. The Court held that the textiles (fabric lengths) which reproduced the work infringed the rights of the artist. The additional element to this case was the claim made on behalf of the traditional owners, the Ganalbingu people. Mr Bulun Bulun's painting used cultural representations of the turtle and the depicted waterhole was where the descendants of the Ganalbingu people came from. The Court did not recognise any of the traditional rights or symbols included in the painting as being capable of being recognised under the Copyright Act. Whilst Mr Bulun Bulun's claim succeeded, the traditional owners did not.

Why Copyright law doesn't work

There is no protection currently available under Australia's intellectual property laws for the stories that are incorporated into the work and which might be extracted and reproduced, albeit not in the same form, elsewhere.

A good illustration of this was in the exhibition "We Don't Need a Map" as reported by Victoria Laurie 9 which speaks to the link between the artists, the art and their land. In this exhibition, the Martumli Artists are the Martu women who document their history on the land. In respect of one work, which"... included dozens of white-rimmed circles" 10, the landscape as seen, documented and painted tells the stories of the Martu women and their land. Copyright only protects the artist (in this case several but identified artists) against their work being reproduced.


Australia need to enact much more than a voluntary Code of Conduct in respect of traditional culture is long overdue. The Courts can only do so much to extend the notions of statutory regimes to offer protection which is insufficient and which depends on the facts of a particular case. Australia needs to enact laws which acknowledge, respect and afford legal protection to traditional knowledge.

Jenni Lightowlers is one of FAL's founding partners and one the World's 250 Leading Patent and Technology Licensing Lawyers (Intellectual Asset Management).

Jenni has many years of experience dealing with a wide range of legal issues in relation to Australia's indigenous communities. Over and above her IP expertise, she advises clients on mining projects, the acquisition and sale of projects, and on various joint venture arrangements.

As Jenni is currently undertaking a Bachelor of Indigenous Studies at the University of South Australia , we asked her to give us her views on certain topical issues that affect our indigenous communities. This article is edited from one of Jenni's essays.


1Black's Law Dictionary.

2Copyright Act (C'th) 1968.

3Gibson, Johanna "Justice of Precedent, Justness of Equity: Equitable Protection and Remedies for Indigenous Intellectual Property " (2001) 6(4) Australian Indigenous Law Reporter 1.

4Golvan C 'Tribal ownership of Aboriginal art' (1992) 3 Arts and Entertainment Law Review 15 at 17.

5In 2000 the Commonwealth was criticised for not recognising indigenous communal moral rights and not protecting communities' traditional knowledge as expressed in cultural works. The Howard Government promised follow-up legislation and circulated a draft Bill for comment, the Bill was never introduced.

6Indigenous Art Code updated in 2012

7National Indigenous Arts Advocacy Association (NIAA) introduced a label of authenticity in 1999 but the system has subsequently failed after 3 years.

8Bulun Bulun v R & T Textiles Pty Ltd.(1998) 41 IPR 513.

9Laurie, V: "The Mapping of Memories" in Qantas Magazine November 2012 pp62-66.

10Ibid p 68

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.