Stopping the fake indigenous art flood – when does
cultural appropriation become theft?
Head into any souvenir shop and chances are you'll be able
to pick yourself up a nice piece of rip-off indigenous art. The
'Aboriginal Style' souvenir was probably mass-produced in
China. Is this a problem? Australia's indigenous art community
Ahead of the 2018 Commonwealth Games on the Gold Coast,
Australia's indigenous arts community is calling for the
government to make it illegal to import and sell 'Aboriginal
Style' arts and crafts products in Australia, unless those
products have been made by, or licensed from, indigenous
We certainly support the protection and promotion of indigenous
culture, however, is placing such strict restrictions on the
marketing of indigenous art taking cultural protection into
Under the current Australian Consumer Law, it is legal to sell
fake souvenirs provided:
you don't claim the product is authentic; and
the product labelling identifies where it was made.
What about copyright law? Nope, that will only protect the
copying of an artist's specific work, not a cultural style of
A law to protect indigenous style art will be the first of its
kind, and we already foresee a couple of issues.
To protect indigenous style art, it would have to be defined.
The legislation would have to expressly deny some members of
Australian society the right to import and sell a class of
So, what can be done?
Well, only tequila that is produced in Mexico's
"Tequila Territory" has the right to bear the famous
Tequila name and, while we're talking beverages, don't you
dare sell your Australian domestic sparkling as Champagne. These
cherished beverages maintain their loved status in part due to the
geographical indication (GI) protection they are afforded. So why
not adopt a similar regime for Indigenous art?
If we went that way, should the protection only apply to art
produced in Australia by people of Aboriginal or Torres Strait
Islander descent? What if the art is authentic but the indigenous
artist resides overseas? And how can you define an artistic
"style", when art is supposed to be a constantly evolving
and rule-free form of expression?
We're not saying that indigenous art should be afforded no
legal protection from cheap knock-offs. We are saying that it's
a much more complex issue than may first appear, and the first step
should be to understand (from indigenous artists themselves) what
we really want to protect.
We do not disclaim anything about this article. We're
quite proud of it really.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The revised Commonwealth Procurement Rules (CPRs) will impact on how Commonwealth agencies manage procurement processes.
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”
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).