Australia: Fakes welcome? IP protection lags behind for Indigenous artworks in Australia

Last Updated: 14 August 2019
Article by Helen Macpherson and Isobel Taylor

In a symbolic win for Indigenous artists, the Federal Court of Australia has recently ordered a seller of fake Indigenous-style souvenirs to pay AU$2.3 million in pecuniary penalties for contraventions of the misleading and deceptive conduct provisions of the Australian Consumer Law (ACL).

While the Court's ruling appears to be a positive move in the fight to stem the flood of inauthentic Indigenous-style products into the Australian marketplace, it underscores the gaps in existing legislation when it comes to adequately protecting the rights of authentic Indigenous artists and communities.

ACCC v Birubi Art Pty Ltd (in liquidation)

The Australian Competition and Consumer Commission (ACCC) commenced action against Birubi Art Pty Ltd (in liquidation) back in 2018 for making false claims that its tourists souvenirs, including didgeridoos, boomerangs, message stones and bull-roarers, all painted in Indigenous styles, were made in Australia and hand painted by Indigenous persons, when this was not the case. The products were in fact mass-produced in Indonesia and had no genuine association with Indigenous communities or culture, but were being marketed to unwitting consumers as the real deal.

The Federal Court handed down its decision on Birubi's liability late last year, and this has now been followed by the unprecedented pecuniary penalties order. The ACCC Commissioner Sarah Court commented that "this penalty sends a strong message to anyone considering selling fake Australian Aboriginal style art as the genuine article".

It is highly unlikely that the ACCC will be able to successfully recoup the damages, given that Birubi has already been liquidated. However, the significant penalty figure ordered should have a deterrent effect on other companies considering trading in fake Indigenous-style art and misleading consumers about its origins.

In any event, it has been reported that for many Indigenous artists and members of Indigenous communities whose cultural expressions have been misappropriated by non-Indigenous people in this way, the social and cultural harms may outweigh the financial cost. The House of Representatives Standing Committee on Indigenous Affairs published its 2018 Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples. This report noted that the misappropriation of Indigenous culture through the supply of imitation products, aside from denying authentic artists and artisans a chance to earn a living from their own culture, cheapens, demeans and disrespects Indigenous traditions and communities more broadly. As noted in the report, this has a "profound and harmful effect" on their culture and heritage and a "negative impact on Australia's image abroad".

The current Australian legislative framework

The same report also estimated that around 80% of the souvenirs sold in Australia purporting to be associated with Indigenous cultures are imitation products with no genuine connection to Indigenous people.

There is no Australian legislation which protects Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions, in its own right. This means that Indigenous artists and communities are forced to rely on general legislation, such as the ACL or Copyright Act 1968 (Cth), which are in many cases unfit for purpose.

This means that a company could offer fake Indigenous-style souvenirs for sale, but if there are no false and misleading claims about the provenance of these products, the provisions of the ACL are unlikely to apply. However, the products continue to be painted in a faux-Indigenous style and, as Gabrielle Sullivan, CEO of the Indigenous Arts Code notes, currently "there is no law in Australia that says you can't make fake art and you can't misappropriate Aboriginal and Torres Strait Islander culture".

It is also difficult in many cases for Indigenous artists and artisans to enforce their rights by relying upon copyright law, which is founded on Western principles of authorship and ownership. By contrast, many Indigenous cultural expressions are very ancient (meaning any copyright in them has long since expired) and/or do not have an identifiable 'author', but rather are communally created and transferred through generations of a single community. This means that despite these communities being the cultural custodians of such expressions, there is nothing to prevent third parties from reproducing them, often in culturally inappropriate ways.

As the saying goes "good artists copy; great artists steal", and it is common in the art world for artists to be inspired by trends that have come before them in creating their own style. However, in the context of art by Indigenous artists, which may not merely be art, but may also be a visual manifestation of the artist's cultural heritage, it may not be appropriate to treat it in the same way as Western art.

Next steps

The somewhat unsatisfactory outcome of the Birubi case and the broader legal issues it highlights has led many stakeholders to renew their calls for law reform in this area. In a joint statement by the Indigenous Art Code, the Copyright Agency and the Arts Law Centre of Australia, in response to the ruling, called for tougher laws to protect against the sale of fake art more broadly, including in circumstances where the existing provisions of the ACL would not apply.

A bill proposing amendments to the Australian Consumer Law to address this issue was introduced to Parliament twice during 2017 but has not been passed into law. The bill includes provisions prohibiting the sale of products containing 'Indigenous cultural expressions', except where such products are made in Australia and are supplied by or in accordance with an arrangement with each Indigenous community or artist with whom the expression is connected.

One of the recommendations made by the House of Representatives Standing Committee on Indigenous Affairs in its report was to begin a consultation process to develop standalone legislation to protect Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions. One benefit of separate legislation addressing this area (rather than attempting to amend existing legislation) is that it would not be tied to Western concepts of authorship and ownership of intellectual property. The notion of having sui generis legal protections for matters of cultural significance is not novel – existing examples include legislation limiting the use of the word 'Anzac' and the Olympic rings, and even geographical indicators for wine. The Government is yet to make a formal response to the report, so it remains to be seen whether this or any of the Committee's other recommendations will be implemented.

Another source of protection could come from expanding the scope of Australia's existing customs legislation and import provisions under the Copyright Act 1968 (Cth), Trade Marks Act 1995 (Cth), Olympic Insignia Protection Act 1987 (Cth) and other existing laws. Such avenues are already used to restrict the importation of goods into Australia containing restricted symbols or which infringe a third party's copyright or trade mark rights. A similar regime could be envisaged that takes advantage of Australia's existing customs infrastructure to screen for the mass importation of fake Indigenous art.

While different stakeholders may disagree on the precise form of any legislative changes required to address this pervasive issue – one thing is clear – fake art harms culture and, despite increased scrutiny both from the ACCC and the broader public, Australia's current legislative framework is insufficient to adequately address these harms.

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.

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