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rECEnt dEvElopmEntS
CoPYRIghT AND ThE PRoTECTIoN of INDIgENoUs ART
by Erin Mackay
A number of developments in 2007 have made it timely
to revisit the ability of Anglo-Australian laws to protect
Indigenous cultural and intellectual property (‘ICIP’).
In June 2007, the Coalition Federal Government made
several changes to arrangements in the Northern Territory
(‘NT’) as they relate to Indigenous Australians.1 While
not specifically directed at the Indigenous arts industry,
changes to land rights and welfare laws in particular
may negatively affect Indigenous artists. In the lead-up
to and the winning of the November 2007 election, the
Australian Labor Party (‘ALP’) also indicated its position
on a number of issues likely to impact on Indigenous art in
Australia, including support for the introduction of resale
royalties for all artists.2 These developments took place
against the domestic backdrop of the Senate Environment,
Communications, Information Technology and the Arts
Committee (the ‘Senate Committee’) Inquiry into the
Indigenous visual arts and crafts sector,3 and the United
Nations General Assembly proclamation in September 2007
of the Declaration on the Rights of Indigenous Peoples.4
This article outlines the impact of two recent domestic
developments in Indigenous art; those developments
being significant changes to both the permit system in the
NT and to the Community Development Employment
Projects (‘CDEP’) Program. These developments provide
a further reminder that meaningful legal protection and
recognition of Indigenous art will not be found within
Anglo-Australian laws such as copyright law; the law that
appears best placed to provide legal protection for the ICIP
contained in Indigenous art. More broadly, the events of
2007 indicate that it is time to move beyond existing laws
to a more meaningful system of protection and recognition
of ICIP – a sui generis rights instrument.
iCip and Copyright laW
For several years, academics and practitioners have noted
the difficulties in accommodating expressions of ICIP
within traditional Anglo-Australian legal categories of
‘real’ and ‘intellectual’ property laws. Aspects of ICIP that
sit uncomfortably with Anglo-Australian laws include
that:
1. ICIP needs to be viewed holistically, but includes
both tangible things that may find partial
protection in cultural heritage and native title laws
(eg, ancestral remains, sacred sites and burials) and
intangible things that may find partial protection
in copyright and patent laws (eg, artistic works
and ecological knowledge);
2. ‘ownership’ of ICIP may be by groups, a form
of ownership that is not comfortably housed by
Anglo-Australian laws grounded in the tradition
of protection of individual rights;
3. ICIP rights may not be freely transferable, with
transmission instead taking place in accordance
with cultural laws and customs; and
4. the promotion of culture rather than reward of
economic endeavour is the paramount concern
in seeking protection and recognition of ICIP
rights.5
Even though these problems have been well-documented,
piecemeal reform to the Copyright Act 1968 (Cth) (the
‘Copyright Act’) still appears to be seen as the panacea.
For example, in February 2007, Attorney-General Philip
Ruddock indicated that Indigenous communal moral
rights would form part of the 2007 legislative agenda.6
Further, cases such as Bulun Bulun v R & T Textiles Pty
Ltd (1998) 86 FCR 244 are too frequently referenced
as examples of communal ownership, obfuscating the
failure of copyright case law to broaden the conceptual
scope of copyright.
The Permit System
While the permit system in statutory land rights systems
appears to be unrelated to copyright law, any weakening
of such systems is likely to have serious effects for the
Indigenous arts industry. Permit schemes are a key feature
of land ownership laws and allow Indigenous groups to
control access to sacred sites; an essential requirement
for the preservation of the stories, laws and customs that
surround these sites. Such sacred sites provide the basis
of much Indigenous art. Moreover, the 2007 Senate
Committee Inquiry heard extensive evidence of ‘carpet
baggers’ exploiting Indigenous artists in the Northern
Territory.7 It appears that an adequately enforced permit
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system in the Northern Territory would provide a
strong deterrent to such exploitative dealers and provide
protection to vulnerable Indigenous artists.
However, in June 2007, the permit system in the
Northern Territory was abolished for common areas of
major communities, airstrips and access roads on lands
subject to the Aboriginal Land Rights (Northern Territory)
Act 1976 (Cth) (‘ALRA’), to take effect in February 2008.8
Before these amendments, a person could not access land
governed by the ALRA without a permit issued by relevant
parties such as traditional owners or land councils.
Re-instituting a (properly resourced and enforceable)
permit system is essential to the wellbeing and prosperity
of Indigenous artists in the Northern Territory.9 Indeed,
the national Indigenous arts industry may be strengthened
if the permit system were implemented in other
jurisdictions. It is essential that the ALP Government
consult with Indigenous groups in the Northern Territory
and states in relation to (re)introducing the permit system,
and to determine the types of activities that would be
allowed under such systems.
Community dEvElopmEnt
EmploymEnt projECt (‘CdEp’)
In mid-2007, the Coalition Government announced the
replacement of CDEP arrangements.10 Subsequent to
the ALP Government’s indication that it will introduce
a reformed CDEP scheme,11 a relevant consideration is
the unusual situation of copyright ownership that arose
under the CDEP Program.
The Copyright Act provides that for works created in
the course of employment, the employer will own
the copyright in that work.12 While under the more
common employer/employee relationship, subject-matter
produced is generally commercial rather than cultural in
nature, under the CDEP scheme, an Indigenous person
has been required to ‘work’ for a registered organisation
for stipulated hours and in return for set payment.
While the scheme was characterised as a ‘stepping
stone’ to mainstream employment, the scarcity of ready
employment in rural Australia saw many Indigenous
artists remain on CDEP for an extended period. It is
unclear whether a CDEP art centre or gallery would be
considered an ‘employer’ for the purposes of the Copyright
Act and, as such, hold copyright ownership over artworks
produced either partly or entirely as part of the CDEP
scheme. This is worthy of further examination by the
ALP Government before instituting ‘reformed’ CDEP
arrangements.
ConCluSion
The issues raised here are not unique to copyright
law, but are the result of a complex intersection of
laws and regulatory arrangements with the particular
social, economic, linguistic and geographical situation
of Indigenous peoples in Australia. Recognising the
complexity of the issues, the findings of the Senate
Committee into Australia’s Indigenous Visual Arts and
Crafts Sector in June 2007 included a key recommendation
that ‘the Commonwealth introduce appropriate legislation
to provide for the protection of Indigenous cultural and
intellectual property rights’.13
The Senate Committee Inquiry may have been
overshadowed by other events in Indigenous affairs in
2007, but this important recommendation cannot be
ignored. Preliminary questions remain: is such protection
best attained through legislation or should a negotiated
instrument be pursued as a starting point? Should such
legislation take place at the domestic level, or would it be
better to engage in international negotiations? In 2008,
it is clear that further investigation of a sui generis system
for the protection of Indigenous cultural and intellectual
property, and the form that such a system could take,
needs to be the subject of informed and considered inquiry
through urgent consultation with Indigenous groups and
leaders.
Erin Mackay is a UNSW law graduate and co-director of the
Indigenous Law Centre’s Aboriginal Art and the Law research
project. For further information about the project see <www.ilc.
unsw.edu.au>.
1 Mal Brough MP, ‘National Emergency Response to Protect
Aboriginal Children in the NT’ (Press Release, 21 June 2007).
2 Peter Garrett MP, ‘Labor Announces its Vision for the Arts’
(Press Release, 14 September 2007), <http://www.petergarrett.
com.au/441.aspx> at 18 January 2008.
3 Senate Environment, Communications, Information Technology
and the Arts Committee, Senate, Indigenous Art: Securing the
Future—Inquiry into Australia’s Indigenous Visual Arts and
Crafts Sector (2007).
4
Declaration on the Rights of Indigenous Peoples GA Res
61/295, UN Doc A/RES/47/1 (2007).
5 See, eg, Senate Environment, Communications, Information
Technology and the Arts Committee, above n 3, [11.8]; Terri
Janke and Michael Frankel, Our Culture: Our Future – Report on
Australian Indigenous Cultural and Intellectual Property Rights
(1999), 11.
6 Attorney-General Philip Ruddock, ‘Copyright: From “The Da
Vinci Code” to YouTube’ (Opening address to the Australian
Centre for Intellectual Property in Agriculture’s 12th Annual
Copyright Conference, Brisbane, 16 February 2007), <http://
www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/
Speeches_2007_Speeches_16_February_2007_-_Speech_-
_Opening_address_at_the_Australian_Centre_for_Intellectual_
Property_in_Agriculture&apos> at 18 January 2008. This
undertaking did not eventuate.
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7 Senate Environment, Communications, Information Technology
and the Arts Committee, above n 3, [8.15]-[8.30].
8 Prior to the amendments, s 70 of the Aboriginal Lands Right
(Northern Territory) Act 1976 (Cth) (‘ALRA’) made it an offence
to enter or remain on Aboriginal land except in accordance with
the ALRA or a law of the Northern Territory. Enacted under s
73(1)(b) of the ALRA, s 4 of the Aboriginal Land Act 1978 (NT)
made it an offence to enter onto or remain on Aboriginal land
without having been issued a permit to do so. For an overview
of the changes to the permit system under the Coalition-led
Northern Territory intervention, see the Office of Indigenous
Policy Coordination, ‘Fact Sheet Permit System’ (2007), <http://
www.oipc.gov.au/permit_system/default.asp> at 18 January
2008.
9 The ALP has given a commitment to reinstating the permit
system with exemptions for journalists and contractors. Most
recently, Indigenous Affairs Minister Jenny Macklin has sought
departmental advice in relation to reinstating the permit system
in the NT: Patricia Karvelas, ‘Fast track on return of permit
system’, The Australian (Sydney), 18 January 2008.
10 Mal Brough MP and Joe Hockey MP, ‘Jobs and training for
Indigenous people in the NT’ (Press Release, 23 July 2007),
<http://www.facsia.gov.au/internet/minister3.nsf/content/cdep_
23jul07.htm> at 18 January 2008.
11 Trish Crossin and Warren Snowdon, ‘Reform And Improve
CDEP, Not Scrap It’ (Press Release, 27 July 2007), <http://www.
alp.org.au/media/0707/msNA270.php> at 18 January 2008.
12 In relation to works, see Copyright Act 1968 (Cth) s 35(6).
13 Senate Environment, Communications, Information Technology
and the Arts Committee, above n 3, Recommendation 25.
Bushfire on the Moyle
Madeline Anderson
Mixed media on canvas
1200mm x 1500mm

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