We acknowledge the people united by the Yugambeh language who are the original custodians of the local land, rivers, mountains, and sea. We pay our respects to their past and current Elders and look to a positive future for their young people. We acknowledge their continued care of land, their wisdom, their laws and their passing on of knowledge.
First Nations cultural expression is firmly connected to over 75,000 years of heritage and continuing practice in Australia. Their art has been recognised both within Australia and internationally. Despite the artistic recognition, current intellectual property (IP) laws in Australia only protect individual artists and do not recognise any communal rights. The inability of current IP laws to protect the creative and traditional ownership of indigenous art and property has been an ongoing problem within Australia.
Currently, there are no specific laws that prevent the misuse, distortion or alteration of Indigenous and cultural IP that is communally owned or part of an Indigenous group’s heritage. The Productivity Commission (the Commission) has investigated this problem and released the Aboriginal and Torres Strait Visual Arts and Crafts report in response to the lack of legal and cultural protection offered to Indigenous Cultural and Intellectual Property (ICIP).
Since the birth of Non-Fungible Tokens (NFT’s), there has been concern with copyright as the purchase of an NFT is not accompanied by a copyright transfer. Therefore, when an NFT is purchased, only the NFT itself is owned. This challenge stems from the lack of an authentication process and platforms not verifying the people who create (or mint) the NFTs in the first place. Subsequently, this impacts Indigenous artists who are now competing with fake Indigenous artwork or having their art sold as NFTs without their knowledge.
Safeguarding Indigenous traditional knowledge and cultural expression is crucial to ensuring that cultural heritage is maintained and passed down from one generation to another.
What is the Indigenous Cultural and Intellectual Property (ICIP)?
The ICIP refers to the rights that Indigenous people have, and want to have, to protect their traditional arts and culture. Rights protected by the ICIP include the rights to protect traditional knowledge and sacred cultural material and the right to ensure that traditional laws and customary obligations are respected. The Australia Council for the Arts along with the national arts funding and advisory body to the Australian Government Office of the arts have released a set of protocols aimed at bridging the legal gap and providing IP protection by recognising and engendering respect for customary practice.
The protocols aim to address key legal and ethical issues of Indigenous cultural material. Furthermore, ICIP covers many differed forms of traditional culture and expression.
Who owns the IP of an NFT?
NFT owners are not granted any rights under IP unless the creator takes certain measures to ensure that they are. Essentially, copyrighting is a proactive choice for artists whereby they can outline what others are able to do with their artwork. This information may be included in a smart contract, wherein the creator is identified as the owner and subsequently reassigns ownership when the NFT is purchased. The terms contained in a smart contract often allow buyers to use the NFT for non-commercial purposes. A buyer can assume that they do not own any IP rights if the NFT is not accompanied by an exclusive IP license.
Draft Report on Aboriginal and Torres Strait Islander Visual Arts and Crafts
The draft report highlights the serious issue of appropriation of Aboriginal arts and cultural products through souvenirs and inauthentic cultural products (i.e., Aboriginal paintings, boomerangs, didgeridoos). In 2019-2020, Aboriginal and Torres Strait Islanders visual arts and crafts generated $250 million in sales, however, inauthentic products accounted for an estimated 55-61%.
New Legalisation on Misappropriation on ICP
Australian copyright law protects the artistic work and moral rights of individual artists. Currently, there is no protection offered to underlying cultural expression. Therefore, visual arts and crafts are only protected if an individual artist is identifiable. Cultural ideas or expression that do not have physical form are not protected by copyright law. Similarly, Australian trade mark law protects letters, numbers, words, phrases, sounds, shapes, logo, picture, and movement when registered. Trade marks used “in the course of trade” will be protected under the current IP regime. It is possible for Aboriginal and Torres Strait Islander communities to register Indigenous words and symbols; such marks have to be used “in the course of trade”. This means that any use other than the one specified will not be protected and therefore, vulnerable to non-use cancellation actions. There are no specific provisions that protect Indigenous marks from becoming registered trade marks.
Under the current Trade Marks Act 1955 (Cth), Indigenous communities can oppose the registration of ICIP trade marks if it “contains or consists of scandalous matter”. This is seen as an incidental protection and places the onus on Indigenous communities to monitor and oppose trade marks. The costs on these proceedings will also fall onto Indigenous communities. There are other limited protections that Indigenous communities have in Australian designs law, common law action of passing off, and Australian consumer law and heritage laws.
The draft report proposes that the interests and rights of Aboriginal and Torres Strait Islander communities and groups in ICIP are formally recognised and accrue automatically, without the need for registration. The draft report suggests that Australia adopt a more inalienable rights similar to moral rights towards Aboriginal and Torres Strait Islander visual arts and crafts. New legislation would also allow traditional owners of ICIP to grant licenses for artistic innovation and development.
The government should evaluate the effectiveness of funding directed towards sectors in partnership with Aboriginal and Torres Strait Islander people. Establishing a formal shared decision-making relationship would help these communities and the government identify priorities that can be taken to support this sector. Currently, the Australian Government’s National Indigenous Visual Arts Action Plan will be providing $25 million additional funding to the Indigenous arts and crafts sector over the next five years to assist with digital upgrades.
The Claimant in IP Proceedings
The draft report considers that only certain entities are afforded legal personality in the Australian legal system and therefore entitled to rights and obligations under law. The report made two suggestions, either implement a system of recognising one or more individuals acting on behalf of a community or group or to formalise the recognition of community or group through an official register. There are shortfalls of requiring registration. The Commission has further suggested that evidence be considered as to the strength and nature of the claimant’s connection to the cultural asset.
Infringements against ICIP
The draft report suggests the claimant be required to show that their cultural asset has been used to create a cultural expression, without authorisation. The Commission are currently considering whether there should be no requirements for the use to be “material form” to allow for the protection of cultural assets. Valid forms of authorisation should not be prescribed by the legislation, allowing for evidence of authorisation being conferred orally or through rites or ceremonies to be relied upon.
Non-monetary losses, such as cultural harm and distress will need to be considered and appropriately compensated. The Commission has recommended that provisions similar to those existing under current IP regimes that allow for the grant of additional damages be established. The Commission also acknowledged the possibility of making customary law remedies and processes available as a means of dispute resolution under the legislation.
Submission and written comments on the draft report ended on 29 August 2022. The Commission will produce the final report to the Australian Government in November 2022.
Salerno Law can assist with several issues faced by traditional owners including:
Author: Gabriel Tirol