GIs and Australian Aboriginal Art

A reason why ‘new world’ countries should support the protection of geographical indicators (GIs) is because the GI concept can be applied to aboriginal art so that its integrity and underlying traditional knowledge are preserved. In “Intellectual Property and Aboriginal Art,”[1] Adrian Newstead explores the misappropriation of Australian aboriginal art forms by non-aboriginals. There are about 250 tribes in Australia today and each have their own unique images, dances and songs; it is considered offensive among aboriginals to use the unique cultural information of another tribe [2]. The preservation of these art forms is considered integral to the project of redefining traditional lifestyles and culture as aboriginals recover from years of assimilation policies [3]. The integrity of a tribe’s art is diminished if it is misappropriated by outside parties and reproduced in culturally inappropriate ways, such as being printed on t-shirts [4].

As Kasturi Das argues, GIs do not have to be geographical names but can also consist of symbols that indicate origin [5] although the definition in the TRIPs agreement may be too limited to include aboriginal art. For Australian aboriginal art, the style of art, the word ‘aboriginal’ or the name of a tribe can function as a GI. The nature of the GI as a collective and perpetual right is fitting for aboriginal cultural information because its development was a collective effort that spanned generations. A perpetual right is justified in this case because the general public cannot lay any claim of user right on this kind of cultural information. Using copyright and patents as an example, there is an idea that both the creator and the community have a right to the creation – the creator has the right to be compensated and the community has the right to use and build on the creation after compensating the creator. Copyright and patents are for a limited term because of the public’s interest in the creations. In the case of aboriginal art, the community is limited to those within the tribe; non-aboriginals do not have a claim to art forms that were created before they came to that region. How a particular tribe sorts out the balance of rights between creators and non-creators is for them to decide – as sovereign nations they have a right to determine how they deal with their collective creations [6].

The justifications for protecting the indicators of aboriginal art parallel common justifications for protecting GIs. There is consumer confusion regarding the authenticity and origin of the art. Newstead explains that there is a high demand from tourists for authentic aboriginal creations [7]. In response to this demand, businesses are passing off mass produced and often poorly made handcrafts as authentic [8]. The claim of consumer confusion is stronger for aboriginal crafts than it is for goods that clearly indicate where the product was created. Much like the claims of diminished reputation, the placement aboriginal art on t-shirts and souvenirs diminishes the integrity of the art form [9]. A further consequence of this misappropriation and fraud is that aboriginal communities are denied economic compensation and control over the use of art forms they have built. Preventing this unauthorized use would enhance the economic development of those communities [10].

[1] (Paper presented to the Art Crime: Protecting Art, Protecting Artists and Protecting Consumers Conference convened by the Australian Institute of Criminology, Sydney, 2-3 December 1999), online: <http://www.aic.gov.au/conferences/artcrime/newstead.html>.
[2] Ibid at 2.
[3] Ibid at 2.
[4] Ibid at 5.
[5] “International Protection of India’s Geographical Indications” (2006) 9:5 The Journal of World Intellectual Property 459 at 460.
[6] I am aware that GIs are closer to trademarks than to copyright. However, in the case of Australian aboriginal art, the appearance of the art is intertwined with the indications of its origin.
[7] “Intellectual Property and Aboriginal Art,” supra note 1 at 5.
[8] Ibid.
[9] Ibid.
[10] Ibid.

One Comment
  1. There is no doubt that unique solutions are necessary to protect indigenous traditional cultural products. The Newstead paper, to which Katherine refers, contains a promising alternative quite apart from adapting existing IP concepts to deal with Aboriginal artwork protection: development of best practices.

    While some sort of GI framework might be a solution, GIs are controversial in themselves. One of the main controversies surrounds Article 23 of the TRIPs agreement, which provides for enhanced GI protection for wines and spirits. Several nations are lobbying for an expansion of this protection to non-alcoholic goods to aid these nations in protecting their GIs internationally. This expansion has been vehemently opposed by countries which have relatively fewer GI goods [1]. An expansion to include indigenous artwork might meet a similar battle, especially considering artwork arguably does not fall within the GI definition.

    Similarly, Indigenous cultures around the world cannot be grouped into one category. There is great debate amongst these cultures themselves regarding the appropriate role of IP rights in protecting their cultural products [2]. Thus the approach described by Newstead, which involved wide consultation with all stakeholders of the Aboriginal artwork industry and the establishment of a Cultural Advisory Committee composed entirely of Indigenous peoples to decide cultural and ethical issues, is very attractive. The use of best practices approach might be easier to develop and implement than international agreements or legislative changes and importantly, the best practices can be adapted by different Indigenous cultures to suit their own needs and beliefs.

    [1] See http://findarticles.com/p/articles/mi_qa3846/is_200308/ai_n9269240 for example.
    [2] See http://www.ip-watch.org/weblog/index.php?p=945 for a report on a recent meeting amongst Indigenous peoples and IP concerns.

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