Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

The Australian government announced that, as of July 1, 2023, the Australia Council of the Arts is renamed “Creative Australia.” The Council of the Arts is the government’s primary arts investment and advisory body. As part of this rebranding, the Australian government also announced, on January 30, 2023, its new five-year cultural policy, Revive Strategy, which focuses on establishing four new federal bodies within Creative Australia. One of these bodies will be a First Nations-led body to support Indigenous Australians in their creative endeavours. The aim is for this board to be set up by July 1, 2024, and the goal of this body is to “deliver First Nations autonomy for First Nations work.”

Included in the Revive Strategy, the Australian government also announced additional measures targeted at Indigenous communities, including $13.4 million for legislation protecting indigenous intellectual property (IP). This legislation will focus on blocking the sale of fake indigenous art, including art typically sold as souvenirs. Additionally, the government announced measures targeted at protecting Indigenous IP and culture, including $11 million for a First Nations Languages Policy Partnership between governments and First Nations representatives, a First Nations creative workforce strategy, and a National Aboriginal Art Gallery in Alice Springs and an Aboriginal Cultural Centre in Perth.

Inauthentic Indigenous art is Harmful

First and foremost, selling inauthentic indigenous art and souvenirs disrespects the heritage and culture of indigenous communities. A report released in 2022 by the Productivity Commission on Aboriginal and Torres Strait Islander visual arts and crafts confirmed that fake indigenous art harms indigenous culture. However, this is not a newfound issue. Aboriginal Elder Gawirrin Gumana (Yolngu) was quoted in 1996: “When that [white] man does that it is like cutting off our skin”, where “it” refers to the practice of selling fake indigenous art. Other indigenous artists have also spoken about instances where their culture and IP have been appropriated for profit. For example, many indigenous artists have been tricked into exploitive licensing agreements where non-indigenous companies make large profits by selling indigenous art commissioned by indigenous artists for a low price. This kind of uncertainty in the law has led to many indigenous artists asking for greater legal support for IP.

Regarding fake indigenous art sold as souvenirs in Australia, the report by the Productivity Commission showed international tourists spent more than $78 million on indigenous-style artwork in 2019-2020. However, approximately 75% of indigenous-style art sold is not made by Indigenous people due to the demand for cheap products from tourists who are unwilling to pay the price for authentic indigenous art. Thus, selling inauthentic indigenous art and souvenirs undercuts indigenous businesses and harms indigenous livelihood.  

Protecting Indigenous IP Rights in Australia

In the past, Australia has not had any national licensing or production legislation to protect Indigenous IP and culture. In response to their 2022 report, the Productivity Commission suggested that fake indigenous art should be labelled as “inauthentic” to protect true indigenous art. However, many believe that this type of labelling would be a start to the protection of Indigenous IP. Hopefully, the new measures instituted by the First Nations-led body and the legislation introduced by the Australian federal government will be a good first step in protecting Indigenous IP rights in Australia.