A proposed legislative regime for Indigenous Cultural and Intellectual Property rights protection

The Productivity Commission in its most recent Draft Report has turned its attention to the issue of inauthentic Aboriginal and Torres Strait Islander visual arts and crafts. In doing so, it has recommended that Indigenous Cultural and Intellectual Property rights require dedicated legislative protection. The Commission is currently seeking feedback on how this legislation should be drafted to establish appropriate protections for this important and distinctive form of intellectual property.

On 19 July 2022, the Productivity Commission released its Draft Report on Aboriginal and Torres Strait Islander Visual Arts and Crafts.

The Draft Report makes recommendations to redress the prevalence of inauthentic Aboriginal and Torres Strait Islander visual arts and crafts. In 2019-20, Aboriginal and Torres Strait Islander visual arts and crafts generated $250 million in sales. However, inauthentic products accounted for an estimated 55-61% of this spend.

One recommendation outlined in the Draft Report relates to the creation of a new legislative scheme, designed to disincentivise the creation and sale of inauthentic Aboriginal and Torres Strait Islander visual arts and crafts. Currently, legislative protections against the making and selling of inauthentic cultural art are limited and piecemeal. These protections reside in existing legislation such as the Copyright Act 1968 (Cth) and the Australian Consumer Law, which have not been drafted with the nuances of cultural considerations in mind.

To ensure protections are fit for purpose, the Draft Report contemplates the need for a dedicated Indigenous Cultural and Intellectual Property (ICIP) regime. A main feature of the regime would be standalone legislation, which specially focuses upon the protection of ICIP rights. This is opposed to the alternative approach of embedding relevant cultural protections into existing legislative frameworks. The implementation of dedicated ICIP legislation would create direct sanctions for cultural misuse and mechanisms for resultant harms. The legislation would recognise the ownership of Aboriginal and Torres Strait Islander peoples in their cultural assets and ensure traditional owners can control the use of those assets. In turn, this would prevent instances of cultural misappropriation.

According to the proposed legislative framework, to successfully bring an infringement action relating to inauthentic visual arts and crafts, the following would need to be established:

• that the cultural asset falls within scope of what is protected under the legislation;
• that the claimant is the traditional owner of the asset (or otherwise has standing); and
• that the rights of the traditional owner were infringed.

What would constitute a cultural asset?

According to the Draft Report, how a "cultural asset" is defined should be left to the Court's discretion. Ultimately the list of what could constitute a cultural asset should be non-exhaustive and should be assessed according to legislative criteria as opposed to a set definition. Similar to the requirements set out in the Native Title Act 1993 (Cth), the Commission has recommended that whether something is a cultural asset should be assessed by the strength of its connection to tradition or custom. This would require the claimant to provide evidence of patterns of behaviour or the transfer of intergenerational knowledge relating to the asset. However, the Commission has noted that this connection should not have to be exclusive, considering traditions and customs are often shared between Aboriginal and Torres Strait Islander groups.

The Draft Report also addresses the option of creating a 'registered rights' approach, similar to trade marks and designs. It is possible that a registration-based regime would create a level of certainty as to which cultural assets are protected and who is the relevant owner. However, it is acknowledged that such a system would be administratively burdensome upon traditional owners whose ICIP rights should be automatically protected, by reason of their existence. Furthermore, a publicly available register would fail to respect aspects of Aboriginal and Torres Strait Islander culture that emphasise secrecy and sacredness.

Who could be a claimant?

The Draft Report also considers issues that might arise by requiring the claimant to be the traditional owner of the asset. Cultural assets tend to be connected to groups and communities. In general, only certain entities are afforded legal personality in the Australian legal system and are therefore entitled to rights and obligations under the law. To address this hurdle, the Commission has suggested either a system of recognising one or more individuals as acting on behalf of a community or group (akin to a representative proceeding) or to formalise the recognition of a community or group through an official register. However, the shortfalls of requiring registration (similar to those explored in respect of cultural assets) has been recognised by the Commission.

To establish whether a claimant is the traditional owner, the Commission has suggested that evidence be considered as to the strength and nature of the claimant's connection to the cultural asset. Similar to the native title regime, the claimant would need to establish that this connection is contemporaneous and can be demonstrated in continued cultural practice.

What would count as an infringement?

The claimant would be required to show that their cultural asset has been used to create a cultural expression, without their authorisation. The Commission is seeking feedback on points such as whether there should be no requirement for the use to be in “material form” to allow for the protection of cultural assets used in live performances or broadcasts. Further, the Commission has recommended that valid forms of authorisation should not be prescribed by the legislation. This would allow for evidence of authorisation being conferred orally or through rites or ceremonies to be relied upon.

Should there be exceptions?

The Draft Report also acknowledges the need to strike a balance between the rights of traditional owners and the interests of those seeking to access these cultural assets. The adoption of copyright-style exceptions has been recommended to allow for research, education, criticism, reporting news, court proceedings and personal use. The Commission has recommended an additional exception for customary and traditional uses. This would allow space for continuing cultural developments, especially in light of the forced disruption to Aboriginal and Torres Strait Islander peoples' connection to tradition by European occupation.

What remedies would be available?

Remedies available under copyright legislation, including injunctions, damages, and an account of profits, are proposed for the ICIP regime. The Commission has recognised that non-monetary losses, such as cultural harm and distress, will need to be considered and appropriately compensated. This may take the form of a provision similar to those in existing intellectual property legislation which allow for the grant of additional damages even when only nominal harm can be established. The Commission has also acknowledged the possibility of making customary law remedies and processes available as a means of dispute resolution under the legislation.