Written by: Jocelyn Bosse
Traditional cultural expressions (TCEs) are defined as “those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.” Generally, they include cultural artworks, dances, symbols, music and ceremonies. Most of these are also considered ‘works’ for the purposes of Western copyright law.
However, the protection of TCEs faces serious difficulty when it comes to seeking protection via copyright laws. Most TCEs are very old; they have been handed down through generations and often do not have an identifiable ‘author.’ Consequently, indigenous peoples have a hard time enforcing their rights in the courts. Furthermore, the Copyright Act 1968 (Cth) only upholds individual ownership, which does not reflect the communal ownership in Aboriginal clans.
Why Protect Traditional Cultural Expressions?
The Intergovernmental Committee (IGC) at the World Intellectual Property Organisation (WIPO) has identified several core reasons for the protection of TCEs:
- to support economic development: some communities wish to claim and exercise IP in their TCEs to enable them to exploit them commercially as a contribution to their economic development.
- to prevent unwanted use by others: some communities may wish to exercise IP rights in TCEs in order to prevent the use and commercialization of their TCEs by others, including culturally offensive or demeaning use.
- protection against IP: communities are also concerned to prevent others from gaining or maintaining IP over TCEs and derivations and adaptations of them. This entails the use of defensive mechanisms to block or pre-empt third parties’ IP rights that are considered prejudicial to the community’s interests.
Australian Cases of TCE Protection
Foster v Mountford was a landmark case for intellectual property law, and was the first case to recognise the cultural and religious secrets of the Aboriginal Community. In that case, an anthropologist had published a book which included images and descriptions of Central Australian Aboriginal secret ceremonies. The Pitjantjara Council, on behalf of the relevant groups, sought an injunction to prevent publication of the book in the Northern Territory. The injunction was granted, with the Supreme Court of the Northern Territory applying the doctrine of confidential information. The case was decided during a time when many publications were in the grips of controversy due to the inclusion of secret and sacred content. It provides an examples of Australian judges recognising the need for creative thinking at the nexus of intellectual property and Indigenous issues.
Several pre-Mabo decisions attempted to address the issue of copyright and TCEs. Yumbulul v Reserve Bank of Australia (‘the Ten Dollar Note case’) concerned the use of the Morning Star Pole design on a commemorative $10 note. Yumbulul had signed a licence agreement with the Aboriginal Artists Agency. The Reserve Bank then obtained a sub-licence fro mteh Agency. The Federal Court found the pole to be an original artistic work of the Aboriginal artist, Mr Yumbulul, within the meaning of the Copyright Act. However, the Court found that the artist's copyright had been validly assigned to the Reserve Bank.
The depiction of the Morning Star Pole on the banknote caused Yumbulul much criticism by his people, who submitted that the maker of such poles had a cultural obligation to his clan to ensure that a pole was not used or reproduced in any way which offended against their perceptions of its significance. Yumbulul's attempt to set aside the assignment of his copyright in the pole on the ground of unconscionability was unsuccessful.
Justice French, the trial judge, noted: “Australia's copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin… The question of statutory recognition of Aboriginal communal interests in the reproduction of sacred objects is a matter for consideration by law reformers and legislators.”
Bulun Bulun v R&T Textiles (the ‘T-shirt case’) was an important case because it recognised the fiduciary relationship between an Aboriginal artist and their clan. A T-shirt manufacturer had reproduced Bulun Bulun’s painting ‘At the Waterhole’ without permission and the shirts were being sold in tourist shops. Bulun Bulun took the unprecedented step of bringing an action for infringement of copyright and breaches of the Trade Practices Act 1974 (Cth) in the Federal Court. The case was settled and a large payment was made to the clan.
During the proceedings, Justice von Doussa noted that there was no common law basis for communal title over the copyright of an artwork. His Honour reaffirmed that Aboriginal peoples were still governed by the laws of the Commonwealth, including the Copyright Act; There was not separate law available. Justice von Doussa also held that a fiduciary relationship existed between Bulun Bulun and his community. The relationship arose due to the nature of artistic ownership in that cultural context.
Copyright infringement was successfully argued in Milpurrurru v Indofurn Pty Ltd (the ‘Carpets case’). The facts involved the unauthorised use of Aboriginal designs on carpets. The action was brought on behalf of the estates of five deceased Aboriginal artists, whose works were reproduced in portfolios either for the Australian National Gallery (ANG) or the Australian Government Printer for the Australian Information Service (AIS). The Court held that, despite being pre-existing traditional designs, the artworks in question showed sufficient skill, labour and effort to amount to new works.
The Federal Court judge, Justice von Doussa, noted: “The statutory remedies [in the Copyright Act] do not recognise the infringement of ownership rights of the kind which reside under Aboriginal law in the traditional owners of the dreaming stories and the imagery such as that used in the artworks of the present applicants… the evidence discloses the likelihood that the unauthorised reproduction of the artworks has caused anger and offence to those owners, and the potential for them to suffer humiliation and repercussions in their cultural environment.”
Pursuant to s 116 of the Copyright Act, the Court ordered that the unsold carpets be delivered up, and awarded conversion damages. Further damages were awarded under s 115(2) for the loss of potential educational and similar use of the artworks. The living artists had potentially lost the right to produce clan images because of the connection to derogatory use of TCEs. Justice von Doussa went on to note that there was scope under the Copyright Act to distribute the proceeds of the action to the traditional owners under Aboriginal law: that is, to make a collective award for damages for customary sharing, rather than make individual awards for each claimant.
Unfortunately, none of these cases entitled representatives of an Aboriginal group to assert communal ownership or claim communal harm.
Treating Aboriginal Clans like Corporations?
There have been suggestions that Indigenous groups could be treated as legally-defined entities under copyright law. After all, companies like Disney are able to enforce copyright and register other IP in the corporation's name. However, the copyright legislation is too limited in its definitions to give just recognition to the complex relationships and responsibilities of Aboriginal society. Furthermore, such a solution would not go to the root of the problem: the age of the works and the nature of the protections sought.
Recommendations for Reform
Australian lawyers and Indigenous peoples have made excellent recommendations for law reform over the last few decades. Despite the numerous books and journal articles by prominent lawyers and academics, all proposed legislative changes for a sui generis system have done nothing but collect dust. The WIPO Intergovernmental Committee has held meetings of lawmakers and indigenous groups from around the world, but any concrete outcomes remain years away.
Certainly, there is potential for the Federal Government to pass legislation to address Aboriginal copyright issues, given that the Australian Constitution s 51(xxvi) allows the Commonwealth to make special laws with respect to a particular race. However, there is serious debate about whether Australian copyright law – which focuses entirely on individual rights and economic rights – could truly provide for the communal ownership that is recognised under Aboriginal law.
There is general consensus on this topic that any reform would have to sit outside the Copyright Act in the form of sui generis legislation. Doing so would allow the status quo of copyright law to persist, whilst allowing for the new and separate recognition of Indigenous heritage. Traditional rights could be protected without having to overhaul the Western jurisprudence. Australian lawyer Terri Janke has made suggestions for such reform, including:
- Allow for the nature of indigenous intellectual property to be defined according to customary law.
- Recognition of the perpetual nature of indigenous folklore and knowledge.
- Exemptions from the originality and material form requirements.
- Moral rights of attribution to the indigenous communities rather than just individual artists.
- A right of civil action against infringers
- Persons or bodies with authority to control the commercial use of folklore and traditional knowledge
- Establishment of collecting agencies for the charging of fees for the use of heritage.
Currently, Aboriginal and Torres Strait Islander peoples are protecting their rights on an ad hoc basis, using licensing programs like those encouraged by 'Dream Shield' via IP Australia:
Australia is not alone in this dilemma: all nations with a continuing indigenous heritage (like Canada, the USA and India) are in need of reform to protect the cultural works of their indigenous communities. TCEs simply do not fit with Western intellectual property as it currently stands: it is time to legislate outside the box.
 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) Article 4(3)
 In Australia, a ‘work’ is defined as subject matter covered by pt III of the Copyright Act 1968 (Cth). Much like English copyright law, the Australian statute gives an exhaustive list of the subject matter protected by copyright. Compare other jurisdictions, like France, which define ‘works’ in broad and open-ended terms like ‘toutes les oeuvres de l’esprit’.
  FSR 582.
 Mabo v State of Queensland (No 2) (1992) 66 ALJR 408.
 (1991) 21 IPR 481.
 (1998) 41 IPR 513.
 (1995) 30 IPR 209.
 Milpurrurru v Indofurn Pty Ltd (1994) 130 ALR 659, 683.
 Terri Janke, Our Culture, Our Future: Proposals for the Recognition and Protection of Indigenous Cultural and Intellectual Property (Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997).