Copyright, Heritage and Australian Aboriginal Art

Abstract:     
How Australian copyright law deals with Aboriginal painting has changed since the late 1980s. Prominent cases have moved the law towards greater protection and offered some recognition of Aboriginal understandings of their cultural heritage. This paper focuses on writing about copyright and Aboriginal art and comments on four issues that may warrant closer attention: copyright, cultural heritage and self-determination; the criteria for copyright protection; appropriation of art works; and the 'common place' of law and Aboriginal art. The first point examines the value of adding ideas from cultural heritage into writing about copyright. It suggests a tension with heritage may be present in some copyright writing, and that an underlying motif for both areas is self-determination. The second section examines the criteria for copyright protection. It questions a continued concern in some copyright writing with the requirement of originality. And it explores an apparent lack of appreciation of the significance of recent case law in some of the literature, especially from North America. The third section considers appropriation of art works, both as a narrower concept that may infringe copyright and more widely. It considers how the cultural value of a work could be drawn on in arguments to limit appropriation. The final section argues that continuing to rely on copyright law, if specific indigenous cultural legislation is not achievable politically, may not be so serious a limitation as is sometimes suggested. In the paper, attention is centred on Australian Aboriginal painting and legal writing about it from Australia and internationally. References are made to the somewhat similar legal and political situations of indigenous people in Canada and the US, and some contrasts are noted with the situations in Africa and elsewhere.

The paper concludes with the thought that there may be little point debating the merits of copyright (and other law) reform. It is over twenty years since high-level reform reports have emerged in Australia. They have suggested that copyright does not provide adequate protection to indigenous cultural heritage. The law, however, has not changed in response - at least it has not changed in terms of explicit law reform. As far as case law is concerned, a series of copyright cases has strengthened protection, and native title litigation in Australia has revolutionised the underlying framework. Through these developments, copyright protection of Aboriginal art has gained a greater place in legal discourse. But it seems likely that the perception has changed even more in other areas of society. What could be called the 'common place' of copyright law and Aboriginal art may be one of the most important changes in Australia since the 1980s. At one time, infringers of indigenous cultural heritage genuinely may not have considered that any legal protection could exist for the material they used. Other appropriators may have made a pragmatic decision based on the perceived unlikelihood of indigenous legal action. Now, neither approach could be nearly so likely.

Keywords: art, copyright, heritage, Australian Aboriginal art

JEL Classifications: K39, K33

Working Paper Series