Trade mark protection and ICIP: How does Australia fare?
Ros Stein completed a student placement program through the University of Sydney at Arts Law in the Spring semester of 2006.
Currently, under Australian law there is limited protection for particular aspects of ICIP. Some aspects of ICIP, such as paintings can be protected under copyright law but other aspects such as early examples of rock art are not.
This article looks at how another area of the law, trade mark law, has been used to provide some further protection to Indigenous artists overseas. Trade marks may seem an unlikely measure to take to protect art. However, as more and more Indigenous art and craft makes its way onto the commercial market, trade marks can be a useful way of regulating the authenticity of the work and ensuring appropriate use of cultural material.
Igloo Trade Mark
Canadian authorities have displayed significant foresight in the regulation and protection of the Indigenous art and craft sector. In 1958, the Igloo trade mark was established to protect works created by the Dene, Métis and Inuvialuit (Inuit of the western Arctic) peoples of Northern Canada.
DIAND is also responsible for promoting Indigenous art and craft in the region. The Canadian Inuit Art Information Centre is run by DIAND and contains a research library on Inuit art. The Centre also works to facilitate access to Inuit art and craft and produces educational materials for the general public.
The presence of the Igloo symbol on traditional arts and crafts has been successful in increasing consumer confidence in Indigenous products and protecting the work of Indigenous craft persons in Canada. However, due to its success and longevity the Igloo trade mark has fallen victim to imitation. 'Fake' copies of the Igloo tag have been used by some manufacturers to give consumers the impression that their souvenirs were produced by Indigenous craft persons. Restricting printing of the Igloo tag to one company has been used to protect the trade mark and prevent future attempts at imitation.
Protection under trade mark law more generally
Under Canadian trade mark law, a public authority can register any badge, crest, emblem or mark, adopted and used by any public authority as an official mark for goods and services.
Indigenous groups have successfully utilised these protections and have been granted the status of 'public authority' under the Canadian Trade Marks Act. This means that Indigenous groups, as 'public authorities' are able to prevent the registration of well known Indigenous designs and works by non-Indigenous people.
For example, in 2000 the Snuneymuxw First Nation successfully registered 10 ancient rock paintings. The Snuneymuxw community have requested that businesses and artists refrain from using the images. Registration also gives the community the right to commence action against any party which reproduces the images without their permission.
This could be a useful system to consider in Australia as copyright law offers very little protection for rock art as copyright only protects artistic work for the life of the creator of the art and an additional 70 years.
Toi Iho Trade Mark
In New Zealand there are a series of trade marks which are used to label authentic Maori art, craft and performances. In 2002 the toi iho Maori Made Mark was established. It was developed by Te Waka Toi, Creative New Zealand’s Maori Arts Board.
There are three classes of toi iho which cover all art forms. The Maori trade mark is designed for artists and groups of artists of Maori descent. The Mainly Maori trade mark is for groups of artists, most of whom are Maori who collectively produce and perform work across a variety of art forms. The Maori Coproduction trade markacknowledges collaboration between Maori and non-Maori artists.
The aim of the trade mark is to ensure appropriate regulation is available for all forms of Maori culture which exist in the commercial domain. The mark was the result of extensive consultation with Maori artists and it covers many different forms of artistic expression, including arts and crafts and live performances of Maori culture.
Protection under trade mark law more generally
In 2003 changes were made to the Trade Mark Act in New Zealand to ensure that trade marks being registered were culturally appropriate and did not undermine Maori culture.
The Trade Mark Act now incorporates terms specifically designed to protect Maori culture. One of the grounds for absolute refusal of an application for a trade mark is that it is likely to offend a significant proportion of the population, including Maori. An advisory committee chaired by Maori representatives has been established to advise stakeholders of the appropriateness of the proposed trade mark and whether the use of Maori signs and language is appropriate, and if not, whether it is likely to be offensive.
In the first year of operation, the Advisory Committee met 4 times and considered 333 applications. Eight applications were classified as potentially offensive or required more information before a decision could be reached.
Label of Authenticity
Currently, Australia does not have a label of authenticity or a specific trade mark that can be used to show that Indigenous art and craft is authentic. Australia did have a label of authenticity, which was established in 1999 and administered by the National Indigenous Arts Advocacy Association (NIAAA), which is no longer in operation. NIAAA had registered two certification marks, an authenticity mark and a collaboration mark.
Criticism of the label included: it was not well promoted, that it was poorly administered at the federal level and that many artists who applied to use the mark were not accepted. Some lessons can be taken from this example: a one size fits all approach failed to take into account the different needs and situations of Indigenous communities around the country. Also, the test for Aboriginality was overly complex with over 75% of applicants failing to satisfy the test.
Regional models such as the Desart mark have proven more successful. The trade mark is used on both original artistic works and licensed manufactured works, and is available for use for artists from member art centres. The success of the Desart trade mark suggests that a regional approach may be appropriate to the Australian context.
Protection under Trade Mark Law
Indigenous words and symbols can be registered under the Australian Trade Marks Act, and arts centres have successfully used trade marks to register their centres’ logos.
Challenges for Indigenous communities and individuals wishing to register words or symbols include the cost of the exercise and the time and knowledge required to submit an application.
It has also been difficult registering Indigenous words which, when translated in English are descriptive, such as 'tea-tree'. Applications for 'descriptive' words are more successful when the application identifies the potential for the word to be used in a 'distinctive' manner.
The use of trade mark law as a protection mechanism for ICIP may be a useful way of dealing with arts and crafts in the commercial domain.
However it is important to note that trade mark law does not provide comprehensive protection of all parts of ICIP. Arts Law continues to argue for the introduction ofspecific laws designed only to protect ICIP.
The mechanisms in place in Canada and New Zealand, whilst not perfect, reflect a commitment to the protection of Indigenous cultural heritage. In particular, the establishment of an advisory board chaired by Maori representatives is a valuable example of the importance of Indigenous communities’ involvement in the decision making process at a federal level.
Australian decision makers can draw on the experiences in Canada and New Zealand, which show that proper consultation and involvement of Indigenous artists is essential for the effective and appropriate use of ICIP.
On 15 August 2006 the federal government announced an inquiry into the Indigenous visual arts and craft sector. Submissions to this Inquiry closed on 27 November 2006.
Arts Law’s submission addressed amongst other things, authenticity issues, the need for better regulation, unscrupulous practices in the Indigenous art market, improved access to business and legal advice, more education for Indigenous artists and communities, adequate funding for arts bodies and the introduction of adequate Indigenous Communal Moral Rights (ICMR) legislation.
The findings are due to be tabled at the commencement of parliamentary sittings in February 2007.