The Commonwealth Government has recently said it will introduce a Copyright Amendment (Indigenous Communal Moral Rights) Bill (ICMR Bill). Currently, there is no legal protection afforded to Indigenous communities to prevent unauthorised and derogatory treatment of works and films that draw on traditional customs or beliefs.
Samantha Joseph* and Erin Mackay** explain the proposed amendments and Arts Law’s response.
First Published in ART+Law in September 2006
Background
In 2003, the Government released a draft ICMR Bill that extended moral rights protection to Indigenous community ownership in individual artists’ expression of traditional knowledge. Arts Law thought this Bill actually made it too difficult for communities to secure these rights and so made submissions to the Government.
Arts Law has not been shown the 2006 version of the Bill, nor has it received confirmation from the Government as to whether its concerns over the 2003 Bill have been addressed in the new version. Arts Law therefore has some doubts whether the new Bill will actually give Indigenous communities the protection that it promises.
What are moral rights?
There are three types of moral rights currently recognised in Australian law. Individual artists have the right to be attributed for their work. Artists also have the right not to be falsely attributed for their work. The third moral right is the right of integrity, which means that an artist has the right to object to derogatory treatment of their work that prejudices their honour or reputation. These moral rights are already part of Australian law and must be respected unless an individual artist consents to not being named or the infringement of these rights is reasonable in the circumstances.
The idea behind the ICMR Bill is to extend moral rights laws to cover and protect the interests of communities, not just individual artists.
What will be protected?
Literary, artistic, dramatic and musical works as well as films in which copyright subsists may be subject to ICMR protection. However, the 2003 ICMR Bill did not protect works where copyright has expired, nor did it protect elements of Indigenous culture and intellectual property (ICIP) in which copyright does not exist. For example, the 2003 Bill would not have provided protection over some rock paintings or unrecorded oral histories.
Further, under the 2003 ICMR Bill, protected works would not have included sound recordings. This is an important issue for Indigenous communities because ICIP is often recorded and preserved as sound recordings. Arts Law believes these recordings should be given ICMR protection.
What are the proposed conditions for ICMR protection?
In the 2003 ICMR Bill, five conditions needed to be met before ICMR would arise. These were that:
• the work must be ‘made’;
• the work must draw on the traditions, beliefs, observances or customs of the community;
• the work must be covered by an agreement between the author and the community;
• the Indigenous community’s connection with the work must be acknowledged (notice is shown on the work); and
• the written notice of consent must have been obtained by the author (or their representative) from everyone with an interest in the work.
Problems
Arts Law supports the first two conditions listed above and in 2003 notified the Government that in Arts Law’s opinion fulfilment of these two conditions alone should give rise to ICMR protection. As there has been no suggestion that the remaining three conditions have been changed in the new ICMR Bill, Arts Law believes that the following issues should be reconsidered.
Agreement required
Requiring the signing of an agreement for rights to arise is inconsistent with the moral rights protection already given to individuals, as well as general copyright law, which both provide automatic rights as soon as a work is created. Further, the agreement system is voluntary and the author of a work may choose not to seek an agreement with the Indigenous community.
Acknowledgment of community’s connection
While a community’s connection to the work should be acknowledged, this should not be a condition necessary for ICMR to arise.
Consent
In relation to the fifth condition, the term “interest” is not defined in the ICMR Bill. If the intention of the ICMR Bill is that consent be obtained from all members of the community with a “cultural or traditional interest” in the work, this needs to be stated so that this condition is not contrary to the interests of Indigenous communities.
If consent is to be granted for infringement of ICMR, it should be granted by an authorised member of an Indigenous community.
Duration
Duration of ICMR is linked to copyright. Arts Law suggests that ICMR should exist until such a time as no person is recognised as a custodian to the ICIP.
Defences to infringement
The 2003 ICMR Bill provided a defence of reasonableness. However, if the intention of the ICMR Bill was to consider the reasonableness of the efforts of the infringer in consulting the community, this should be more clearly stated. The new ICMR Bill should introduce a two-step reasonableness test that considers whether the person claiming that infringement was reasonable “knew, or ought to have known” that ICMR subsists in the work.
Also, the 2003 ICMR Bill allowed certain treatment of works to occur without infringing ICMR, including the destruction of movable work if adequate notice is provided to enable removal of the work. The notice periods proposed by the 2003 ICMR Bill were too short.
The way forward
Arts Law argues that these aspects of the ICMR Bill, including the fact that conditions needed to be met before the first dealing with a work, shifts the balance away from Indigenous communities in favour of purchasers and users of Indigenous cultural material. Arts Law would welcome proper consultations by Government with Indigenous communities on the new ICMR Bill prior to it being introduced into Parliament.
Inquiry into Indigenous art market
By Samantha Joseph*
The Federal Government is conducting an inquiry into the Indigenous visual arts and craft sector. Arts Law welcomes the inquiry.
On 15 August 2006, Senator Kemp, the Federal Minister for the Arts and Sport announced the inquiry which will be run by the Senate Environment, Communications, Information Technology and the Arts Legislative Committee. The Committee is expected to report its findings to Parliament in February 2007.
The inquiry will consider the current and future viability of the industry which continues to reap economic success both locally and internationally. Arts Law hopes the inquiry will look at the ongoing problems facing the industry, including legal, financial, social, infrastructure and cultural issues that we believe are essential to ensure the industry is appropriately supported and protected.
The inquiry will address any unscrupulous and unethical practices that affect the industry and make recommendations to improve these practices.
Submissions to the inquiry are due by 27 October 2006 and the terms of reference may be found at www.aph.gov.au/Senate/committee/ecita_ctte/indigenous_arts/tor.htm
KU Arts conference
By Samantha Joseph*
Arts Law recently presented at the South Australian Statewide Indigenous Community Arts Development Project (SICAD) hosted by Ananguku Arts & Culture Aboriginal Corporation (commonly referred to as KU Arts).
KU Arts is a regional forum and development body formed by the artists in the Anangu Pitjantjatjara Yankunytjatjara Lands (APY). KU Arts assists artists in development of their arts practices.
The SICAD conference was the first time that the artists and art centres from the APY Lands gathered to discuss a host of issues. These issues included product marketing and career development, infrastructure (in particular the need to improve the current structural needs of some of the art centres), product development, government funding, setting up an arts business/project and intellectual property.
Arts Law presented on copyright, moral rights and Indigenous culture and intellectual property (ICIP). The information was received well, however a continual issue of concern amongst the participants throughout the conference was about the Community Development Employment Program (CDEP), a Federal government employment initiative for Indigenous Australians. The concern was about the legal protection (including copyright) afforded to the artists under this program.
The conference coincided with the launch of ‘Our Mob’ an exhibition of artworks made by emerging SA Indigenous artists.
Arts Law welcomed the opportunity to present at the conference as it was an ideal forum to inform artists and art centres about how to legally protect their creative and intellectual works.
*Samantha Joseph was a solicitor at Arts Law from January 2004 to September 2006.
** Erin Mackay is a law student at the University of New South Wales who recently completed a placement program at Arts Law.
