Moral Rights and Protecting the Cultural Rights of Indigenous Artists

by Terri Janke, Solicitor, Terri Janke & Company.

First published in ART+law newsletter, September 2000.

Participants at a recent one-day seminar in Melbourne on Indigenous intellectual and cultural property rights discussed the importance of attribution and maintaining the integrity of Indigenous arts. The seminar, held on 12 July and entitled Arts for Money’s Sake, was jointly hosted by the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Australian Centre. The seminar canvassed the issues and recommendations presented in Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights.

For Indigenous peoples, art expresses all aspects of life and identity. Art is a major way of passing on culture to future Indigenous generations. Some Indigenous artworks depict culturally important content such as creation stories and ceremonies. Certain images, techniques and styles have developed over time, originating from, and identifying, particular Indigenous groups. Indigenous law and custom may control use of these. The accuracy of the reproduction is of great importance as inaccurate reproduction of an artwork can cause deep offence to those familiar with the dreaming. For example, in the rarrk style (cross-hatching) of Arnhemland Indigenous clan groups, each line has a significant message. Participants expressed their concerns about the appropriation of styles and technique by persons, both Indigenous and non-Indigenous, who have no claim or belonging to depict such images.

The introduction of the moral rights of attribution and integrity may further the interests of Indigenous peoples. This will only occur if the proposed legislation extends moral rights protection to Indigenous clans over works that contain traditional ritual knowledge.

Moral rights are the inalienable personal right of a creator of a work or maker of a film to:

1. claim authorship of the work or film (Right of Attribution); and
2. object to any distortion, mutilation or other modification of the work which would be prejudicial to the creator’s honour or reputation (Right of Integrity).

The Copyright Amendment (Moral Rights) Bill 1999, which was presented to the House of Representatives on 8 December 1999, proposes to amend the Copyright Act 1968 to provide protection for the moral rights of authors, artists, playwrights, composers, screenwriters, directors and producers. In its current form, the Bill fails to protect Indigenous cultural interests in the following areas.

Right of Attribution

Under the 1999 Bill, the creator of an artistic work will be entitled to be attributed each time his or her artwork is reproduced, published, exhibited or transmitted. The right of attribution lasts for the period of copyright protection. For Indigenous artistic works, a significant issue is whether the clan group is entitled to be attributed as a communal owner of the clan designs embodied in an artistic work.

Right of Integrity

The Bill provides that the right of integrity is infringed if the work or film is subjected to derogatory treatment that is prejudicial to the author’s honour or reputation. An artist may be able to object to the manner or place in which his or her work is exhibited, or to the alteration of the work. The right of integrity would provide redress to many Indigenous artists given that preserving the overall integrity of the work and underlying ritual knowledge is paramount. For example, in M*, Banduk Marika & Others v Indofurn ((1994) 130 ALR 659), Tim P* (now deceased), whose artwork Kangaroo and Shield People Dreaming was altered significantly and reproduced on a carpet, observed (at page 678):

‘… an important part of the story being told in the painting concerns the main creation story of my tribe … It is not right for my painting to be copied for commercial purposes onto carpets. It is also not right for my painting to be copied in a way where part of it has been altered and part of the painting left out. I am happy for people to learn about my culture and heritage, and the accurate reproduction of the painting for the purposes of education and cultural exchange is appropriate. I wish the court to know that I am very upset about the copying of my painting on carpets ….’

Under the Bill, Tim P* could have argued an additional claim against the respondents for infringement of the right of integrity on the basis that reproduction in such a manner was derogatory.

However, the Bill proposes that the right of integrity will cease upon the death of the creator or filmmaker. Tim P* is now deceased. If the Bill is enacted and his artwork is derogated in the same way, his family and members of his clan would not be able to invoke moral rights to stop such derogatory treatment, although such reproduction is derogatory not only to the artist but his family and clan group.

Application Only to Existing Works

Another significant issue with the current Bill is that moral rights will only apply to works and films created after the new laws come into force. This means that existing important cultural works that are currently housed in our nation’s galleries and museums will not be protected.

Participants at the seminar called for greater legal protection. Support was also given for the development of an Indigenous artists’ organisation or network for Victoria which could provide information to Koori artists on legal issues such as contracts and intellectual property laws as well providing guidance on cultural issues such as development of cultural expression and styles. The organisation or network could also assist with industry matters such as marketing and distribution of Indigenous arts.