The 2009 Budget announced a $9.9 million investment over four years to deliver increased funding for Indigenous art centres and support the implementation of an Indigenous Australian Art Commercial Code of Conduct (the Code).
The Code was a key recommendation of the June 2007 Senate Report “Indigenous Art- Securing the Future” which revealed widespread endemic patterns of unscrupulous commercial behaviour by dealers within the Indigenous arts industry. A draft Code was released in December 2008 and the Australia Council recently completed a series of consultation forums across Australia following the receipt of submissions and a subsequent discussion paper.1 The Arts Law Centre of Australia (Arts Law) lodged detailed submissions and attended the Sydney consultation forum.
The Code's objectives are to strengthen fair and ethical trade in the Indigenous visual arts industry by specifying voluntary minimum standards for dealers and agents doing business with Indigenous artists or engaged in the sale of Indigenous artwork.
Arts Law welcomes and supports the introduction of the Code. If properly resourced and promoted by effective education campaigns targeting both the industry and public, it has the potential to significantly reduce the current exploitation of vulnerable Indigenous artists by unethical dealers and galleries. Conversely, it will promote and support the many dealers and galleries which do deal with Indigenous artists and artwork fairly and honourably.
Like any ambitious and important new initiative the best solution takes time and effort. Arts Law has several concerns with aspects of the draft Code, all of which have been explored in our submissions. Some are discussed below.
The Code is currently intended to be voluntary. Arts Law would prefer a mandatory Code with strong policing powers. Unscrupulous dealers are unlikely to sign up voluntarily and their conduct is unlikely to be directly constrained in the short term by a voluntary code. Nevertheless, Arts Law believes a voluntary Code can still be effective provided that it is extensively promoted and resourced so that it becomes a generally accepted benchmark both for collectors seeking to purchase Indigenous art and artists choosing a dealer. Without such promotion the Code risks creating a small club of honest dealers unknown to many outside their own ranks.
Arts Law is strongly of the view that agreements with Indigenous artists should be in writing and, preferably, witnessed by an independent third party. From the perspective of enforcement and governance, requiring Code-sanctioned agreements to be in writing simplifies the assessment as to whether an agreement does or does not meet the Code’s best practice standards and makes it easier for Indigenous artists to obtain advice on their rights. A written document creates a clear understanding as to the terms governing the relationship between artist and dealer.
The Code should impose on the dealer a responsibility to explain the terms of agreement. Many Indigenous artists, particularly those in remote and regional areas, are disadvantaged educationally and by distance and language barriers and often do not ask questions or understand the terms of their agreement. Arts Law advised one very senior artist in Arnhem Land who believed the document he signed (with a cross as he neither read nor wrote English) was a sale document for his painting. In actuality, the document also purported to assign all his copyright to a third party who produced photographic reproductions for online sale with no further royalty or payment.
A nationwide education program to explain the implications and operation of the Code to Indigenous artists is critical. For the Code to provide effective protection the artists need to understand their own position under it and the best practice standards of conduct they are entitled to expect with dealers.
Indigenous Cultural Intellectual Property (ICIP) refers to Indigenous people’s interests in their cultural heritage including songs, music, dances, stories, ceremonies, symbols, languages and designs. ICIP is a communal rather than an individual interest. The Indigenous artist who uses ICIP in artwork may have associated duties and obligations to his or her community. ICIP rights are not currently protected under Australian law but there are a number of protocols designed around the best practice for respecting and protecting it. The Code should require dealers to act consistently with the ICIP protocols.
Finally, the draft template terms and conditions for artist agreements contemplated by the Code is yet to be released. The efficacy of the Code depends in large part on the scope and content of that template. Arts Law will be seeking an opportunity for review and comment.
Delwyn Everard is a senior solicitor at Arts Law
1 The draft code, accompanying discussion paper and all submissions can be viewed at http://www.australiacouncil.gov.au/news/news_items/consultation_on_draft_indigenous_art_code_of_conduct