In October 2018 the Federal Court found that Birubi had made false and misleading representations in breach of the Australian Consumer Law in the sale of souvenir boomerangs, didgeridoos, message stones and bullroarers. Birubi marketed and labelled these products as Australian made and hand painted by Australian Aboriginal persons, when in fact they were made in Indonesia. The court found that the representations were likely to mislead consumers into believing that the products were hand painted by indigenous artists and were made in Australia. Justice Melissa Perry today imposed a $2.3 million fine on the company, plus an order to pay the ACCC’s legal costs.
In reaching its decision on the penalty to impose, the court relied on expert evidence of Professor Jon Altman and Dr Wananamba Marika AO regarding the harm to indigenous culture from fake art and the direct economic benefits to Indigenous artists and their communities from producing and selling authentic art and artefacts. The court emphasised the need to consider the economic, social and cultural harm caused by selling fake artefacts. Her Honour referred to:
“the need in assessing such impacts to have regard in particular to the significant, systemic disadvantage suffered by Indigenous Australians especially in remote rural areas, and to the interrelationship between specific designs, personal identity, and connection to country, under Indigenous Australian lores and customs.”
In the judgment the court acknowledged the evidence of Professor Altman regarding the importance of art centres in remote areas in their many capacities – in providing employment and training, administrative support, as a meeting place and place of work, to ensure records of provenance and distinct regional styles, and the protection of intellectual and cultural property. Government funding has recognised the “high economic and social rates of return on the investment of public funds in such centres”. Dr Marika also emphasised the important of traditional lores as designs are often specific to a particular region and cannot be used by people from another region without permission.
The court said that it imposed a high penalty to discourage other businesses from misrepresenting the provenance of Indigenous art and artefacts and to warn businesses from engaging in similar conduct. The court found that it was important to deter this type of misrepresentation because of the cultural and economic consequences of the sale of fake Indigenous artefacts.
Justice Perry stated that:
“the potential impact of misrepresentations such as those made in this case are significant, with the Indigenous art and souvenirs sector having grown rapidly over the last 50 years and now generating revenue in the order of $300-500 million per year.”
The penalty signifies the court’s view about the seriousness of this type of conduct. Birubi is currently in liquidation and is unlikely to be able to pay the fine but despite this, the court wanted to send a clear message of deterrence.
Arts Law, along with The Indigenous Art Code and Copyright Agency, have been calling for tougher laws to protect against the misrepresentation of fake art for the past few years. The judgment, although welcome, does not make it illegal to sell fake Aboriginal Art as long as misleading representations are not made about the authenticity of the products.
Australia’s First Nations artists and communities are vulnerable to the exploitation of their culture and heritage because our legal system currently does not sufficiently protect Indigenous Cultural and Intellectual Property (ICIP). Stronger laws which recognise ICIP are needed, and Arts Law continues to advocate for this both domestically and on international platforms. These laws need to go beyond the principles relied on in this decision to ensure authenticity of art works and self-determination by First Nations Artists.
Prohibiting the sale of fake Indigenous art work through clear laws will foster a market in which authentic expressions of culture through art can thrive and consumers can rely on the authenticity of Indigenous products and artwork.
Andrew Wiseman, Partner Allens and Vice-President of Arts Law, reflects that if Australia is serious about supporting and protecting Indigenous Culture, the Birubi decision, while helpful in limited circumstances, proves the case that Australia needs more than current Australian Consumer Law protection. Misleading and deceptive conduct is the wrong platform to protect artists and consumers from the sale of fake art. What is needed is protection from misappropriation of the traditional cultural rights of Indigenous artists. Neither the current Australian Consumer Law nor the Copyright Act provides this. He says the drafting has been done. Let’s show we are serious – and get the Fake Art Bill through to legislation. Now.