The Arts Law Centre of Australia (Arts Law) welcomes the opportunity to contribute to the discussion on the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia. In essence, our submission is that a prohibition on the sale of inauthentic products at all levels of the supply chain is the easiest and most efficient approach to address the problem.
Arts Law has been active in this area for over 13 years, playing an integral role in the Fake Art Harms Culture campaign and has made a number of submissions to government on Indigenous Cultural and Intellectual Property (ICIP), including to the Productivity Commission’s Draft Report on Intellectual Property Arrangements in 2016, and IP Australia’s Indigenous Knowledge Consultation in 2012. We have also made representations to the Attorney-General and the Minister for Indigenous Affairs. There have been other inquiries into these issues including the 1981 Report of the Working Party into the Protection of Aboriginal Folklore, the federal government’s Issues Paper, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples in 1994, and discussions about an Indigenous Communal Moral Rights Bill (2003). No legislative protection or enforceable rights have resulted from any of these previous inquiries.
The Fake Art Harms Culture campaign
In response to the representations by Indigenous community members and artists, key peak bodies, the Arts Law Centre of Australia, Indigenous Art Code and Copyright Agency l Viscopy, launched the ‘Fake Art Harms Culture’ campaign in 2016. The campaign was created to address the widespread sale of works that have the ‘look and feel’ of being Indigenous but actually have no connection to Aboriginal and Torres Strait Islander communities. These are commercially produced goods, generally aimed at the tourist market; often made from non-traditional materials; and featuring inauthentic and culturally inappropriate designs. They range from bamboo didgeridoos, to decorative plates and key rings.
A mystery shopping exercise in tourist locations in various capital cities found very large numbers of such items and estimates suggest this is a multi-million dollar market. You can read more about the campaign here.
Arts Law is pleased at the role it has had in furthering the discussion around this issue, however, it is important to note that dealing with the issue of ‘fake’ or inauthentic art is a small, but necessary part of the larger need to strengthen the protections of ICIP for Aboriginal and Torres Strait Islander artists and their communities.
Arts Law’s Conclusion
A prohibition against the sale of inauthentic Indigenous art is evidently the most simple and efficient way to address the problems caused by the growing prevalence of inauthentic Indigenous art.
Unlike the alternatives, a prohibition would:
• be administratively straightforward for all stakeholders;
• be cost-effective to implement and monitor;
• build on existing frameworks and resources;
• place the compliance onus on businesses rather than Indigenous artists;
• enable Indigenous artists and communities to exercise creative and cultural control; and
• offer a practical enforcement regime with sufficient deterrents to change behaviour.
Summary of Recommendations:
8.1 Legislative change to prohibit the sale of inauthentic Indigenous art products at all levels of the supply chain.
(a) The existing Australian Consumer Law (ACL) is the most expedient, cost effective and logical place for an appropriate solution.
(b) The prohibition should be a strict-liability offence.
(c) The supply of documents demonstrating authenticity should be a defence.
8.2 An education and advertising campaign should be embarked upon, in conjunction with the legislative change outlined.
8.3 The Resale Royalty Right scheme should be continued after demonstrating enormous success since its inception.
8.4 The Indigenous Art Code should be mandatory, require written agreements, and strengthened.
Thank you to the team at Allens for their pro bono support in creating this submission.
 Released by the Minister for Justice, the Hon. Duncan Kerr, the Minister for Communications and the Arts, the Hon. Michael Lee, and the Minister for Aboriginal and Torres Strait Islander Affairs, the Hon. Robert Tickner.
See Catherine Hawkins, ‘Stopping the Rip-offs: Protecting Aboriginal and Torres Strait Islander cultural expression’ (1995) 20(1) Alternative Law Journal 7 <http://www.austlii.edu.au/au/journals/AltLawJl/1995/4.pdf>.
 See discussion in Jane Anderson, ‘The Politics of Indigenous Knowledge: Australia’s Proposed Communal Moral Rights Bill’ (2004) 27(3) UNSW Law Journal 585 <http://www.unswlawjournal.unsw.edu.au/sites/default/files/34_anderson_2004.pdf>.
 For further discussion see Delwyn Everard, ‘Safeguarding Cultural Heritage – the Case of the sacred Wandjina’, WIPO Magazine, December 2011, http://www.wipo.int/wipo_magazine/en/2011/06/article_0003.html
 See Arts Law, Protecting The Wandjina (27 July 2015) https://www.artslaw.com.au/articles/entry/protecting-the-wandjina