Aboriginal people and the law - Legal Information Access Centre

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70 The Law Handbook[2.510] Copyright law andIndigenous cultural andintellectual propertyRecognising communal rightsYumbulul v Reserve Bank of Australia (1991) 21IPR 481 concerned a morning star pole, afunerary object created by Mr Yumbululunder the authority given to him as amember of the Galpu clan group. The polewas sold to the Australian Museum forpublic display, a permissible use to educatethe wider community about Aboriginalculture.However, Mr Yumbulul licensed reproductionrights to the Aboriginal ArtistsAgency, which subsequently approved theReserve Bank reproducing the pole on thebicentennial $10 note. Mr Yumbulul wascriticised by his community for exceedinghis authority under customary laws. Accordingto the traditional custodians, it wasnot culturally appropriate for such a sacreditem to be reproduced on money. Mr Yumbululinitiated action in the Federal Court,alleging that he would not have authorisedthe licence to the Aboriginal Artists Agencyand the Reserve Bank had he fully understoodit.While finding that Mr Yumbulul mistakenlybelieved the licence would imposelimitations on the use of the pole similar tothose in Aboriginal customary law, the courtconsidered that “Australia’s copyright lawdoes not provide adequate recognition ofAboriginal community claims to regulatethe reproduction and use of works whichare essentially communal in origin”.Unauthorised reproduction of artworksIn Milpurrurru v Indofurn Pty Ltd (1993) 130ALR 659, the court discussed copyrightinfringement of Indigenous artworks of culturalsignificance to the artist applicants andthe cultural groups to which they belonged.The case involved the unauthorised reproductionof Indigenous artworks on carpetsmade in Vietnam and imported intoAustralia. Significant aspects of the caseincluded the following:• a work may be original if there is sufficientdetail and complexity reflecting skilland originality, even if it is based ontraditional designs• though not identical to the originalartworks, the carpets reproduced centrallyimportant parts. For example, thepart taken from Tim Payunka Tjapangati’spainting Kangaroo and Shield PeopleDreaming depicted a sacred men’s story –one factor that led the court to concludecopyright had been infringed• part of the $188,000 awarded in damageswas given in consideration of the personalhurt and cultural harm done to theartists. The court noted that their standingin the community could be affectedbecause of the culturally offensive misuseof the works, regardless of whether theyhad authorised it.The court made a collective award to theartists rather than individual awards so thatthey could distribute it according to theircultural practices.Collective ownership of artworksIn Bulun Bulun v R & T Textiles Pty Ltd (1998)157 ALR 193, the Federal Court discussedissues of collective ownership and communalcopyright. John Bulun Bulun’s workMagpie Geese and Water Lilies at the Waterholehad been reproduced on fabric importedinto Australia by R & T Textiles. Therespondents conceded that Mr Bulun Bulunwas the copyright owner and reached asettlement with him, leaving the court toconsider only the claims the second applicantGeorge M (since deceased) brought asthe representative of the Ganalbingu people.Those claims asserted that the Indigenousowners of Ganalbingu country were theequitable owners of Mr Bulun Bulun’s copyrightin the work, which embodied imagerysacred and important to the Ganalbingupeople’s cultural heritage.The Federal Court dismissed Mr M’sclaims. However, it offered some interestingcomments on the nature of Indigenouscultural heritage, including that:
2 Aboriginal people and the law 71• the operation of any pre-existing systemof Indigenous collective ownership inartistic works had been extinguished withthe enactment of the Copyright Act• the provisions of the Copyright Act effectivelypreclude any notion of group ownershipin an artistic work, except wherethe work is one of “joint authorship”within the meaning of s 10(1) of the Act• the grant of permission by the Ganalbingupeople to Mr Bulun Bulun to usetheir ritual knowledge in his artwork wasnot enough to create any form of contractualagreement vesting an equitable interestin copyright ownership in Mr M orthe Ganalbingu people nor was it sufficientto create a trust obliging him to holdthe artwork and copyright on trust for theGanalbingu people• however, as a result of the unique relationshipbetween Mr Bulun Bulun andthe Ganalbingu people, equity imposed afiduciary obligation on Mr Bulun Bulunnot to exploit the artistic work in a waycontrary to the law and custom of theGanalbingu people and, in the event ofinfringement by a third party, to takereasonable and appropriate action to remedythe infringement. The court consideredthat Mr Bulun Bulun had done thisby taking action against R & T Textiles.Intellectual property rights and land rightsIt was also argued by the second applicantin the Bulun Bulun case that intellectualproperty rights are an incident of nativetitle, and may constitute an interest in land.The court did not have jurisdiction toaddress this question, as all applications fora determination of native title must complywith the Native Title Act. Subsequent recognitionunder that Act of a form of intellectualproperty rights in relation to land has,however, been limited.Applicants for native title have sought toinclude the protection of cultural rights toproperty as part of the bundle of rights thatmakes up a determination of native titleunder the Act. In Ward v Western Australia(1998) 159 ALR 483, the trial judge concludedthat the claimants had a right tomaintain, protect and prevent the misuse oftheir cultural knowledge of the claim area.Such protection had been sought to protectany inappropriate viewing, hearing or reproductionof secret ceremonies, artworks,song cycles and sacred narratives of theclaimants. The High Court subsequentlyoverturned the trial judge’s finding (seeWestern Australia v Ward (2002) 213 CLR 1),on the basis that such a right was notnecessarily an interest in land capable ofrecognition under s 223(1)(c) of the NativeTitle Act. At [59] the court explained:To some degree, for example respecting accessto sites where artworks on rock are located, orceremonies are performed, the traditional lawsand customs which are manifested at thesesites answer the requirement of connectionwith the land found in par (b) of the definitionin s 223(1) of the Native Title Act. However, itis apparent that what is asserted goes beyondthat to something approaching an incorporealright akin to a new species of intellectualproperty to be recognised by the common lawunder par (c) of s 223(1). The “recognition” ofthis right would extend beyond denial orcontrol of access to land held under nativetitle.In a series of subsequent cases, claimantshave failed to establish any form of a nativetitle right that would entail the restraint ofvisual or auditory reproductions of whatwas found in the claim area (see, forexample, Northern Territory v Alyawarr (2005)145 FCR 442). Instead the Federal Court hasonly been prepared to recognise more limitedrights to maintain and protect significantcultural sites, or to use land for thepurpose of teaching and passing on traditionalcultural knowledge.Taking action as a clanThe court also found in the Bulun Bulun casethat if an artistic work embodying anAboriginal clan’s ritual knowledge was usedinappropriately, and the copyright ownerfailed or refused to take action to enforce thecopyright, the clan could take action throughthe courts.
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