Aboriginal people and the law - Legal Information Access Centre

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74 The Law Handbook• a comprehensive and coordinated approachto protection is needed, to bedeveloped in full consultation with, andadministered under the control of, Indigenouspeople.Our Culture: Our Future lists a range ofproposals for recognising Indigenous culturaland intellectual property rights, including:• developing new and amended legislation• adapting administrative systems to includemonitoring and collection systems• developing cultural infrastructure, protocolsand codes of ethics.It is available at www.austlii.edu.au/au/journals/AILR/1999/51.html.Labelling authentic productsIn 1999, the then National Indigenous ArtsAdvocacy Association launched a nationalcertification project. Two trademarks calledthe label of authenticity and the collaborationmark were registered under the Trade MarksAct 1995 (Cth). In 2002, the National IndigenousArts Advocacy Association’s officeclosed and, in 2008, the trade mark registrationsexpired. The label of authenticity andthe collaboration mark ceased to be regulatedby any Indigenous or governmentbodies. The labels had limited success, possiblybecause the system involved costs tothe Aboriginal artists and required Aboriginalpeople to prove their work wasauthentic.A more recent approach to providingprotection to both Indigenous artists andconsumers of Indigenous art is the IndigenousArt Code. The development of theIndigenous Art Code was recommended bythe Senate Committee which inquired intoirregularities and exploitation in the Indigenousart market and reported in 2007Indigenous Art – Securing the Future at www.aph.gov.au/binaries/senate/committee/ecita_ctte/completed_inquiries/2004-07/indigenous_arts/report/report.pdf.Indigenous Art CodeThe Indigenous Art Code was launched inNovember 2010 after extensive developmentand consultation to encourage fair tradewith Indigenous artists. Dealers, artists andsupporters can join to show their commitmentto fair and transparent businessdealings. Purchasers who deal with membersof the Indigenous Art Code can proceedwith greater certainty knowing that theartworks they buy come through ethicalprocesses. A list of dealer members isavailable at www.Indigenousartcode.org/index.php/registered-members.The Indigenous Art Code requires dealermembers to act honestly when dealing withIndigenous artists, and prohibits them frommaking false or misleading representationswhen dealing with a person in connectionwith an artwork. The Indigenous Art Codecompany can also be contacted if you have acomplaint about a dealer who is not amember of the Code and they will notify theAustralian Competition and ConsumerCommission if it is apparent any laws havebeen broken. The company can be contactedby telephone 1800 145 101, or through thewebsite www.Indigenousartcode.org/index.php/contact.The Code has had limited success becauseit is still a voluntary system which encouragesfair trade in the Indigenous art marketand its success is dependent on art dealerssigning up to the Code and artists andconsumers alike only dealing with signatorieswho are committed to ethical behaviour.Artworks that use flora and faunaSome of the legislation discussed in theHeritage and Cultural Protection section(see Heritage and cultural protection [2.440])such as the Environment Protection and BiodiversityConservation Act 1999 (Cth) [EPBCA]may impede the ability of Aboriginal artiststo create and sell their artworks. In 2013artists from Elcho Island in the NorthernTerritory were refused an export permit foran exhibition of artworks using the plantpandanus because it was listed as a threatenedspecies under the EPBCA. A specialexemption had to be obtained from theMinister so that the exhibition could proceed.Subsequently, panadanus was removed fromthe EPBCA threatened species list. There aremany other art and cultural works whereboth creation and sale are limited by conservationand heritage laws.
2 Aboriginal people and the law 75Cultural protocolsCultural protocols provide another means ofpromoting appropriate dealings with Indigenousintellectual and cultural property.Cultural organisations and government bodieshave developed a number of protocols.Protocols for visual artsThe National Association for the Visual Arts(NAVA) has released an Indigenous visualarts protocol booklet, Valuing Art, RespectingCulture: Protocols for working with the AustralianIndigenous visual arts and craft sector, byDoreen Mellor. See www.visualarts.net.au/media/uploads/files/Valuing_Art_Respecting_Culture.pdf.Film-making protocolsScreen Australia has developed a culturalprotocol for both non-Indigenous and Indigenouspeople working in Indigenousfilmmaking. The protocol provides a frameworkto assist and encourage recognitionand respect for the images, knowledge andstories of Indigenous people. See www.screenaustralia.gov.au/filmmaking/Indigenous_protocols.aspx.Australia Council protocol guidesThe Aboriginal and Torres Strait IslanderArts Board of the Australia Council for theArts has produced a series of five protocolguides on Indigenous cultural and intellectualproperty rights, dealing with literature,music, new media, performing arts, andvisual arts and craft. The booklets outlinecultural protocols to protect Indigenous artisticand cultural intellectual property. Theyare available at www.australiacouncil.gov.au/grants-2012/information-for-applicants/indigenous_protocols.Local government protocolsThe council of the City of Melbourne hasdeveloped an Indigenous art code of practicefor galleries and retailers of Indigenousart. This may provide a template for othercity councils around Australia. The Code isavailable at www.melbourne.vic.gov.au/AboutMelbourne/ArtsandEvents/Indigenousarts/Pages/Codeofpractice.aspx.Other policies and protocolsArtists in the Black, the Indigenous serviceof the Arts Law Centre of Australia (ArtsLaw) has developed an intellectual propertytoolkit primarily for Indigenous art centreswhich contains the following best practicepolicies: photography and filming, festivalsand performances, academic research, andrecording stories.A more complete list of protocols andpolicies is available on the Solid Arts websiteof the Arts Law Centre of Australia atwww.solidarts.com.au/working-ethically/protocols.[2.550] Other developmentsResale royalty rightsA resale royalty is a payment which is madeto an artist when his or her artwork is resoldby the owner. The resale royalty right refersto money paid to the artist following atransfer of ownership in the physicalartwork.Resale rights are based around the ideathat artists should receive a direct benefit astheir work increases in popularity and marketvalue. While popular musicians andwriters benefit from royalty income whenmore copies of their CDs and books areproduced and sold, creators of artworks,which cannot be reproduced, do not benefitin this same way. Therefore, resale royaltypayments enable visual artists (includingpainters, sculptors, printmakers, craftworkers, installation and media artists, andphotographers who produce limited editionprints) to continue to receive income fromthe resale of their artworks.On 9 June 2010 an Australian resaleroyalty scheme for visual artists commenced.The Australian visual artists’ resale royaltyscheme entitles visual artists to receivepayment of a 5% royalty on certain resalesof their works. To participate in the scheme,artists need to register. Artists can registeronline at www.resaleroyalty.org.au.The Australian Government appointedCopyright Agency Ltd to manage thescheme. Information is available on theCopyright Agency’s website www.resaleroyalty.org.au.
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