Canberra Times
Monday, 5 March 2007

Aboriginal artists become victims of their success
By Alex Malik

Late last year the Federal Government announced a Senate inquiry into Australia's indigenous visual arts and craft sector. The inquiry received 72 submissions, and is being followed with public hearings around the country.

The inquiry is not surprising given the increased worldwide global popularity of indigenous Australian arts and craft. Recently, an Albert Namatjira painting sold for $96,000 at a Sotheby's auction in Melbourne. The auction was attended by more 500 investors interested in Aboriginal art. It featured the Wallent Collection, which included 38 watercolours from the Hermannsburg Mission in central Australia.

It is estimated that up to 7000 Aboriginal people are actively occupied making arts and craft. Further, it is estimated that indigenous arts contribute between $100 million and $300 million to the Australian economy. It's not just Aboriginal artists profiting from arts and crafts. Retailers earn income selling boomerangs, carvings, glassworks, didgeridoos, jewellery, masks, and statues to tourists seeking a piece of genuine Australian memorabilia. Galleries display paintings by artists they hope will be the next Namatjira.

Suppliers provide raw materials to artists to create their works. Truck drivers deliver and warehouses store raw materials used in arts and craft. Developers create websites for e-tailers, telcos benefit from e-commerce in indigenous arts and craft.

However, indigenous Australian artists are becoming victims of their own success, with substantial growth taking placente in the counterfeiting of indigenous arts and craft. This exacerbates the already parlous nature of the market situation where the vast majority of artists are excluded from the high-value gallery market, and are instead consigned to the lower value tourist souvenir trade.

Tourist areas in Australian cities have shops with souvenirs based on indigenous Australian creativity. Some shops sell key rings with imitation Aboriginal designs, plastic didgeridoos, $5 boomerangs, imitation carvings, cheesy postcards, and placemats with designs lifted from Aboriginal paintings. These souvenirs are cheap imitations, of poor quality, often imported from Indonesia or China, and their availability for sale in Australian souvenir shops devalues indigenous Australian culture.

There have been reports of local back-packers being hired to copy indigenous Australian designs from a book. Some retailers falsely try to pass off their goods as "made by Australian Aborigines". Some arts and crafts are also falsely labelled in the same manner. Ebay and other auction websites are also stocked with indigenous items of questionable authenticity.

These products are more than cheap and nasty, they represent Australia in an embarrassing and demeaning manner, reducing our indigenous heritage to an anthropological oddity, and indigenous artists to the status of pre-literate artistic stereotypes. These products rely on indigenous Australian designs, shapes, colours and patterns, and do so without obtaining a licence from the rights holder. These products are counterfeits, and are no more genuine than market stallholders selling pirate DVDs or CDs. Yet while court cases against film and music pirates proceed, with some defendants being imprisoned, there seems to be no enforcement activity to protect indigenous Australian rights owners. Why?

It could be that indigenous Australians are less well organised and resourced as a group, compared with other industries. Maybe they are not as efficient at beating their own drum in Canberra. Perhaps they suffer because they are widely dispersed in regional areas, and are unaware of their legal rights. Most likely, the indigenous Australian artistic community is in no position to help or adequately defend itself.

Add to this an almost complete lack of interest in the plight of indigenous victims of copyright infringement from academics or law firms who are keen to accept funding to inform artists of their legal rights, rather than getting their hands dirty actually fighting piracy. It is safe to assume an Aboriginal artist trying to deal with copyright infringement is not in the market for a first-tier law firm and vice versa.

The Government's inquiry is an opportunity to raise suggestions to reduce the counterfeiting in this sector. The Government might wish to consider including increased funding for broader community education on the value of indigenous Australian arts and craft. The Government should fund civil and criminal actions against infringers of indigenous rights, or at least expect some of the funds it presently gives to self-appointed protectors of indigenous artists to be spent on enforcement actions rather than talk-fests about enforcement. Unscrupulous operators will continue their operations while they have no fear of criminal or civil proceedings.

Indigenous intellectual property rights owners should be given the benefit of a special trademark which guarantees the legitimacy of indigenous products that carry the mark. The development and widespread usage of such a mark would create a commercially viable enforcement and protection mechanism. Consideration should also be given to a copyright registration system which will protect indigenous rights owners and allow them to earn greater licence revenues.

Indigenous Australian culture developed over thousands of years. Indigenous art is one of those rare things that unarguably answers the question "who is an Australian". Yet, as a result of counterfeiting, there is a danger of significant aspects of indigenous Australian culture being wiped out in a single generation. The present state of affairs. This is tantamount to foreigners stealing Australian culture. Recent Government changes to copyright laws have ignored Australia's dead heart. Perhaps the first step in remedying that deficiency is for the Government to recognise that Australia has a living and creatively thriving centre, and this centre is in need of protection just ask the painters, crafts people, sculptors, weavers, jewellery makers, and musicians of Central Australia. Their livelihood depends on it.

Alex Malik is a technology and intellectual property lawyer. He is finalising a PhD in law at the University Of Technology, Sydney.