Australian, March 5, 2004 (NSW Country Edition)
In Ken Duncan's
gallery on George Street, Sydney, a large panoramic photograph of
Uluru takes pride of place. Taken at the peak of an outback sunset,
the rock glows like the lit end of some enormous cigar, while streaks
of salmon-pink cloud and faint dabs of yellow and blue colour the
sky. Until now, no one would have questioned that Duncan--a wildly
successful photographer for the past two decades--held the copyright
and the moral rights over this creation. But all that may be about
A report being
prepared by Sydney law firm Terri Janke and Co suggests that the
intellectual property of Duncan's artwork belongs not just to him
but also to the Anangu people, the Aboriginal community that owns
Uluru and the surrounding national park. This report has been commissioned
by the management of Uluru-Kata Tjuta National Park at the request
of the park's traditional owners. Although the report is specific
to Uluru, federal director of national parks Peter Cochrane admits
it might be relevant to other Aboriginal sites--including the Devil's
Marbles and other Northern Territory parks that are subject to native
In fact, some
Anangu see the report in that light: Graeme Calma, community liaison
officer for the national park, says Janke's final report could be
a blueprint for traditional owners in places such as Kakadu and
the Devil's Marbles. According to a background paper written by
Janke, the indigenous cultural and intellectual property of Uluru's
traditional owners extends well beyond art and handicrafts--the
Anangu-produced objects with which many of us are familiar. It also
covers items produced by non-Aboriginal visitors to the park, including
use of the Anangu people's traditional knowledge and creation stories
in articles, books and tourist brochures, and all commercial filming,
photography and painting of the national park--even the machine-stitched
outline of Uluru on a souvenir T-shirt.
cultural and intellectual property rights are spelled out in an
appendix to the background paper. These include the right of Aboriginal
communities to own and control indigenous cultural and intellectual
property; their right to define what constitutes that; and, most
controversially, their right to control its commercial use and to
who has photographed Uluru and nearby Kata Tjuta (the Olgas) at
least 10 times, the indigenous cultural and intellectual property
proposals for Uluru are just the latest skirmish in a war of words
he has had with park authorities since the mid-1990s. Duncan has
made public his objections to the filming guidelines at Uluru--which
have placed more than one-third of the rock off-limits to commercial
photographers--on several occasions. Now he says the ante has been
raised with a scheme that he considers tantamount to "claiming
copyright on natural creation".
that he can understand the Anangu and other Aboriginal groups having
or seeking control of their culture in terms of "the use of
their stories, the use of their paintings and all of the other things
that they make by hand". But when it comes to natural objects,
the land, the plants and animals--all of which are mentioned in
Janke's background paper--he parts company.
sees heartache ahead for painters, photographers and writers if
some of Janke's proposals are adopted, Ian McDonald, a lawyer with
the Copyright Council of Australia, is much less concerned. According
to McDonald, Janke's document simply contains a list of things that
Anangu people want to be considered in the overall discussion of
what constitutes indigenous cultural and intellectual property.
"At this stage, there is no accepted definition of what [indigenous
cultural and intellectual property] might be," he says, pointing
to parallel discussions that are being held on a global level, via
the World Intellectual Property Organisation, a specialist body
of the UN. "And it would be wrong to see Janke's list of [indigenous
cultural and intellectual property] rights as being something that
is just going to be transferred straight into legislation."
admit that what is at the heart of the squabble between photographers,
film-makers, tour companies and travel writers on the one hand,
and park management on the other, is in a clash of "world views".
"For many people it's just a rock, but for Anangu it's obviously
much more than that," he says.
requests, Janke would not be interviewed for this article. Jennifer
Isaacs, a Sydney-based author, curator and specialist in Aboriginal
cultural issues, says that Aboriginal law (and this includes Anangu
law) incorporates "concepts of rightful ownership and the use
of property . . . that are governed by systems of permission and
Isaacs, this property not only includes items that are created by
people--handicrafts, paintings, designs, dance, singing and story--but
things that already exist, such as sacred sites, the animals, the
seasonal cycles and even plants in some instances. In the Anangu
world view, all of these things had their origins in the Tjukurpa
creation period and were in effect deeded to today's Anangu by their
heroic ancestors. For others to use any of these parts of Aboriginal
knowledge or Aboriginal property, a system of reciprocity--you must
give in order to receive -- comes in to play.
split royalties from sales of her book Desert Crafts--which showcased
the work of the Maruku co-operative alongside the human story of
the national park--50-50 with the Mutitjulu community at Uluru.
Isaacs says that all depictions of land--whether it's a traditional
bark painting, a Westerner's oil painting or a photograph--embody
knowledge that is the property of Aborigines. This knowledge must
also be used "properly". She suggests that from the point
of view of the Anangu people there is still some communal equity
in images by photographers such as Duncan.
that you might spend there is irrelevant as far as I'm concerned,"
she says. "A photographer might just come in for a few hours
and take a beautiful sunset shot that gets used all around the world,
making them lots of money. I still think that they have an obligation
to the Anangu people."
however, don't feel that they have this moral obligation to Aboriginal
groups when taking pictures of the landscape. Steve Strike, an Alice
Springs-based photographer whose stunning Desert Storm picture of
Uluru in the rain was used in a front-page news story by The
Australian in February 2000, considers that image to be his
work -- his cultural property -- in its entirety. "It was the
product of some good timing and the light, but most importantly
my skills," he says. Strike points out that the rock itself
-- bruise purple and alive with waterfalls in his shot -- makes
up only 30per cent of the photograph and that this massive chunk
of sandstone "had existed for millions of years before anybody's
ancestors got near it".
with the thrust of Janke's background paper--that Anangu people
need to be self-sufficient and should be able to derive benefit
from their land--but doesn't think that should come from their receiving
a royalty payment every time an Uluru image is used. "The key
is to help the people make the product and the prosperity themselves
-- and I know plenty of people, myself included, who could show
them those skills," he says. "But they can't just be the
'tax collectors' [for] other people's hard work."
Can the landscape
be copyrighted? In France, pioneering law called le droit de suite
gives artists royalties from the resale of their works but doesn't
give rights to people, for example, who own the lavender farms or
sunflower fields in Provence that photographers or painters might
Cochrane, the director of national parks, there are "differing
views" as to whether all of the Uluru landscape is the intellectual
property of its traditional owners. McDonald, from the Copyright
Council, doubts whether the Government would amend the Copyright
Act to protect landscape. However, he says the concept of protecting
a landscape does have "ramifications and implications"
for areas beyond Uluru.
In the US,
the Pebble Beach Company in California has trademarked all uses
of a famous tree, the Lone Cypress, which sits on the edge of its
land. Although it has been photographed, sketched and painted by
visitors for more that 100 years -- most notably by Ansel Adams
-- many professional photographers have received threatening letters
from the company's lawyers over their unauthorised use of the tree
in books and postcards.