The Australian, March 5, 2004 (NSW Country Edition)


By Ross Barnett

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 to change.

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 title discussion.

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.

Indigenous 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 benefit commercially.

For Duncan, 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".

Duncan says 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.

Although Duncan 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."

McDonald does 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.

Despite repeated 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 refusal".

According to 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.

Isaacs has 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.

"The time 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."

Most photographers, 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".

Duncan agrees 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 depict.

According to 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.