2ND EDITION
Protocols for producing Indigenous Australian visual arts Visual arts Australia Council for the Arts 372 Elizabeth Street, Surry Hills NSW 2010 PO Box 788, Strawberry Hills NSW 2012 ABN 38 392 626 187
Telephone +61 2 9215 9000 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 Email [email protected] www.australiacouncil.gov.au Visual arts 01 Contents
Australia Council for the Arts Introduction 2 What happens when artists sell 372 Elizabeth Street, Surry Hills NSW 2010 their paintings? 23 Using this guide 3 PO Box 788, Strawberry Hills NSW 2012 Collaborative works 23 What are protocols? 3 ABN 38 392 626 187 Communal ownership vs. joint ownership 24 What are the Indigenous visual arts? 4 Telephone +61 2 9215 9000 Commissioned photographs 24 Special nature of Indigenous visual arts 5 Toll-free 1800 226 912 Facsimile +61 2 9215 9111 What are moral rights? 24 Indigenous heritage 6 Email [email protected] Licensing use of artworks 25 Current protection of heritage 6 www.australiacouncil.gov.au Managing copyright to protect This publication is available online your interests 25 at www.australiacouncil.gov.au Principles and protocols When is copyright infringed? 26 © Australia Council 2007 Respect 9 The Myer report 27 First published 2002, edited and revised 2006. This work Acknowledgment of country 9 Publishing and reproduction of is copyright. Apart from any use as permitted under the Public art – acknowledging land 10 Indigenous art 27 Copyright Act 1968, no part may be reproduced by any Accepting diversity 10 process without prior written permission from the Australia Indigenous communal moral rights 28 Council for the Arts. Requests and inquiries concerning Indigenous control 10 Further copyright information 29 reproduction and rights should be addressed to the Communication, consultation & consent 12 Continuing cultures 33 Director Marketing and Communication, Australia Council Traditional & communally Recognition and protection 33 for the Arts, PO Box 788, Strawberry Hills NSW 2012 owned images 12 Australia or to [email protected]. Interpreters and translators 13 Implementation ISSN 978-1-920784-41-6 Sensitivity of content 13 1. Respect 35 Design Bright Red Oranges Geographic diversity 13 Print e2e managment pty ltd 2. Indigenous control 35 Gender 13 Cover John Mawurndjul at the Musee 3. Communication, consultation du Quai Branly. 2006. Photography of Indigenous people 13 & consent 35 Photo: Alastair Miller Collaborating with Indigenous artists 13 4. Interpretation, integrity and authenticity 36 Indigenous design element: Interpretation, integrity and authenticity 13 joorroo, Darrell Sibosado 2002 Marketing with integrity 36 Interpretation 14 Exhibition of art 36 Integrity 14 5. Secrecy and confidentiality 37 Authenticity 14 6. Attribution and copyright 37 Using Indigenous cultural material 15 7. Proper returns and royalties 38 Marketing with integrity 16 8. Continuing cultures 38 Exhibiting Indigenous art 19 9. Recognition and protection 38 Secrecy and confidentiality 20 The Australia Council respects Indigenous References 39 Representation of deceased people 21 communities and culture. Readers should be Bibliography 45 aware that this protocol guide may contain Secret and sacred material 21 Contacts 47 references to members of the Indigenous Personal privacy 21 Acknowledgments 48 community who have passed away. Attribution and copyright 21 Copyright 21 Important Notice What is copyright? 22 The information included in this guide Who owns copyright? 22 is current as at September 2007. This What rights do copyright owners have? 22 document was first published under the Do artists need to register their art title ‘Visual Arts’ in 2002. This guide provides general advice only. It is not for copyright protection? 22 intended to be legal advice. If you have How long does copyright last? 22 a particular legal issue, we recommend Does copyright protect ceremonial that you seek independent legal advice styles of art and creation figures? 23 from a suitably qualified legal practitioner. Visual arts 02 Visual arts 03 Introduction Introduction
Introduction They are relevant to anyone working in or As primary guardians and interpreters of The Indigenous heritage section gives with the Indigenous arts sector, including: their cultures, Indigenous people have an overview of the issues that inform the Australia’s unique Indigenous artistic and cultural • Indigenous and non-Indigenous artists well-established protocols for interacting with development of Indigenous protocols. expression is rooted in thousands of years of It explores the complexity of Indigenous • people working within related fields of their cultural material. New situations also heritage and continuing practice. Australia and charts international initiatives Indigenous artform practice require cultural protocols. When the Musée du Quai Branly opened in Paris for the protection of Indigenous cultural • federal and state/territory government agencies Although each guide in the suite addresses and intellectual property rights. in 2006, visitors were spellbound by the immense cultural protocols specific to an artform, the • industry agencies and peak organisations power of the vast collection of Australian same underlying principles are common to each. The principles and protocols section examines Indigenous art works, including special landmark • galleries, museums and arts centres the nine principles that support the protection We hope Indigenous people, and those working commissions on the ceilings and façade by eight • educational and training institutions of Indigenous cultural heritage. It includes with them, will be inspired and encouraged to use valuable information on protocols specific to of Australia’s best known Indigenous • Indigenous and targeted mainstream media. contemporary artists. More recently Emily these principles as a framework for developing the use of cultural heritage material in visual Kngwarreye’s Earth’s Creation sold at auction for The protocol guides endorse Indigenous protocols appropriate to their specific projects, arts practice. A number of case studies and more than $1 million, the highest price ever for cultural and intellectual property rights – regions, language groups and communities. commentaries from Indigenous visual arts practitioners identify pitfalls and offer readers a painting by a female artist in Australia. the rights of Indigenous people to own and We also hope the guides will spark debate and control their cultural heritage. These rights are valuable advice. While works by individual artists such as these that additional protocols will be developed confirmed in the 2006United Nations Declaration across artforms. The guide also contains general information and are protected by copyright, there are often no 1 of the Rights of Indigenous Peoples, which says advice on the main laws in Australia governing legal rights around the broader reproduction and Indigenous people have the right to practice Send any comments about this guide or any the use and reproduction of arts and cultural use of Indigenous cultural heritage material. and revitalise their cultural traditions and suggestions for improvement to the Australia expression. For this second edition, we have Australia does not yet have a law that prevents customs. ‘This includes the right to maintain, Council for the Arts: integrated copyright, licensing and royalty alteration, distortion or misuse of traditional protect and develop the past, present and Executive Director information into the principles and protocols symbols, songs, dances, performances or future manifestations of their cultures, such as Aboriginal and Torres Strait Islander arts section. So one section deals with attribution rituals that may be part of the heritage of archaeological and historical sites, artefacts, Australia Council for the Arts and copyright and another with proper particular Indigenous language groups. designs, ceremonies, technologies and visual PO Box 788 Strawberry Hills NSW 2012 returns and royalties. That is where the Australia Council for the Arts’ and performing arts and literature.’ [email protected] The implementation summarises some of the protocol guides come in. The five guides in the In Our culture: our future,2 Terri Janke key points and provides a checklist for applying Using this guide suite spell out clearly the legal as well as the recommended significant changes to laws, protocols for a visual project. This guide is designed to be an initial point of ethical and moral considerations for the use policy and procedures to protect Indigenous There is also a list of contacts and references reference in planning a work with Indigenous of Indigenous cultural material. They can help cultural knowledge and expression. The to use as starting points for accessing relevant visual arts3 practitioners, or using Indigenous people do the right thing. These guides recognise Australian Government has yet to make people and information. cultural material. When you need specific advice that in Indigenous Australian communities the a determination on this matter. artist is a custodian of culture, with obligations on the cultural issues of a particular group, we What are protocols? In Australia, Indigenous heritage comprises all as well as privileges. recommend you speak to people in authority, Protocols are appropriate ways of using objects, sites and knowledge transmitted from or engage an Indigenous cultural consultant The five guides in the suite are: Indigenous cultural material, and interacting generation to generation. Indigenous people with relevant knowledge and experience. with Indigenous artists and Indigenous • Media arts have a living heritage. Their connection with the Reading this guide from cover to cover is an communities. They encourage ethical conduct land, water, animals, plants and other people • Music important and highly recommended first step. and promote interaction based on good faith is an expression of cultural heritage. Writing, • Performing arts and mutual respect. music, performing arts, visual arts and media The introduction defines protocols as used Responsible use of Indigenous cultural • Visual arts arts, are some of the mediums for transmitting in this guide, and looks at the special knowledge and expression will ensure that • Writing. Indigenous cultural heritage. characteristics of Australia’s Indigenous Indigenous cultures are maintained and protected visual arts. so they can be passed on to future generations. Visual arts 04 Visual arts 05 Introduction Introduction
It is important to recognise the diversity and These protocols are accepted and used by Indigenous art’. It is important to clarify that the Organisations dealing with a challenge to an complexity of the many different Indigenous many Indigenous artists. They have also been artist is an Indigenous Australian if there is any artist’s Aboriginality will be required to ask cultures in Australia. Ways of dealing with used for many Indigenous visual arts projects. cause for doubt. the artist in question to provide evidence that issues and cultural material may differ from They have been adapted for specific institutions, they meet these three criteria.5 Most Indigenous organisations use the Australian community to community. There are also many for example, the Australian National Maritime Government’s definition of Aboriginal and Torres different protocols across the diversity of urban, Museum developed Connections based on Special nature of Indigenous Strait Islander identity as a guide. The Australia rural and remote communities. the protocols guides, and Arts Tasmania visual arts Council’s Aboriginal and Torres Strait Islander Indigenous visual arts are a primary means Indigenous protocols arise from value systems developed Respecting cultures, using the Arts board requires grant applicants to sign a of transmitting Indigenous culture and and cultural principles developed within and principles framework. confirmation of Aboriginal/Torres Strait Islander communicating identity, place and belonging. across communities over time. Agreeing to identity. Applicants must provide: comply with the accepted protocols of other What are the Indigenous visual arts? Indigenous knowledge, history and other cultural groups promotes interaction based on For Indigenous cultures, visual arts are central • Confirmation of identity from an organisation cultural information have been and continue to good faith and mutual respect, thus encouraging to identity, place and belonging. They are an registered under the Aboriginal Councils and be transmitted orally over many generations. 4 Associations Act 1976 or since July 2007, ethical conduct. expression of a unique and continuing tradition Indigenous visual artists record knowledge, registered under the Corporations (Aboriginal While it is not possible to prescribe universal and have an important place in the continuing landscape and ideas. Their messages are and Torres Strait Islander) Act 2006, or other rules for engaging with Indigenous people survival of Indigenous cultures. often political and social as well as cultural, relevant legislation; and and their communities, there are some In an Australian context, the term ‘Indigenous for a variety of reasons. These include: • A declaration that: fundamental principles within which to visual arts refers to art created primarily by • facilitating the ongoing transmission a. they are of Aboriginal or Torres Strait conduct respectful work. Aboriginal and Torres Strait Islander people, or of information Islander descent The protocols outlined in this guide are shaped based on the cultural expression of Indigenous • recording community knowledge b. identify as an Aboriginal or Torres Strait by nine principles. The protocols are, by Australian people. Indigenous visual arts cover Islander • recording oral histories/life stories definition, ways of applying these principles. a range of genres including: c. are accepted as such in the community • political commentary For example, a cultural protocol to implement • painting in which they live. • establishing and demonstrating community the underlying principle of respect is to • printmaking (including etching and other ownership of stories Doreen Mellor comments on the issue of acknowledge the Indigenous custodians of intaglio processes, screen print, linocut) • engaging with cultural reclamation country at the site of each exhibition, installation challenging identity: • craft (including fibre and textile arts, and maintenance and event launch as well as on inscriptions How should a challenge to an artist’s ceramics, glass, wood, bead and shell work) • entertainment that accompany public art on permanent or Aboriginal or Torres Strait Islander identity be temporary display. • photography dealt with? The circumstances of Indigenous • offering a form of personal and community healing (e.g. stories of the Stolen Generations) This guide also aims to identify issues arising • sculpture life, which mean that many artists live in from the interaction between Indigenous • multimedia and media. communities far away from their heritage • educating the broader community about cultural concerns and the law protecting the origin, or may not even know their place of Indigenous issues Indigenous art is not just art produced by rights of artists. The Australian legal system cultural origin, means that artists may be • educating Indigenous communities on local artists living in remote parts of Australia; neither incorporates some but not all of these concerns. challenged about their identity. The ATSIC and national Indigenous issues. is remote Aboriginal art solely ‘traditional’ in definition of Aboriginality requires: While protocols differ from legal obligations, that it is anthropological or ethnographic art. There is great diversity in the geographic the guide outlines the current copyright law There are many forms of Indigenous art, which • the person identify as an Aboriginal representation, medium and subject matter framework. The process of following the are also contemporary. There are also many or Torres Strait Islander of Indigenous visual arts, so the development of creative expression and diversity should protocols supports the recognition of Indigenous Indigenous artists living in urban areas. • the person is of Aboriginal or Torres Strait be encouraged. heritage rights. It encourages culturally Islander descent appropriate working practices, and promotes There have been a number of reports communication between all Australians with an concerning fakes and frauds. Some instances • the community of origin or the community interest in Indigenous visual arts. have involved non-Indigenous artists passing in which he/she resides accepts the person off their works as ‘Indigenous art’ or ‘stylised as Aboriginal or Torres Strait Islander. Visual arts 06 Visual arts 07 Introduction Introduction
Indigenous heritage Indigenous Australians are concerned that In mid-2006 they were given international Indigenous visual arts are an important means there seems to be no respect for their cultural recognition when the United Nations Our culture: our future of expressing Indigenous cultural heritage – knowledge, stories and other expression on Declaration of the Rights of Indigenous Indigenous cultural and intellectual property past, present and future. the wider Australian landscape. Concerns Peoples,8 was passed. Article 31 states: rights refer to Indigenous people’s rights to include the current legal framework that does their cultural heritage. Heritage comprises Indigenous heritage, enshrined in Indigenous 1. Indigenous peoples have the right to not promote or protect the rights of Indigenous all objects, sites and knowledge – the nature cultural and intellectual rights, is discussed at maintain, control, protect and develop their people – particularly to own and control or use of which has been transmitted or length in Our culture: our future.6 cultural heritage, traditional knowledge and representation and dissemination of their stories, traditional cultural expressions, as well as continues to be transmitted from generation The visual arts sector can adopt a ‘best knowledge and other cultural expression.7 the manifestations of their sciences, to generation, and which is regarded as practice’ approach by encouraging respect for pertaining to a particular Indigenous group The process of following the protocols not technologies and cultures, including human the cultures of Indigenous Australians. It can or its territory. only supports Indigenous heritage rights, and genetic resources, seeds, medicines, do this by acknowledging their innate value, but also promotes diversity and new initiatives knowledge of the properties of fauna and Indigenous people’s heritage is a living their difference from other cultures, and by in Indigenous visual arts, and culturally flora, oral traditions, literatures, designs, heritage and includes objects, knowledge, respecting Indigenous ownership and control appropriate outcomes. sports and traditional games and visual and artistic, literary, musical and performance of Indigenous heritage. performing arts. They also have the right works which may be created now or in the All Indigenous artists are responsible for Current protection of heritage to maintain, control, protect and develop future, and based on that heritage. their intellectual property over such cultural safeguarding cultural knowledge. They need to Australia’s current legal framework provides Indigenous cultural and intellectual property heritage, traditional knowledge, and ensure that Indigenous cultures, both in the limited recognition and protection of these rights include the right to: past and today, are protected and maintained rights. Our culture: our future recommended traditional cultural expressions. • own and control Indigenous cultural and in their works. In this way these cultures can be significant changes to legislation, policy and 2. In conjunction with Indigenous peoples, States intellectual property passed on to future generations. procedures. As yet there has been no formal shall take effective measures to recognise 9 • ensure that any means of protecting There are many Aboriginal and Torres Strait response to these recommendations from the and protect the exercise of these rights. Australian Government. However, there are Indigenous cultural and intellectual Islander cultures, which have developed over The Mataatua Declaration on Indigenous proposals to amend the Copyright Act 1968 property is based on the principle of thousands of years and have been passed cultural and intellectual property rights urges (Cth) to recognise Indigenous communal self-determination down from generation to generation. Despite Indigenous people to ‘develop a code of ethics moral rights. • be recognised as the primary guardians the enormous impact of the invasion in 1788, which external users must observe when and interpreters of their cultures Indigenous cultures have continued to develop. In the absence of legislation, many of the recording (visual, audio, written) their traditional 10 • authorise or refuse to authorise the Indigenous people express their connection rights have been recognised at industry and and customary knowledge’. practitioner level, through the development of commercial use of Indigenous cultural to heritage in contemporary life through their The former Aboriginal and Torres Strait Islander protocols and use of contracts to support the and intellectual property, according to relationship with land, waterways, animals and Commission’s Indigenous Reference Group cultural rights of Indigenous people. Indigenous customary law plants, as well as relationships with other people. adopted Draft Principles and Guidelines for the • maintain the secrecy of Indigenous Across the world, Indigenous people continue Protection of the Heritage of Indigenous People Aboriginal and Torres Strait Islander people knowledge and other cultural practices to call for rights at a national and international (1993)11 in 1997. Article 39 states: have a well developed and complex web of • full and proper attribution relationships based on family ties, language level. Indigenous people are developing Artists, writers and performers should • control the recording of cultural customs group affiliations and community, organisational statements and declarations that assert their refrain from incorporating elements derived and expressions, as the particular and government structures. A range of authority ownership and associated rights to Indigenous from Indigenous heritage into their works language may be intrinsic to cultural structures exists across urban, regional and cultural heritage. These statements and without the informed consent of the identity, knowledge, skill and teaching remote communities. It is important to declarations are a means of giving the world Indigenous owners. of the culture. acknowledge the complexity of Indigenous notice of the rights of Indigenous people. Australia when negotiating the use of Indigenous They also set standards and develop an For a full list of rights, heritage for a visual arts project. Indigenous discourse that will, over time, see Our culture: our future.12 ensure that Indigenous people’s cultural heritage is respected and protected. Visual arts 08 Visual arts 09 Introduction Principles and Protocols
Internationally, the World Intellectual Property • the reproduction, publication, adaptation and Principles and Protocols that they would talk about a person: they Organisation (WIPO) has established an communication to the public of the traditional speak to country, sing to country, visit intergovernmental committee on intellectual cultural expressions In the following pages, under each of these country, worry about country, feel sorry for principles, we have suggested protocols property and genetic resources, traditional • any use of traditional cultural expression country, and long for country. People say for using Indigenous cultural material, and knowledge and folklore to discuss intellectual which does not acknowledge in an that country knows, hears, smells, takes interacting with Indigenous artists and property issues that arise in the context of: appropriate way the community as notice, takes care, is sorry or happy. Country Indigenous communities. • access to genetic resources and the source is not a generalised or undifferentiated type The principles outlined are a framework benefit-sharing • any distortion, mutilation or other modification of place, such as one might indicate with for respecting indigenous heritage. terms like ‘spending a day in the country’ • protection of traditional knowledge, of or inappropriate action in relation to the or ‘going up the country’. Rather, country innovations and creativity traditional cultural expression 1. Respect is a living entity with a yesterday, today and 13 2. Indigenous control • protection of expressions of folklore. • the acquisition or exercise of intellectual tomorrow, with a consciousness, and a will property rights over the traditional cultural Based on its extensive international, regional 3. Communication, consultation and consent toward life. Because of this richness, country expression adaptations of them.16 and national experience and on input from 4. Interpretation, integrity and authenticity is home, and peace; nourishment for body, different countries, the WIPO intergovernmental Regionally, a model law for protecting 5. Secrecy and confidentiality mind, and spirit; heart’s ease.19 committee developed two important documents, traditional knowledge in the Pacific was drafted 6. Attribution and copyright When organising an exhibition, installation or which outline policy options and legal options and completed in July 2002. The Pacific 7. Proper returns and royalties event of local, state or national significance, for traditional cultural expression and knowledge. Regional Framework for the Protection of 8. Continuing cultures it is respectful to invite a representative of These are: Traditional Knowledge and Expression of the traditional owners to attend and give a 9. Recognition and protection. (i) The protection of traditional cultural Culture establishes ‘traditional cultural rights’ ‘welcome to country’ address. expressions/expressions of folklore, for traditional owners of traditional knowledge 17 1. Respect A ‘welcome to country’ is an address given by Draft objectives and principles14 and expression of culture. The prior and informed consent of the traditional owners is The rights of Indigenous people to own and an Indigenous custodian of the land, included (ii) The protection of traditional knowledge: control their heritage, including Indigenous in the official opening of events. As a matter of 15 required to: Draft objectives and principles. images, designs, stories and other cultural cultural protocol, large cultural events should • reproduce or publish the traditional expressions, should be respected. invite an Indigenous custodian or representative The latest WIPO provisions for the protection of knowledge or expressions of culture traditional cultural expressions (TCEs) suggest of the traditional landowner group to provide a • perform or display the traditional knowledge Customs and protocols for respect vary widely three layers of protection tailored to different ‘welcome to country’. Alternatively, an Indigenous or expressions of culture in public across the many and diverse communities of forms of cultural expression. It says TCEs of Indigenous Australian people. Respecting person of prominence or an elder who has lived • make available online or electronically particular religious and cultural significance Indigenous rights to cultural heritage includes in the area and contributed to the Indigenous transmit to the public (whether over a path should be noted in a public register so there is the following protocols. community may also be asked to acknowledge certainty as to which are protected and for or a combination of paths, or both) traditional country if they are not in a position to welcome. whose benefit. The items in the register would knowledge or expression of culture Acknowledgment of country Indigenous Australians, the Aboriginal and It is respectful for others speaking officially to be afforded a form of protection similar to that • use the traditional knowledge or expression also acknowledge country and custodians at given by intellectual property rights legislation. of culture in any other form. Torres Strait Islander people, are the original inhabitants of Australia.18 As such they have the site of the event. The master of ceremonies It recommends in Article 3, that when TCEs a strong link to country, meaning the totality of could do this by making an introductory have been registered or notified, there shall life and the spirit of the particular area of land acknowledgment to the traditional owners 20 be adequate and effective legal and practical they and their ancestors inhabited. of the land. measures to ensure that the relevant In Nourishing Terrains, Deborah Bird Rose says: Seek advice from the Indigenous community community can prevent certain acts taking on the preferred manner of acknowledgment, Country in Aboriginal English is not only place without its free, prior and informed and the relevant groups to be acknowledged. consent. With TCEs other than words, signs a common noun but also a proper noun. and names, these acts include: People talk about country in the same way Visual arts 10 Visual arts 11 Principles and Protocols Principles and Protocols
Museums and Galleries of NSW has a written One significant way is to discuss how Indigenous • Torres Strait Regional Authority: www.tsra. for working with the Australian Indigenous ‘welcome to country’ protocol available at control over a project will be exercised. This raises gov.au – for contact information regarding visual arts and crafts sector.24
• a community arts project initiated and good one from an external point of view. Interpreters and translators Collaborating with Indigenous artists managed by an Indigenous arts organisation Consultation establishes the internal, cultural Indigenous artists in remote communities There are many situations where an Indigenous • the commission of new work from perspective and it is important to accept that may require interpreters. Ask the artist if they artist is approached to collaborate with another Indigenous artists it is this perspective that should determine require an interpreter. If so, ask them to identify artist, a group of artists or a community group the appropriate course of action. – for instance, in large-scale works such as • an exhibition developed and managed by an a suitable person to translate. The local murals and other community landscape Indigenous curator With regard to the process of obtaining consent: Aboriginal arts and craft centre or a local community organisation might be able to assist projects. It is important that communication • a large-scale visual arts conference steered • allow time (perhaps more than one if the artist cannot identify an interpreter. and consultation with Indigenous artists and by an Indigenous reference group meeting) for communication of a proposal Interpreters should be paid for their services. their communities takes place in the initial • an Indigenous elders’ committee appointed • allow time for a decision to be made development phase of the project. Consent Sensitivity of content to oversee and interpret an art collection at • remember that decisions will be made on should be obtained before going ahead. a gallery, museum or cultural centre. Sensitive content, such as secret and sacred other bases than the ones brought from material or gender-based works, may require It is also important to discuss copyright outside the community – different types special communication procedures that should ownership at the outset where more than one 3. Communication, consultation of knowledge operating in Indigenous and consent be ascertained first. Consultation may take time artist or a community is involved. communities may conflict with the depending on the sensitivity of the material. Communication and consultation are important requirements of a project in Indigenous visual arts projects. Consent is Case study: Community mural • be prepared to take ‘no’ for an answer Geographic diversity necessary for the reproduction of Indigenous In 1987, Banduk Marika, an artist from (but don’t take it personally) Indigenous groups vary from community to visual arts, and if traditional communal designs community. They differ in cultural practices Yirrkala, worked on a collaboration project are included, consent may be required from • respect the views of all factions within and language. It is important to note geographic with David Humphries and Rodney Monk of traditional owners. a community, and ensure that consent differences and the different ways people refer the Public Art Squad. The project involved comes from the appropriate quarter, to each other. It is also necessary to get consent the transfer of Marika’s work into a terrazzo Communication is most effective if each group: 26 for a particular activity or project. from the relevant geographic group. For artwork for the floor of the Harbourside • is aware of the way in which their own culture Consultation and communication processes example, a language group from Tasmania Festival Marketplace. affects how they see an issue will differ for each community. cannot speak for cultural and artistic material Marika had previously worked on an artwork • endeavours to understand and build relating to the Northern Territory. for a Public Art Squad community mural at awareness of the other culture Traditional and communally owned images There may be requirements to consult with Gender Sydney’s Central railway station. Marika says • patiently unravels misunderstandings the traditional custodians and community When engaging in consultation with the two men, who are skilled community which arise out of cultural differences members, as well as the artist, for material a community be aware there may muralists, chose one of her artworks for • finds the right people within a community that is communally owned ritual knowledge. be a gender division of responsibilities reproduction in terrazzo. ‘We discussed 25 to consult. This includes depiction of creation beings and cultural knowledge. the transfer of the work in detail, and we had a contract which outlined the terms.’28 Consent must be informed. This means that or images. There may also be one or more Photography of Indigenous people Humphries said, ‘We let Marika have pretty people must be given time and information groups that have custodianship of an image Many Indigenous people have expressed good control over how her work was to consider the requests made of them. or other heritage items. Consultation with concern about the use of their images in interpreted and presented. We had a lot As Doreen Mellor notes: and consent from each identified group photographs without permission. It is courteous of fun working together’.29 Consultation with a community or group should be sought. Be prepared to reconsider to ask an artist’s permission to photograph of people is not simply a formality... your project if consensus cannot be reached. them at events, and to use their image, Consultation is required as a precursor to The artist or the local Aboriginal arts and craft especially for wide promotions and on the 4. Interpretation, integrity and consent for it to proceed. It is not appropriate centre can assist in identifying any third party internet. Care should also be taken as, in some authenticity to have decided, before consulting the from whom you require consent. communities, photographs of the deceased Indigenous artists and their communities should Indigenous group or person involved, that may cause distress. See the ‘representation have control over how their cultural heritage is Aboriginal artist Julie Dowling advises that the activity is to proceed, or that its structure of deceased people’ in the secrecy and presented. The presentation of a work includes people ‘seek eldership permission for any tribal or format is established. The idea may be a confidentiality section of this guide. its interpretation, integrity and authenticity. or traditional designs, or creation stories’.27 Visual arts 14 Visual arts 15 Principles and Protocols Principles and Protocols
Interpretation Authenticity specific designs. The use of such designs or To protect their works, some Indigenous Interpretation refers to how cultural material is Authenticity refers to the cultural provenance their appropriation without permission is not artists embed hidden images in their work so interpreted and represented. This includes the of an artwork. This is often a complex inquiry. acceptable. If the inclusion of Indigenous that the artist and their family know what they perspective given, the language used and the In this guide, authenticity may involve reference designs in a project or publication is desired, have done. This is their cultural protection as medium in which cultural heritage material is to whether an Indigenous person produced the use must be negotiated with the artist well as their signature. The public can’t see reproduced. In the past, Indigenous cultural the artwork; and whether it was produced with or the community involved. Usage may be it but it’s used as a trademark. It is proper material has been subject to interpretation by proper regard to Indigenous customary law. subject to royalties and copyright fees.30 cultural practice to ask for permission when non-Indigenous people. For example, only an artist who has the right they are working with cultural designs, The authenticity of a work should be checked to depict imagery under customary laws may especially really traditional ones, of stories Today, as Indigenous people seek to re-assert and verified by an appropriate authority. from islands that they do not have a direct link. paint some Arnhem Land language group and reclaim control over their cultural heritage Proper permission from elders is sought.31 designs. Other images may only be depicted It may not always be obvious whether the material, Indigenous interpretation of the by males. proposed use of an artwork raises issues The Australia Council’s Aboriginal and Torres material is a way of enhancing the cultural of interpretation, integrity and authenticity. Strait Islander arts board statement on visual significance of the work. The artist should be Authenticity is a major concern in the Indigenous The following situations are some common arts encourages Indigenous artists to examine given the opportunity to interpret and present arts sector. The rise in demand of Indigenous areas where misunderstandings arise. their own styles of art, rather than copying the his or her own works. art has led to many rip-off practices including: styles or images from other regional groups. Using Indigenous cultural material Consider interpretation and context when using • production of artworks by non-Indigenous The Arts NSW Indigenous Arts Reference Styles and imagery Indigenous cultural material: artists that depict Indigenous styles and are Group has developed a guide, Doing it our passed off as ‘Indigenous art’ Certain styles of ceremonial painting originate way: contemporary Indigenous cultural • Does the work reflect the cultural value of the from particular regions. For instance, rarkk • painting of didgeridoos by non-Indigenous expression in New South Wales, to encourage subject matter? (cross-hatching) is recognised as art from people. The decorated instruments are respect for the diversity of Indigenous visual • Does it expose confidential, personal or Arnhem Land, and has origins as ceremonial then sold as authentic Indigenous products arts practice. sensitive material? art. Arnhem Land artists find it offensive to Stories • the importing of fake boomerangs see their ceremonial styles copied by other • Does it reinforce negative stereotypes? The Indigenous artist may include a ‘story’ about and didgeridoos sold as authentic Indigenous artists, or non-Indigenous artists, his or her work. Appropriate use of stories must Integrity Indigenous products with no attachment or belonging to these Integrity refers to the treatment of the original be observed. When text descriptions of the • the use of inappropriate images by artists styles. It is also offensive to copy images of artistic work are written on the basis of oral work and copies made of that work. Under and graphic designers, for example, creation beings such as Wandjinas and Mimis the Copyright Act the moral right of integrity narration by the artist, the artist should be copying sacred symbols from rock art without proper claim under Indigenous laws. consulted and given drafts to approve before provides a right of protection for individual books for commercial logos. artists against inappropriate treatment of their Indigenous artists are encouraged to develop publication, especially if personal information of the artist is included. Further, the artist has the works. For example, the alteration of the work Indigenous people are concerned that such their own distinctive artistic expressions and right to be attributed as the copyright owner of by adapting, cutting, editing or enhancing may practices undermine the cultural authenticity draw on their particular cultural heritage. of Indigenous visual arts, and also rob the text. If traditional knowledge or a traditional materially alter the original intention of the work Rosie Barkus, a Torres Strait textile designer, Indigenous artists and their communities story is included, the storyteller or language and infringe on the artist’s moral rights. It is also advises artists to examine their own cultural group should be referred to. of potential income streams. important to note that with Indigenous cultural heritage to find their own forms of cultural Sensitive subject matter material, maintaining the integrity of the work is There are also concerns regarding appropriation expression. She says: Find out if the subject matter of the work is important for the source communities as well. of imagery. As Doreen Mellor states: If I’m going to do a cultural design, I draw suitable for the proposed use and/or When reproducing and dealing with Indigenous Public representation of copied designs or from my mum’s island (Murray Island) or my reproduction. Be aware that it is not acceptable works, discuss the context of reproduction and images as original images has long, hard and father’s island (St Paul and Mabuiag Island). in Indigenous communities to circulate widely any proposed material alterations. Be prepared serious implications under most Western law. I do not draw from other areas [to] which I sacred or secret material or works that have to change your proposed use if the Indigenous There are additional issues at stake in have no claim or connection. If I do I would any gender restrictions. Artists should consider language group or community do not agree Indigenous cultures, involving ceremony, have to get permission from the elders. the appropriate context for reproduction of with the proposed alteration or use. custodianship and the sites relating to But I have enough inspiration from my own particular images. cultural heritage to inform my design work. Visual arts 16 Visual arts 17 Principles and Protocols Principles and Protocols
Biographical information understand the nature of the relationship Indigenous artists should also be given the between them. who sell Indigenous art by recommending The project is a joint initiative of NAVA, opportunity to clear the content and use of their appropriate ways to sell and display Desart and ANKAAA. As Doreen Mellor notes: Indigenous art. It promotes the sale of biographical information. Up-to-date biographies The project aims to bring about changes in It is up to the artist to decide whether they authentic Indigenous art, and proper should be used. conduct in the Indigenous arts sector in an wish the gallery to be the sole representative labelling of arts and craft. It also effort to protect the commercial interests of Marketing with integrity of their work or whether they wish to establish recommends the use of written agreements In the marketing of Indigenous arts, respecting 33 Indigenous artists and their communities, a relationship with a number of galleries. between galleries and artists. authenticity and integrity of works is a priority. whether living and/or selling in urban or It is important for the artist to be fully informed There are a great number of dealers and Galleries and retailers sign the voluntary regional areas. The code will be a basis from about the use of his or her works, including galleries in Australia, and many are members code and in exchange the City of Melbourne which artists and the industry can promote reproductions and use of biographical material of the following industry associations: promotes the accredited galleries and ethical practices in commercial relationships. and text. • Australian Commercial Galleries Association retailers on its website, through its visitor It will not be prescriptive, but rather will identify information centres and through information and acknowledge a number of commercial Aboriginal arts centres • Australian Indigenous Art Trade Association sheets aimed at buyers and Indigenous models and highlight best practice under Aboriginal arts centres are owned and managed • Association of Western Australian Art Galleries. artists. The accredited gallery or retailer those models. In 2006, a discussion paper by Aboriginal artists. They represent the interests There is scope for protocols to be developed will be able use the City of Melbourne was released online at
Internet sale of art Case study: Australian National Case study: Gab Titui Cultural Centre Opportunities for the sale of artworks via websites, 6.3.1 the appropriate attribution is given Maritime Museum – Connections The Gab Titui Cultural Centre in the Torres email and internet marketing are increasing. to Indigenous groups; and The Australian National Maritime Museum Strait involves Torres Strait Islander Many Indigenous artists and organisations have 6.3.2 the integrity of the work is respected (ANMM) developed procedures for the communities in the planning of its future noted a large number of fake works sold over the by observing relevant Indigenous museum to display and understand projects and directions in visual arts. internet on auction sites. It is difficult to police cultural protocols. Indigenous cultures authentically and In 2004, a visual arts forum was held. all internet sales of Indigenous art because of A full copy of the guidelines is available respectfully.37 These guidelines are Representatives from the Islands convened the anonymity and the international nature of the from
Acknowledging the artist exhibition. They should be a separate and Representation of deceased people 6. Attribution and copyright If the Indigenous artist is present at an exhibition distinct payment from artist’s fees (the time In many Indigenous communities, the Many people think that copyright is a of their works, it is an essential courtesy to spent creating a work), travel, per diems reproduction of names and photographs of complicated issue, but understanding it and acknowledge them publicly, and to offer them and payments to cover material costs.46 deceased Indigenous people is not permitted. increasing your knowledge about it [is] as easy hospitality and support. This is particularly so if Doreen Mellor notes some communities will as putting paint to canvas.49 they have travelled to the exhibition and are in Documenting the exhibition request that an artwork by a deceased artist Relevant Indigenous language groups or an unfamiliar environment. Allow the Indigenous It is courteous to consult with the artist or his not be displayed for some time after the artist’s communities should be attributed for the use artist and/or a relevant community representative or her representative, or Indigenous reference death. They may also not want the artist’s name of their cultural heritage material in artworks. to interpret and present their own stories, texts group, and/or with an Indigenous curator to be used or image displayed. The artist’s In many instances in the past, and even and biographies. concerning the wall text and labelling. Doreen family or community need to be consulted so Mellor notes there are conventions for label and today, Indigenous people have been used as Using works from collections that the appropriate protocols are observed.48 informants for research, evaluations and theses. caption texts within the museum and gallery Works of art are often borrowed from public or Today, Indigenous people are seeking greater sector. Information on these can be found in There is a growing number of cases where, private collections for inclusion in an exhibition. acknowledgment than being recognised as gallery or museum guides. after consultation, the deceased artist’s family If borrowing artists’ works from public or private has allowed the name and image to be used in mere informants. They seek the right to be collectors to include in an exhibition, it is courteous Doreen Mellor also recommends including certain circumstances. This permission should acknowledged as owners of this knowledge to inform the artist of the inclusion of their work, essays by Indigenous curators in catalogues. be acknowledged formally. and information. They also seek to have a and to forward copies of reviews, catalogues This provides an Indigenous curatorial greater share in any benefits generated from or other publications that feature their work. perspective on the exhibition and the way each Secret and sacred material the use of their cultural stories. The reproduction of secret and sacred images Doreen Mellor advises: work relates to the exhibition theme. For more Under the moral rights provisions of the may be a transgression of Indigenous law. When work is on loan to an exhibition, the information about the display of Indigenous Copyright Act, the right of attribution is 47 artist’s permission is necessary before works of art, see Valuing art: respecting culture. ‘Secret and sacred’ refers to information or recognised for individual creators. There are images can be used in catalogues or for material that, under customary laws, is: proposed amendments to the Copyright Act to promotional purposes, such as invitations or 5. Secrecy and confidentiality • made available only to the initiated introduce Indigenous communal moral rights. Some Indigenous cultural material is not suitable While these are not yet law, we recommend the accompanying reviews in newspapers • used for a particular purpose or magazines. Large galleries will sometimes for wide dissemination on the grounds of secrecy that individual storytellers or custodians also arrange licence rights to reproduce images, and confidentiality. Those putting together arts • used at a particular time be attributed for their role in the development which may be assigned for use in catalogues projects must first discuss any restrictions on • information/material that can only be seen of a visual work. – but it is currently accepted practice to also use with the relevant Indigenous groups. and heard by particular language group It is also important to attribute the cultural request permission from the artist involved. members (such as men or women or people source of an image or story. For example, an Under Indigenous beliefs, some Indigenous If the catalogue designer wishes to use with certain knowledge). image originating from a particular language cultural material may not be disclosed, images in other than their complete form – group should be attributed in each and every Personal privacy that is, if cropping of the images, or other particularly if it relates to initiation practices. publication illustrating the artwork. If you plan to depict an identifiable individual or changes are desired – it is mandatory To respect Indigenous religious practices, community, first ask the individual, community Copyright for the artist to be involved in negotiations, discuss any restrictions with the relevant It is important for Indigenous artists to develop and that permission be obtained.45 Indigenous groups. or relatives of the person for permission. Observe close consultation and consent an understanding of copyright so they can Personal information or knowledge may be Exhibition fees throughout the process. negotiate rights to their artworks under licence. The Code of practice for the Australian visual confidential and the people to whom it refers This means that an artist can give someone arts and craft sector recommends payment may not want it written, depicted or discussed. Confidential information must not be disclosed else the rights to reproduce his or her work, of a fee to the artist for works they submit It is common courtesy to consider an without permission from all Indigenous people under agreed terms. This requires coming to to exhibitions. individual’s privacy before publishing material; affected by the disclosure. Disclosure about an agreement with the other party on the fee, a deceased person will be very sensitive. term, purpose and nature of the rights granted. The code states: the same courtesy should be extended to Indigenous people. Exhibition fees should be regarded as This section provides some general copyright payment solely for a work’s inclusion in an information for Indigenous artists. For specific legal advice we recommend consulting a lawyer. Visual arts 22 Visual arts 23 Principles and Protocols Principles and Protocols
What is copyright? and publication of their work. The copyright Photographs are protected under copyright relevant people in the communities where Copyright is a form of legal protection that owner of an artistic work has the exclusive right for 70 years after the year in which the these styles and figures originate. provides the creator or author of a work with to do all or any of the following: photograph was first published. ‘Published’ In the past, Indigenous people’s art images the right to use or capitalise on the work • reproduce the work in a material form means reproductions of the work that have and language group motifs have been copied and prevent others from using it without his • publish the work been released to the public in either a book, in artworks, dress fabric, souvenirs and on or her permission. magazine or on the internet. • communicate the work to the public.53 T-shirts, without the proper permission being The Copyright Act is the main law in Australia After the period of copyright has expired, the sought. This type of copying is one area where that governs the use, production and Some examples of copyright applications artistic work is said to be in the public domain. the copyright laws do not recognise Indigenous dissemination of original artistic works. Copyright of artistic works include: Once in the public domain, the law no longer rights to control cultural material. • reproduction on the cover of a book protects literary, artistic, dramatic and musical prevents anyone from accessing or exploiting Internationally, the United Nations Principles works, sound recordings and films. • reproduction on a T-shirt the material. and guidelines for the protection of Indigenous Indigenous artists have rights to their artistic • broadcast on television (both free-to-air Exceptions to the general rule of copyright people’s heritage recommends:58 works as the creators, under the Copyright Act. and pay) and the internet. include anonymous and pseudonymous Artists, writers and performers should refrain However, there are no special provisions for works56 Do artists need to register their art for and work commissioned by the from incorporating elements derived from the protection of Indigenous heritage under 57 copyright protection? government. Copyright in unpublished works Indigenous heritage into their works without the the Copyright Act. There is no requirement for an artistic work continues to subsist so long as the work informed consent of the Indigenous owners.59 Copyright protects ‘artistic works’ including: to be registered in order to receive protection. remains unpublished. What happens when artists sell Artworks are protected as soon as they Artists should consider who would control their • painting, sculpture, drawing, engraving their paintings? are created, so long as the work meets the copyright after their death. Family members or photographs When an artist sells a painting they are selling requirements of the Copyright Act. can benefit from royalties for 70 years after the • a building or model of a building the physical painting. The copyright remains The requirements for protection are: death of the artist and can also guard copyright 50 with the copyright owner (unless of course there • a work of artistic craftsmanship. in the artist’s works. • A work must be original in that it is not is a written agreement otherwise). If someone Who owns copyright? copied and has originated from the artist. Indigenous people’s right to culture exists wants to reproduce the artwork on T-shirts, As the person who creates the work in a The artist must have expended some in perpetuity. To respect Indigenous cultural then they must obtain permission to reproduce material form, the artist is generally recognised skill and labour in making the work. heritage, it may be necessary to get permission from the copyright owner who can control as the copyright owner. • A work must be in a permanent and to use Indigenous stories, designs and access to make the reproduction possible. ‘tangible form’.54 themes even though legally, they are in the There are some significant exceptions to this For instance, galleries or museums which public domain. general rule of ownership: • A work must be created by a qualified own works may ask for a fee to allow a person • Where the work is produced under a person, which in the copyright interpretation Does copyright protect ceremonial styles to photograph a work, or to make use of contract of employment, copyright will means an Australian citizen. of art and creation figures? its transparencies. belong to the employer.51 Some Indigenous art comprises certain How long does copyright last? Collaborative works ceremonial styles like rarrk/cross-hatching, • Where a work is produced under the Before 2006, the duration of copyright in artistic Under the Copyright Act a ‘work of joint and depicts particular creation figures like direction or control of the Crown, copyright works was 50 years after the death of the ownership’ refers to a work resulting from the 52 the Wandjina from the Kimberley Aboriginal may belong to the Crown. author. From 1 January 2006, the copyright collaboration of two or more artists, where language group. Unless copying from a • Where copyright has been assigned under term was extended, but only for those works each contribution is equal to the contribution(s) particular copyright protected artwork, it is not a written agreement, the agreement may still in copyright on 1 January 2006. Generally, of the other artist(s).60 specify who owns copyright. artistic works in copyright after 1 January 2006 an infringement of copyright to paint in these are now protected for 70 years after the death styles or to paint creation figures. However, it The artist must contribute to the work by way What rights do copyright owners have? of the author – the term used in the Act for the should be emphasised that it is against traditional of effort, skill and labour. It is not enough to Copyright owners have the exclusive right to creator of the work.55 Aboriginal law to paint ceremonial styles and inspire or make suggestions. In this interpretation authorise use and copying of their artistic works, creation beings without permission from the custodians of cultural images are generally and to earn money from the use, reproduction Visual arts 24 Visual arts 25 Principles and Protocols Principles and Protocols
not recognised as the legal copyright owners unless the photograph is commissioned for it is important to discuss any material changes Copyright is usually assigned under written of an Indigenous artwork that depicts language private or domestic purposes, such as a of artwork, and get the consent of the artist agreement. Once assigned, the artist group cultural images. portrait of a family. In the case of private and in writing. relinquishes copyright in his or her artwork. domestic commissioned work, the person Each artist of a work of joint authorship owns Licensing use of artworks It is important for Indigenous artists to check who commissions the photograph owns the copyright in the resulting work.61 This means Copyright is personal property and can be agreements and make sure they are not copyright – unless the parties agree otherwise. that each artist must obtain the consent of the licensed under agreement for a fee. A licence is assigning away their rights away instead others before exercising any of their rights What are moral rights? the grant of a right to use or deal with copyright of licensing use of their work. It is also a under copyright. For example, if an artist wants The Moral Rights Amendments to the in a work. You can put limits on the licence, good idea to seek legal advice on copyright to license the rights to reproduce a collaborative Copyright Act were introduced in December including limitations of time, territory and licensing issues. painting, he or she must get the consent of all 2000 and provide some new ways to purpose. For example, you could license the Managing copyright to protect the artists who participated in the collaboration. challenge inappropriate treatment of rights to reproduce your artwork on T-shirts your interests Indigenous artworks. These new laws for a period of two years. The copyright in the Communal ownership versus As copyright exists when a work is created, it provide the following rights to artists: artwork remains with the copyright owner. joint ownership is not a legal requirement to include a copyright In Bulun Bulun & M* v R & T Textiles,62 the court 1. The right to be attributed as the artist It should not be assumed that traditional notice alongside your work. However, certain decided that traditional Indigenous works – Artists can require their names be clearly Indigenous art is in the public domain. It is precautionary practices can show copyright containing ‘traditional ritual knowledge’, handed and prominently reproduced alongside necessary to consult with relevant Indigenous belongs to you should there be a contest or down through generations and governed by all reproductions of their works.63 people for permission and if agreed, there case relating to infringement of your work. Aboriginal laws, are not works of joint ownership. 2. The right not to have work falsely attributed should be scope for negotiating appropriate Because copyright belongs to you even royalties for use. Although under Aboriginal laws the entire to another artist – Artists can take action after you sell your work, it is important to keep community may have an interest in the particular against parties who falsely attribute others Some other points are: good records and clearly label reproductions as the creators of their works. artwork, and the designs and knowledge within • Written contracts are preferred to of your works. 3. The right of integrity – Artists can take the work, copyright does not recognise the oral agreements. It is a good idea to take quality photographs group as the owners. action against parties who subject their works to inappropriate treatment. • Indigenous artists should be given the of your artworks and catalogue information, The individual artist is recognised as the copyright Inappropriate treatment includes: opportunity to consider contracts and obtain including: owner and may have a special obligation to the proper legal advice. • doing anything that results in the material • media and size language group to deal with the copyright in distortion of, the destruction or mutilation • The contract should be explained to • date created ways that are consistent with Indigenous law. of, or material alteration to, the work that the Indigenous artist and if necessary, Depending on the circumstances, this obligation • purchaser of the work causes harm to the artist’s reputation64 a translator be used to explain the may be enforceable in the courts. major issues of the contract. • rights given under copyright. • exhibition of the work in public in Some art centres use stock numbers, Commissioned photographs a manner or place that causes harm • If the work is to be altered or adapted for which they mark on the back of artworks. The general rule is that the photographer is to the artist’s reputation.65 mass production, artists should be given the first owner of copyright. However, there opportunity to approve or reject the alteration A copyright notice provides information about Inappropriate treatment might also include are some exceptions including photographs or adaptation their work. acceptable uses and the name of the copyright cutting or destroying a physical artistic work or taken in the course of employment, and owner, should consent for use in other material cropping a reproduction of it when reproducing Assigning copyright versus licensing commissioned photographs. be required. Here is an example: it in a magazine, or reproducing it in poor quality. Copyright can also be assigned. This means For photographs taken before 30 July 1998, that you can give the copyright in your work to © Terri Janke, 2002. This work is copyright. the commissioning client is the first owner of Whether or not the work has been someone else. As the new copyright owner, Apart from the uses permitted under copyright in the photograph, unless the treated in an inappropriate way is subject they could authorise others to reproduce the Copyright Act 1968, no reproduction photographer and client agree otherwise. to reasonable defence. your artwork. When possible, Indigenous of this work is authorised without the artists should retain copyright in their works For photographs taken after 30 July 1998, the When dealing with artworks where it is likely consent of the Artist. to maintain control over reproductions. photographer is the first owner of copyright that the integrity might be compromised, Visual arts 26 Visual arts 27 Principles and Protocols Principles and Protocols
The following is an example of labelling Although there is no legal requirement to gain Library copying Prior permission for reproduction is necessary an artwork that includes language group- permission from, or pay an artist for such Libraries and archives can make copies of and the artist is entitled to be paid a fee for the owned designs: reproduction, some artists have understandably copyright works under certain circumstances reproduction of his or her artwork. Chris Bonney 75 © Banduk Marika, 1998. This work and the complained about the use of their artworks in in accordance with statutory procedures. gives the following advice to visual artists: accompanying story is the copyright of the advertising and postcards without their prior Educational copying Often people will approach an artist to gain artist and may not be reproduced in any form permission and without any payment of royalties. Education institutions such as schools and permission to reproduce an artwork in a without the permission of the artist and the Incidental filming universities can make multiple copies of print publication, or on a poster, and say that they language group concerned. The copyright in an artistic work is not infringed material and can copy television and radio don’t have money in the budget to pay you, For more information on recommended by the inclusion of the work in a film or programs for education purposes. They must but the marketing opportunity for you will be copyright wording for publications, see the television broadcast if its inclusion is incidental however pay statutory licence fees to the enormous. When faced with this, always Style manual for authors, editors and printers.66 to the principal matters represented in the film relevant collecting societies. Artists should be remember that you should be recognised for 69 aware of these schemes, as there may be When authorising others to reproduce your or broadcast. What is ‘incidental’ is a question your work and that your art is an integral part 70 royalties payable in certain circumstances. works, make sure that you use written of degree. of the product and as such, is integral to the Contact Viscopy, Copyright Agency Limited 80 agreements and keep records of the rights you Fair dealing provisions or Screenrights if you know royalties should marketing of it. have granted. Ask for copies of the reproductions. The argument of ‘fair dealing’ can be a defence be paid on your work. Artists need to join Artists do have the right to ask for a fee for the When is copyright infringed? to allegations of copyright infringement. these agencies to receive payment. reproduction of their work. If the proposed work A ‘dealing’ with copyright material means using It is an infringement of copyright to copy an The Myer report is to have wide dissemination, then it is even artistic work directly. it in a way that is the exclusive right of the The Report of the contemporary visual arts more appropriate that the artist be paid a fee. copyright owner. The use is ‘fair’ if the material and craft inquiry 76 recommended sweeping Artists can, however, waive their fees and many A person will infringe copyright in an artistic is used for: work if he or she reproduces the work in legislative changes to copyright and intellectual do so for charitable and fund-raising purposes. • research and private study 71 material form, or publishes or communicates property, including the introduction of a resale Doreen Mellor recommends Viscopy as the first royalty right as Australian law. The 2002 report the work to the public without permission from • criticism or review, where sufficient point of contact for permission to reproduce 67 72 was produced under the chairmanship of Rupert the copyright owner. acknowledgment of the work is made Indigenous artworks in catalogues or other Myer AM, with a four-member Indigenous • reporting of news in a newspaper or magazine, It is also an infringement to copy a substantial reference group,77 and undertaken for the publications. Viscopy currently represents more where sufficient acknowledgment of the work part of an artwork. A substantial part of a work Department of Communications, Information than 2500 Indigenous artists. is made; or for the purpose of, or associated does not necessarily refer to a large part of the Technology and the Arts. For Indigenous artists who are not registered work. The court will look for striking similarities with, the reporting of news by means of members of Viscopy, permission to use their between the original artwork and the infringing broadcasting or in a cinematograph film73 Most significantly, the report recommended works will need to be obtained directly from copy, and assess the quality of what was taken. • judicial proceedings or a report of judicial that the Australian Government take action on Indigenous copyright and Indigenous the artists, arts centre or agency (such as the proceedings, or for the purpose of the giving People who import an article that infringes intellectual property issues78 including: Aboriginal Artists Agency) controlling the of professional advice by a legal practitioner.74 copyright into Australia for sale or hire are also • extension of moral rights to Indigenous groups reproduction right. contravening the law. What is ‘fair’ will depend on the circumstances. Generally, the person must be genuinely using • misappropriation of cultural imagery When reproducing artwork, remember Some exceptions to infringement are the material for one of the above purposes, and iconography that under the moral rights provisions of the detailed below. and use of it is fair in that context. • importation of works purported to be Copyright Act, artists have the rights of Sculptures on permanent public display of Indigenous origin integrity and attribution, and the right against Crown use of artworks The copyright in a sculpture or work of artistic • exportation of Indigenous art under the false attribution. The Crown may use a copyright work without craftsmanship placed permanently in a public cultural heritage provisions.79 place, or premises open to the public, is not permission of the copyright owner where it is The moral right of integrity means that the artist infringed if it is reproduced in: used ‘for the services of the Crown’. The artist Publishing and reproduction can take action against inappropriate treatment of Indigenous art • a painting, drawing, engraving or photograph is still entitled to payment for use and the of their artwork. It is a good idea for artists to As the copyright owner, the artist has a legal of the sculpture or work government must contact him or her as soon check design proofs of their work carefully prior right under copyright law to control reproduction 68 as possible to negotiate this. to reproduction or publication. • a film or television broadcast. of his or her artwork. This includes digital copies. Visual arts 28 Visual arts 29 Principles and Protocols Principles and Protocols
The moral right of attribution means that the The proposed regime incorporates a defence When using communally owned cultural material, artist has the right to have his or her name She may have also been able to claim of reasonableness and consents. The ICMR especially for commercial purposes, it is reproduced alongside each reproduction of infringement of her right of integrity.81 regime is not yet law, and many commentators important to consider ways in which the language his or her work. Industry practice also includes have criticised the model as being overly group can benefit from the use of their material. the media, year, dimension, source of the Indigenous communal moral rights complex. Further consultation with Indigenous For example, you could host an exhibition licence and image, as in the following example. Existing moral rights are individual rights only. artists and communities has been recommended. opening for the local community or conduct The communal nature of Indigenous cultural workshops for emerging Indigenous artists. Banduk Marika Artists in the Black program material and the right of an Indigenous Djanda and the Sacred Waterhole, 1988 The Arts Law Centre of Australia gives advice to language group to protect and guard against Case study: Sharing benefits 6 colour linocuts, ink on paper artists, writers and filmmakers on legal matters issues of misinformed source or integrity are An Indigenous artist consults the traditional 53 cm x 29.5 cm relating to arts practice. It publishes useful not recognised. elder/storyteller prior to depicting the story Collection of the National Gallery of Australia information sheets on copyright and the arts. in his linocut works. The elder tells the artist Licence courtesy of the artist In December 2003, the Australian Government drafted proposed amendments to the Copyright In 2004, the centre established the Indigenous the story and advises on the appropriate The artist has the right against false attribution Act for Indigenous Communal Moral Rights program ‘Artists in the Black’ which employs use of language for the title and written story of his or her artworks. Some people think that (ICMRs). The Exposure Draft proposes the an Indigenous legal officer and an Indigenous to accompany the work. if an artistic work is altered by 10 per cent, introduction of Indigenous communal rights for information officer, and is overseen by an The artist pays a percentage of the proceeds they can claim authorship of the resulting work. copyright works and films. Indigenous reference group, the chair of which from the sale of his artwork to the elder/ This is not correct. The artist who created is a board member of the Arts Law Centre. The draft amendments would introduce ICMRs, storyteller in recognition of the cultural the original work is entitled to attribution which could be exercised independently of the The ‘Artists in the Black’ program goals include: knowledge and contribution he or she has as author of the whole or part of the work individual author’s moral rights. ICMRs would given to the work. that is reproduced. • providing legal service and information be recognised in works and films drawn from to Indigenous artists, arts organisations a traditional base,82 if before the first dealing of and communities Royalties Case study the work or film, there is a voluntary agreement As copyright owners of artistic work, artists are between the creator of the work or film, • providing informed advocacy work on In 1995, an Indigenous artist complained entitled to receive payment for authorised uses and the Indigenous community.83 There must issues relating to Indigenous cultural and that a manufacturer with whom she had of their works. A royalty is the name given to also be acknowledgement of the Indigenous intellectual property. entered into a T-shirt manufacturing licence payments that copyright owners receive for community’s association with the work.84 had significantly altered her artistic work. Further copyright information authorising the use of their works. The image was changed but her name and Further, all interest holders in the work For information on copyright laws, visit the biographical details were still attached to (i.e. copyright owners) need to have consented following websites: Royalties are one of the ways artists make the product for marketing purposes. to the ICMRs existing in the work or film. • Australian Copyright Council money from their works. Once an artwork has been created and sold, the artist can still ICMRs endure for the term of the www.copyright.org.au Under her licence agreement the artist had control the copyright and receive income from no recourse. She had signed the licence copyright period. • Arts Law Centre of Australia www.artslaw.com.au it. An issue for the artist however, is the ability without understanding that she was The draft amendments would allow a to monitor use. It is important to use written • Viscopy assigning her copyright. She was no longer community to exercise Indigenous communal agreement and keep good records, so that the www.viscopy.com.au the copyright owner, having relinquished moral rights only through an individual who is permitted use can be managed. her rights, and had no copyright remedy.80 the authorised representative of the work. • Desart Inc. Most copyright owners lack the time and This authorised representative may be www.desart.com.au/law_pages However, the new moral rights law, necessary bargaining power to manage and recognised by the community according to that has subsequently been introduced, exploit their copyright works. So special its cultural practices, or may be appointed 7. Proper returns and royalties would have enabled the artist to claim Indigenous people should share in the benefits collecting societies have been established by the community, according to decision- an action against false attribution because and receive proper returns and royalties for the to monitor use, and collect and pay fees or making processes.85 the altered works were reproduced as use of their cultural heritage material. royalties owing to copyright owners. her original works. Visual arts 30 Visual arts 31 Principles and Protocols Principles and Protocols
These collecting societies administer the rights For more information about Viscopy visit its Screenrights also administers provisions in the make resale royalty laws based on the Berne of their members for a share, or fee of the website
then Minister for the Arts and Sport Senator the Indigenous lawyers Terri Janke and Robynne Interviewing Indigenous artists Refer also to the Arts Law Centre of Australia’s Hon. Rod Kemp announced that the government Quiggin support the introduction of a law Doreen Mellor states it is important to understand Best Practice Guidelines: Displaying Visual Arts would fund the strengthening of marketing consistent with the Berne Convention resale that any information gained from interviewing on the Internet 2006. and distribution support structures, and royalty, similar to that in Europe and the UK. Indigenous artists is the individual and cultural business training for artists rather than Once a resale royalty system is enshrined in knowledge of the person interviewed.97 8. Continuing cultures a legislated resale royalty.93 law, payment is compulsory and goes directly Consultation is an ongoing process. Cultures Indigenous artists should be aware that while are dynamic and evolving, and the protocols The government considered such a scheme to the artist or their heirs. information gained from an interview is the within each group and community will also in Australia would not be effective, quoting Royalties and Indigenous property of the artist, copyright in the resulting change. It is important to consider how you will research that showed resale royalty schemes cultural expression article, book, thesis, television or radio program maintain relationships for future consultations. would be most beneficial to successful late Royalties are generally paid to the copyright produced as an outcome of this and other This might include consultation, at a later date, career artists and the estates of deceased owner, usually the artist when it comes to visual interviews remains with the author (or publisher for further uses of the work that were not artists. A joint media release by the then Attorney art. One question is whether cultural heritage or producer). initially envisaged. General the Hon. Philip Ruddock and Minister custodians are entitled to payment of a royalty for Arts and Sport the Hon. Rod Kemp said: The artist can negotiate with the writer, when communally owned Indigenous cultural publisher or filmmaker for proper credit and a 9. Recognition and protection It would bring little advantage to the majority The Indigenous visual artist owns copyright in expression is incorporated into a work that is share in any money made, for example, from of Australian artists whose work rarely his or her artwork. This means that he or she out of copyright, and when cultural heritage is the exploitation of the book or film. The terms reaches the secondary art market and would can control the reproduction and dissemination commercially used or reused in a copyright of the arrangement can be incorporated in a also adversely affect commercial galleries, of the artwork. Such rights apply to all artists work. By example, rock art on T-shirts would written agreement. art dealers, auction houses and investors. not ordinarily require the manufacturer to pay and are granted under the Copyright Act.99 One of the main arguments put forward in copyright royalties to the traditional owners Internet publishing It is important to understand these laws support of resale royalty was that Indigenous of the rock art because the rock art is not Indigenous artists are entitled to a fee for the and how cultural material might be protected artists are particularly disadvantaged by the protected by copyright (being too old). reproduction of their works on the internet. under them. However, there are currently no The right to communicate the work to the special copyright laws dealing with Indigenous secondary sales market. Research shows, While there is generally no legal entitlement however, that a resale royalty scheme would public on the internet is a separate right to the cultural material. for royalties to be paid to custodians of reproduction right, and consent should be not end disadvantage for Indigenous artists. The Copyright Act has been criticised for not communally owned Indigenous cultural obtained prior to digitising and placing work Instead, a scheme to support arts centres expression, it is possible for this to be recognising the communal ownership of 94 on the internet. The website developer should was introduced. heritage material and the continuing right of negotiated, and paid by users. discuss the proposed format of reproduction Some galleries such as the Wayne Watters heritage custodians to control use of this Engaging artists with the artist, and measures should be taken Gallery in Sydney have implemented material. In 2004, the Attorney General drafted While art may be a leisure time activity for the to limit the ease of copying. a voluntary arrangement. a proposal to amend the Copyright Act and general public, it is a professional activity for artists, Before placing Indigenous art online, website introduce Indigenous communal moral rights. Other galleries have allocated a percentage of the and a fee should be offered for their services.96 producers should discuss how the work will However, this is not yet law. resale price to trust funds for Aboriginal people. When commissioning Indigenous artists, be reproduced, and ensure that appropriate The Australian Indigenous Art Trade Association Sally McCausland recommends that Indigenous or reproducing their works, fees should be paid attribution is given. (‘Art Trade’) has such a system. custodians give express and clear notice of to artists at an appropriate industry rate. Indigenous people are often concerned about their interest to third parties.100 She suggests Art Trade is committed under its constitution Indigenous artists as public speakers the publication of Indigenous cultural heritage a draft form of notice as follows: to supporting a resale royalties system. Many Indigenous artists are experienced on the internet. Prior discussion of the issues Members of Art Trade in recent years presenters and are willing to speak at exhibition will assist in identifying and addressing any have made substantial contributions to openings and other public events. It is courteous concerns. For more information on internet the Aboriginal Benefits Foundation.95 to pay them for their time and reimburse the cost publishing issues, see Media cultures: protocols This voluntary approach helps share the of transport, childcare and any other services for producing Indigenous Australian media98 benefits from the resale of art works with that may be required. in this series. the artist and their descendants. Visual arts 34 Visual arts 35 Principles and Protocols Implementation
NOTICE OF CUSTODIAL INTEREST OF Implementation • Indigenous worldviews, lifestyles and THE [NAME] COMMUNITY customary laws should be respected in The images in this artwork embody ritual Protocols are about people’s value systems contemporary artistic and cultural life. and their cultural beliefs.101 knowledge of the [name] community. It was • Inappropriate or outdated perspectives created with the consent of the custodians of The protocols in this guide are flexible. You can and terminology should be avoided. the community. Dealing with any part of the use them to develop protocols for your visual • There is great diversity in the geographic images for any purpose that has not been arts project, program or practice, language representation, medium and subject matter authorised by the custodians is a serious breach group, region or community. This section tells of Indigenous art. Diversity of creative of the customary laws of the [name] community, you how to implement the protocols. expression is encouraged. and may breach the Copyright Act 1968. For It provides a checklist of key points to consider enquiries regarding the permitted reproduction • Indigenous cultures are living cultures. when developing protocols for a visual arts of these images, contact [name] community. project or program, or in your own arts 2. Indigenous control practice. It summarises the preceding sections Indigenous people have the right to determine and also offers some different and more how their cultural property will be used. specific information. • Indigenous people have the right to own and 1. Respect control their heritage, including Indigenous 2. Indigenous control body painting, images, motifs, stories and other forms of cultural expression. 3. Communication, consultation and consent • Involve Indigenous people, including 4. Interpretation, integrity and authenticity Indigenous artists, curators and 5. Secrecy and confidentiality communities, in all stages of a project. 6. Attribution and copyright • Identify and speak to the relevant Indigenous 7. Proper returns and royalties people with authority for geographic locations 8. Continuing cultures and areas of practice by consulting widely 9. Recognition and protection. with Indigenous artists and organisations. 1. Respect 3. Communication, consultation People working in the visual arts are and consent encouraged to respect that: Some key areas to take into account when • Indigenous Australians, the Aboriginal and communicating, consulting and seeking Torres Strait Islander people, are the original consent are: inhabitants of Australia. • Indigenous people should be consulted • Acknowledgment should be given to on the use and representation of their the Indigenous groups where projects Indigenous heritage. are located. • Prior to use, Indigenous people should be • The rights of Indigenous people to own and informed about the implications of consent. control their culture should be respected. • Consent is necessary for the reproduction of • The cultural significance of Indigenous visual Indigenous visual arts and craft, and if traditional arts should be respected. communal designs are included, consent may be required from traditional owners. • Diversity of Indigenous cultures should be acknowledged and encouraged. Visual arts 36 Visual arts 37 Implementation Implementation
• Communally owned material, including Some points to consider are: • Discuss the labelling and promotion of the • Styles of art are generally not protected. ritual knowledge and creation stories, • use of styles and imagery artwork with the artist and/or the community, It is the expression that is protected. may require special and wider consultation • use of stories including written material about the exhibition • Artists retain their copyright, even after they within one community or across a number in any catalogues. • subject matter of works, for example, secret/ sell the physical painting. The buyer owns of communities. sacred work or public work the painting but does not have the right to • Indigenous artists in remote communities 5. Secrecy and confidentiality authorise reproduction. • use of biographical material. Some Indigenous cultural material is not may require interpreters. • In collaborative works, the collaborating Marketing with integrity suitable for wide dissemination on the grounds • Sensitive content such as secret and sacred artists share copyright. There are various opportunities for marketing of secrecy and confidentiality. material or gender-based works may require • The Indigenous artist who incorporates Indigenous artworks including: • Many Indigenous communities have special communication procedures that should traditional ritual knowledge in his or her • commercial galleries restrictions on whether the name and be ascertained at the beginning of the project. artwork has a special obligation to the • retail outlets photograph of a deceased Indigenous • Indigenous groups vary from community to language group when exercising copyright person can be made public. community, and it is necessary to get consent • museums/public galleries in the artwork. • Secret and sacred objects are important to from the relevant Indigenous group. • Indigenous cultural centres • There are special copyright provisions for Indigenous religious practices. It may be a • Be aware of gender divisions of responsibility. • email and web marketing. commissioned photographs. transgression of Indigenous law to reproduce • With collaborative projects, discuss the In the marketing of Indigenous art, respecting these images. • Copyright in an artistic work exists as soon long-term control and use of the works authenticity and integrity of works is a priority. as the work is created and lasts for 70 years • Indigenous people have the right to including copyright ownership of the It is important for the artist to be fully informed after the death of the artist. maintain confidentiality about aspects works produced. and agree to the use of their works, including • The artist has moral rights to his or her the reproduction and use of biographical of their personal and cultural affairs. artwork. This includes the right of integrity material and text. 4. Interpretation, integrity It is the responsibility of those putting together and attribution. These rights are inalienable. and authenticity arts projects to discuss any restrictions The Arts Law Centre has drafted best practice • When reproducing artworks it is necessary Consider interpretation, context and integrity: on use with the relevant Indigenous groups. guidelines for displaying visual art on the internet. to get copyright clearance from the artist. • Does the work reflect the cultural value of the Exhibition of art 6. Attribution and copyright • Artists are encouraged to use written subject matter? • Consider the cultural implications of an • Indigenous people should be given proper agreements when licensing artworks for • Does it expose confidential, personal or exhibition. Involve Indigenous people in the credit and appropriate acknowledgment commercial purposes. sensitive material? development and management of exhibitions. for their role in the development of artworks, • A person will infringe copyright in an artwork • When displaying Indigenous art, promote • Does it reinforce negative stereotypes? and use of their cultural material. if he or she reproduces the work in material both the Indigenous cultural values of the • Respect the overall integrity of an Indigenous form, publishes or communicates the work to work and the Indigenous artist and • If an image originates from a particular artwork. the public without permission of the copyright community from which he or she originates. language group, it is important to attribute • When reproducing Indigenous artworks, the group as the cultural source. owner. Statutory exceptions include purposes • Allow the Indigenous artist and/or the of criticism or review, and incidental filming. discuss and gain the consent of the artist for relevant community to interpret and present • Ask for correct wording of how the person any material alterations. their own stories. If they are present at the or community wishes to be attributed with • Under the educational statutory licensing Authenticity is a major concern to Indigenous opening, acknowledge them publicly and ownership of the artwork or cultural material. schemes, artists may be entitled to royalties for use of their artworks in books and films. artists. The rise in demand of Indigenous art offer them hospitality. • The copyright owner of an artwork has the Copyright Agency Limited and Screenrights has led to many rip-off practices that undermine • Advise Indigenous artists on the use of their exclusive right to: collect and distribute royalties to the cultural integrity of the art. Such practices works that are held in private collections. (i) reproduce the work in a material form artist members. also take away potential income streams from • The Code of practice for the Australian visual (ii) publish the work Indigenous artists and their communities. arts and craft sector recommends payment (iii) communicate the work to the public. of a fee to the artist for works they submit to exhibitions. • Artists do not need to register for copyright protection. Visual arts 38 Visual arts 39 Implementation References
7. Proper returns and royalties • Indigenous people have a responsibility References Nations Document E/CN.4/ • Ensure Indigenous people receive proper to ensure that the practice and transmission Sub.2/1995/26. The full text, as adopted returns, including copyright and royalties, of Indigenous cultural expression is continued 1. United Nations General Assembly, and elaborated on by ATSIC’s Indigenous for their contribution and use of their for the benefit of future generations. United Nations Declaration on the Rights Reference Group, is cited in T Janke, cultural material. of Indigenous Peoples, United Nations Our culture: our future, pp. 273–277. Documents, Human Rights Council, • When commissioning or reproducing 9. Recognition and protection See also EI Daes, Study of the protection A/HRC/1/l/3 29 June 2006. Indigenous artworks, fees should be paid • The Indigenous artist owns copyright in his of the cultural and intellectual property to artists at an appropriate industry rate. or her artwork, giving him or her control of 2. T Janke, Our culture: our future – report of Indigenous peoples, United Nations reproduction and dissemination of the work. Economic and Social Council, • Discuss copyright ownership of the material on Australian Indigenous cultural and Geneva, 1993. form of cultural expression upfront. • Written agreements and contracts are the intellectual property rights, M Frankel best way of ensuring that rights are cleared & Company for Australian Institute of • Indigenous people have the right to share 12. T Janke, Our culture: our future, op. for proposed and intended uses. The Arts Aboriginal and Torres Strait Islander in the benefits of any commercialisation cit, Chapter 2, ‘Indigenous cultural Law Centre of Australia has draft agreements Studies and the Aboriginal and Torres of their cultural material. and intellectual property’, pp2 – 11. available for members. It is a good idea to Strait Islander Commission, Sydney, 1998. • Indigenous artists are professionals. Discuss seek independent legal advice on written 13. See the World Intellectual Property 3. Please note that throughout this issues such as payment, transport, childcare releases and contracts. Organisation’s website, www.wipo.int/ and other services when arranging speaking document, where the term ‘visual arts’ and search ‘Intergovernmental • Australian laws and policies should be engagements and interviews. is used alone, it implies the inclusion Committee’ for further information. developed and implemented to respect of the craft arts and other visual media. • The resale royalty (droit de suite) is the right of and protect rights of Indigenous people 14. World Intellectual Property Organisation, the artist to share a percentage of the resale and communities to their cultural heritage. 4. D Mellor, email to Terri Janke & Company, Intergovernmental Committee on price of an original work of art. The Australian 2 June 2002. • The Copyright Act 1968 has been criticised Intellectual Property and Genetic Government has decided not to legislate on for not recognising the communal ownership 5. D Mellor & T Janke, (ed), Valuing art, Resources, Traditional Knowledge and this, but some galleries give Aboriginal trust of heritage material and the continuing right respecting culture, op. cit., p12. Folklore The protection of traditional funds a portion of the resale price of of heritage custodians to control the use cultural expressions/expressions of Indigenous artworks. 6. T Janke, Our culture: our future op. cit. of images. Indigenous people have called folklore, Draft objectives and principles, for special legislation to recognise the 7. i b i d. WIPO/GRTKF/IC/10/4. 8. Continuing cultures communal nature of cultural heritage. 8. United Nations General Assembly, 15. World Intellectual Property Organisation, Indigenous cultures are dynamic and evolving, Declaration on the Rights of Indigenous Intergovernmental Committee on and the protocols within each group and Peoples, United Nations Documents, Intellectual Property and Genetic community will also change. Consultation Human Rights Council, A/HRC/1/1/3 Resources, Traditional Knowledge and should be an ongoing process. When working 29 June 2006. Folklore The protection of traditional with Indigenous people: knowledge: Draft objectives and 9. ibid • Maintain relationships with Indigenous artists principles, WIPO/GRTKF/IC/10/5, and communities, which open the way for 10. The Mataatua Declaration was developed 2 October 2006. future consultation around their artworks. at the First International Conference on the 16. World Intellectual Property Organisation, • Consider and discuss future uses of the Cultural and Intellectual Property Rights Intergovernmental Committee on artwork, which were not envisaged at the of Indigenous Peoples, 12–18 June 1993, Intellectual Property and Genetic initial consultation. at Whakatane, Aotearoa, New Zealand. Resources, Traditional Knowledge and A full text of the Declaration is cited in • Negotiate ways in which cultural protocols Folklore, The protection of traditional Terri Janke, Our culture: our future, can be included in future plans for the cultural expression/expression of folklore: pp 306–310. artworks, including licence agreements. Draft objectives and principles, WIPO/ 11. EI Daes, Final report on the protection of GRTKF/IC/10/4, Article 3, p19. the heritage of Indigenous peoples, United Visual arts 40 Visual arts 41 References References
17. Section 6 of the Model law for the 33. D Mellor & T Janke, Valuing art, respecting 42. Arts Law Centre of Australia, Best practice 57. Section 180 of the Copyright Act 1968: protection of traditional knowledge and culture, op. cit., p36. guidelines, displaying visual art on the 50 years from death of creator for expressions of culture, South Pacific internet, Arts Law Centre of Australia, published works. 34. T Janke, Code of Practice for Galleries and Community, Noumea, 2002. 2006. See download,
73. Section 42 of the Copyright Act 1968. 85. T Janke, ‘The moral of the story: 97. ibid, p51. Indigenous communal moral rights’, 74. Section 43 of the Copyright Act 1968. 98. T Janke, Media cultures: protocols for Bulletin, #3/05, ISSN #1440-477 producing Indigenous Australian media, 75. Section 49 of the Copyright Act 1968. pp. 1, 2, 7 & 8. Australia Council for the Arts, Sydney, 2002. 76. R Myer, Report of the contemporary visual 86. The English equivalent title ‘resale royalty’ 99. The Copyright Act 1968. arts and craft inquiry, Commonwealth of will generally be used here instead of the Australia, 2002, more commonly referred term ‘droit de suite’. 100. S McCausland, ‘Protecting communal to as The Myer report. interests in Indigenous artworks after the 87. A useful description of the origins of the Bulun Bulun case’, Indigenous Law 77. IRG Members were: D Mundine, droit de suite and other sources which Bulletin, July 1999, pp. 4–5. Indigenous Curator/Writer; D Mellor, describe it is in JD Stanford, Economic Manager, Bringing them home project, Analysis of the Droit de Suite – The Artist’s 101. NSW Ministry for the Arts, Guidelines National Library of Australia, C Craigie, Resale Royalty, School of Economics, 2007, Cultural grants 2007, Fellowships, then Director of the Aboriginal and University of Queensland, St Lucia, Scholarships and Awards 2006-2007, Torres Strait Islander Arts Board and 2002, p1. Sydney, pp. 115–118 H Perkins, Curator, Aboriginal and Torres 88. Discussions with the World Intellectual Strait Islander Art, Art Gallery of New Property Organisation, 30 November 2001. South Wales. 89. Australia is a signatory to the 78. R Myer, op. cit. Recommendation 4. Berne Convention. 79. D Mellor, telephone consultation, 90. Article 14 introduced in 1948. 31 May 2002. 91. R Myer, op.cit. 80. C Bonney, op. cit. 92. ibid., Recommendation 5. 81. The case also raised trade practices issues as to whether the conduct of 93. R Kemp, (then Minister for the Arts and labelling the works was misleading Sport), Media Release, Additional funds and deceptive. These claims focus on for Australia Business Arts Foundation, protecting consumer rights. 3 August 2006., visit
Bibliography Janke T, Media cultures: protocols for Ruddock P (then Attorney General) and Kemp producing Indigenous Australian media, R (then Minister for the Arts and Sport), There are many reports and guides that Australia Council for the Arts Sydney, 2002. ‘New Support for Australia’s Visual Arts’, meet the needs of particular communities, Janke T, Our culture: our future – report on media release, Parliament House, organisations, industries and situations. Australian Indigenous cultural and intellectual Canberra, 9 May 2006. The following is a selection of useful books property rights, Michael Frankel & Company Taking the time – Museums and Galleries, and guides for people working in the visual for the Australian Institute of Aboriginal and Cultural Protocols and Communities, arts sector. Torres Strait Islander Studies and the Aboriginal A Resource Guide, Museums Australia Inc. Association of Australian National Maritime and Torres Strait Islander Commission, (Qld), 1998. Museum, Connections Indigenous cultures and Sydney, 1998. the Australian Maritime Museum, Sydney, 2005. McCausland S, ‘Protecting communal interests Bonney C, ‘The facts about copyright’, in Indigenous artworks after the Bulun Bulun Koori Mail, 15 May 2002. case’, Indigenous Law Bulletin, July 1999. Mellor D (ed), Valuing art, respecting culture: Byrne A, Garwood A, Moorcroft H and Barries protocols for working with the Australian A, Aboriginal and Torres Strait Islander Indigenous visual arts and craft sector, protocols for libraries, archives and information National Association for the Visual Arts services, Aboriginal and Torres Strait Islander (NAVA), Sydney, 2001. Library and Information Resources Network. Museums Australia, ‘Continuing cultures: Cooper S and Janke T, ‘Code to boost ethical ongoing responsibilities: principles and standards in the sale of Indigenous art’, guidelines for Australian museums working Indigenous Law Bulletin, August/September, with Aboriginal and Torres Strait Islander 2006, Vol 6, Issue 21. cultural heritage’, February 2005. Everett J et.al., Respecting cultures working Myer R, Report of the contemporary visual arts with the Tasmanian Aboriginal community and craft inquiry, Commonwealth of Australia, and Aboriginal artists, Arts Tasmania, 2004. 2002, more commonly referred to as The Myer report. Indigenous arts protocol: a guide, devised by Indigenous Arts Reference Group,100 National Association for the Visual Arts (NAVA), New South Wales Ministry for the Arts,1998. ‘The code of practice for the Australian visual arts and craft sector, The visual arts industry Janke T, ‘The moral of the story: Indigenous guidelines research project’, NAVA, Sydney, 2001. communal moral rights’, Bulletin, #3/05, ISSN #1440-477. Pirie C, Greig J and & Snooks L, Style manual for authors, editors and printers, 6th ed, Janke T, ‘Code of Practice for Galleries and Commonwealth of Australia, Canberra, 2002. Retailers of Indigenous Art’, commissioned by Queensland Department of Aboriginal and the City of Melbourne, May 2006 (unpublished). Torres Strait Islander Policy and Development, Janke T, Doing it our way: contemporary Mina mir lo ilan man – proper communication Indigenous cultural expression in New South with Torres Strait Islander people, Brisbane, Wales, Indigenous Reference Group, New 1998. This was produced in conjunction with South Wales Ministry for the Arts, Sydney, protocols for consultation and negotiation NSW, 2002. with Aboriginal people. Visual arts 46 Visual arts 47 Contacts Contacts
Contacts State and territory arts agencies Arts Tasmania (Hobart) Copyright and legal GPO Box 771 Arts NT (Darwin and the Top End) Arts Law Centre of Australia Hobart TAS 7001 GPO Box 1774 The Gunnery Artists associations Tel: (03) 6233 7308 Darwin NT 0801 43–51 Cowper Wharf Road Toll free (TAS) 1800 247 308 Association of Northern, Kimberley and Tel: (08) 8999 8981 Woolloomooloo NSW 2011 Fax: (03) 6233 5555 Arnhem Aboriginal Artists Fax: (08) 8999 8949 Tel: (02) 9356 2566 Email: [email protected] GPO Box 2152 Toll free: 1800 678 237 Toll free: 1800 221 457 Web: www.arts.tas.gov.au Darwin NT 0801 Email: [email protected] Fax: (02) 9358 6475 Email: [email protected] Tel: (08) 8981 6134 Web: www.nt.gov.au Arts Tasmania (Launceston) Web: www.artslaw.com.au Fax: (08) 8981 6048 PO Box 1186 Arts NT (Central Australia and the Barkly) Email: [email protected] Launceston TAS 7250 PO Box 3521 Australian Copyright Council Web: www.ankaaa.org.au Tel: (03) 6336 2349 Alice Springs NT 0871 PO Box 1986 Fax: (03) 6334 1131 Association of Central Australian Tel: (08) 8951 1190 Strawberry Hills NSW 2012 Email: [email protected] Aboriginal Art and Craft Centres (Desart) Fax: (08) 8951 1161 Tel: (02) 8815 9777 Web: www.arts.tas.gov.au PO Box 9219 Email: [email protected] Fax: (02) 8815 9799 Email: [email protected] Alice Springs NT 0871 Web: www.nt.gov.au Arts Victoria Web: www.copyright.org.au Tel: (08) 8953 4736 Private Bag No 1 Arts Queensland Fax: (08) 8953 4517 South Melbourne VIC 3205 GPO Box 1436 Email: [email protected] Tel: (03) 9954 5000 Brisbane QLD 4001 Web: www.desart.com.au Toll free: 1800 134 894 Tel: (07) 3224 4896 Fax: (03) 9686 6186 National Association for the Visual Arts Toll free: 1800 175 531 Email: [email protected] PO Box 60 Fax: (07) 3224 4077 Web: www.arts.vic.gov.au Potts Point NSW 1335 Email: [email protected] Tel: (02) 9368 1900 Web: www.arts.qld.gov.au Department of Culture and the Arts Fax: (02) 9358 6909 PO Box 8349 Arts Queensland (Regional office) Email: [email protected] Perth Business Centre WA 6849 PO Box 5300 Web: www.visualarts.net.au/nava Tel: (08) 9224 7300 Cairns Qld 4870 Fax: (08) 9224 7301 Tel: (07) 4048 1411 Email: [email protected] Arts policy and funding Fax: (07) 4048 1410 Web: www.dca.wa.gov.au Australia Council for the Arts – Aboriginal Email: [email protected] and Torres Strait Islander arts board Web: www.arts.qld.gov.au Arts NSW PO Box 788 PO Box A226 Arts SA Strawberry Hills NSW 2012 Sydney South NSW 1235 GPO Box 2308 Tel: (02) 9215 9065 Tel: (02) 9228 5533 Adelaide SA 5001 Fax: (02) 9215 9061 Toll free (NSW): 1800 358 594 Tel: (08) 8463 5444 Toll free: 1800 226 912 Fax: (02) 9228 4722 Fax: (08) 8463 5420 Email: [email protected] Email: [email protected] Email: [email protected] Web: www.australiacouncil.gov.au Web: www.arts.nsw.gov.au Web: www.arts.sa.gov.au Visual arts 48 Acknowledgements
Acknowledgements Terri Janke and Company would like to acknowledge the input and guidance of Doreen Mellor acting as peer reviewer in editing the second edition of this guide in 2006. Terri Janke of Terri Janke and Company edited the second edition of this guide with Robynne Quiggin of Vincent-Quiggin Consulting assisting on the resale royalty section. Terri Janke and Company would like to acknowledge the role of the National Association for the Visual Arts (NAVA) in developing the Visual Arts protocol guide. This guide is based on research undertaken by Doreen Mellor and Terri Janke to write the publication Valuing art: respecting culture – protocols for working with the Australian Indigenous visual arts and craft sector, which was published by NAVA in 2001. Copies of the latter are available from NAVA. We thank Tamara Winikoff, executive director of NAVA, for her assistance in reviewing drafts of this guide. We also thank Helen Zilko whose contribution as editor assisted in creating the original suite of five protocol guides in 2002. We also acknowledge the contribution of the following people: • Robin Maxwell, Manager, Gab Titui Cultural Centre • Peter White, NSW Ministry for the Arts • Anastasia Charles, Terri Janke and Company • Sonia Cooper, Terri Janke and Company • Rosie Barkus, Torres Strait Islander textile artist • David Humphries, artist • Banduk Marika, artist • Past and present members and staff of the Australia Council’s Aboriginal and Torres Strait Islander arts board