What Wandjuk Wanted?

Martin Hardie1

Introduction

In many ways this story is the story as to how I became a lawyer. It is also most likely also why I stopped being a lawyer, or more specifically it is the basis upon which I commenced my foray into philosophy and theory and thinking about the forms of law that are becoming increasingly prevalent in a global networked world. I do not intend to deal with this latter point here as it requires a detailed consideration and explanation in itself2. The immediate purpose here is to outline the series of cases which might be collectively known as the Aboriginal Copyright cases. In doing so what is important is the manner in which the common law and equity were able to act in the face of longstanding and dogmatic legal ‘truths’.

Because of the place of these cases in my own legal education the story set out here is necessarily a personal one. As a law student it not only brought me into direct contact with the Bar but it also saw me, as I was reminded on a number of occasions by my Aboriginal colleagues, attending two law schools, Anglo- Australian and Aboriginal, at once. Looking back on these cases now obviously I have a feeling of great achievement, but also one that involves great loss and sadness. One reason for this loss and sadness is that so many involved in these cases have now past away, and in respect of my Aboriginal friends at an age the West would regard as young. The other reason is that with that passing the momentum for dialogue and law making we achieved in these cases has not been continued. If there is anything that strikes me about the current production of

1 School of Law, Deakin University, Geelong, Australia. This paper is dedicated to the memory of my friend and brother, John BB 1946-2010. In accordance with Aboriginal law I have referred to some more recently deceased people by their initials or title. This paper appears as a chapter in Matthew Rimmer (Ed), Indigenous Intellectual Property: A Handbook of Contemporary Research. Cheltenham (UK) and Northampton (Mass.): Edward Elgar, 2015. 2 For the beginnings of an outline of this project see A Shape of Law to Come? http://auskadi.com/files/shapeoflaw.html

1

Electronic copy available at: http://ssrn.com/abstract=2631862 things Aboriginal is that the lessons of these cases have not been heeded. So much of what is passed off as Aboriginal art and craft these days, especially in the tourist market, seems to be the product of China or of others who do not necessarily have the rights to do so under Aboriginal laws. A further contributing factor is that others, who could have carried on the momentum, seem to have been coopted by national or international apparatuses that still cry for a legislative or codified solution. If there is anything that can be learnt from these cases it is that strategic litigation and dialogue with the Courts is more likely to yield results than waiting for a solution to be granted from above.

Art Centres, T-Shirts and the Stolen Campaign.

During the time leading up to the ‘celebrations’ of the bicentennial of the transportation of the first fleet of convicts from the British Isles to the Australian continent, many within the Australian community and in particular some within the tourist industry found themselves gaining a appreciation of things Aboriginal. This appreciation was not necessarily based in altruism, empathy or a feeling of solidarity towards the indigenous art producers and their communities. It was in many cases firmly based in a desire to make a quick and easy buck. To the souvenir producers, the members of the rag trade and those within the retail world that provided the outlets, this new found appreciation of things Aboriginal was firmly manifested by a desire to cash in quickly. They sought to gain from the expected influx of visitors to Australia by simply taking advantage of the occasion, providing them with an opportunity to purchase affordable and transportable items adorned with Aboriginal artworks or the like.

Throughout the 1980´s Aboriginal art production in Australia had experienced a rapid growth spurt. This growth was directly linked to the homeland movement - the return of Aboriginal people from the government or church run settlements to their traditional homelands; that accompanied the coming of Land Rights to the Northern Territory. The return to home country allowed the nurturing of the creative arts so intimately intertwined with country. The enlightened support of the Aboriginal Arts Board of the Australia Council, under the Directorship of Gary Foley and his staff, had provided the ongoing fuel for this growth in art production.

2

Electronic copy available at: http://ssrn.com/abstract=2631862 Foley's Directorship saw an increase in support by the Arts Board that facilitated the establishment and operation of an expanding network of community based art and craft centres throughout northern and central Australia. Estimates made during the late 1980´s placed Aboriginal art production as the largest manufacturing industry in the Northern Territory of Australia3, a region characterised by near sighted politicians, massive Aboriginal unemployment, vast cattle empires, rednecks and marketed tourist images of the red centre and Crocodile Dundee. In noting this connection between the growth and vitality of Aboriginal art and the homeland movement it must be emphasized that it is this movement that is directly under threat by governmental measures such as the Northern Territory Intervention or its reworking under the rubric of ‘Stronger Futures’. Favoring as they do market based and neoliberal solutions, these governmental policies have as their ultimate object the undermining of the basis for what we might call the ‘Aboriginal mode of production’.

Unfortunately, the fact that the industry was growing and doing so well meant that even at that time there were certain threats to its independence and even existence. The first came in the form of a plan, backed and advocated by the then Commonwealth Minister for Aboriginal Affairs, Clyde Holding, which sought to, in effect, nationalise the community based art and craft centres that had been nurtured by the Aboriginal Arts Board. Holding sought to place the centres under the control of a Sydney based company, known as Inada Holdings, which was funded by the Minister´s Department. This move at monopolisation by the Minister led directly to the creation by the community art centres of the Association of Northern and Central Australian Aboriginal Artists (ANCAAA, as it then was known, and ANKAAA as it is now known). ANCAAA and its members campaigned against the move and lobbied the Minister. Eventually Holding’s successor, Gerry Hand, was convinced to establish an enquiry into the industry4. The enquiry put an end to any plans of creating a monopoly.

The second threat was not as easily dealt with. What is more they struck at the

3 Department of Aboriginal Affairs, 1989, The Aboriginal Arts and Craft Industry. Report of the Review Committee, Canberra: AGPS, July. 4 Department of Aboriginal Affairs, 1989, The Aboriginal Arts and Craft Industry. Report of the Review Committee, Canberra: AGPS, July.

3 heart of the raison d´etre of Aboriginal art. It came in the form of the rag trade and the souvenir industry seeking to market more and more works reproducing Aboriginal artworks just in time for their expected bicentennial boom. This was not necessarily a new phenomenon, but the scale of unauthorised reproduction during the late 1980´s had not been seen before, although as adverted to above in opening, it may now have been surpassed in some areas. At this time the vast majority of these items reproduced artworks or images without the permission of the artists involved. Given that what was taken as granted as being an artist's rights hadn't even been deigned to be considered it was no real surprise that neither had there been any thought of consultation with the communities of Aboriginal people. It was of course these communities that, had since time immemorial, regarded the images in question as their collective property. But as I will outline, it was this idea of community ownership that was used to argue that the works of Aboriginal artists did not fall within the realm of copyright law and its assumed acceptance and focus on individual creativity and ownership.

At that time it fell on myself as acting coordinator of the ANCAAA to coordinate the artists' and art centres' response. During the latter months of 1988 a team came together that in effect ran the copyright campaign that lasted for the next 10 or so years. The team initially consisted of the late Lin Onus, then Chairperson of the Aboriginal Arts Board and a great contemporary Aboriginal artist in his own right, Colin Golvan, a Melbourne barrister and intellectual property specialist and myself. For the next few years we worked closely together to keep the campaign in motion. We had fortuitously come together after Lin and I had been interviewed by ABC Radio while on a visit to Darwin. Colin heard the interview, rang Lin on his return to Melbourne, who in turn rang me and within days we had the copyright campaign under way. We were later joined in our team by Michael McMahon who was for some time the senior officer of another organisation that grew out of the copyright campaign, originally known as the Aboriginal Artists Management Association (AAMA) and later as the National Indigenous Arts Advocacy Association (NIAAA).

Much to the consternation of local shopkeepers, the late John BB and I commenced the campaign with a vengeance, by holding press events outside tourist shops in

4 the Darwin Mall. During these events we distributed to shoppers the ANCAAA produced “Stolen” pamphlet5 that displayed a number of T-Shirts that had reproduced Aboriginal artworks without permission. BB, a Ganalbingu artist from Central Arnhem Land was the man most personally affected by copyright violations over the period of the campaign. He is clearly one of the great modern Australian painters and the number of times his work was unlawfully copied may in fact bear witness to the saying that imitation is the sincerest form of flattery.

With the help of BB and another deceased Aboriginal man, Maningrida Arts Centre Coordinator, Charles Godjuwa and others, I devoted the coming months coordinating the initial stages of the campaign and researching evidence and breaches. Daily chores involved traveling to stores, purchasing items as evidence and endlessly peering at books identifying the sources of the reproductions. We gained many supporters throughout the country who sent us examples of suspicious items and provided much needed support, such as pieces of floor for me to sleep on, cars for me to borrow, books for me to peer into until my eyes couldn't focus and hours of valuable advice and insights. The time I devoted to the campaign was such that after discussion I moved from my position as interim coordinator of ANCAAA to settle in the North Australian Aboriginal Legal Aid Service (NAALAS) as a full time copyright project officer. The campaign also helped me to decide that, finally, it was time for me to commence legal studies.

Within months we had collected a vast array of unauthorised reproductions and after extensive preparation we commenced the first action in the Federal Court of Australia by John BB against a Queensland based T-Shirt manufacture. Before that case was settled fifteen other artists had applications filed against the same company and the collective action became known as the T-Shirts' cases or the Flash Screenprints case. Other artists included GM, Malangi and Garrawun all who would be subjected to repeated copyright infringements in the years to come. Justice Olney of the Federal Court of Australia granted interim injunctions which led to the company settling the claims of BB and his co-litigants for a collective sum of $150,000 - at that time the highest such settlement in Australian copyright

5 The Stolen Pamphlets are available at http://auskadi.com/?page_id=86.

5 history6.

During the period of the T-Shirts' cases we also threatened and settled between twenty or thirty other cases against various manufacturers and retailers on behalf of prominent artists, the most memorable being an infringement where a Malangi painting was printed on a pair of underpants. As I have been reminded more recently by Professor Neil Andrews of Victoria University, who was then an advisor to Aboriginal Affairs Minister, Gerry Hand, the underpants were an important factor is getting the Hawke Government to back the campaign. It was my entry to the ministerial office waving the underpants that it appears had the required dramatic and political affect and helped galvanised the support of other members of the Government.

In what follows I will outline the developments in Australian law made during a series of cases related to the Aboriginal copyright campaign run in Australia during the late 1980´s and 1990´s and assess the results against the demands for the equal protection of Aboriginal copyright made during the 1970's by an earlier Chairperson of the Aboriginal Arts Board, Wandjuk Marika. Below in part two I will set out Wandjuk´s plea in full.

These lawmaking cases are, in historical order:

1. BB v Nejlam Investments (the T-Shirts’ Case);

2. Yumbulul v The Reserve Bank of Australia (the $10 Note case)7;

3. GM v Indofurn (the Carpets’ case)8; and

4. BB v R & T Textiles (the BB case)9.

Any consideration of these cases must take into account the fact that what was occurring, at least from the point of view of the Aboriginal protagonists, was a dialogue between the keepers of two bodies of law. The cases show us how the

6 Golvan, Colin, “Aboriginal Art and Copyright: The Case for Johnny BB” European Intellectual Property Review 10 (1989): 346- 354. 7 (1991) 21 IPR 481 8 (1994) 54 FCR 240 9 (1998) 86 FCR 244

6 non-Aboriginal lawmen sought to accommodate the reality of the law administered by Aboriginal lawmen. The cases are also testament to the creative potential inherent in any open system of law such as the common law or equity. They show how the common law system is capable of recognising and accommodating systems alien or outside its own boundaries. The cases must also be contrasted with the paternalistic granting of rights by a legislature.

"It's not original - is it? It's traditional."

Other than the generally accepted desire of an artist to control and protect the use of their creative labours, Aboriginal artists often have a further reason to zealously pursue rights of control. As a discussion of the cases will show this further rationale for legal protection arises directly from the artists’ relationship with their land and with their communal group. This pursuit of the protection of rights is driven both by an artist's desire to control the output of their protective labours, as well as by an Aboriginal artist's relationship to his or her traditional country, put simply their land rights.

The intimate relationship between land rights and the rights to paint - to borrow from Morphy10 are two sides of the same coin. Thus individual, group or communal interests that exist in relation to land, extend under Aboriginal law to artworks. It was this linkage between traditional rights, or the traditional and communal source of artistic works, that gave rise to the proposition that copyright law was incapable of, or, was an inadequate vehicle to be used to provide equal protection for Aboriginal ‘copyright’ interests and where appropriate the wider communal interests inherent or subsisting in an artwork.

Over the ten-year period of the copyright campaign many people questioned me about the basis for this zealous pursuit of rights of control by Aboriginal artists. The questions often started from the premise that it was somehow at odds with our own culture, history and attitude to copyright control. In response I recalled at times the fact that copyright laws and the right to control information are integral

10 Morphy, Howard, Ancestral Connections: Art and an Aboriginal System of Knowledge, Chicago University Press, 1991, p.49.

7 to the maintenance of political power and social order in any given society. With this idea I sought support from the doyen of Australian copyright academia, Staniforth Ricketson11, who when discussing the invention of the printing press and its relationship to the introduction of copyright law in the 15th century noted that:

“the crown´s interest in publishing was shifting from the encouragement of trade to the issue of censorship, as the greater availability of the written word meant the wider circulation of undesirable ideas, particularly in matters of religion ... it became a pressing matter as the security of the state came increasingly under attack and religious struggle intensified”.

As with the more recent advent of the internet, the advent of the printing press had of course resulted in a fundamental change in the way people in Europe related to each other, and of their concept of community. It caused a fundamental shift in the role of the church and the state and had for the first time taken the control of religious and much political power out of the hands of monks and the church´s scribes and introduced with it a new threat to the established order.

In a work of fiction, this theme of power, religious and political and its relationship to the control of texts reverberates. Umberto Eco´s novel, “The Name of the Rose”12 focuses upon the interplay of political and religious power in a European time where power is manifested in closely guarded religious texts secretly held in monasteries. Only the monks of the highest degree and authority are able to view these books. As a result persons dealing with them without the correct authority seemingly face supernatural and catastrophic consequences. The themes of access and control of religious texts, secrecy, political power and the subsequent stability of the social order faced in "The Name of the Rose" are not dissimilar to those surrounding the unauthorized reproduction of Aboriginal art. In the BB case Dr. Joseph Reeser, a psychologist who had lived with BB and his relations, gave evidence that:

11 Ricketson, Staniforth, The Law of Intellectual Property, Law Book Company, Sydney, 1984, p.58. 12 Eco, Umberto, The Name of the Rose, Houghton Mifflin Harcourt, 1994.

8 “revealing the ´inside´ meanings of the designs and/or unsanctioned uses of the process or the product can result in severe calamity...(capable of) causing widespread devastation and cosmic damage ...”13.

Reeser’s description can be heard in Eco. The texts held in Eco´s monastery and the religious texts of Aboriginal artists, both contain the codification and essence of all relevant religious and political power in their society. There revelation to, or by, the uninitiated in both cases may lead to catastrophe. It is not surprising then, that these modern day "Aboriginal men of high degree"14 guard their power and knowledge in a manner which echoes that of the Church and even today of the Crown or State - any transgression is tantamount to an attack on the integrity of the body politic itself.

It was from the vista of tradition that Australian law first came to consider Aboriginal art and its place within the law of Copyright. The accepted wisdom before the T-Shirts’ case was that Aboriginal art and artists were viewed as belonging to a different class to that of European art and artists of the European tradition. The basis for the distinction grew directly out of the religious, political and communal value of the artworks. It was said to be fact and law that if Aboriginal artists drew upon a pre-existing tradition their artworks were not Art in the sense required to be worthy of copyright protection. They were but items of a mere folkloric culture or tradition.

It was within this context that during the 1970´s, when Aboriginal artworks had first became the subject of widespread unauthorised reproductions, Wandjuk Marika made his plea for equal protection.

"It is not that we object to people reproducing our work, but it is essential that we be consulted first, for only we know if a particular painting is of special sacred significance, to be seen only by certain members of a tribe, and only we can give permission for our own work of art to be reproduced. It is hard to imagine the works of great Australian artists

13 Affidavit of Joe Reeser. 14 Elkin, A.P., Aboriginal Men of High Degree, Initiation and Sorcery in the World's Oldest Tradition, Inner Traditions / Bear & Co, 1978

9 such as Pro Hart or Sidney Nolan being reproduced without their permission. We are only asking that we be granted the same recognition, that our works be respected and that we be acknowledged as the rightful owners of our own works of art”15 (Marika 1976: 7-8).

Wandjuk´s call for equal recognition, as artists, has been lost on many, who have sought to create, categories beyond that recognised by the artists themselves. Wandjuk eloquently described the rationales for protection of the works and there should be no doubt that it should be regarded as the yardstick by which this series of cases should be judged. It was a demand emanating directly from the shop floor or campground. Put simply it states that these were artworks created by artists' possessing the same rights as all artists. Furthermore, the artworks in question, because of their subject matter, possessed a special or sacred significance to members of the relevant communal group.

Against the background of the beginnings and the original purpose of copyright law in European society the distinctions made on the basis of a pre-existing tradition also ignored historical and legal reality. Again the religious beginnings of so much of the European art tradition meant that many an artist has drawn upon a traditional theme but this has not been a reason to deny them the protection of the law of copyright because of that tradition. By the same token for many years what could be painted from that tradition and how it should be depicted was subject to the control of religious or political leaders. Assuming effective legal mechanisms existed at the relevant time, would anyone seriously contend that Caravaggio's paintings of Saint John the Baptist, David and Goliath, the Conversion of Mary Magdalen, or countless other examples from his religious tradition, were not capable of having copyright subsist in them simply because they drew upon a pre- existing tradition, religious or not? Or for that matter because the church effectively controlled what could and could not be seen by the public at large? Has there ever been any question raised that each individual artist´s interpretation of, for example, the Madonna and Child, or any other ‘traditional’ subject matter was not novel or original?

15 Marika, Wandjuk. “Copyright on Aboriginal Art” Aboriginal News 3(1) (1976), pp 7-8.

10 Unlike, Carravaggio, Michelangelo and countless others who drew heavily upon a pre-existing tradition, Aboriginal artists on the other hand were described, demeaningly, as being merely ‘folkloric’, and as only drawing upon a pre-existing tradition for their inspiration. Subsequently it was argued, without ever properly testing the proposition, that these works did not comprise the requisite element of originality. This belief was so entrenched, and it still persists, that after much lobbying by Wandjuk Marika, the Australian Federal Government researched the topic for eight years and came up with the same above stated conclusion: that because Aboriginal art drew upon a pre-existing tradition Aboriginal artists could not protect their artworks by way of the law of copyright16. The conclusion of the government was repeated as the gospel and as a defence to inaction. Simply because of the ethnocentric and racist perception that their works lacked the required element of originality (patently present in all those Madonnas and their Children) Aboriginal artists were actively discouraged, by government, the lawyers and the art world, from exercising their rights.

The Ten Dollar Notecase - The Federal Court says: "It's original".

The T-Shirts’ case and the campaign run in conjunction with it went a long way to overturning this long regarded truth concerning the inapplicability of copyright law. But as the T-Shirts’ case was settled after interim injunctions were granted (it was clear to the defendant’s lawyers at that time that they had no defense and would merely become sacrificial lambs on the altar of law reform) the court made no final adjudication that confirmed a binding decision of law. It was not until 1991, and a case involving an entrepreneurial East Arnhem Lander, Terry Yumbulul, known as the Ten Dollar Note case, did a court hold that works of art produced by Aboriginal artists were capable of being regarded as original works within the meaning of the Copyright Act.

Although Yumbulul´s action of unconscionable conduct against Wallis and the Agency was defeated (he had earlier settled out of court with the Bank) importantly for all Aboriginal artists that came after him was the finding of Justice French that in:

16 Department of Home Affairs and Environment, Report of the Working Party on the Protection of Aboriginal Folklore, 1981.

11 “the sense relevant to the Copyright Act, there is no doubt that the pole was an original artistic work, and that he was its author, in whom copyright subsisted”17.

In support of his finding that the Morning Star Pole was an original artistic work Justice French detailed the process of creation of the Pole to illustrate the labour and originality involved.

“Mr. Yumbulul created the pole the subject to this proceeding in 1986. He was then living on Cotton Island in the vicinity of the English Companies Islands off the north east coast of Arnhem Land. He made it from cotton wood, which he cut and shaved to the right shape. He wove string and attached it to the top of the pole, which bore a crown of lorikeet and white cockatoo feathers, representing the rays of the Morning Star. He painted on the pole a yam leaf design, representing the yam spirit man who climbs up it bearing the spirit of the deceased person to the Morning Star. The design, he said, was based upon a story told to him by his grandfather and other relatives on his mother's side. There are a number of feathered bands or ruffs at different intervals on the pole and coloured bands painted on to it. Some of these represent different clan groups. There is a delicate feathered string which represents the rays of the Morning Star. It is attached to the pole below the crown of feathers representing the star itself. I accept the description in Mr. Yumbulul's affidavit evidence, which says that the feather work on the pole is intricate, and the design complex and unique to him. I also accept his affidavit evidence, which was not disputed, that he made the pole without assistance from any other person and that its creation was the subject of considerable care and attention on his part. In the sense relevant to the Copyright Act, there is no doubt that the pole was an original artistic work, and that he was its author, in whom copyright subsisted”18.

The core of Yumbulul´s action against the Agency and Wallis was that he would not have given them a blanket authority to deal with all of his artistic works, without at

17 21 IPR 481 at 484. 18 21 IPR 481 at 484.

12 least having the safeguard of being consulted in relation to individual uses and reproductions, particularly when any reproduction may have been a ceremonially important work such as the Morning Star Pole. Yumbulul's desire to retain control over individual uses and reproductions stemmed from the communal interests in the Morning Star ceremony and complex by other Aboriginal people who stood as family, clan or ceremonial relations of his.

The evidence of Roy Marika, the then senior male member of the Rirratjingu clan, illustrated what Justice French described as the:

“difficulties that arise in the interaction of traditional Aboriginal culture and the Australian legal system relating to the protection of copyright and the commercial exploitation of artistic works by Aboriginal people”19.

Marika had explained:

"that some traditional objects, such as the Morning Star Pole, can be made for sale to a museum or craft shop. It is regarded as important that white people learn to respect the Aboriginal people and their land". (Marika) "understood that Mr. Yumbulul had the right to make the Morning Star Pole for ceremonial purposes and also for sale to places such as museums in order to educate people. However, to do this he would need to make sure that the clan people involved, that is, the traditional owners and managers of the rights to the pole and the ceremony, knew what he was doing"20.

Marika emphasised that the:

"subject of mass reproduction of paintings and important objects is very sensitive because it takes the ability and right to produce and supervise the production of these objects out of the hands of the Aboriginal people”21.

The court heard other evidence concerning the right, under Aboriginal law, to

19 21 IPR 481 at 482. 20 21 IPR 481 at 482. 21 21 IPR 481 at 482.

13 make the Morning Star Pole, including that of Yumbulul, Dr Yunupingu (of the music group, Yothu Yindi) and other senior Aboriginal people with rights in the Pole and the related ceremony. Justice French decided that it could be concluded from the evidence:

“that the maker of such poles for public display, other than in a ceremonial context, has a cultural obligation to those clans to ensure that it is not used or reproduced in a way that offends against their perceptions of its significance” (21 IPR 481 at 483).

In concluding Justice French noted that there it:

"may ... be that Australia's copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin. But to say this, is not to say that there has been established in the case, any cause of action”22.

Yumbulul´s defeat in the substantive action against the Agency and Wallis was for him personally unfortunate. His success in having a court recognise that his creation was an original work has been often overlooked. The unresolved theme of Yumbulul´s case would be raised again in the following cases. However, the conclusion of French J again raised the spectre of the conservative view of the law meant that only parliament could grant the necessary rights and hence that neither the common law or equity were capable of recognizing or enforcing rights that in fact already existed. By the same token the Justice French pointed to the need to locate within the common law a cause of action that might be able to accommodate the particular Aboriginal interests at play. It was not until Justice Von Doussa’s decsion in BB’s case would the common law system and equity squarely addressed the rights of traditional owners and the relationship of copyright to those rights. That point I shall take up below, but in the interregnum between Yumbulul´s and BB´s cases important progress was to be made in the infamous Carpets’ case where the effect of an infringement of copyright on the community of traditional Aboriginal owners was addressed in the context of an assessment of damages. The

22 21 IPR 481 at 490.

14 Carpets’ case also afforded the Federal Court an opportunity to put beyond doubt the question of originality.

The Carpets' case - The Goose that laid the golden egg.

The Carpets' case involved seven artists the work of whom had been reproduced on carpets made in Vietnam for an Australian company who then imported them for sale into Australia. As was the case in the Ten Dollar Note case and the T-Shirts case, four of the seven artworks reproduced, were copied more or less identically. In relation to these works the court found without further enquiry that an infringement had plainly occurred. However, the manufacturer’s had tried, in the case of three designs, to use a little guile, in attempt to simplify the complex designs and to possibly avoid the complaint that they were merely ripping off the artists’ artworks. The argument in Court in relation to these three carpets therefore revolved around the question as to whether they were copies at all.

In legal terms the argument concerned whether the three amended designs substantially reproduced the artworks in question, or were in fact “original” ‘Aboriginal style’ designs. Justice Von Doussa found that all three carpets were substantial reproductions of the works of the relevant artists. Tackling the old truths head on he rejected contentions based on the pre-existing tradition theory. In relation to the painting of Dhatangu, "Wititj" or Olive Python, Justice Von Doussa recognised the traditional status of the subject matter, but importantly he focused up the originality and distinctiveness of the painting itself:

“Whilst the dreaming of the Wititj is often told in Aboriginal artwork, the particular depiction of the tail and the rarrk used in this artwork is original and distinctive"23.

Justice Von Doussa was not swayed by the argument of the defendants and that had won the minds of those who had studied the issue for years that was that

"the particular depiction of the Wititj on the carpet is common to many Aboriginal

23 54 FCR 240 at 260.

15 artworks and involves no originality"24.

His Honour rejected this argument by reference to the "several recognised texts on Aboriginal art" which were before the court and stated that they established that "the contrary is the case. None of the other artworks show anything which closely resembles the main features of the snake carpet”25.

In relation to Papunya artist Tim Payunka's claim based on a substantial reproduction of his “Kangaroo and Shield Dreaming” painting, which was of the complex Centralian dot and circle style, Justice Von Doussa's again found that the reproduction was substantial. His view was that a:

"close comparison of the carpet with the artwork reveals that the unusual border pattern is extracted from one portion of the artwork - a portion comprising not more than 5-10% of the artwork - and then repeated with few modifications in sequence around the border of the carpet. The colours, sizes, and joining tracks in the border are a very close copy of part of the artwork"26.

He continued that even though:

"as a proportion either of the total artwork, or the total carpet, the area of copied material in comparison with the whole is not great, in a qualitative sense the copying is substantial. The pattern taken from the artwork constitutes the striking feature of the carpet"27.

The Court used similar reasoning to hold that the third carpet, reproducing the work of Uta Uta Tjangala was also a substantial reproduction28. As a result of the Carpets' case those who would still hold out for the old view would seem to be standing on very shaky ground indeed. In most cases it would seem very difficult for an argument based on the pre-existing tradition theory to have any chance of success in convincing a court that an Aboriginal artwork could not be regarded as a matter of law as an original work of art worthy of protection by the law of

24 54 FCR 240 at 260. 25 54 FCR 240 at 260. 26 54 FCR 240 at 262. 27 54 FCR 240 at 262. 28 54 FCR 240 at 263.

16 copyright.

As a result of the Ten Dollar Note case and the Carpets' case the Federal Court had effectively heard and decided upon Wandjuk Marika´s plea for equal recognition. It was sad that that grand old man was not with us to hear their response. But his younger sister, Banduk, was one of the claimants in the Carpets´case, and she carried on his quest with all the dignity one would expect of a member of a family with such a long and noble tradition.

But the Carpets’ case is significant in another respect as it saw the Federal Court step beyond the first part of Wandjuk´s original plea and begin to address the vexed issue of how to deal with the complex of communal rights that exist in relation to any artwork. It was fitting that Banduk Marika´s evidence was central in convincing the Court to take into account the realities of life for an Aboriginal artist. I set out the part of the Court’s judgment dealing with Banduk Marika´s evidence at length below. In quoting extensively from the evidence and judgments I note in my defence that the affidavits in the cases were written by myself and drawn from long and extensive interviews that I conducted with the individual deponents. It is difficult to state matters more clearly and in my view it was the matters raised in this part of the Court’s judgment and in Banduk´s evidence that set the course for the future direction of the law.

“If unauthorised reproduction of a story or imagery occurs, under Aboriginal law it is the responsibility of the traditional owners to take action to preserve the dreaming, and to punish those considered responsible for the breach. Notions of responsibility under Aboriginal law differ from those of the English common law. If permission has been given by the traditional owners to a particular artist to create a picture of the dreaming, and that artwork is later inappropriately used or reproduced by a third party the artist is held responsible for the breach which has occurred, even if the artist had no control over or knowledge of what occurred. The evidence of Ms Marika, which I accept without hesitation, illustrates the severe consequences which may occur even in a case where plainly the misuse of the artwork was without permission, and contrary to

17 Australian statute law. In times past the "offender" could be put to death. Now other forms of punishment are more likely such as preclusion from the right to participate in ceremonies, removal of the right to reproduce paintings of that or any other story of the clan, being outcast from the community, or being required to make a payment of money; but the possibility of spearing was mentioned by Mr. Wangurra as a continuing sanction in serious cases.

Ms Marika has endeavored to conceal the unauthorised reproduction on carpets of Djanda and the Sacred Waterhole from her community as she will be held responsible. Her artwork expresses pictorially the creation when her ancestral creator Djang'Kawu and his two sisters, the Wagilag sisters, at the end of their journey from Burralku, landed at Yelangbara, south of Port Bradshaw, the site of their first journey. The image which she utilised in the artwork is associated with this place. Her rights to use the image arise by virtue of her membership of the land owner group in that area, and is an incident arising out of land ownership. She explained in an affidavit:

"As an artist whilst I may own the copyright in a particular artwork under western law, under Aboriginal law I must not use an image or story in such a way as to undermine the rights of all the other Yolngu ... who have an interest whether direct or indirect in it. In this way I hold the image on trust for all the other Yolngu with an interest in the story. ...

This misuse of her artwork has caused her great upset. If it had become widely known in her community at the time she believes that her family could have ordered her to stop producing any works of they might have stopped her participating in ceremonies; they might have outcast her, and they may have sought recompense from her - nowadays in money terms. So far these possibilities have not eventuated - and now that she has taken action to prevent further misuse and to seek a public recognition of the past misuse through the courts, she is hopeful that the community

18 reaction, when it learns what has happened, will be more forgiving. ...”29.

In the Carpets’ case Justice Von Doussa was prepared to take into account the day-to-day realities affecting an Aboriginal artist. He acknowledged both that the artists were a part of the greater artistic community (as equals as plead for by Wandjuk) and that at the same time he recognised their societal or cultural context. Importantly, he recognised, in accepting the evidence of Banduk that rights in paintings, rights in ceremonies and rights in land could not be separated. They were all part and parcel of the endowment of an Aboriginal person´s ancestral heritage and Aboriginal law and custom strictly controlled their use. All the elements of the complex of rights belonged to and existed upon the same immanent plane.

Justice Von Doussa recognised without doubt that:

"The right to create paintings and other artworks depicting creation and dreaming stories, and to use pre-existing designs and well recognised totems of the clan, resides in the traditional owners (or custodians) of the stories or images. Usually that right will not be with only one person, but with a group of people who together have the authority to determine whether the story and images may be used in an artwork, by whom the artwork may be created, to whom it may be published, and the terms, if any, on which the artwork may be reproduced. ...”30.

As we have seen Justice French had stated in the Ten Dollar Note case that "Aboriginal community claims to regulate the reproduction and use of works" did not (in that case) establish "any cause of action”, that is right of the artist to take action based on communal rights or for that matter in the community to take action in the courts. Nor was Justice Von Doussa in the Carpets' case faced with such a claim. Nevertheless, he was asked to take the complex of communal rights into account when he assess the amount and type of damages that should be paid to the artists.

Using the evidence before him and by applying a series of Northern Territory Supreme

29 54 FCR 240 at 246. 30 54 FCR 240 at 245.

19 Court decisions concerning damages for Aboriginal people who had been disabled in motor vehicle accidents, he took into account (along with general heads of damage in a copyright case) community based or cultural harm31. In his assessment of damages he took into account the artists´ personal distress and potential community embarrassment, contempt, risk of diminished earning potential and risk of physical harm arising from the unauthorised reproductions. The losses arising from such risks were in the court’s view were a “reflection of the cultural environment in which the artists reside and conduct their daily affairs”32.

In the Carpets’ case the court had buried the non-originality argument and taken the further, importnat step of accepting the realities of Aboriginal law and tradition when it assessed damages by taking into account the fact of Aboriginal communal relationships and spiritual harm.

Magpie Geese at the Waterhole - BB and Djilibinyamurr.

In BB´s case notions of ‘collective’ ownership of the material encoded in an artwork were placed squarely before the court as a part of the substantive claim. The Court was asked to tackle the statement of Justice French head on and adjudicate as to whether Aboriginal community claims to regulate the reproduction and use of works could in fact establish a cause of action. In order to do this both the artist, BB, and the senior member of the land owning group, GM, requested that the Court consider not only a claim based in copyright, but one also that involved a group action based on communal rights and obligations.

The case concerned a reproduction of the same BB painting, “... At the Waterhole”, that had been the subject of the reproduction in the original T-Shirts case. Rather than being reproduced on T–Shirts this time the painting was reproduced onto lengths, bolts of fabric that had been manufactured in Indonesia and then imported and sold in Australia.

Fortuitously, I encountered a member of the Chief Minister of the Northern

31 at 54 FCR 240 at 277. See Napaluma v Baker (1982) 29 SASR 192; Weston v Woodroffe (1985) 36 NTR 34; Dixon v Davies (1982) 17 NTR 31. 32 at 54 FCR 240 at 277.

20 Territory’s staff wearing her ‘protocol’ uniform one day in the elevator on my way to the office. The uniform made from the fabric by the N.T. Government was patriotically meant to convey a ‘Territory flavour’, illegally reproducing as it did one of the Northern Territory's most famous artworks, which was in fact owned and on prominent display in the N.T. Museum of Art and Sciences. The rights of the Northern Territory's Aboriginal inhabitants had never been a high priority for those that governed the N.T, even when it came to promoting Aboriginal culture as a part of the N.T.'s tourist appeal or ‘flavour’. Thus the illegal use of such a famous artwork was no real cause for surprise. In fact the discovery provided an opportunity of the old team, BB, Golvan and myself to again swing back into action.

Both BB and GM became applicants in the eventual proceedings, with BB acting as the legal owner of the copyright and GM acting as a representative of all of the Ganalbingu people (of whom they were both members).

The Statement of Claim filed in the Federal Court alleged in part that:

“According to Ganalbingu custom and law, the First Applicant´s (BB) creator ancestor caused Djilibinyamurr to be formed and settled the traditional Aboriginal ownership of that site upon the ancestors of the First Applicant to be held with the other traditional owners, on the condition that they and their descendants perpetuate and maintain the integrity of the corpus of ritual knowledge (madayin) of the Ganalbingu people associated with Ganalbingu country and in particular, Djilibinyamurr, for the benefit of the Ganalbingu people, including, inter alia, the songs dances and paintings associated with Djilibinyamurr, such being an obligation arising from the granting to the Applicants and their ancestors of traditional Aboriginal ownership of Ganalbingu country.”

To the lawyer the striking thing here may be that this is the first case in which either an animal, a turtle known as Barnda and a creator ancestor, had settled a trust. But what was more important for the law was that we were in effect, seeking to build upon Banduk Marika´s evidence in the Carpets' case where she had squarely raised the connection between an artist's rights and land rights. Her rights to paint, she had said, were an incident arising out of her land ownership

21 and that because of the communal nature of land ownership she held the relevant image as a trustee for all the other Yolngu who possessed under Aboriginal law an interest in the story. In the BB case we took this statement to its logical conclusion and alleged that this type of relationship gave rise to what the common law system recognised as an equitable relationship. Furthermore, this equitable relationship, gave rise to a cause of action or equitable remedy and was thus enforceable in the courts by the Aboriginal owners.

The BB case was not without its procedural difficulties. We had a great point of law to argue and were confident that even if the court found that the equitable relationship was not enforceable (in this case) that it would find that Australian law recognised the relationship and would enforce it when necessary. Procedurally, we found ourselves at one point with an uncooperative defendant not willing to contest the equitable point. During the course of preparing this case for trial BB reached a settlement of his claim with the company concerning the legal ownership of the copyright. Even before the case the company was already well on the way to liquidation. We agreed as a part of the settlement the payment of a monetary sum, but BB would need to wait in line with all the other creditors of the company. We also agreed to injunctions that made sure that the company if it survived would not continue its illegal activity and that the company would deliver up all of the infringing fabric in its possession. One day I arrived at the office to be greeted by boxes and boxes containing the fabric, in all over four kilometres in length. After taking up 90% of the space in my office they were eventually shipped to Maningrida where BB put them to in ceremonies and by selling it to people in and around his community.

We were committed to continuing the action in order to argue and resolve the point of law we had pleaded. Therefore the action on the part of GM proceeded, seeking a declaration that his and the Ganalbingu people´s equitable rights in the copyright of BB had been infringed. The problem was that the defendants laid down dead and advised that they would not contest this part of the claim and would not appear at the hearing. Unwilling to conduct an uncontested hearing on what it saw as an important point of law, the court suggested finding a party willing to intervene as an amicus curae or to actively contest the claim. We were

22 lucky that in the hysteria surrounding the ramifications of the High Court of Australia's decision in Mabo v Queensland (No.2)33 the Commonwealth and Northern Territory Governments intervened and contested our claim. They were concerned that our success might add a further complicating factor to the burgeoning business of native litigation. The last thing they wanted was a further cultural dimension or superstructure added to the native title debate, something they fought hard to contain to European concepts and characterisations about land ownership.

The idea that the rights to paint were an incident of land ownership had been raised in the Statement of Claim and was to be opposed by the Commonwealth and N.T. Governments. The key passage of the Statement of Claim (set out above) summarised the facts of the situation as described in the evidence. In his evidence and in discussing these concepts and the waterhole, Djilibinyamurr that was depicted in the painting in question, BB clearly described how Ganalbingu law and custom dealt with the relationship between land, art and the communal nature of the rights contained in both.

"Ral'kal translates to mean the principal totemic or clan well for my lineage. Ral'kal is the well spring, life force and spiritual and totemic repository for my lineage of the Ganalbingu people. It is the place from where my lineage of the Ganalbingu people are created and emerge. It is the equivalent of my `warro' or soul.

Djilibinyamurr is the place where not only my human ancestors were created but according to our custom and law emerged, it is also the place from which our creator ancestor emerged. Barnda, or Gumang (long neck tortoise) first emerged from inside the earth at Djilibinyamurr and came out to walk across the earth from there. It was Barnda that caused the natural features at Djilibinyamurr to be shaped into the form that they are now.

Barnda not only created the place we call Djilibinuyamurr but it populated the country as well. Barnda gave the place its name, created

33 (1992) 175 CLR 1.

23 the people who follow him and named those people. Barnda gave us our language and law. Barnda gave to my ancestors the country and the ceremony and paintings associated with the country. My ancestors had a responsibility given to them by Barnda to perform the ceremony and to do the paintings which were granted to them. This is a part of the continuing responsibility of the traditional Aboriginal owners handed down from generation to generation. Djilibinyamurr is then our life source and the source of our continuing totemic or sacred responsibility. The continuity of our traditions and ways including our traditional Aboriginal ownership depends upon us respecting and honouring the things entrusted to us by Barnda.

Djilibinyamurr is my ral'kal, it is the hole or well from which I derive my life and power. It is the place from which my people and my creator emerged. Damage to Djilibinyamurr will cause injury and death to the people who are its owners. Damage to a ral'kal is the worst thing that could happen to a Yolngu person. It is the ultimate act of destruction under our law and custom - it upsets the whole religious, political and legal balance underpinning Yolngu society. It destroys the relationship and the maintenance of the trust established between the creator ancestor and their human descendants and also between traditional Aboriginal owners. This relationship controls all aspects of society and life, for example ownership of country, relations with other clans, marriage and ceremonial life and its attributes. If the life source is damaged or interfered with in any way the power and stability derived from it and the power and stability which has continued from the time of creation is diminished and may collapse.

In the same way my creator ancestor formed the natural landscape and granted it to my human ancestors who in turn handed it to me. My creator ancestor passed on to me the elements for the artworks I produce for sale and ceremony. Barnda not only creates the people and landscape, but our designs and artworks originate from the creative acts of Barnda. They honour and deliberate the deeds of Barnda. This way the spirit and

24 rule of Barnda is kept alive in the land. The land and the legacy of Barnda go hand in hand. Land is given to Yolngu people along with responsibility for all of the Madayin (corpus of ritual knowledge) associated with the land. In fact for Yolngu, the ownership of land has with it the corresponding obligations to create and foster the artworks, designs, songs and other aspects of ritual and ceremony that go with the land. If the rituals and ceremonies attached to land ownership are not fulfilled, that is if responsibilities in respect of Madayin are not maintained then traditional Aboriginal ownership rights lapse. Paintings, for example, are a manifestation of our ancestral past. They were first made, in my case by Barnda. Barnda handed the painting to my human ancestors. They have been handed from generation to generation ever since.

The creation of artworks such as `at the Waterhole' is part of my responsibility in fulfilling the obligations I have as a traditional Aboriginal owner of Djilibinyamurr. I am permitted by my law to create this artwork, but it is also my duty and responsibility to create such works, as part of my traditional Aboriginal land ownership obligation. A painting such as this is not separate from my rights in my land. It is a part of my bundle of rights in the land and must be produced in accordance with Ganalbingu custom and law. Interference with the painting or another aspect of the Madayin associated with Djilibinyamurr is tantamount to interference with the land itself as it is an essential part of the legacy of the land, it is like causing harm to the spirit found in the land, and causes us sorrow and hardship. The land is the life force of our people. It sustains and nurtures us, as it has done for countless generations. We are very troubled by harm caused to the carrying out of the rituals which are such essential part of the management of our land, like the making of paintings or performances of ceremony. It is very important that ceremonies are carried out precisely as directed by Barnda, and that the ceremonies are respected.

`At the Waterhole' is the number one item of Madayin for Djilibinyamurr - it is the number one Madayin for Ganalbingu - Gurrumba Gurrumba

25 people. It has all the inside meaning of our ceremony, law and custom encoded in it. `At the Waterhole' has inside meaning encoded in it. Only an initiate knows that meaning and how to produce the artwork. It is produced in an outside form with encoded meaning inside. It must be produced according to specific laws of the Ganalbingu people, our ritual, ceremony and our law. These things are not separate from the manner in which this painting is produced. To produce `at the Waterhole' without strict observance of the law governing its production diminishes its importance and interferes adversely with the relationship and trust established between myself, my ancestors and Barnda. Production without observance of our law is a breach of that relationship and trust. The continuance of that relationship depends upon the continuance and observance of our customs and law, it keeps the people and land healthy and strong. This work has within it much that is sacred and important to our people about heritage and right to claim Djilibinyamurr as our land. It is like the title of our people to his land.

Unauthorised reproduction of `at the Waterhole' threatens the whole system and ways that underpin the stability and continuance of Yolngu society. It interferes with the relationship between people, their creator ancestors and the land given to the people by their creator ancestor. It interferes with our custom and ritual, and threaten our rights as traditional Aboriginal owners of the land and impedes in the carrying out of the obligations that go with this ownership and which require us to tell and remember the story of Barnda, as it has been passed down and respected over countless generations"34.

Among those whose evidence supported BB was anthropologist, Howard Morphy, then of University College London. He gave evidence to the fact that in:

"eastern and central Arnhem Land inherited designs are part of the ‘sacred’ law or madayin of a clan ... the designs are integral to the ownership of the land.... Designs are not thought of as individual property

34 86 FCR 244 at 249-251.

26 but the corporate property of social groups. All of those who own a particular area of land have rights of ownership over the designs associated with the land.... People producing paintings are conscious that they are exercising rights on behalf of other members of the clan, and will only produce them if they have the authority to do so. Under customary law the owners of the land are able and entitled to control all uses of paintings of clan land, including the right to reproduce such paintings. ...”35.

Joe Reeser provided evidence expanding upon his earlier material prepared for the T-Shirts case.

“It is both easy and difficult to cast the issue of Aboriginal bark paintings into a conventional legal determination of originality and ownership. The work of a major and acclaimed artist has been copied and sold without permission. From an Aboriginal point of view, however, the matter is far more serious, and involves the profanation of a sacred process and subject matter, the copying of individual clan designs by those with no legitimate authority to do so ...a careless disrespectful ‘playing’ with forces that could lead to catastrophe.... the reproduction ... of the painting has caused serious repercussions in the local Aboriginal community, and the managers of the site have communicated to BB their anger over the reproduction of the painting and are holding him accountable for whatever calamities may occur because of the profanation of the place and, importantly the production process itself. Such events, it is widely believed, can bring widespread devastation and cosmic damage”36.

In the BB case Justice Von Doussa accepted the evidence and held without hesitation that the Australian common law and courts could protect the communal rights of Aboriginal people in their ritual knowledge. He specifically stated that the:

"interest of Ganalbingu people in the protection of that ritual knowledge

35 Affidavit of Howard Morphy. 36 Affidavit of Joe Reeser.

27 from exploitation which is contrary to their law and custom is deserving of the protection of the Australian legal system”37.

Thus, contrary to the long held views of many a naysayer, the Federal Court recognised that Australian law was capable of, and would restrain the exploitation of Aboriginal ritual knowledge. The court recognised a separate and distinct right to the right subsisting in an artistic work of a copyright owner. Further, the court was of the view that these rights could be enforced in a court of law in cases where the ritual knowledge was exploited in a manner contrary to Aboriginal law and custom. Equity had provided the cause of action.

The distinction between the two rights and its importance has been misunderstood and has been often overlooked. It is clear that what Justice Von Doussa envisaged was that the common law would recognise the need to protect rights held by virtue of ritual knowledge and that the courts would fashion an appropriate common law or equitable tool to protect the right in issue. The court's statement was clearly directed towards the court's power and ability to restrain inappropriate uses of ritual knowledge. How the court would do that and what mechanisms it would use would depend upon the circumstances arising before a court.

Through its examination of the factual matrix presented by the evidence the court concluded that the most appropriate tool in a case such as the one presented by BB and GM was that described as an equitable relationship of a fiduciary. The categories of fiduciary relationships recognised by the law are not fixed, but there are for example some that are common, such as that of a lawyer and their client, a doctor and their patient or even a priest and their penitent. The relationship has been described in the case law cited by Justice Von Doussa, as one where the:

"fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense.

37 86 FCR 244 at 263.

28 The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position...It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed"38.

Recognising that the relationship between BB "as the author and legal title holder of the artistic work and the Ganalbingu people is unique" the court recognised that BB's permitted use of the ritual knowledge of the Ganalbingu people, and its embodiment in the painting in accordance with the law and customs of the Ganalbingu people, was the "transaction" that gave rise to the fiduciary duty owed by BB to his fellow clan members39.

By focusing upon the factual matrix the court could characterise the relationship between BB and the other Ganalbingu as one of "mutual trust and confidence" recognisable and enforceable in appropriate cases by the Australian courts. The law did not need to "treat the law and custom of the Ganalbingu people as part of the Australian legal system"40 in order to achieve a just result it had to recognise the duties and obligations arising out of the factual matrix, gave rise to similar considerations as where involved in other fiduciary obligations. Justice Von Doussa found that the relationship and the law of equity imposed BB an obligation:

"not to exploit the artistic work in a way that is contrary to the laws and custom of the Ganalbingu people, and, in the event of infringement by a third party, to take reasonable and appropriate action to restrain and remedy infringement of the copyright in the artistic work"41.

The court had in this case both recognised the right of the traditional owners of ritual knowledge to seek the protection of the courts if that knowledge was used in

38 86 FCR 244 at 260-261. 39 86 FCR 244 at 262. 40 86 FCR 244 at 262. 41 86 FCR 244 at 263.

29 a manner contrary to their law and custom. Further, in the case of that ritual knowledge being reduced to material form and embodied in for example a painting or other work capable of protection under the law of copyright, the court found that a remedy available to traditional owners was provided by the equitable doctrine of fiduciary relationships. In other cases not involving the embodiment of the relevant ritual knowledge in a copyright work the courts could look to other remedies within the common law system.

In this case the primary right of the traditional owners was to bring an action against the artist to oblige him to protect the ritual knowledge, however, as BB had pursued the breach in question and had taken successful action against the infringer to protect his and the traditional owners' rights their was no requirement for the court to enforce the traditional owners' right, in the words of Justice Von Doussa there was:

"no occasion for the intervention of equity to protect their rights as beneficiaries of the fiduciary relationship"42.

Other than the recognition of the acknowledgement of the existence of protection by the courts in cases where ritual knowledge is misused, the importance of the decision in respect of copyright cases, and those involving fiduciary relationships, is that the court outlined a number of circumstances that could arise where the fiduciary duty could be enforced by the traditional owners in the absence of the copyright owner.

In this regard the decision is a victory for BB, the Ganalbingu and Aboriginal people generally. By way of example the court referred to situations where an artist:

"merely failed to take action to enforce his copyright, an adequate remedy might be extended in equity to the beneficiaries by allowing them to bring action in their own names against the infringer and the copyright owner", (or, if the artist was) "to deny the existence of fiduciary obligations and the interests of the parties asserting them, and refuse to protect the copyright from infringement, then the occasion might exist for ... the

42 86 FCR 244 at 264.

30 beneficiaries to bring proceedings to enforce the copyright"43.

Such a case may be necessary if the artist cannot be identified or was deceased and the traditional owners were unable to have the legal owner of the copyright take the necessary steps.

In summarising the situation Justice Von Doussa stated that the Ganalbingu people:

"established that fiduciary obligations are owed to them by Mr. BB, but as Mr. BB has taken appropriate action to enforce the copyright, he has fulfilled those obligations and there is no occasion to grant any additional remedy in favour of the Ganalbingu people. However, in other circumstances if the copyright owner of an artistic work which embodies ritual knowledge of an Aboriginal clan is being used inappropriately, and the copyright owner fails or refuses to take appropriate action to enforce the copyright, the Australian legal system will permit remedial action through the courts by the clan”44.

In the light of BB's case it appears, at least that in respect of artistic works, that Australian law provides remedies for both the protection of the artists´ rights and the rights of communities. In the context of a professional Aboriginal artist the law by using the mechanism of a fiduciary relationship, the decision strikes a sensible and practical balance between the artist's and the traditional owners' rights. It gives the artist the freedom to participate in artistic endeavours and to gain a livelihood for themselves and their family whilst at the same time providing the community of people, that own the ritual knowledge from which the subject matter of artworks is drawn, with adequate legal protection and measures to restrain an artist or others if they act in a manner contrary to Aboriginal law and custom. The examples of the intervention of equity given by Justice Von Doussa above are not intended to be exhaustive and as with most things in the common law system would depend upon the factual matrix that is presented to a court. To read the judgment narrowly is a mistake, the court made it abundantly clear that it would give protection to restrain misuses of Aboriginal ritual knowledge.

43 86 FCR 244 at 264. 44 86 FCR 244 at 264.

31 At the beginning of the campaign we merely sought to have Aboriginal artists treated in the same way as European artists. The judgments of the Federal Court have moved the law well beyond that point and the ramifications of these cases extend beyond the discrete field of artistic works covered by the law of copyright. The BB case means that the courts will protect inappropriate uses of ritual knowledge whether or not that knowledge has been reduced to some form of western form of property right. The cases exemplify the way that the common law system is able to cope with changes in society and new circumstances in order to deal with an issue incrementally. The cases demonstrate the genius of the common law in this regard. For all the reports and expert discussion funded by the Commonwealth Government and others, legislative change still has not and does not seem ever likely to happen. The courts are the only arm of government where Wandjuk´s original plea equal recognition and for law reform hasbeen heard.

The important factor in these cases is that they involve the quest to have one’s rights acknowledged, and, to have any trespass on property rights restrained. This is the right that was denied (by the ‘experts’) to Aboriginal artists prior to these cases. That denial was for no other reason than that of the artists Aboriginality.

Some who still clamour for law reform in this area point to the inability of a successful litigant to actually obtain from a defendant the award of damages made by a court as evidence of the need for law reform. Firstly, monetary awards of damages are not the be all and end all of copyright actions. It is the acknowledgment of the trespass on one’s rights that is important.

Other arguments have concerned the fact that copyright ceases to be enforceable following the expiration of fifty years after the death of the author. Again it is important to note that the fiduciary duty in BB´s case related to the corpus of ritual knowledge and not the artwork itself. Therefore it might well be possible to craft an action by the traditional owners to restrain the use of an artwork (or for that matter any other item) embodying an aspect of ritual knowledge after the expiration of the life of the copyright in the artwork itself.

In the light of BB´s case one can only wonder what would the result have been if the traditional owners of the Morning Star Pole had taken action against the

32 Reserve Bank instead of or alongside Yumbulul? Whether an Aboriginal group will be able to take action directly against an infringer may depend on the knowledge of the infringer of the existence of the fiduciary relationship between the artists and their community. The courts holding that the infringer had constructive knowledge of the relationship could overcome the old rule of equity that a bona fide purchaser for value without notice is not subject to equitable restraint. Plainly, the Aboriginal Artists Agency and Wallis (or other ‘experts’ in the field) would have had such knowledge. The courts would be likely to interpret the question of constructive with a broad and liberal approach, similar to the manner in which the question of knowledge of the imported carpets constituting an infringement was dealt with in the Carpets’ case.

In any event, it is clear that these cases Aboriginal artists are now rightly entitled to receive the same protection as their non-Aboriginal counterparts when their works are subject to unauthorised reproduction. Prior to these cases this was definitely not the case. The wishes of Wandjuk Marika have been fully realised and Aboriginal artists receive the full protection of the law of Copyright. Moreover, Wandjuk´s dream has been realised in a way that he, back in the 1970´s, did not dare believe possible. Aboriginal artists now have available to them remedies that take into account and are relevant to the wider political, social and religious concepts underpinning the production of artistic works in their communities. We have come from a time when the existence of copyright was denied, to one were courts are now willing to take into account the realities of Aboriginal life and law – not as a part of Australian law, but as something equally strong that stands beside it.

References

Department of Aboriginal Affairs, 1989, The Aboriginal Arts and Craft Industry. Report of the Review Committee, Canberra: AGPS, July.

Department of Home Affairs and Environment, Report of the Working Party on the Protection ofAboriginal Folklore, 1981.

Elkin, A.P., Aboriginal Men of High Degree, Initiation and Sorcery in the World's

33 Oldest Tradition, Inner Traditions / Bear & Co, 1978.

Golvan, Colin, “Aboriginal Art and Copyright: The Case for Johnny BB” European Intellectual Property Review 10 (1989): 346- 354.

Hardie, Martin, Issues in Copyright: Aboriginal Wear NAVA Bulletin March 1989, p.1

Hardie, Martin, Copywrong, All Asia Review of Books, July 1989, p. 29

Hardie, Martin, The Aboriginal Copyright Cases, Artlink, 1990 Vol 10 nos 1&2, p 39,

Hardie, Martin Current Litigation in Native Title and Intellectual Property: Bulun and GM v R&T Textiles, (1997) 3(90) Aboriginal Law Bulletin 18.

Hardie, Martin The BB Case: John BB & Anor v R & T Textiles Pty Ltd [1998] IndigLawB 87.

Hardie, Martin, A Shape of Law to Come? Unpublished paper, 2003, available at http://auskadi.com/files/shapeoflaw.html

Marika, Wandjuk. “Copyright on Aboriginal Art” Aboriginal News 3(1) (1976):7.

Morphy, Howard, Ancestral Connections: Art and an Aboriginal System of Knowledge, Chicago University Press, 1991.

Cases

BB v R & T Textiles (1998) 86 FCR 244

Dixon v Davies (1982) 17 NTR 31

Mabo v Queensland (No.2) (1992) 175 CLR 1

GM v Indofurn (1994) 54 FCR 240

Napaluma v Baker (1982) 29 SASR 192

Weston v Woodroffe (1985) 36 NTR 34

Yumbulul v The Reserve Bank of Australia (1991) 21 IPR 481

34