Gibson, Johanna --- "Justice of Precedent, Justness of Equity: Equitable Protection and Remedies for Indigenous Intellectual Property" [2001] AUIndigLawRpr 42; (2001) 6(4) Australian Indigenous Law Reporter 1
Commentary
Justice of Precedent, Justness of Equity: Equitable Protection and Remedies for Indigenous Intellectual Property[1]
Johanna Gibson[2]
The precedent appeals back to similarity, which is neither given nor invented, but constructed. In Dworkin’s vocabulary, it is a case of constructive interpretation. Whether one argues for or against assumes that one tries out in imagination the hypothesis of resemblance or difference ... [W]e must no doubt make a place ... for insoluble cases given the present state of the law. The tragic cases ... in effect call on a sense of justice or equity that is difficult to formalise, or, one might say, on a sense of justness more than justice.[3]
The commercialisation of Indigenous customary knowledge through artwork and tourist objects has been identified as a major concern for traditional owners,[4] criticised as part of the ongoing process of colonisation and the ‘civilising’ of Indigenous cultures within a western paradigm of anthropological and scientific explanation:
Aboriginal art was not seen as being ‘owned’ by Aboriginal people in the first place: rather, as the primitive manifestation of vanishing cultures, it was more properly the property of the anthropologists and museums who preserved and studied it in the service of ‘science’ and ‘international understanding’.[5]
Similarly, the attempts to ‘assimilate’ the value of Indigenous intellectual property within Western notions of property and intellectual property have offered inadequate means by which to protect traditional knowledge.[6] Notably, the pre-conceived individualistic concepts[7] in intellectual property regimes, such as that of copyright, are problematic when ‘imposed’ upon an Indigenous community’s customary values and knowledge. Indeed, the disjunction is between that of the logic of precedent and its application to individuals as general rules, and Indigenous customary law and its guidance of the community — between the justice of precedent and the justness of a customary based system:
Law should rely not on logic or even expressed values but on custom, experience, and even an undefinable spirit or ‘Geist’.[8]
This article will examine the evolution of protection through the courts, by advocating the use of equitable principles in protecting the interests of Indigenous communities in cultural knowledge reproduced in artwork and other forms. Equity presents one of the most important means by which the Anglo Australian legal system can recognise and incorporate traditional customary law:
Ultimately, the respect for and protection of Aboriginal culture has much to do with a coming to terms with the wisdom of the Aboriginal people, and learning about and incorporating some of their value system which has spawned the oldest continuous culture in the world ... In this sense, the need to work to protect the artistry of Aboriginal people is so important because we are dealing with a vital element of the on-going process of reconciliation and understanding between white and black people through art, and furthermore we are concerned with the expression of the dignity, pride and continuity of the Aboriginal people.[9]
Part 1: Indigenous intellectual property and copyright
[M]y work is very closely associated with an affinity for the land. This affinity is at the essence of my religious beliefs. The unauthorised reproduction of artworks is a very sensitive issue in all Aboriginal communities. The impetus for the creation of works remains their importance in ceremony, and the creation of artworks is an important step in the preservation of important traditional customs. It is an activity which occupies the normal part of the day-to-day activities of the members of my tribe and represents an important part of the cultural continuity of the tribe.[10]
With an increased awareness of Indigenous artwork and a dramatic increase in the unauthorised reproduction of that artwork,[11] traditional Indigenous communities as custodians have sought recognition of a right to prevent this proliferation as decoration of what is their culturally significant property.[12] Under customary law, the pre-existing traditional designs must be recognised and protected against unauthorised reproduction and adaptation. That is, customary law protects the traditional knowledge and ideas that subsist and continue in the reproduction of Indigenous cultural and intellectual property.[13]
Of the various systems of protection available to intellectual property, the Copyright Act 1968 (Cth) has been the most important for Indigenous intellectual property.[14] However, its appropriateness is extremely compromised by several major difficulties,[15] which arise mostly by virtue of the fact that the object of protection under traditional copyright law is the material form originating from an individual author or joint authors.[16] It is to the particular limitations of the Copyright Act that this article now turns.
Duration
Copyright is of limited duration, after the expiration of which the works enter the public domain.[17] In contrast, Indigenous interests in traditional culture and artwork are integral to continuing Indigenous cultures and exist in perpetuity. Therefore, the notion of rendering that culture part of the public domain can often undermine the value of that culture to Indigenous groups: ‘mythological events are not simply located in the distant past but are also in some sense seen to be part of a continuous present’.[18] Thus, conventional concepts of duration are problematic and severely limit the efficacy of protection for Indigenous intellectual property. It has been suggested that protection in perpetuity may be theoretically possible in that copyright in literary, dramatic or musical works which have not been published, performed in public, broadcast or recorded, continues to subsist in those works for 50 years after the calendar year in which one of those first ‘publishing’ events first occurred.[19] Similarly, reproduction and adaptation of Indigenous artwork often refers to themes or works, which are very old, such as cave paintings,[20] and to which conventional copyright protection does not apply.
Ownership/authorship
Copyright vests ownership in the author as an individual[21] having originated the form of expression and not copied it from another’s work.[22] Thus, it may not recognise the claims of others, which are protected under customary law, which understands Indigenous cultural identity as existing in the community:
Aboriginal painters are telling us how to look after our land. They are not people who trouble over the celebration of themselves. Their work is anonymous, except to the extent that they reveal their tribal origins in their work through, for example, their rrark or cross-hatching. The lauding of individual Aboriginal painters is very much a western response to Aboriginal art, and a facet of Aboriginal artistry which Aboriginal people find quaint.[23]
Under the Copyright Act[24] the author is entitled to exclusive rights for the duration of the copyright, whereas non-exclusive rights are characteristic of Indigenous customary law and practice, in recognition of the continuing, living practice of the culture and the differentiation of individuals within that cultural community.[25] The recent Copyright Amendment (Moral Rights) Act 2000 (Cth)[26] introduced the moral rights of attribution and integrity to the Copyright Act.[27] However, such rights still attach only to individual authors, making few changes to the problems of protection for Indigenous intellectual property.[28] Furthermore, under conventional copyright law, persons making stylised versions of Indigenous artworks for commercial use may be entitled to copyright if it is not found that they have copied a substantial part of the original work.[29] While this ensures that the work of individual Indigenous artists, in adapting pre-existing designs, will be subject to copyright,[30] it raises serious problems with respect to appropriation of Indigenous techniques, themes, or ideas.[31] Not only does the opportunity for the creation of stylised versions, and subsequent copyright, render that protection ‘wholly unsatisfactory’[32] to traditional owners, it greatly offends and interferes with the value and continuation of the culture to which that artwork belongs:
The Ancestral Beings, their travels and experiences (known as Ancestral Events), the things they created, and the places associated with them, form the subject matter of traditional Aboriginal art. Of fundamental significance are the pre-existing designs which are the artistic manifestations of one or more of an Ancestral Being, Ancestral Event, or area of country associated with such Being or Event. The forms of the pre-existing designs are believed to have been created in the Ancestral Past by the Ancestral Beings, and they have been handed down through the generations ... According to traditional Aboriginal customary law, pre-existing designs cannot, and should not, be changed. Their efficacy, in the form of activating Ancestral power, would be impaired if they deviated too widely from socially accepted norms.[33]
Therefore, while originality is a requirement of copyright, Indigenous customary practice foregrounds the continuation and adaptation of ancestral and cultural heritage. Most Indigenous artists are concerned with pre-existing tradition; similarly, many works are of great antiquity and questions of origin may be difficult to answer. Consequently, ownership of traditional intellectual property is not unitary or discrete as it is under the Copyright Act, but is disseminated among groups and beyond the individual.[34] This raises the difficulty of identifying those authorised to give permission for the use of Indigenous cultural property, a problem, which has also been noted as an obstacle to the negotiation of fair and equitable compensation for that use.[35] Furthermore, difficulty in identifying or finding a copyright owner may result in harm to an Indigenous group because of the inability, on the part of the community, to protect the copyright in any permanent sense.[36] Such difficulty has been resolved by the Federal Court of Australia in Foster v Mountford[37] with respect to the recognition of tribal ownership of confidential ideas. Connection with the subject matter was established by connection with the group, recognising that cultural identity is in a relationship of mutual validation with the cultural knowledge and practices:
The plaintiffs are members of an unincorporated body known as the Pitjantjara Council. As I understand the position, all members of the council are joined as plaintiffs, and they claim to represent all those aboriginal people who inhabit what may loosely be described as those lands where aboriginal people, including the Pitjantjaras traditionally lived and roamed, and who are now identifiable as a people who use the Pitjantjara tongue, although, as a matter of history, more than one tribal group may be involved.[38]
In other words, the artwork is not merely a distinct or recreational body, but an important encoding of customary law and knowledge.[39] The judgment in Foster represents an early indication of the increasing relevance of customary law to the application of the common law to Indigenous society, which culminated in the decision of the High Court in Mabo v Queensland (No 2).[40] Nevertheless, before Mabo, the High Court of Australia resolved the question of standing by allowing representatives of tribes to bring proceedings to protect Aboriginal relics in Onus v Alcoa of Australia Ltd.[41] However, the ability of Indigenous groups to bring proceedings as equitable owners remains limited in the case of copyright.
An interesting example of the communal approach to ownership is given by the case brought by John Bulun Bulun in 1989,[42] where the out of court settlement was shared equally between the artists despite unequal cases of infringement. This decision reflects the traditional conception of ownership which does not vest in the individual but subsists in the entire group: ‘It was explained by some of the artists that they felt they had suffered equally because each of them had had a design which had been reproduced without permission.’[43]
Material form
Conventional copyright protection requires a material form[44] and does not protect the idea, whereas traditional Indigenous cultural interests inhere in oral histories, dance, body painting,[45] and methodologies,[46] indeed the ‘ideas’ that continue to inform their culture and to produce the ‘material’ expressions of those cultures.[47] Artistic techniques are not simply an indication of an individual’s method, as might be understood in the western application, but of an individual’s tribal identity and of the continuity of tribal origins.[48] The inadequacy of current means of protection with respect to the integrity of tribal custom is illustrated by the reaction to successful claims of infringement, involving the ‘plagiarism’ of Indigenous art through the creation of tourist versions or ‘caricatures of Aboriginal art’ to meet the tourist market.[49]
In affidavit evidence in pursuit of an interlocutory injunction in the case of Johnny Bulun Bulun,[50] Margaret West, curator of Aboriginal Art and Material Culture at the Northern Territory Museum of Arts and Sciences, explained the significance and importance of the protection of the pre-existing design or idea as distinct from the material form:
There is no separate class of artists as such in Aboriginal society. Rather, all adults are expected to participate in the process of remembering and recording the dreaming rituals of their tribe ... [T]he creation of a painting is regarded as an act in itself which conjures the spirit power of a tribe. The paintings are also used to educate members of a tribe in the tribe’s rituals and dreaming, and may be studied by younger tribe members, under the supervision of an artist, in order that the rituals of the tribe are properly imparted ... When an artwork is sold, it is never considered that the title to the design has passed. This always remains with the artist who is permitted by his tribe to depict the design in question. It is an unspoken understanding, on the part of the artists, that the purchasers will properly look after the artworks.[51]
In this respect, it is argued that a more appropriate understanding of the traditional Indigenous perspective of the intellectual property in that heritage dispenses with the idea/expression dichotomy of copyright[52] (that is, the idea/material form dichotomy) and acknowledges a property right in the practice and continuation of sacred designs that is greater than a mere artistic practice. It is property in the very subsistence of the Indigenous cultures:
Sacred Aboriginal designs are not ‘ideas’ in the same sense as, say, Cubism or Dadaism. Rather they are ‘property’ in its most basic sense, the distinction between real and intellectual property having no significance in Aboriginal Customary law. It is thus a property right, not just a mere idea, which is infringed when a sacred design is employed in an unauthorised way: an infringement as concrete as trespass in Anglo-Australian law.[53]
Part 2: Justness of equity
Equitable principles are recognised by the courts and theorists alike as one of the most appropriate and just means of protection for Indigenous cultural property.[54] Equity best represents the custodianship valued by traditional society, as well as the rights of the community and thereby the interests of each member of that community. Equity offers one of the most important means by which the Anglo Australian legal system can recognise and incorporate traditional customary law:
Protection under these principles ... is more appropriate than any other form of protection short of legislative change, because these principles are more consistent with Aboriginal law than are any other common law principles, and are therefore more capable of affording both symbolic and practical recognition to Aboriginal law.[55]
Equitable jurisdiction in confidential information
[A]nthropologists and educated observers have ranged over Northern and Central Australia, recording information on the practices and beliefs of the dying culture whose pillow it was the white man’s duty to smooth. Aboriginal cultures did not quite see the situation in that way. Information they divulged to the visitors was a privilege which carried with it a corresponding duty of respect.[56]
An equitable duty of confidence is a significant means of protection where no property or other rights may exist, making equitable remedies available where confidential information has been imparted in circumstances of trust and confidence and is subsequently used without authorisation:
[T]hree elements are required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information.[57]
Importantly, protection also arises where confidential information is gained by reprehensible means without communication,[58] a point particularly significant in Indigenous intellectual property cases where there is the tension between public inspection and mass reproduction.[59]
The most significant limitation with respect to the use of breach of confidence actions in protecting Indigenous cultural knowledge, is ‘the reticence of courts to recognise proprietary relief in respect of the misuse of something which is not necessarily property, namely information’.[60] However, there is persuasive authority for relief by way of constructive trusteeship where circumstances make such a remedy necessary. The Supreme Court of Canada in LAC Minerals Ltd v International Corona Resources Ltd[61] held that a constructive trust is available in a breach of confidence where particular circumstances exist. Such circumstances can be related to the specific issues raised by Indigenous intellectual property interests: namely the unique integrity of the culture to which the information relates, rather than merely dealing with a general ‘Aboriginal’ market place; the difficulty in calculating and indeed the completely inappropriate nature of monetary compensation; the better protection of an innocent plaintiff through a remedy in rem; and the emphasis on deterrence attaching to such a remedy rather than compensation. The last point in particular indicates the appropriateness of equitable remedies in dealing with the dichotomy between property/information, and in protecting the actual interests rather than compensating for their loss, the latter being almost entirely inadequate for Indigenous communities.
Foster[62] represents one of the earlier examples of judicial acknowledgment of the Indigenous ‘ownership’ issues in customary knowledge and law. The Federal Court ordered an ex parte injunction to restrain publication in a book of sensitive and confidential cultural information.
[S]ome of the information revealed, and now depicted in the book could only have been supplied and exposed in confidence, a confidence [Dr Charles P Mountford] himself, as an anthropologist, accepted, and is reminded of by these people; a confidence of secrecy, a confidence which appears to have been maintained for thirty-five years.
Central to the finding of confidentiality, was the sensitivity of the information as cultural and spiritual knowledge and practice. In order to apply confidentiality to artistic expression, Indigenous intellectual property must not be subjected to the definition within Western intellectual property law, which is ‘a culture specific, historically determined, post-reformation concept of the nature of art’.[63] There is support for the recognition of Indigenous artwork and artistic method as sensitive cultural information, in defiance of the conventional western dichotomy of artistic expression as opposed to the academic and rational disciplines of law and science:
It is a feature of the style of the artworks in question that the artist will encode into the artwork secret parts of the dreaming that will be recognised and understood only by those who are initiated into the relevant ceremonies, or at least have a close knowledge of the cultural significance of the story. This adds to the sensitivity and risk of offending the traditional owners involved in the reproduction of Aboriginal artwork, unless the reproduction is accurate in every respect and done with full and proper permission.[64]
However, if artistic technique is considered confidential and the protection of artwork comes in the form of a fiduciary obligation upon the recipient of the confidential information, this equitable jurisdiction remains unavailable to prevent unauthorised dissemination of Indigenous designs if it is held that they have already ‘entered’ the public domain through publication, display, or other means.[65]
Confidential information — confidentiality in the form or the idea?
With respect to trade secrets, it is established that the mere ability on the part of the public to inspect the subject of protection does not destroy the confidentiality of the information for the purposes of protection.[66] Stephen Gray argues that the doctrine of trade secrets can be extended to Indigenous art and design to overcome the problem of publication or some exposure to public inspection, which might otherwise destroy the quality of confidentiality that attaches to sacred information.
Merely because an object or design has been published or is in some way open to public inspection, does not mean that the ‘trade secrets’ or sacred information encoded within it thereby lose their quality of confidentiality. Part of this quality of confidentiality may be said to lie in the restrictions placed by the Aboriginal owners of the design upon its further dissemination. The design retains its quality of confidentiality as long as its secrets are known only to those authorised by Aboriginal law to know them.[67]
In the same way that the courts rely on standard industry practice and usage to determine the confidentiality of information in cases of trade secrets,[68] a similar reliance on Indigenous cultural practices and beliefs would be relevant to the consideration of confidentiality with respect to Indigenous intellectual property and the confidentiality of sacred secret information and designs.[69] In deciding that the Morning Star Pole lost any quality of confidentiality once sold to the Australian Museum, the judgment of French J in Yumbulul v Reserve Bank of Australia[70] has attracted criticism which argues that, following these principles such display, authorised under customary law, did not detract from the confidential nature of the Pole itself:
An illustration of the way such a doctrine might work is in the case of Terry Yumbulul. Yumbulul authorised his Morning Star Pole to go on display at the Australian Museum. This display, being authorised under customary law, did not detract from the confidential nature of the sacred information encoded in the Pole, and hence of the Pole itself.[71]
It is argued that a traditional perspective must be recognised and accounted for when deciding upon issues of confidentiality with respect to Indigenous artwork in the public domain:
[P]aintings are seen as simultaneously public and confidential. The same painting or piece of art may appear in both a restricted and public context, and an object produced in a restricted context may be displayed in the open for all to see. For example, women are not supposed to know that burial posts (djuwany) have been made by men, and yet they see paintings of such posts being produced on commercial bark paintings in public contexts. This suggests strongly that if a Yolngu perspective is to be taken into account, the mere fact that a piece of art is in the public domain does not mean that confidentiality in the work is thereby lost — a conclusion with implications for the use by Aboriginal plaintiffs of the equitable doctrine of breach of confidence.[72]
The obligation of confidence
It is not necessary that the actual recipient of information know that such information is confidential, merely that a ‘reasonable person’ would consider that, under the circumstances, such information has the quality of confidentiality.[73] As discussed, third parties are similarly restricted from using or disclosing confidential information, despite having had no communication with the Indigenous community wishing to protect such information,[74] thus affording protection in circumstances where information has been obtained without communication and/or through reprehensible means. It is submitted that information of a cultural nature imparted by an Indigenous person should put the reasonable person on notice that confidentiality attaches to that information.
Unauthorised use
Under traditional customary law, an assignment of licence or authorisation by the legal owner of copyright (the individual artist) would not be sufficient to authorise the use of confidential information. Confidentiality acknowledges the equitable interest of the community. Nevertheless, as will be argued, the establishment of the community’s equitable interest in the copyright of a particular artwork will also make available certain equitable remedies, but the issue of standing with respect to proceedings will remain an obstacle unless a constructive trust is imposed, granting community interests in a remedy in rem.
Fiduciary obligation
Indigenous cultural property is not merely an ‘original’ interest vested in a single person, nor is it to be simplistically applied as a ‘community’ interest, since the right to a particular design, cultural practice, or sacred knowledge is a measure of a particular individual’s initiatory advancement and that person’s differentiation within the cultural community.[75] Kenneth Maddock explains that the interests are more adequately understood in terms of a relationship between community knowledge and the differentiation of individuals with respect to that community:
Although individual creativity is not stressed in individual communities, it would be wrong to jump to the extreme and suppose that designs are subject to a generalised communal right. Communities are internally differentiated to quite a high degree, and their members should not be seen as interchangeable units. On any matter, some people are likely to have rights of a certain kind, others rights of another kind, and yet others no rights at all.[76]
Indeed, the individual’s integrity is necessarily defined and enlivened by ancestral and community associations, and the individual’s access to traditional design and the right to continue and adapt those designs are both derived from the group. Therefore, while the reproduction ‘originates’ with the individual artist in the sense of the Copyright Act, the ownership and control of the design remains vested in the group according to customary law.
A person’s descent defines that association and conveys with it the right to reproduce particular material representations (subject also to other matters such as initiatory advancement and possession of the requisite religious knowledge). Those who have the right to reproduce pre-existing designs are members of clans or other relevant groups which are considered to be the traditional owners of the pre-existing designs. The reproduction must be acceptable to the relevant group, and hence the group has control over the reproduction of the pre-existing designs ... A person’s association with a particular Ancestral Being is threatened by another person, without authority, reproducing a pre-existing design and thereby claiming the right or authority to speak for the Ancestral Being represented by that pre-existing design. If such unauthorised reproduction is permitted to occur, without any action being taken, this is considered to be an abdication by the traditionally oriented Aborigines of their responsibility to maintain the Dreaming, and calls into question the very essence and purpose of their existence.[77]
In Yumbulul Terry Yumbulul had passed through such initiatory advancement during the process of which he learnt the sacred designs and meanings of the group and was presented with sacred objects and the authority to paint those sacred objects.[78] When the sacred Morning Star Pole was reproduced on the $10 note, Terry Yumbulul’s people, the Galpu clan, subjected him to much criticism causing him great shame and damage to his standing within his community. Although Yumbulul failed in his attempt to have his assignment of copyright in the Pole set aside on the grounds of unconscionability, the Reserve Bank settled out of court, indicating the awareness within the wider Australian community that there is something of value to be protected and respected.
Yumbulul raises the question of a valid equitable assignment with respect to the position of the Aboriginal artist as fiduciary to the community. While the Copyright Act allows the artist to permit the reproduction of a design, traditional customary law requires permission being granted by the community in which ‘ownership’ of that design is vested:
The problem demonstrates a fundamental difference in approach between the ownership of rights in artworks as the notion is understood under the Copyright Act 1968 (Cth), being founded on the notion of the individual creator of a copyright interest having a proprietary right in such interest, and the notion of the ownership of rights in Aboriginal law, being based on collective rights which are managed on a custodial basis according to Aboriginal tradition. Under Aboriginal law, the rights in artistic works are owned collectively. Only certain artists are permitted within a tribe to depict certain designs, with such rights being based on status within a tribe. The right to depict a design does not mean that the artist may permit the reproduction of a design. This right to reproduce or redepict would depend on permission being granted by the tribal owners of the rights in the design ... Any rights granted by the artist who created the design to make a reproduction of it are granted pursuant to licence of the tribal owners ... Applying copyright principles to the problem, it may be said that the tribal owners of designs have an equitable interest in the copyright in such designs insofar as they, and not the legal owners of copyright per se, have the right to permit the reproduction of designs or refuse permission. The tribal owners of rights do not have a legal interest in copyright in the absence of an assignment of copyright from the copyright owner to the tribal owners pursuant to the provisions of s 196 of the Copyright Act which requires that any assignment be in writing.[79]
Equitable interest in intellectual property
In Bulun Bulun v R & T Textiles Pty Ltd[80] the second applicant, Mr George Milpurrurru, claimed that the traditional Aboriginal owners were the equitable owners of the copyright and that Mr Bulun Bulun held the copyright ‘as a fiduciary and / or alternatively on trust’ for Mr Milpurrurru and the people he represented.[81] In that Mr Bulun Bulun’s copyright claim against the respondent was settled by consent orders, the claim in relation to equitable ownership remained unresolved until contested by the Attorney General for the NT (as amicus curiae) and the Minister for Aboriginal and Torres Strait Islander Affairs (as intervenor) in the absence of the respondent. While finding that equity imposes upon the Indigenous artist obligations as a fiduciary not to exploit the artistic work in a manner contrary to the laws and custom of the Ganalbingu people and to make every effort to protect the copyright in the artistic work, the Court rejected the notion that the existence of those obligations vested an equitable interest in the ownership of the copyright in the Ganalbingu people, in this particular case.[82] Yet where the artist has neglected that duty or cannot be found, the custodians’ interest is probably a ‘mere equity’ allowing them to bring proceedings themselves in order to protect their interests in a particular artwork.[83]
Nevertheless, given the inadequacy of current statutory protection and the willingness of the court to acknowledge the special significance of Indigenous intellectual property interests and the imposition of a constructive trust in favour of the beneficiaries in extreme cases,[84] it is valuable to consider the possibility of finding an equitable interest in the community with respect to Indigenous cultural property.
The tribal owners of a design under Aboriginal law retain the right to permit reproduction of designs which belong to their tribe. Any rights granted by the artist who created the design to make a reproduction of it are granted pursuant to licence of the tribal owners. The artist would need to consult with or get the permission of the tribal owners of the rights before agreeing to anyone else reproducing a design. Applying copyright principles to the problem, it may be said that the tribal owners of designs have an equitable interest in the copyright in such designs insofar as they, and not the legal owners of the copyright per se, have the right to permit the reproduction of such designs or refuse permission. The tribal owners of rights do not have a legal interest in copyright from the copyright in the absence of an assignment of copyright from the copyright owner to the tribal owners pursuant to the provisions of section 196 of the Copyright Act which requires that any assignment be in writing. There may be an answer to the problem posed by French J in considering the application of notions of equitable ownership of copyright.[85]
Express trust — Bulun Bulun v R & T Textiles
Although Mr Milpurrurru failed to make out a claim on the evidence, the case established that an equity did exist in the form of a fiduciary relationship between the legal owner of copyright (the artist) and the Indigenous community as custodians of the intellectual and cultural knowledge from which the art was derived:
The relationship between Mr Bulun Bulun as the author and legal title holder of the artistic work and the Ganalbingu People is unique. The ‘transaction’ between them out of which fiduciary relationship is said to arise is the use with permission by Mr Bulun Bulun of ritual knowledge of the Ganalbingu People, and the embodiment of that knowledge within the artistic work. That use has been permitted in accordance with the law and customs of the Ganalbingu People.
The grant of permission by the Djungayi and other appropriate representatives of the Ganalbingu People for the creation of the artistic work is predicated on the trust and confidence which those granting permission have in the artist. The evidence indicates that, if those who must give permission do not have trust and confidence in someone seeking permission, permission will not be granted.
The law and customs of the Ganalbingu People require that the use of the ritual knowledge and the artistic work be in accordance with the requirements of law and custom, and that the author of the artistic work do whatever is necessary to prevent any misuse. The artist is required to act in relation to the artwork in the interests of the Ganalbingu People to preserve the integrity of their culture, and ritual knowledge.
This is not to say that the artist must act entirely in the interests of the Ganalbingu People. The evidence shows that an artist is entitled to consider and pursue his own interests, for example, by selling the artwork, but the artist is not permitted to shed the overriding obligation to act to preserve the integrity of the Ganalbingu culture where action for that purpose is required.
In my opinion, the nature of the relationship between Mr Bulun Bulun and the Ganalbingu People was a fiduciary one which gives rise to fiduciary obligations owed by Mr Bulun Bulun.[86]
Von Doussa J held that the creation of an express trust was a question of evidence, which was not made out in this case:
The existence of an express trust depends on the intention of the creator. No formal or technical words constituting an expression of intention are necessary to create an express trust. Any apt expression of intention will suffice: Registrar, Accident Compensation Tribunal v FCT [1993] HCA 1; (1993) 178 CLR 145 at 166; 177 ALR 27. What is important is that intention to create a trust be manifest in some form or another. There must be an intention on the part of the putative creator to divest himself or herself the beneficial interest, and to become a trustee of the property for another party: Garrett v L’Estrange (1911) 13 CLR 430.[87]
Mr Bulun Bulun did not exhibit any intention to create a trust, either by words or conduct,[88] in that he sold artwork for his own benefit, an action inconsistent with any intention to hold either the copyright or property in the artist work itself on trust for the community:
Of course, it is possible to envisage a circumstance in which the evidence would be different. An artist in Mr Bulun Bulun’s position could readily create an express trust. Mr Bulun Bulun could, by deed or otherwise, have declared that he held the legal copyright on trust for Mr Milpurrurru or someone else. But that would not have served the purpose for which this case was apparently argued, of giving the traditional owners the power to enforce copyright against infringing third parties in the absence of action by the legal owner. What Mr Milpurrurru apparently was seeking to establish was a power on the part of the other owners to take action when the artist has not made any express provision for a trust. Therefore, while the possibility of an express trust for named beneficiaries remains, it would not practically serve the purpose for which this action was contested.[89]
Limitation of equitable interests
In the case of Bulun Bulun Von Doussa J explained that the equity established did not extend to an equitable interest in the copyright. His Honour held that while these duties were not commensurate with those of a trustee, they did create an obligation on the part of Mr Bulun Bulun to deal with and respect the integrity of the artistic work in accord with the laws and customs of the Ganalbingu people:
Having regard to the evidence of the law and customs of the Ganalbingu People under which Mr Bulun Bulun was permitted to create the artistic work, I consider that equity imposes on him obligations as a fiduciary 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.[90]
Therefore, what this case found was a right in personam to compel Mr Bulun Bulun, as fiduciary to the community, to take all measures necessary to protect the copyright. The Indigenous community acquires rights in the property itself, that is, in rem, where the legal owner of copyright has taken inadequate action in enforcing the copyright:
While the nature of the relationship between Mr Bulun Bulun and the Ganalbingu People is such that Mr Bulun Bulun falls under fiduciary obligations to protect the ritual knowledge which he has been permitted to use, the existence of those obligations does not, without more, vest an equitable interest in the ownership of the copyright in the Ganalbingu People. Their primary right, in the event of a breach of obligation by the fiduciary, is a right in personam to bring action against the fiduciary to enforce the obligation.
In the present case Mr Bulun Bulun has successfully taken action against the respondent to obtain remedies in respect of the infringement. There is no suggestion by Mr Milpurrurru and those whom he seeks to represent that Mr Bulun Bulun should have done anything more. In these circumstances there is no occasion for the intervention of equity to provide any additional remedy to the beneficiaries of the fiduciary relationship.[91]
Thus, equitable owners are limited in the actions that can be brought in their own names, which has important implications for the autonomy conferred upon the community by the recognition of an equitable interest in Indigenous intellectual property. Although an equitable owner may bring an action for an interlocutory injunction to restrain infringement of copyright,[92] permanent injunctions are limited to cases where the legal owner of the copyright, the individual artist, is joined in the action.[93] This limitation upon actions brought by representatives of the community is illustrated by the case of King v Milpurrurru[94] where the appellants disputed, among other issues, that the Indigenous artists had in fact authorised the proceeding.
Constructive trust
Nevertheless, Von Doussa J does suggest that the extent of equitable remedies available will depend upon all the circumstances, and exceptional cases could require the intervention of equity to impose a constructive trust. Where a fiduciary obtains property through a breach of duty, the legal title to that property may be held on constructive trust for those parties to whom the fiduciary obligations are owed:[95]
[A] person who is under a fiduciary obligation must account to the person to whom the obligation is owed for any benefit or gain (i) which has been obtained or received in circumstances where a conflict or significant possibility of conflict existed between his fiduciary duty and his personal interest in the pursuit or possible receipt of such a benefit or gain or (ii) which was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it. Any such benefit or gain is held by the fiduciary as constructive trustee.[96]
As the most extensive form of equitable relief,[97] a constructive trust will be imposed only ‘where it is necessary to do so to achieve a just remedy’.[98] However, where a serious breach of fiduciary obligations has occurred, the courts may find it necessary to impose a remedial constructive trust in favour of Indigenous communities, granting them standing to protect those interests:
The extent of those [equitable] remedies would depend on all the circumstances, and in an extreme case could involve the intervention of equity to impose a constructive trust on the legal owner of the copyright in the artistic work in favour of the beneficiaries. Equity will not automatically impose a constructive trust merely upon the identification of a fiduciary obligation. Equity will impose a constructive trust on property held by a fiduciary where it is necessary to do so to achieve a just remedy and to prevent the fiduciary from retaining an unconscionable benefit: Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 619–20; [1985] HCA 78; 62 ALR 429 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 148; [1987] HCA 59; 76 ALR 75. By way of example, had Mr Bulun Bulun 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, claiming against the former, in the first instance, interlocutory relief to restrain the infringement, and against the latter orders necessary to ensure that the copyright owner enforces the copyright. Probably there would be no occasion for equity in these circumstances to impose a constructive trust.
On the other hand, were Mr Bulun Bulun 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 equity to impose a remedial constructive trust upon the copyright owner to strengthen the standing of the beneficiaries to bring proceedings to enforce the copyright.[99]
Although his Honour held that such an equitable interest in the copyright in the artistic work was not established on the evidence, the case considers the important cultural value of Indigenous artwork and establishes that such an equitable interest, giving the community standing to bring proceedings, will be found if circumstances of inappropriate use exist:
[I]n 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.[100]
Such issues might be resolved if the recognition of standing in the community with respect to confidential information might also be applied to cases of intellectual and cultural property. Similarly, recognition of equitable ownership indicates the necessity that any licence granted for the reproduction of Indigenous intellectual property must be sought not only from the legal owner of copyright (the Indigenous artist), but also the equitable owners (the Indigenous group).[101]
Nevertheless, the right of the equitable owners to bring interlocutory injunctions is significant in that most of the cases have been settled subsequent to the granting of such an injunction. For instance, in the case of Yumbulul v Reserve Bank of Australia as discussed earlier, an assignment of copyright by the artist was held to constitute a valid licence under the Copyright Act, despite being made without authority from the Yolngu community and therefore recognised as void under Yolngu law. The withdrawal of the ‘infringing’ $10 nevertheless signifies the acknowledgment of traditional cultural values and beliefs in the wider community and the way in which greater social perceptions inform and enhance the effectiveness of equitable principles in protecting Indigenous intellectual property. Thus, further to this reasoning, once established that Indigenous communities enjoy an equitable interest in artistic works, then any assignment by an individual under such circumstances must be considered void under customary law and therefore an invalid licence.
Third parties
It has been suggested that uncertainty regarding equitable interests in Indigenous artwork may harm the commercial interests of Indigenous artists.[102] However, in the same way that the cases have acknowledged the special significance of the intellectual and cultural interests inherent in such artwork, it would be appropriate for the courts to impute that any purchaser of legal title to Indigenous intellectual property is put on notice of the likely existence of equitable interests by the very nature of the property.[103] Nevertheless, this principle is not established in the cases and the application of constructive notice is uncertain:
Generally the courts are reluctant to impute notice ... The position is made less clear by the special nature of the interest being protected here, which might tempt a court of equity to strain to find constructive notice. But on balance the more likely outcome is that the fact that the copyright to be acquired is to an Aboriginal artwork which has or may have religious or cultural significance will not be sufficient to place a purchaser of a legal interest on notice.[104]
Importantly, the court retains the discretion to award damages against third parties who obtain confidential information innocently but subsequently learn of the confidentiality in that information.[105] While the potential problem of absence of property rights is an obstacle in the application of conventional intellectual property protection, this can actually be an advantage in respect of breach of confidence, which cannot be purchased or assigned:
[T]here are no property rights associated with an equity to restrain a person from acting in breach of confidence which is owed to another, so that the equitable defence of a bona fide purchaser for value which is directed towards the resolution of priorities in relation to property rights does not apply.[106]
Equitable compensation and the relevance of customary law
A significant consequence of the recognition of equitable interests is access to equitable compensation of Indigenous communities. Equitable remedies represent an important mixture of compensation to the plaintiff as well as an enforcement of the trust relationship, which can result in more substantial damages having the effect of deterrence. It is this quality of deterrence that is of major importance to Indigenous communities where, as discussed, compensation for the loss is wholly inadequate where the quality of that loss is greater than mere property in a material form. Indeed, in access to equitable damages in actions for breach of confidence[107] the courts have the most appropriate form of sui generis protection for Indigenous intellectual property that is currently available: ‘The damages ... are sui generis; the power to award them is a power to enable the court to do complete justice so far as equity considers it ought to be done.’[108] As discussed, there is a greater social awareness of the significance of cultural knowledge and property to Indigenous communities. This increased awareness will necessarily inform and enhance the effectiveness of equitable principles in protecting Indigenous intellectual property through the relevance of policy to the exercise of a court’s discretion to award equitable damages.[109] Particularly in the case of Indigenous cultural property, where the relationship to conventional intellectual property regimes remains uncertain, the discretion to award equitable damages where a relationship of confidentiality is found is an important ‘obligation of conscience’.[110]
Equitable principles have been incorporated into the provisions for awarding damages under the Copyright Act. The judgment in Milpurrurru v Indofurn Pty Ltd[111] granted additional damages in respect of the subject of a cultural interest in painting techniques that the Court held warranted protection: ‘the cultural issues which are so important to the artists and their communities assume great importance’.[112] Evidence was led in respect of the central role of artistic expression in maintaining the viability and continuity of cultural and spiritual beliefs and practice:
The evidence led at trial, including the evidence of an Aboriginal artist ... explained the importance of the creation stories and dreamings in the cultures of the clans to which they relate. These stories are represented in ceremonies of deep significance, and are often secret or sacred, known only to a few senior members of the clan chosen according to age, descendence, sex, initiation, experience in the learning of the dreamings and ceremonies, and the attainment of skills which permit the faithful reproduction of the stories in accordance with Aboriginal law and custom. Painting techniques, and the use of totemic and other images and symbols are in many instances, and almost invariably in the case of important creation stories, strictly controlled by Aboriginal law and custom.[113]
It was argued that inaccurate reproductions cause deep offence, because artworks are an important means of recording stories and culture and continuing that culture, causing the right to create such artworks and to use pre-existing designs and totems to reside in the traditional custodians of the stories who act as fiduciaries to the greater Indigenous community:
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.[114]
The Court held that where the unauthorised reproduction of such works involves a breach of copyright, customary Aboriginal laws on the subject are relevant in quantifying the damage that has been suffered, and it was ‘against this background’ that the conduct of the respondents was considered.[115] Exemplary damages were granted as a global award of damages for distribution as appropriate among individuals in accordance with the wishes of the applicants:
In part the additional damages are in the nature of exemplary or punitive damages to mark the seriousness of the infringement. To this extent the damages should in my view be apportioned equally between the owners of the copyright. In part the damages reflect the harm suffered by the first three applicants in their cultural environment.[116]
Similarly, in Yumbulul although the applicant was unsuccessful, the judgment was sensitive to the inadequacy of traditional protection and, in particular, to the fact that the affront is in the act of reproduction, that is, the interference with sacred practices, rather than in the infringement of copyright itself:
It may be that greater care could have been taken in this case. And it may also 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.[117]
As Mr Yumbulul claimed, assignment of copyright did not give title to the design in so far as it did not give the right to ‘make’ the design under customary law:
[A]lthough the ceremony itself is in public and theoretically anyone may attend, the Pole itself and particularly the secrets of its design and manufacture are matters of great significance under Yolngu law. The class of people to whom it is shown and the manner and form of its reproduction must be restricted, and subject to the approval of the elders of the various clans with rights in the Morning Star ceremony ... It is acceptable therefore for an artist to make an object for sale to places such as museums ... It is not acceptable for an artist to authorise reproductions or copies without prior consultation.[118]
Cases of publicly owned museum displays raise the possibility of a fiduciary obligation owed by the Crown to the Indigenous artist and community in the act of that display. It is submitted that this arises by virtue of the Indigenous interests in the cultural knowledge that would be, in a sense, alienated from the Indigenous community if such display led to a restriction of ‘title’ in the confidentiality of that knowledge through the unavailability of protection (through actions in breach of confidence) by virtue of that display. Analogous principles were endorsed in Mabo:
[I]f the Crown in right of Queensland has the power to alienate land the subject of the Meriam people’s traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam people’s power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown. The power to destroy or impair a people’s interests in this way is extraordinary and is sufficient to attract regulation by Equity to ensure that the position is not abused. The fiduciary relationship arises, therefore, out of the power of the Crown to extinguish traditional title by alienating the land or otherwise; it does not depend on an exercise of that power.[119]
Futhermore, as a continuing obligation, the finding of fiduciary relationships offer an important means of overcoming the significant obstacle of duration in copyright law. In the case of Yumbulul the presence of such a fiduciary obligation could have been used to impose a constructive trust upon the Crown,[120] in that the dissemination of the Morning Star Pole in Australian currency amounts to a conflict of duties in respect of that fiduciary obligation.[121] Through the imposition of a constructive trust where a fiduciary relationship is found, the Indigenous beneficiaries would be entitled to any profits made through a breach of duty, and indeed to any compensation for any consequential loss.[122] The Federal Court has established that customary law is relevant in evidence, therefore such compensation may be very high where spiritual meaning is profound.[123]
Information or proprietary interest?
Before the important judgment in Mabo, customary native title was believed extinguished by the process of colonisation. In order to validate Indigenous rights in the land, Indigenous cultural practices would become necessary to demonstrate the ongoing relationship with the land:
[A]ny over-ruling of Milirrpum will necessarily imply recognition of Aboriginal customary law concerning sacred designs. This is the result of the closeness of the connection between ‘real’ property and ‘intellectual’ property under Aboriginal law, a relationship so close that the two are inextricably linked.[124]
Therefore, in 1992, the High Court clarified this ‘inextricable link’:
The fact that individual members of the community, like the individual plaintiff Aborigines in Milirrpum (1971) 17 FLR at 272, enjoy only usufructuary rights that are not proprietary in nature is no impediment to the recognition of a proprietary community title. Indeed, it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so, there is no impediment to the recognition of individual non-proprietary rights that are derived from the community’s laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights.[125]
Traditional Indigenous customary laws do not discriminate between the real property rights in land and the intangible property in artwork, as distinguished under the common law. Instead, as described, the distinction between land and art is imperceptible,[126] and artistic production is not limited to aesthetic beauty, but extends to the encoding of laws and traditions, and the definition of land title.[127] The case of Yumbulul provides an important example of this relationship, where evidence was given that Yolngu law recognises artwork and the paintings as ‘conclusive evidence of land ownership, and even further, in a spiritual sense, the paintings are the land’.[128] To attempt to categorise the difference in property rights would be to misunderstand completely the different relationship to property that is enjoyed and practised by Indigenous communities:
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 threatens 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.[129]
If it can be established that Indigenous intellectual interests in the customary and ritual knowledge of their group is a proprietary interest based on its inextricable links with the land, then some other hybrid interest with the land might be created and enforced as a proprietary interest. Therefore, while ideas and information are not proprietary interests according to the common law, Indigenous ritual knowledge as practice would indeed be protected by proprietary estoppel, in order to enforce rights in rem as a hybrid personal and proprietary right in equity. Indigenous communities would have standing to bring proceedings for the protection of intellectual property against third parties, not merely in personam against the Indigenous artist.
Therefore, if tribal knowledge could qualify as property then it could form the subject matter of a trust.[130] Such a trust might be considered to be discretionary in that the trustee may have the ability or may be required to determine which of the beneficiaries would receive benefits.[131] However, the difficulty in constructing a list of beneficiaries might render the trust void for uncertainty,[132] but it is submitted that the difficulty lies in Western pre-conceptions of individuality with respect to benefits, as opposed to communal benefits distributed in customary law. Therefore, customary law must be relevant in the construction, recognition, and operation of a trust in equity.
Conclusion
The protection of Indigenous intellectual property is not only a significant legal problem, it is also an important cultural and social issue. To attempt to define and delimit intellectual property and the requirements for protection within conventional regimes is to further the process of colonisation and to trivialise the significance of what must be protected. The problem appears to be an ‘insoluble case given the present state of the law’, but not necessarily given the present discretionary power and creativity of equitable principles. Equity provides the most promising and important means by which the traditional laws of Indigenous people can inform Anglo Australian legal principles. A creative approach is necessary not only because of the difficulty in formalising a regime of protection, but also because of the necessary relevance of customary law and the imperative of exercising more than justice — it is the imperative of doing what is just. l
[1] I am most grateful to Peter McDermott (Barrister at Law, Supreme Court of Queensland; Senior Lecturer, University of Queensland) for his incisive suggestions, guidance, and patience in reading several drafts, all of which proved to be of considerable value to me in revising this paper.
[2] Johanna Gibson is an articled clerk with Allens Arthur Robinson, Melbourne. She has postgraduate qualifications in cultural studies, science, and law from the University of Queensland, and is undertaking doctoral research at the University of Edinburgh, School of Law, with the Shepherd and Wedderburn Centre for Research into Intellectual Property and Technology. Her research examines the protection of Indigenous resources by intellectual property regimes in an international context, and the distinct nature of the rights in those resources, moving beyond a conventional property model.
[3] Ricoeur P The Just (translated by Pellauer D) University of Chicago Press Chicago 2000 p 125.
[4] Behrendt J ‘Fiduciary obligations and native title’ [1993] AboriginalLawB 30; (1993) 3(63) Aboriginal Law Bulletin 7; Blakeney M ‘Protecting expressions of Australian Aboriginal folklore under copyright law’ (1995) 9 European Intellectual Property Review 442; Ellinson D A ‘Unauthorised reproduction of traditional Aboriginal art’ [1994] UNSWLawJl 12; (1994) 17(2) University of New South Wales Law Journal 327 at 327–8; Golvan C ‘Aboriginal art and the protection of Indigenous cultural rights’ (1992) 2(56) Aboriginal Law Bulletin 227.
[5] Gray S ‘Squatting in red dust’ (1996) 14(2) Law in Context 29 at 30.
[6] Fulton G ‘Protection of Indigenous arts and cultural expression’ (1995) 12(4) Copyright Reporter 6; Janke T ‘Don’t give away your valuable cultural assets’ [1998] IndigLawB 35; (1998) 4(11) Indigenous Law Bulletin 8; Janke T ‘UNESCO–WIPO Forum on the protection of folklore (1997) 15(3) Copyright Reporter 104; McDonald I ‘UNESCO–WIPO World Forum on the protection of folklore’ (1997) 15(3) Copyright Reporter 128. See also the ATSIC report released in 1997 Our Culture: Our Future researched and written by Janke which advocates specific sui generis legislation to overcome the inadequacies of conventional legislative regimes. Colin Golvan, indigenous intellectual property lawyer, warns that hope of such legislation may give a false expectation (cited in Horrocks S ‘Art for whose sake?’ (1998) 76 Consuming Interest 18) and advocates equitable jurisdiction as the most significant protection for Indigenous interests throughout his writing.
[7] With respect to international law, see Fleur Johns’ discussion of an international legal right to freedom of individual expression which is also vested in the individual and is therefore ‘inapplicable to the role of the artist in traditional Aboriginal culture’ in ‘Portrait of the artist as a white man’ (1994) 15 Australian Yearbook of International Law 173 at 178; and also Rachel Massey and Christopher Stephens’
discussion of copyright under international law in ‘Intellectual property rights, the law and Indigenous peoples’ art’ (1998) 32(4) Copyright Bulletin 49.
[8] Gray S ‘Enlightenment or dreaming?’ (1995) 2 Arts and Entertainment Law Review 18 at 21.
[9] Golvan C ‘Tribal ownership of Aboriginal art’ (1992) 3 Arts and Entertainment Law Review 15 at 17.
[10] Indigenous artist Johnny Bulun Bulun quoted in Golvan C ‘Aboriginal art and copyright: the case for Johnny Bulun Bulun’ (1989) 10 European Intellectual Property Review 346 at 348.
[11] Ellinson, above note 4 at 327; Blakeney, above note 4 at 442.
[12] This has included the call for separate legislation to protect Indigenous intellectual property, acknowledging the very different value to Indigenous producers of that intellectual interest as well as the inadequacy of conventional legislative protection of intellectual property. See the ATSIC report: Janke T Our Culture: Our Future, above note 6, which recommends a sui generis legislative framework that draws upon customary laws to include and protect all forms of Indigenous cultural and intellectual property, including ecological and agricultural knowledge (Ch 18).
[13] Ellinson, above note 4 at 331.
[14] The case of Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481 represents an early examination of the adequacy of copyright law in protecting Indigenous intellectual property.
[15] See in particular the issues paper released by the Attorney General’s Department in October 1994 in consultation with ATSIC: Stopping the Rip-offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples. See also discussions in Bell R ‘Protection of Aboriginal folklore’ [1983] AboriginalLawB 5; (1985) 17 Aboriginal Law Bulletin 6 at 6–8; Bell R ‘Protection of folklore’ (1985) 19(2) Copyright Bulletin 4 at 8–9; a discussion of Stopping the Rip-offs by Fulton G above note 6 at 6–8; Golvan C ‘Stopping the rip-offs: a response’ (1995) 3 Arts and Entertainment Law Review 51 at 51–2; Millar J ‘Copyright protection falls short’ (1997–98) 10(8) Australian Intellectual Property Law Bulletin 98 at 99; and Morris S ‘The protection of folklore’ (1998) 58 Intellectual Property in Asia and the Pacific 28.
[16] Miller D ‘Collective ownership of the copyright in spiritually sensitive works’ (1995) 6(4) Australian Intellectual Property Journal 185 at 186:
Aboriginal customary law, and Australian municipal law, approaches to the protection of artistic works and culture are fundamentally incompatible. The prerequisite of ‘originality’, the requirement of an identified ‘author’ of a work which has been reduced to a ‘material form’, the limitation of copyright protection to generally the author’s life plus 50 years, and the absence of any notion of collective ownership are some of the statutory manifestations of this incompatibility.
[17] Copyright Act 1968 (Cth) s 33.
[18] Morphy H Ancestral Connections University of Chicago Press Chicago 1991 p 45.
[19] See Bell ‘Protection of folklore’, above note 15 at 9.
[20] Colin Golvan discusses the reproduction of the Wandjina image of northwest Australia as an example of important cave art that has been reproduced on garments (Golvan, above note 9 at 231).
[21] Copyright Act 1968 (Cth) s 35.
[22] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608–9 per Peterson J.
[23] Golvan, above note 9.
[24] Copyright Act 1968 (Cth) s 31.
[25] Bell ‘Protection of folklore’, above note 15 at 11:
Aboriginal customary law, which gave the artist an entitlement to represent a particular theme, differed markedly from the general body of Australian law which recognised copyright. The fact that a work drew upon custom and tradition for its basis meant that contemporary works produced by Aboriginal artists represented a novel continuation of their very own ancient culture ... To acknowledge the full copyright of an individual artist would be to deny the contribution of continuing living folklore to the particular artistic work and would give rights which the person did not have under traditional law. A copyright given without the limitations of tribal custom, and without debt to any body of tradition which might otherwise encumber it, might enable the individual artist to give or refuse permission to the reproduction of a work beyond that which he would be entitled to give under traditional law. Such non-exclusive rights were a particular feature of Australian Aboriginal law and were not readily compatible with the exclusive rights of copyright.
[26] Date of Assent: 21 December 2000.
[27] Copyright Act 1968 (Cth) Pt IX. Janke discusses the concept of moral rights, prior to their introduction in Australia, in Janke ‘UNESCO–WIPO World Forum on the protection of folklore’, above note 6 at 117–8. See also Bell ‘Protection of folklore’, above note 15 at 12; Gray S ‘Aboriginal designs and copyright: can the Australian common law expand to meet Aboriginal demands?’ (1991) 9(4) Copyright Reporter 8 at 16.
[28] For a more extensive review of the use of moral rights in the protection of heritage art, see Simons M S ‘Aboriginal heritage art and moral rights’ (2000) 27(2) Annals of Tourism Research 412.
[29] Copyright Act 1968 (Cth) s 14. Ellinson identifies the requirement of substantiality to be a particular obstacle to the protection of Indigenous cultural property, and many otherwise offensive reproductions not, under the Copyright Act, infringements of Indigenous intellectual property rights: ‘For a reproduction to constitute copyright infringement, a “substantial part” of the copyright work has to be reproduced. The originality of the part taken is a relevant consideration in determining whether a “substantial part” of the work has been reproduced. Where the part of an artistic work which is taken involves little originality on the part of the artist (which would usually be the case where it is the underlying pre-existing design which is reproduced) it may not be regarded as a substantial part of the artistic work even though quantitatively it may form quite a large part of it’ (Ellinson, above note 4 at 333). See also Gray, above note 27 at 11.
[30] Hatton v Keane (1859) 7 CB 268 concerned an adaptation of a Shakespearean play, the Court holding that the production as a whole was a proper subject of copyright protection despite the original play having entered the public domain. A significant issue in finding copyright in such adaptations is the evidence of sufficient skill and labour in the adaptation. See also Robertson v Lewis [1976] RPC 169 which involved the adaptation of a traditional musical air.
[31] For example, in Bulurru Australia v Oliver [2000] NSWSC 580, even though the Court accepted that the Bulurru artworks were derivative and reflected Mr Oliver’s ideas, concepts and many of his techniques, the Court looked to the resultant material form and decided on the issue of substantiality, that the artwork was substantially different and therefore did not breach copyright. Compare the earlier case of Milpurrurru v Indofurn Pty Ltd (1995) AIPC 92-116; (1994) 30 IPR 209 at 39,069 where a small area of copying, while quantitatively insubstantial, was held to be qualitatively substantial because of the cultural specificity and striking nature of the copied pattern, and therefore an infringement of copyright: ‘Although 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.’
[32] Bell makes the observation that it would be ‘wholly unsatisfactory that copyright protection might be given to a person who merely adapted a traditional work by printing it, for example, upon tea towels. To give such free access by non-Aboriginals to the body of folklore which was traditionally given only to certain people for certain purposes might be to abuse the rich heritage and might perhaps destroy it. Aboriginals would lose any power to protect it’ (Bell ‘Protection of folklore’, above note 15 at 8).
[33] Ellinson, above note 4 at 330.
[34] Ellinson, above note 4 at 335. See also Vann V J ‘Copyright by way of fiduciary obligation’ (2000) Media and Arts Law Review 13 at 15:
More traditional or less Westernised artists face further problems. It is sometimes difficult to identify the artist as the author of the work for copyright purposes. The practice of signing a painting is another Western idea, and identification problems are magnified when the artist is no longer living.
[35] Bell ‘Protection of folklore’, above note 15 at 8–9.
[36] Golvan, above note 4 at 231.
[37] Foster v Mountford (1976) 29 FLR 233.
[38] At 234 per Muirhead J.
[39] Milpurrurru v Indofurn Pty Ltd (1995) AIPC 92-116; (1994) 30 IPR 209 at 39,057.
[40] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[41] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27.
[42] The case was brought against Nejlam Pty Ltd and heard before Olney J, sitting in the Federal Court in Darwin.
[43] Golvan, above note 4 at 228.
[44] Copyright Act 1968 (Cth) s 10(1).
[45] Ellinson, above note 4 at 333.
[46] See Milpurrurru v Indofurn Pty Ltd (1995) AIPC 92-116; (1994) 30 IPR 209, on the subject of a cultural interest in painting techniques that warrants protection. In this case, evidence was also tendered that inaccurate reproductions cause deep offence as artworks are an important means of recording stories and culture and continuing that culture, causing the right to create such artworks and to use pre-existing designs and totems to reside in the traditional custodians of the stories who act as a fiduciary to the greater Indigenous community.
[47] Ellinson, above note 4 at 334.
[48] Golvan, above note 4 at 227.
[49] Golvan, above note 4 at 229.
[50] Johnny Bulun Bulun is an Indigenous artist who, in 1989, brought an action for infringement of copyright and breaches of the Trade Practices Act 1974 (Cth) in the Federal Court at Darwin, arising from unauthorised reproductions of traditional artwork on t-shirts, which subsequently settled but which provides significant information in the preparatory documents. See Golvan, above note 9 at 346.
[51] Cited in Golvan, above note 9 at 348.
[52] Hollinrake v Truswell [1894] 3 Ch 420 at 427; Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 at 498.
[53] Gray, above note 27 at 15.
[54] See in particular Kelly P ‘Equity to the rescue’ (1999) 3 Southern Cross University Law Review 233.
[55] Gray, above note 27 at 9.
[56] Gray, above note 27 at 8.
[57] Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 per Megarry J.
[58] Koo v Hing (1992) 23 IPR 607 at 634, 636, 637 per Bokhary J; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 213; Frankin v Giddins [1978] Qd R 72 at 80.
[59] See the following discussion on confidential information.
[60] Dal Pont G E and Chalmers D R C Equity and Trusts in Australia and New Zealand 2nd ed LBC Sydney 2000 p 183.
[61] LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14.
[62] Foster v Mountford (1976) 29 FLR 233 at 235 per Muirhead J.
[63] O’Brien C ‘Protecting secret sacred designs’ (1997) 2 Media and Arts Law Review 57 at 63.
[64] Milpurrurru v Indofurn Pty Ltd (1995) AIPC 92-116; (1994) 30 IPR 209 at 39,057.
[65] Blakeney, above note 4 at 442.
[66] Ackroyds (London) Ltd v Islington Plastics Ltd (1962) RPC 97 at 104 per Havers J.
[67] Gray, above note 27 at 18.
[68] Thomas Marshall (Exporters) Ltd v Guinle (1979) FSR 208 at 230 per Megarry VC.
[69] Gray, above note 27 at 18–9.
[70] Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481.
[71] Gray, above note 27 at 19. See also Price M E and Price A B ‘Custom, currency and copyright’ (1997) 9(10) IPLB 150 at 156.
[72] Gray S ‘Wheeling, dealing and deconstruction’ [1993] AboriginalLawB 31; (1993) 3(63) Aboriginal Law Bulletin 10 at 11.
[73] Coco v AN Clark (Engineers) Ltd (1969) RPC 41 (Ch) at 48 per Megarry J.
[74] Prince Albert v Strange (1849) 1 H and Tw 1 at 23–35.
[75] Ellinson also identifies that there may be several relevant community interests in one particular pre-existing design, such as the different groups identified with the Morning Star Poles that were the subject of the case of Yumbulul (Ellinson, above note 4 at 336).
[76] Maddock K ‘Copyright and traditional designs’ (1998) 2(34) Aboriginal Law Bulletin 8 at 9. Johns cites Eric Michaels as arguing that the simple binary relationship of individual versus collective represents ‘some phony appeal to the primitive, or to a recently manufactured tradition’ (Johns, above note 7 at 178).
[77] Ellinson, above note 4 at 331.
[78] Blakeney, above note 4 at 442.
[79] Golvan, above note 9 at 15.
[80] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193.
[81] At 196. See also Kelly, above note 54 at 233.
[82] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193 at 211.
[83] Hall M ‘Case Note: Bulun Bulun v R & T Textiles’ (1998) 16(3) Copyright Reporter 124 at 131–2; McCausland S ‘Protecting communal interests in Indigenous artworks after the Bulun Bulun case’ (1999) 4(22) ILB 4 at 5.
[84] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193 at 211.
[85] Golvan, above note 4 at 230.
[86] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193 at 209–10.
[87] At 206.
[88] At 206.
[89] Hall, above note 83 at 127.
[90] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193 at 211.
[91] At 211.
[92] Ward, Lock & Co v Long [1906] 2 Ch 550.
[93] Performing Rights Society Ltd v London Theatre of Varieties Ltd [1924] AC 1.
[94] King v Milpurrurru (1996) 34 IPR 11.
[95] Dal Pont and Chalmers, above note 60 at 30.
[96] Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178 at 199 per Deane J.
[97] Dal Pont and Chalmers, above note 60 at 120–1.
[98] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193 at 211.
[99] At 211.
[100] At 212.
[101] Golvan, above note 9 at 15–6.
[102] Hall, above note 83 at 130.
[103] Hall draws the analogy of a lending bank, and the notice of the likely existence of an equity in a spouse in the matrimonial home (Hall, above note 83 at 131). See also McCausland, above note 83 at 5.
[104] Hall, above note 83 at 131.
[105] McDermott P M Equitable Damages Butterworths Sydney 1994 pp 158–9.
[106] McDermott, above note 105 at 159.
[107] Blakeney, above note 4 at 442: often an injunction alone will be inadequate as some initial publication through display or other means of dissemination has already occurred, for which there must be some remedy.
[108] Madden v Kevereski [1983] NSWLR 305 at 307 per Helsham CJ.
[109] McDermott, above note 105 at 97–9.
[110] Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 437–8.
[111] Milpurrurru v Indofurn Pty Ltd (1995) AIPC 91-116; (1994) 30 IPR 209.
[112] At 39,082–3.
[113] At 39,056.
[114] At 39,057.
[115] At 39,058.
[116] At 39,083.
[117] Yumbulul v Reserve Bank of Australia [1991] FCA 332; (1991) 21 IPR 481 at 490 per French J.
[118] Gray, above note 27 at 13.
[119] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 203 per Toohey J.
[120] Behrendt, above note 4 at 7–9 examines the possibility of a fiduciary duty binding the Crown in respect of native title. This has been examined by some authors with respect to the US example of a fiduciary obligation towards Native Americans.
[121] See United States Surgical Corporation v Hospital Products International [1984] HCA 64; (1984) 58 ALJR 587 at 613 per Mason J who held that a constructive trust would be imposed where there is a conflict of duties or where a profit has been derived from the fiduciary obligation.
[122] Walker v Wimbourne [1976] HCA 7; (1976) 137 CLR 1; McKenzie v McDonald [1927] VicLawRp 19; [1927] VLR 134.
[123] Milpurrurru v Indofurn Pty Ltd (1995) AIPC 91-116; (1994) 30 IPR 209.
[124] Gray S ‘Aboriginal designs and copyright’ (1992) 66(1& 2) Law Institute Journal 46 at 47. See also Gray, above note 27 at 11–2. Discussing Howard Morphy’s text, Ancestral Connections, Gray makes the following observations in ‘Wheeling, dealing and deconstruction’, above note 72 at 11:
[T]he connection between art and the land in Yolngu culture is so strong that one could assert with some justification that art and land are the same: or at least, as Morphy puts it, that they are ‘two sides of the same coin’ ... The non-Aboriginal view of the relationship of art to land highlights or focuses on the differences between art and land. Art and land are physically different, the two quite separate sides of the coin. The Yolngu view of the relationship of art to land focuses on the essential sameness of art and land: they both form part of the same coin. Morphy argues that it is impossible to understand the Yolngu view of art without also understanding the Yolngu view of land. Art and land are essentially interconnected, so much so that what is an apparent contradiction to non-Aboriginal eyes — how can art and land be different and yet the same? — is to the Yolngu resolved. Yolngu culture is more able than Western culture to entertain two simultaneous and opposed perspectives, and more capable of resolving the apparent contradictions which arise.
[125] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 51–2 per Brennan J. See also Kamal Puri ‘Copyright protection for Australian Aborigines in the light of Mabo’ in Stephenson M A and Ratnapala S (eds) Mabo: A Judicial Revolution University of Queensland Press St Lucia 1993 p 132 at 157–8. Kamal Puri makes a compelling argument for extending the principles for recognition of native title to protection of intellectual property:
[I]f it could be established that Aborigines had their own laws relating to the protection of intellectual property, ie, customs which have existed since time immemorial, then arguably those customary laws should apply to matters such as Aboriginal land rights.
And further at 159:
It is submitted that the judgment can be broadened beyond the realm of real property rights and extended to intellectual property rights, provided that there has been a continued observance of Aboriginal customary laws despite the existence of the common law.
See also Miller, above note 16. Compare Neil Lofgren’s apprehension with respect to the adequacy of intellectual property rights under Mabo: (1995) 3(77) Aboriginal Law Journal 10.
[126] Ellinson, above note 4 at 335. See also Paul Memmott and Stephen Long’s discussion of the significance of place knowledge to cultural and artistic expression in ‘The significance of Indigenous place knowledge to Australian cultural heritage’ [1998] IndigLawB 83; (1998) 4(16) Indigenous Law Bulletin 9.
[127] Morris C ‘Indigenous intellectual property rights’ [1997] IndigLawB 44; (1997) 4(2) Indigenous Law Bulletin 9.
[128] Gray, above note 27 at 13.
[129] Affidavit evidence of Johnny Bulun Bulun cited in Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1997) 157 ALR 193 at 199.
[130] Vann, above note 34 at 19.
[131] Vann, above note 34 at 19.
[132] Vann, above note 34 at 19.