McClausland, Sally --- "Protecting Communal Interests in Indigenous Artworks after the Bulun Bulun Case" [1999] IndigLawB 51; (1999) 4(22) Indigenous Law Bulletin 4
Protecting Communal Interests in Indigenous Artworks After the Bulun Bulun Case
by Sally McCausland[1]
It is increasingly common for visual artists to attach copyright notices such as this one to their work:
© 1999 by Peata. All rights reserved. No reproduction permitted without written authorisation.
It is not necessary to use a copyright notice to protect copyright in a work. Under the Copyright Act 1968 (Cth) copyright arises automatically with the act of creation.[2] A copyright notice simply notifies others who the copyright owner is and confirms that the owner’s permission is needed for reproduction of the work.
The recent case of Bulun Bulun v R & T Textiles Pty Ltd[3] explored the rights of an indigenous community over an artwork embodying the community’s ‘traditional ritual knowledge’. Justice von Doussa of the Federal Court held that in some circumstances an indigenous community (or more specifically, its elders as ‘custodians’ or ‘traditional owners’ of that knowledge) may have an interest which gives rights over a copyright work created by a member of that community. Commentator Michael Hall has termed this interest a ‘Bulun Bulun equity’.[4] As Hall observes, because of its grounding in equitable principles, this interest might be defeated by a later interest in the copyright acquired without notice.
This article follows on from Hall’s analysis by discussing the idea of a ‘custodian’s interest notice’. Its main aim is to preserve the custodians’ interest in an artwork by ensuring that notice has been given to third parties dealing with copyright in that artwork.
Draft Form of Notice
The final form of a custodians’ interest notice would depend upon the wishes of the artist and community concerned. However, as a starting point, it could look like this:
NOTICE OF CUSTODIAL INTEREST OF THE [NAME] COMMUNITY
The images in this artwork embody traditional ritual knowledge of the [name] community. It was created with the consent of the custodians of the community. Dealing with any part of the images for any purpose that has not been authorised by the custodians is a serious breach of the customary laws of the [name] community, and may also breach the Copyright Act 1968 (Cth). For enquiries regarding permitted reproduction of these images, contact [community].
Other forms could be experimented with. The notice could be attached to an artwork, included in sale documentation or displayed in an exhibition space. It could also be included in a copyright licence. Like a standard copyright notice, it costs nothing to use.
The Bulun Bulun Case
Bulun Bulun was a copyright infringement case. The first applicant, Mr Bulun Bulun, was a senior member of the Ganalbingu people of Arnhem Land in the Northern Territory. His work, ‘Magpie Geese and Water Lilies at the Waterhole’ had been illegally reproduced on material imported by the respondents. The respondents consented to various orders and declarations to settle the infringement claims. However, the case proceeded on a series of novel arguments designed to show that the Ganalbingu people themselves, represented by the second applicant, had an interest which would entitle them directly to claim relief for unauthorised reproductions of the work under Australian law. The applicants asserted this on the basis that the ‘traditional ritual knowledge’ used by Mr Bulun Bulun in his painting was owned (under Ganalbingu law) by the traditional custodians of the Ganalbingu community. As in the earlier case of Milpurrurru v Indofurn Pty Ltd[5] (the ‘Carpets case’), evidence was given that this traditional ritual knowledge was encoded as ‘inside’ information in communally owned images reproduced in the painting.[6]
Mr Bulun Bulun gave evidence that he was both permitted and obliged to produce the painting because of his role as traditional owner under Ganalbingu law. This gave rise to the duty to consult with other traditional owners on certain kinds of reproduction of the painting.[7] Mr Bulun Bulun gave evidence that reproduction which had not been the subject of proper consultations threatened the whole fabric of his community.[8] The applicants argued that, for this reason, the Ganalbingu community should have a direct role under Australian law in defending their traditional ritual knowledge against unauthorised reproduction.
The applicants made various arguments to support their claim, some of which were rejected.[9] However, the traditional owners, or custodians, did succeed in establishing that Mr Bulun Bulun owed them a fiduciary duty because of the ‘trust and confidence’ through which he was permitted to use the community’s traditional ritual knowledge in his painting.[10] Justice von Doussa held that Mr Bulun Bulun’s fiduciary duty compelled him to preserve this knowledge by guarding against infringements of copyright in the painting. If he did not, the custodians had an interest held ‘in personam’ through which they might compel him to do so. However, as Mr Bulun Bulun had already taken action to protect the knowledge as would be required of him as a fiduciary, there was no reason for the Court to explore the characteristics of the custodians’ interest any further.
Hall has analysed the Bulun Bulun case to determine what courts might make of this ‘Bulun Bulun equity’ in future. He suggests that the custodians’ interest is most likely a very limited interest known as a ‘mere equity’ which in some circumstances may allow the custodians to act directly to protect their interest in an artwork.[11] These circumstances would generally be limited to circumstances where the artist is in dereliction of his or her fiduciary duty or cannot be found.[12]
Hall argues that, applying the principles of equitable priorities, it will generally be necessary that third parties dealing with copyright in the work have notice of the custodians’ interest if the custodians’ interest is to be preserved.[13]
Giving Notice of a Bulun Bulun Equity
It is not yet clear what will be sufficient ‘notice’ to preserve a ‘Bulun Bulun equity’ against third party interests. On one view, the mere fact that the artist is indigenous would be sufficient.[14] However, to be certain, custodians should probably ensure that third parties are given express and clear notice of their interest. A custodians’ interest notice would achieve this.
Other Copyright Works
A ‘Bulun Bulun equity’ need not only arise in the context of an artwork. In theory, the custodians could assert a ‘Bulun Bulun equity’ in any kind of copyright material, such as a musical, literary or dramatic work.[15] A custodians’ interest notice could be adapted for these other types of materials.
Third Parties who Obtain a Licence or an Assignment of the Artist’s Copyright
What can custodians do if an artist who has used images governed by customary laws signs a copyright licence which conflicts with those customary laws? This is the situation which occurred in Yumbulul v Reserve Bank of Australia.[16] Hall speculates that it may now be possible for the custodians to assert their ‘Bulun Bulun equity’ to have the licence set aside in such a situation on the basis that the artist is in breach of fiduciary duty. However, it seems that for the custodians to succeed, the third party would probably have to have been on notice of the custodians’ interest.[17] A custodians’ interest notice incorporated in contractual documentation would give notice to third parties taking a licence or assignment of copyright in an artwork incorporating images governed by customary laws.
Third Parties Obtaining Direct Access to Traditional Ritual Knowledge
As a result of Bulun Bulun, it is possible that any person who has acquired copyright in a work embodying traditional ritual knowledge with notice is a fiduciary under Australian law. If so, the person would be bound to act in accordance with the fiduciary duty (that is, to respect customary law concerning reproduction and adaptation of the work).[18] If the person breaches the fiduciary duty, the situation might be analogous to the breach of confidence case of Foster v Mountford,[19] in which the Federal Court granted an order to stay sales of a book containing traditional knowledge of the Pitjantjatjara people.
One example of where a ‘third party fiduciary duty’ might arise is where custodians allow access to a film maker to tape interviews with community members. If the film maker is made aware of the custodians’ interest in traditional ritual knowledge imparted in the interviews, the film maker will be under a fiduciary duty to the custodians when dealing with copyright in the interviews. A custodians’ interest notice incorporated in the access permit would help to establish this duty.
A community might choose to use a written agreement spelling out the fiduciary obligations of third parties granted access to traditional ritual knowledge. For example, where a person wants access to traditional ritual knowledge for a particular project, the community could enter into a agreement that the person will consult on an ongoing basis about the project and will display a custodians’ interest notice in conjunction with any copyright material created.[20] The community could even require copyright in the project to be jointly owned or held on trust for its benefit.[21]
Practical Issues
There are practical issues which might arise in implementing a custodians’ interest notice. The following is a brief discussion of these issues. Of course, there are probably still more. As Hall has noted, any conclusions about the effect of Bulun Bulun can only be tentative at this stage.
Would a custodians’ interest notice always be appropriate?
Many indigenous artists create their own images without using the traditional ritual knowledge of any community. In this situation, there would be no need for a custodians’ interest notice. The notice is appropriate only where a ‘Bulun Bulun equity’ may exist.
Could a community use a custodians’ interest notice to stop people using the communally owned images behind the artwork?
A custodians’ interest notice could be used to alert people that customary laws govern the reproduction of images shown in the artwork. However, there is still no legal right to prevent use of such images under Australian law unless use of the image infringes copyright in an artwork. Communities and artists should avoid implying that use of images is illegal under Australian law if it is not.[22] Subject to this, custodians’ interest notices could be used to raise awareness about the special nature of indigenous cultural and intellectual property, until such time as there is greater recognition of customary laws in Australian law.[23]
Would a custodians’ interest notice somehow override an artist’s freedom of contract?
The notice preserves any existing fiduciary duty arising as the result of existing customary laws. It therefore does not add any restrictions on indigenous artists’ freedom of contract. However, Bulun Bulun itself has created an interesting interface in Australian law between customary laws, as translated into ‘fiduciary duties’, and the competing principle of freedom of contract. Justice von Doussa was careful to state that artists may still act in their own interests, such as by selling their artwork.[24] However, this must be read against Hall’s proposition that a copyright licence granted by an artist in breach of a fiduciary duty owed to custodians,[25] might now be overturned. The implications of this development for artists and their clients are yet to be unravelled.[26]
Would a custodians’ interest notice confuse third parties as to whom they should go to for permission to copy the work?
This issue obviously needs to be discussed between the community, the artist and the artist’s agent or art centre. There should be agreement about who can affix the notice and what it says.
How would a custodians’ interest notice interact with the proposed Label of Authenticity being launched this year by the National Indigenous Arts Advocacy Association?[27] Would there be too many notices confusing the public?
The Label of Authenticity and a custodians’ interest notice would work in quite different ways. A custodians’ interest notice does not require registration, and its primary function is not to distinguish indigenous products from non-indigenous products in the marketplace. It is more like a copyright notice. It would not be suggested that a copyright notice conflicts with the Label of Authenticity.
Could use of a custodians’ interest notice give rise to disputes between communities about who owns traditional ritual knowledge?
Commentator Linda Ford notes that it will be difficult for indigenous communities to avoid debating ownership issues as they seek to protect their interests under Australian law. In her view, such debates will create an opportunity to develop guidelines and amicable agreement about ownership of knowledge among indigenous communities.[28]
As Justice von Doussa commented in the Carpets case, there is only a limited amount that the courts can do to address the piracy of indigenous cultural heritage via copyright law.[29] A custodians’ interest notice is similarly limited. However, if the practical issues can be resolved, a custodians’ interest notice would allow indigenous communities to protect their traditional ritual knowledge to the greatest extent currently possible under Australian law.
Sally McCausland is a legal officer at the Arts Law Centre of Australia.
[1] I would like to thank Michael Hall, Terri Janke, the legal staff at Arts Law (Delia Browne, Michael Easton, Kate Gilchrist and Tim Marshall) Tara Gutman and Martin Hardie for their helpful comments.
[2] Copyright protects certain economic interests in creative products. In the case of an artwork, the most important interest is the exclusive right to control and authorise reproductions in material form, such as on posters or carpets.
[3] [1998] FCA 1082; (1998) 41 IPR 513.
[4] Michael Hall, ‘Case note: Bulun Bulun v R & T Textiles’, (1998) 16:3 Copyright Reporter 124, p 131.
[5] [1994] FCA 975; (1995) 30 IPR 209.
[6] In the Carpets case: Ibid 226. In Bulun Bulun: above n 3, 519.
[7] Ibid 520.
[8] Ibid 518-519.
[9] For further discussion of these arguments see Hall, above n 4, 124 -129.
[10] Bulun Bulun, above n 3, 529.
[11] Hall, above n 4, 129-131.
[12] Bulun Bulun, above n 3, 531-532.
[13] Hall, above n 4, 131-132.
[14] Ibid 131.
[15] In relation to music, see speech given by representatives for Daki Budtcha Pty Ltd. (Cultural Issues Relating to Intellectual Property in the Digital Age, session at the Australasian Intellectual Property Conference, 5-6 March 1999, Southern Cross University Law School). In relation to contemporary performance, see speakers in the Arts Law seminar, Collaborations: Using Indigenous Cultural Material in Contemporary Performance, 14 May 1999, Bangarra Dance Theatre.
[16] [1991] FCA 332; (1991) 21 IPR 481. The case involved a ‘Morning Star Pole’ licensed for reproduction on a ten-dollar note.
[17] Bulun Bulun, above n 4, 133 -134.
[18] See the discussion of ‘adaptation’ v ‘substantial reproduction’ in relation to various kinds of copyright material by von Doussa J in Bulun Bulun,above n 3, 227.
[20] The concept of requiring ongoing consultation with custodians of traditional ritual knowledge used in copyright works may seem impractical in some contexts. See, however, Collaborations: Use of Indigenous Cultural Material in Contemporary Performance, above n 15.
[21] Justice von Doussa, discussed express trusts in Bulun Bulun,above n 3, 526. Cf Terri Janke, ‘Don’t Give Away Your Valuable Intellectual Property Assets’ [1998] IndigLawB 35; (1998) 4(11) Indigenous Law Bulletin 8, 9-10.
[22] If this is the case, then those responsible for authorising or displaying the notice might be liable for damages, or other remedies such as an order to amend the notice, under provisions such as section 202 of the Copyright Act 1968 (Cth), which prohibits ‘groundless threats’ of copyright infringement, or state or federal trade practices legislation (such as sections 52 and 53 of the Trade Practices Act 1974 (Cth)) prohibiting the making of misleading or deceptive statements in relation to the sale of the artwork or reproductions of it.
[23] Legislative reforms may arrive with the implementation of the report of the consultation process for the Indigenous Cultural and Intellectual Property Project: see further <http://www.icip.lawnet.com.au> .
[24] Bulun Bulun, above n 3, 529-530.
[25] See above n 16 and accompanying text.
[26] Complicated issues of liability would arise if custodians, exercising rights under their Bulun Bulun equity, successfully overturned a copyright licence on the basis that the artist had entered the licence in breach of his or her fiduciary duty to them. It is possible that the artist would be liable in damages to the licensee or assignee for breach of contract, particularly if he or she gave a warranty that he or she had the power to enter into the agreement. On the other hand, there may be arguments available to prevent the licensee or assignee recovering on the basis that they were on constructive notice of the existence of the fiduciary duty and were in some way knowingly concerned in the breach. See Hall, above n 3, 134.
[27] See Marianna Annas, ‘The Label of Authenticity: A Certification Mark for Goods and Services of Indigenous Origin’[1997] AboriginalLawB 20; , (1997) 3(90) Aboriginal Law Bulletin 4.
[28] Linda Ford, ‘An Indigenous Perspective on Intellectual Property’, (1997) 90:3 Indigenous Law Bulletin 13.
[29] Hall, above n 4, 244.