Indigenous Law Bulletin
by Jane Anderson
Throughout 2003 the Federal Government made public statements committing to the drafting of an amendment to the Copyright Act 1968 addressing Indigenous communal moral rights. In mid December, following several months of anticipation, copies of the draft Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 were distributed to several organisations and one individual for comment.
The stated intention of the draft Bill was to give “Indigenous communities legal standing to safeguard the integrity of creative works embodying traditional community knowledge and wisdom.” The legislation would “provide a simple, workable and practical schema for Indigenous communities, artists, galleries and the public.” Further enhancing the Government’s position and commitment, Philip Ruddock explained at the recent Eleventh Biennial Copyright Law and Practice Symposium how copyright law extended beyond purely economic considerations; it could play a vital role in fostering and protecting our Indigenous and cultural heritage: “the protection of Indigenous culture depends upon strong and effective copyright laws.”
Despite these public comments the draft Bill is highly complicated and legalistic, presenting serious practical hurdles for Indigenous people and communities seeking to protect their knowledge and its use. There is a wide gulf between the Government’s stated intention and what has been presented. This is not only illustrated through technical problems with the draft Bill, but also in the broader practical inaccessibility of the draft Bill by Indigenous communities. On a substantial reading of the draft Bill it is difficult to imagine any circumstance arising where remedy could be attained for infringement. This is a clever piece of legislative drafting because that is precisely the point – to have a Bill that limits the possibility of litigation.
The draft Bill has five formal requirements that must be met before a community could claim Indigenous communal moral rights. Firstly (and obviously) there must be a work – an artistic, dramatic, musical, literary work or cinematographic film (sound recordings are excluded). Secondly, the work must draw on the “particular body of traditions, observances, customs or beliefs held in common by the Indigenous community.” Thirdly, an agreement must be entered into between an Indigenous community and the creator of the work (the copyright holder). This is a voluntary agreement, which could be oral in nature. Since Indigenous communal moral rights cannot exist without this agreement, the onus is on the Indigenous community to establish the agreement. Here there is an implicit presumption that the community will know or will find out, possibly through the benevolence of the creator, that a work is being created that draws upon that community’s traditions, customs or practices. Fourthly, there must be an acknowledgement of the Indigenous community’s association on or with the work. Finally, interested parties in the work need to have consented to the rights arising. There is no clarification of who constitutes an ‘interest holder’ – and this consent must be provided through written notice. All of these requirements must be met before the first dealing of the work, otherwise no rights arise.
The draft Bill imposes serious conditions upon how and when Indigenous communal rights will be recognised within the law – to the extent that it is very unlikely an infringement would ever arise. This raises serious concerns about the motivation of the draft Bill that purports to do one thing, but actually does quite the opposite.
Hypothetically speaking, under the draft Bill Indigenous communal moral rights would not have been recognized in any of the copyright infringements that constitute Australian jurisprudence in this area, nor the other instances of appropriation that have raised concerns for better protection of Indigenous cultural expression (for instance: the Eddie Burrup artwork by Elizabeth Durack; Mutant Message Down Under by Marlo Morgan; and the artwork of Satchi Amyettere). In several of these cases, the artist or creator would not have entered into an agreement with a community (and in the draft Bill this is very much the prerogative of the artist or creator) and in other instances, the only time the community was made aware of the infringement was when the work was already on sale. Even in the second Bulun Bulun case, Bulun Bulun v R&T Textiles – the closest to recognising communal rights via fiduciary duty – the Ganalbingu people only knew about the infringement when the fabric containing Bulun Bulun’s artwork Magpie Geese and Waterlilies at the Waterhole was brought back from a shop in Darwin.
The draft Bill is illustrative of the persisting conflict between modern social theory and positivist legal approaches to particular problems. There is a tendency in law-making communities to assume that the most important issues revolve around what the law says, rather than the effects of the law. This is contrary to how academics and academic lawyers understand law and legal processes as significantly impacting upon cultures and cultural production – and often reflecting quite specific agendas. For instance, the draft Bill represents its key terms, such as ‘community’, as unproblematic. This is despite the wide body of academic work that is engaged in analysing such concepts and importantly the broader implications of codifying such terms. The draft Bill sits astride contemporary research on the ambiguity and metamorphosis of the notion of community – thus also remaining unconcerned with the inevitable social and cultural impact of legally imagined conditions of identification.
For critical legal scholars it is not easy to divorce the creation of a specific law from the application and practical utilisation of that law by those whom it is purportedly for. Thus practical questions must be raised, directed primarily at how this law would be used, who could access it and through what means. These are crucial questions that are integral to the development of solutions that are amenable to all stakeholders. Unfortunately the answers to these questions remain far from clear.
The draft Bill is not an isolated moment of legislative drafting but is positioned within a broad discourse informed by an Indigenous rights agenda. Recognising this position means that consultation with a variety of Indigenous people, communities and organisations that will be directly and indirectly affected is necessary. For example, land councils and art centres are just two types of organisations that will inevitably be involved in brokering agreements and explaining the legislation. This will increase already substantial workloads, especially placing pressure upon those individuals with some knowledge of copyright law.
The need for such consultation is also imperative as it is highly likely that the draft Bill will have effects well into the future. Even if limiting litigation is the primary agenda of the draft Bill, it is quite feasible for the draft Bill to have broader implications as the Native Title Act 1993 has aptly illustrated. For example, if the identification of a community and membership of the community is made for the purposes of Indigenous communal moral rights, what are the possible implications for the naming and identification of a community in other areas of law – namely native title?
Upon consideration, it is clear that the draft Bill is not really for Indigenous people, it is the Government that really benefits from the legislation and this is for two primary reasons. If the draft Bill is passed, and it appears as though the Government is looking to introduce it in the first sitting of parliament in February 2004, the issue of Indigenous moral rights will have been successfully taken off the agenda with very limited fuss.
Despite its name, the draft Bill does not actually offer realistic protection for knowledge held communally. But the power of the title Copyright Amendment (Indigenous Communal Moral Rights) Bill is that unless one actually reads the draft Bill (and there are only a few that have been distributed) it would superficially appear to break new ground in the field of Indigenous rights to cultural knowledge. In its general appearance, the draft Bill suggests that the Government is responsive to Indigenous rights. Yet it presents considerable, and possibly overwhelming, practical difficulties. Indigenous communities would be in no better situation than they were before the draft Bill. Besides being practically difficult to access – interpretation will need to be mediated by legal experts, the legislation ostensibly reduced to a “lawyer’s playground” – the requirements mean that infringements are unlikely and remedy almost impossible.
Secondly, and this is one of the more insidious implications of the draft Bill, once the law is passed it will be very difficult to amend. This is because without litigation highlighting the difficulties there will be no examples showing the shortcomings of the law.
The general concept of communal moral rights itself raises theoretical concerns – primarily the challenge of legally naming and identifying Indigenous communities and whether this form of codification is desirable. In themselves such concerns require serious consideration, both in relation to the problem that the law is supposed to be ‘fixing’ and indeed whether this is at all possible. Critical reflection is needed upon the position of law and legal processes in establishing remedies for problems that are social and cultural in nature. For instance, the copying of Indigenous designs has been socially and governmentally endorsed for nearly a century. Can we really expect law to ‘fix’ such a historically entrenched social problem? What other alternatives are there? As Pat O’Malley reflects:
The identification of a social problem as a legal need rather than some other sort of problem altogether is dependent upon the place that law occupies in the society concerned, and especially the extent to which legalism permeates social consciousness. To identify a problem as a legal need is to make a particular judgment about appropriate solutions to that problem and then to recast the conception of the problem to accord with the nature of the proposed solution.
But these more substantive concerns remain at the more theoretical end of legal thinking – still peripheral to the law-making communities scattered through select governmental departments.
Notwithstanding this lack of critical investigation, the key point is that this draft Bill has been created in such a way as to render it ineffective. If the draft Bill would not even be effective in the cases and instances that have been the catalyst for developing it, serious questions need to be asked about its utility.
It is apparent that the draft Bill provides very little possibility for the legislation to be used and thus be meaningful for Indigenous people and communities. It is quite feasible that this is deliberate in the sense that its general ineffectivity seeks to stymie any further claims to special communal rights. Under such circumstances the draft Bill must also be understood to be functioning as a broader political strategy limiting the recognition of any communal form of rights. However, once again Indigenous communities remain as political pawns in broader strategies of governance. It is thus not difficult to see that for the Government, the utility of an ineffective law lies precisely in its perceived ineffectivity.
Jane Anderson completed her PhD in the Law Faculty at UNSW. She is currently a Visiting Research Fellow at AIATSIS working on an intellectual property law and Indigenous knowledge project in collaboration with the Intellectual Property Research Institute of Australia (IPRIA). She would like to thank Kathy Bowrey and Bryan Rochelle.
 Department of Communication, Information and Technology, Department of the Attorney General and the Department of Immigration and Indigenous Affairs, Indigenous communities to get new protection Joint Press Release 19 May 2003.
 Note 1.
 Ruddock, P, “The Government’s Copyright Policy Agenda” Conference Paper delivered at The Eleventh Biennial Copyright Law and Practice Symposium, Darling Harbour, November 2003.
 Individual moral rights are automatic. See Part IX Copyright Act 1968.
 Yanggarrny Wunungmurra v Peter Stripes (1983) Federal Court, unreported; Bulun Bulun v Nejlam Pty Ltd, (1989) Federal Court, unreported; Yumbulul v Reserve Bank of Australia  FCA 332; (1991) 21 IPR 481; Milpurruru v Indofurn Pty Ltd  FCA 975; (1994) 30 IPR 209; Bulun Bulun v R and T Textiles  FCA 1082; (1998) 41 IPR 513.
 Stephen Gray considered these three examples in more depth: Gray, S, “Black, White or Beyond the Pale: The Authenticity Debate and Protection for Aboriginal Culture” (2001) 15 The Australian Feminist Law Journal 105.
 Bulun Bulun v R and T Textiles  FCA 1082; (1998) 41 IPR 513
 For an articulate exploration of this shift see: Bowrey, K, Law and Internet Cultures (CUP, forthcoming).
 For a recent work in this area see: Sullivan, P, “Culture Without Cultures: Reassessing the Centre in the Search for Boundaries and Borderlands” Paper presented at the Australian Anthropology Society Conference, Sydney University, October 2003; Bauman, T, “Nations within nations, tribes within tribes: Aboriginal nationalism in Katherine” Draft Paper presented at the Australian Anthropology Society Conference, Sydney University, October 2003.
 Eagles, I, “New Zealand Moral Rights Law: Did Something Get Lost in Translation?” (2002) 8 New Zealand Business Law Quarterly 26 at 27.
 For a discussion of the treatment of Aboriginal art in Australia’s history see: Thomas, N, Possessions: Indigenous Art/Colonial Culture Thames and Hudson: London, 1989.
 O’Malley, P, Law, Capitalism and Democracy Allen and Unwin: Sydney, 1983 at 104.