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Rentschler, Ruth; Bagaric, Mirko --- "The Indigenous Art Market: A Roadmap to a More Equitable and Efficient System" [2004] IndigLawB 44; (2004) 6(4) Indigenous Law Bulletin 11

The Indigenous Art Market: A Roadmap to a More Equitable and Efficient System

by Associate Professor Ruth Rentschler and Professor Mirko Bagaric

Introduction

The Indigenous art market plays a significant role both in promoting appreciation for the accomplishments of Aboriginal culture and within broader concepts of the export of a national culture.[1] Despite the growth in status and impact of Indigenous art over the past decade, very little scholarship or resources exist to assist their development and analyse their impact on economic or social wellbeing. This paper canvasses new ways of operating the Indigenous art market to better support emerging and established artists in a globalised economy and suggests that there is a pressing need for future research to develop a new framework for its operation.

It has been suggested that Australian law does not always make adequate provision for ethical and conscionable ways of dealing with Indigenous artists, art and culture.[2] The Federal Government’s Myer[3] inquiry on contemporary visual arts and crafts identified gaps between the protection given to cultural material under the Australian legal system and the rights and obligations in relation to cultural material under customary Indigenous legal systems. The Myer report called for better targeted government involvement in the cultural sector. Of the $39 million provided by Federal, State and Territory governments for this purpose, none at Federal level has so far been allocated to ethical and conscionable ways of dealing with Indigenous artists, arts and culture.

As a ‘frontier’ industry, grave concerns have been raised as to its regulation. A national debate has arisen about the need to address legal and ethical issues within the cultural and economic framework in which the Indigenous art market operates.[4] The Northern Territory (‘NT’) government has produced an Indigenous arts strategy that identifies NT government responsibility to ‘enshrine protection for the intellectual property rights of creative artists.’[5] The possibility of introducing such a system, given the disadvantaged position of Indigenous artists in the market and the social and financial obligations of Indigenous artists to their community, strengthens the call for development of a national ethico-legal framework. Given the estimates of the Indigenous art market being worth $200 million,[6] the multiplicity of players and the conflicting objectives of those players, it is important to have appropriate frameworks in place to ensure legal, ethical, economic and industry standards of best practice.

The approach to finding ethical, legal and arts industry solutions to the problems of operation of the Indigenous art market requires:

An Indigenous art development strategy that is both creatively and economically rewarding to the artists and to the businesses supporting them;
A legal structure that will ensure that the Indigenous art market operates in a fair and equitable manner; and
Promotion of Indigenous creative diversity in and for the local and international art market.

Exploitation of artists

Senator Aden Ridgeway has expressed the concern that ‘our laws, particularly as it relates to copyright, are deficient. ... [In many instances, Indigenous artists receive] no economic benefit as a result of any copyright arrangement’.[7] Indeed, there is a significant level of concern that the law does not adequately protect the intellectual, creative and property interests of Indigenous artists. This is supported by prior research in the form of interviews with parties involved in various aspects of the Indigenous art industry. Vivian Anderson,[8] who has operated and traded in Aboriginal Art for 18 years, expressed concern about the ‘hype’ surrounding Aboriginal art and the increasing numbers of new collectors buying from unscrupulous dealers ‘carpet baggers’ (coined by Gabrielle Pizzi)[9] who do not obtain their product through ethical means. Anderson summed up her observations on the industry by stating that Australians felt a sense of cultural ownership with the popularity of Aboriginal art, but were reluctant to ask the difficult questions about the conditions in which these works were produced. She stressed the need to address the question of ‘shonky dealers’ and the exploitation which takes place from these transactions.

Beverly Knight[10] from Alcaston Gallery stated that in her view Aboriginal art should be borne from enhancement for the Aboriginal community rather than misery. The artists are often elderly, and vulnerable to unethical practice. In terms of reforming the industry, among the matters she suggested were that ethical practice should not be in the hands of dealers but the Government of the day and government initiatives should focus on educating the public about good ethical practice.

Previous approaches

In addition to the need for law reform, numerous recommendations have been tabled in reports for regulative reform within existing legal frameworks that collectively may provide a way to maximise the economic and social impacts of the art industry for Indigenous artists and communities.[11] Although some recommendations have been endorsed since these reports were written, it is a framework in its infancy. It is yet to be seen how effectively such initiatives will impact the industry or whether they will be implemented at all.

Recent research[12] brings together the relationships between creativity, ethics, Indigenous art markets and intellectual property (‘IP’). These propositions pinpoint three notions. First, they integrate aspects of the relationship between culture and law. Second, they link culture to legal policy formation. Third, they acknowledge the resource implications and recognise the potential contribution of the creative industries to the economy. At the same time, the propositions accept that cultural considerations are distinct, important and complementary to the economic objectives and constraints that affect the conduct of national affairs and should be given appropriate consideration in the overall process of policy delivery effectiveness.

The central issues

Defining Indigenous art

While it is a diverse sector, the Indigenous arts sector can be subdivided into three areas: traditional Indigenous arts produced by Indigenous people; non-traditional arts produced by Indigenous people and arts produced in intercultural collaborations.[13] In addition to this, there seem to be two further characteristics of Indigenous art:

Indigenous art is concerned with the generation and communication of symbolic meaning; and
Indigenous art output embodies some form of IP.

Generally speaking, possession of these characteristics could be regarded as a sufficient condition in order to define Indigenous art.

Intellectual property

There is perhaps no other area where the relationship between Indigenous art and law is more direct than in the area of IP. The concept of IP in Indigenous art has had little prominence in most countries until recently, even though public sector and auction house involvement in Indigenous art has been active for almost a decade and broader interactions between the state and Indigenous art go back further. Recent reports do however provide definitions of Australian Indigenous cultural and IP and its relationship with law as comprehensively reviewed in Our Culture, Our Future.[14] Definitions are based partly on those determined in international law. It is necessary to analyse the existing definitions and ascertain which definition will best promote the interests of Indigenous artists and the industry.

Indigenous art in the market place

Indigenous artists work within a diversity of environments. Within many of these, in a remote community for example, Indigenous artists have different needs to western artists in relation to the art market. In many instances they operate within a different cultural and philosophical framework. Often Indigenous artists’ individual motivations are surpassed by their responsibility as guardians and interpreters of their cultures. There are well-established protocols surrounding Indigenous cultural material to ensure the maintenance and protection of cultural integrity and IP.[15] The commercial application of Indigenous culture, however, may undermine these values. This becomes more significant in the visual art market as Indigenous visual art is the primary means for transmitting Indigenous culture[16] but is also lucrative and accessible, providing a prime motive for exploitation.

Fairness and Equity

The fundamental tenet of the market system is that parties should be permitted to negotiate a price for the provision of goods and services. However, in many circumstances economic efficiency must give way as more important ideals and legal principles are implemented to promote fairness and equity. The antithesis of fairness is where parties have unequal bargaining power. Inequality can stem from a range of considerations, including education and wealth. A good indicator of unfairness is where the `bargain' that is struck does not approximate the value of the commodity in question. Inequality of bargaining power and insufficiency of consideration are common aspects of many Indigenous art transactions. Given this, from the perspective of the artist and the ongoing industry viability, it is necessary to introduce legal principles that will ameliorate unfairness. It has been suggested that transactions should be invalidated where there is neither real consent nor consideration.[17] This principle transcends all markets, including the Indigenous art market and hence the law should be reformed to accommodate this standard to ensure that Indigenous artists are properly informed when negotiating art agreements.

The way forward

Reform of the Indigenous art market requires a multi-method form of analysis that best suits the cross-disciplinary set of problems it sets out to solve. Johnson implies in her excellent essay that legal regulation is a coercive and effective behaviour modifying tool in our community.[18] However, we do not contend that the solution is solely legal. This same essay illustrates the complexity of the debate, linking land, cultural and IP rights and the stolen generations. Law reform here is a necessary but not sufficient condition for effective change. The other important vehicle is community acceptance and self-determination. Legal and Indigenous policy frameworks should influence each stage in the process, while cultural policy should be imagined as encircling it. Hence, government cultural policy is a key variable in sustaining, regulating and promoting the market. What is not known, however, is how the market can be improved legally and ethically.

Five steps need to be undertaken to reform the Indigenous art market.

First, the nature, scope and magnitude of the Indigenous art market must be identified. It is essential to conduct an independent evaluation of Indigenous losses or gains as a result of the commercialisation of Indigenous art. This should be conducted in conjunction with Indigenous artists, arts centre coordinators and other experts as recommended protocol.[19]

Next, it appears that existing legal frameworks do not accommodate aspects of some Indigenous art. This includes communal ownership of IP, or instances where works may not be attributed to an individual artist.[20] There are no legal rules that have been peculiarly adapted to govern this market. Transactions involving Indigenous art are governed by the legal and economic principles governing the market economy. Given the distinctive nature of the Indigenous art market, this signifies a large gap in the law. It seems that the level of regulation of the market is not commensurate with its importance, magnitude and distinctiveness. There is strong reason to believe that this is an area where the law is significantly lagging behind developments in industry and needs further development.

Third, Australia-wide case studies are needed order to promote ethical conduct, the need for best practice and the need to address the cultural and economic framework as the sector provides enormous cultural and economic benefits to the community and to Australian society in general.

Fourth, the potential exploitation of artists is not unique to Indigenous artists. However, they may have lower literacy levels and less capacity to negotiate a fair price for their work, leaving many Indigenous artists especially vulnerable. Hence, it is likely that the market economy operates particularly unjustly and unconscionably in relation to them. This needs to be addressed by implementing tangible measures which will improve the bargaining position of Indigenous artists.

The final stage requires an appropriate legal response to ameliorate the problems identified above. There are several options. In relation to re-sale of art, one option is an ongoing commission, where artists receive a commission each time their work is re-sold. Resale royalty for artists is a key aspect of the Report of the Contemporary Visual Arts and Craft Inquiry[21] and is a major concern for the broader visual arts sector in Australia. This process must be examined and evaluated specifically within the Indigenous visual arts marketplace. In addition, an art registration system would not only make it possible for artists to be properly remunerated but would have the incidental advantage of ensuring that art work which is sold is authentic.

In order for Indigenous artists and the industry to flourish in the future there is a need for fundamental reform of the industry which recognises the uniqueness and importance of it. It would be regrettable if the government failed to provide the resources and support to action the roadmap. Indigenous art is a finite resource and it is far easier to nurture than to resuscitate.

Associate Professor Ruth Rentschler is from the School of Management and Marketing at Deakin University in Victoria. Professor Mirko Bagaric is Head of Deakin Law School at Deakin University.


[1] Commonwealth (DCITA), Report of the Contemporary Visual Arts and Craft Inquiry, (2002), (‘Myer’).

[2] D Mellor and T Janke, Valuing Art, Respecting Culture: Protocols for Working with the Australian Visual Arts Sector, (2001).

[3] Myer, above n1, 151.

[4] See, eg, G Coslovich, ‘Aboriginal works and artful dodgers’ The Age, (Melbourne) 20 September 2003, Insight 3; G Maslen, ‘Knocked down; still out’ The Age (Melbourne) 29 September 2003, A3 Review 12.

[5] Northern Territory Government, Northern Territory Indigenous Arts Strategy: Building Strong Arts Business (2003).

[6] A Vanstone, 'Opening Address' presented at the Art Crime: Art, Protecting Artists and Protecting Consumers Conference, Sydney, 2-3 December 1999.

[7] J Berry, ‘Aboriginal Artists Missing Out, Says Senator’, The Age (Melbourne), 30 July 2003, 1.

[8] Interview with Vivian Anderson, Aboriginal Art Trader, (Melbourne, 20 November 2003).

[9] Owner of Gallery Gabrielle Pizzi and exhibitor of contemporary Australian Indigenous art for over 20 years (www.gabriellepizzi.com.au).

[10] Interview with Beverly Knight, Curator, (Melbourne, 8 December 2003).

[11] Recommendations have been put forward from reports 1998 – 2003 from M Frankel and T Janke; D Schulz; I McDonald, L Baulch and V Morrison; Viscopy and the National Indigenous Arts Advocacy Association Inc.

[12] Ibid.

[13] J Altman ‘Developing an Indigenous Arts Strategy for the Northern Territory’ (Issues Paper, Centre for Aboriginal Economic Policy Research, 2003).

[14] M Frankel and T Janke Our Culture, Our Future: Indigenous Cultural & Intellectual Property Rights, Executive Summary, (1998).

[15] Myer, above n1.

[16] Frankel and Janke, above n14.

[17] J McConvill and M Bagaric ‘Yoking Unconscionability and Unjust Enrichment in Australia’ [2002] DeakinLawRw 13; (2002) 7 Deakin Law Review 225.

[18] V Johnson ‘Cultural brokerage: Commodification and Intellectual Property’ in S Kleinert and M Neale, The Oxford Companion to Aboriginal Art and Culture (2000).

[19] See, eg Frankel and Janke, above n14.

[20] Ibid.

[21] Myer, above n1.

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