It is clear that our laws and customs do not fit neatly into
the preexisting categories of the western system. The legal system does
not even know precisely what it is in our societies that is in need of
protection. It is a long way from being able to provide for such
protection. The existing legal system cannot properly embrace what it
cannot define and that is what lies at the heart of the problem.1
The circulations of and networks through which discussions of
Indigenous knowledge and intellectual property flow have generated a
wealth of material describing the problems of intellectual property, the
global challenge of protecting Indigenous knowledge and heritage, and what
the utility of international legal instruments may or may not be. Given
how diverse the contexts are in which conversations about intellectual
property and Indigenous knowledge are occurring, it is surprising that
there has been limited attention directed to the emergence of this field.
That it is now virtually impossible to consider expressions of Indigenous
interests in knowledge control and protection outside a legal
discourse raises fundamental questions about the emergence of this
subject, and in particular, the specific effects of its location within
legal frameworks of meaning. Indeed the discourse is so large, with so
many participants at so many levels of political engagement and with
varying levels of agency, that the subject has become its own
referent.
My direct interest in this issue derives from work involving pragmatic
negotiations with a range of stakeholders about the protection of
Indigenous knowledge in an Australian context. The project, in which I am
currently involved, with the Australian Institute of Aboriginal and Torres
Strait Islander Studies and the Intellectual Property Research Institute
of Australia, explores contested ownership and control of historical and
contemporarily recorded Indigenous cultural knowledge. The project is
focused on the significant amounts of copyright material (in particular
ethnographic photographs, sound recordings, and films) that have been
produced about Indigenous people in Australia over the period of
colonization. Simply, the problem manifests itself because Indigenous
people and communities have no legal rights in much of the material,
meaning that they must constantly negotiate with the copyright owner for
future use, reproduction, and in some more extreme instances, access.
Factors such as distance and language as much as new legislative
restrictions on reproduction and use of copyright material in the digital
environment complicate matters considerably.
This project developed in response to the immediate need for strategic
negotiations within law for communities and cultural institutions alike.
Importantly, it prioritizes sustained and ongoing discussions with
Indigenous people about questions of ownership of knowledge and the
implications of knowledge as property. The result from this approach is
the development of community specific strategies for the negotiation of
ownership rights to material—increasing the capacity of Indigenous
individuals and communities to utilize elements of copyright law in
pragmatic ways as well as augmenting copyright with locally developed
systems of control and knowledge management. This work in situ is being
used to inform the development of policy advice and best practice for
cultural institutions, archives, and libraries so that such institutions
are better able to deal with Indigenous peoples' needs, and
importantly, begin the development of new relationships between users and
owners of copyright material. Its practical focus takes these issues
beyond mere theorizing about what the problem is—to imagining new
possibilities and how strategies might incorporate legal and nonlegal
dimensions of knowledge ownership, control, and reproduction.
For the purposes of this paper however, I want to take a step back
from this project and return to the theoretical work that underpins it.
This is for two reasons. First, the theoretical work has provided the
basic conceptual tools that help make sense of the problems that the
project is seeking to address—namely specific Indigenous interests
in copyright law. To this end, both cultural and critical legal theory
have helped make sense of the real by unpacking the concomitant factors
involved in making the very issues demanding attention. This has allowed
the project to transcend certain normative boundaries about the extent of
Indigenous interests in intellectual property law and develop particular
approaches that address those interests practically at the same time,
allowing for localized interests to inform nationwide policy. Second, and
more generally, the expression of Indigenous rights in intellectual
property mobilizes a range of political actors and advocates, but the
thinking around what the complications and contests actually are,
including their specificity, have become increasingly cloaked in rhetoric.
The resulting hesitancy about what can feasibly be done about these
matters also then limits the extent that Indigenous people are
participants within this process, which, of course, also affects the
development and deployment of workable strategies. This paper is one
attempt to broaden the space, and it seeks to do this by prompting
reflection upon the ways in which Indigenous knowledge has been exposed to
formal legal categorization and the extent that this affects how
Indigenous needs and expectations have been articulated and interpreted
within law as well as broader social spaces.
Derived from both practical and theoretical positions, the focus for
this paper is on the making of Indigenous knowledge as a category within
intellectual property law in Australia. From the standpoint of someone who
works on daily negotiations about copyright ownership of photographs,
films, and sound recordings with Indigenous people, anthropologists,
linguists, historians, and other researchers as well as commercial
interests, this paper will come as an unpredictable contribution. It
traces the elements that have been significant in bringing Indigenous
knowledge to a legal domain in Australia. It considers reasons behind the
initial reluctance to see Indigenous interests in the same terms as
standard copyright subject matter; the success of the early copyright
cases where Indigenous knowledge, in the form of Aboriginal art, met the
classificatory rubrics required for the identification of copyright
subject matter; and how, once instituted as a legal category, law has
(quite inevitably) sought to define and manage the boundaries of
Indigenous knowledge.
The debates in Australia surrounding Aboriginal art are used as a
point of departure to highlight the emergence of this legal category. The
discussions in the late 1970s and early 1980s that concerned the
development of protections for Aboriginal art provide a vantage point to
consider questions about how Indigenous knowledge was initially identified
and then made into a category within intellectual property law. What will
become clear through this discussion within an Australian context, is that
this emergence was haphazard and in response to quite specific interests.
From the outset, Indigenous knowledge was a difficult and unstable subject
for law to identify and develop strategies for management, and this
resulted in partial strategies of recognition that were simultaneously
inclusive and exclusive of Indigenous interests.
CREATING AN INDIGENOUS SUBSET WITHIN
INTELLECTUAL PROPERTY LAW
It would be reductionist to see the power of intellectual
property in purely prohibitative terms. The law is always simultaneously
prohibitive and productive: it creates realities and constitutes
possibilities.2
The story of how Indigenous knowledge has become positioned within law
is complicated, contradictory, and incomplete. There is no isolated moment
of identification. This is not to say however, that there isn't an
undercurrent that is intimately intertwined in the construction of
Indigenous knowledge as a category before law. For the development of this
Indigenous category in intellectual property law can be located in
instances of contestation and anxiety: specifically the way in which law
struggles with the recognition of this “new” subject matter.
Extrapolating from critical histories of intellectual property development
and expansion, it is possible to argue that the primary concern for the
law in including Indigenous knowledge as protected subject matter arises
through problems involving identification of intangible subject
matter, and the justification of a right in property. Thus the
difficulties presented to law, rather than being entirely new, are
actually part of a continuum—of law working through ongoing problems
that it has been struggling with for years.3
In part, recognition of the exclusion of Indigenous knowledge from
intellectual property law arose alongside critical consideration of the
author function in copyright, through which developed a concern for
questioning cultural ownership.4
Much of this analysis was preoccupied with
exploring the cultural and legal significance of postmodern authorship and
analyzed copyright against the Western preoccupation with individual
ownership. Along with this, questions of collective cultural ownership and
issues of Indigenous ownership came to the fore. In an Australian context,
legal actions by Aboriginal artists as legal owners further contributed to
an examination of problems and limitations deriving from the largely
Western origins of the law.
5 Yanggarrny
Wunungmurra v. Peter Stripes (1985) Federal Court, unreported;
Bulun Bulun v. Nejlam Pty Ltd (1989) Federal Court, unreported;
Yumbulul v. Reserve Bank of Australia (1991) 21 IPR 481;
Milpurrurru & Ors v. Indofurn Pty Ltd and Ors (1994) 30 IPR
209; Bulun Bulun v. R & T Textiles (1998) 41 IPR 513;
Bulurru Australia v. Oliver [2000] NSWSC 58.
It is important to emphasize that while Indigenous knowledge as new
subject matter presented problems for the law, these were, to an extent,
problems that underlie intellectual property as a whole and as such were
not new. What was new or different was the extent that law responded, and
this was due to the multiplicity of cultural, political, economic and
individual vectors that influenced the direction that the law took in
relation to this new concern. It is at the point of identification, as a
subset presenting difficult cultural and legal problems, that Indigenous
knowledge became a category of attention in intellectual property law.
Critical legal and cultural scholars have been at the forefront of
examining how, at the same time that law reduces (cultural) differences so
that they are barely noticeable, it also relies upon them to understand
the differing demands brought for legal interpretation, mediation, and
importantly, remedy. This is part of the necessarily cultural functions of
law. Whereas law rejects difference presented to it in a radical way: it
accommodates difference when it is presented through the guise of its own
categories and terms of reference.6
This is a reality of legal engagement with
differentials, either cultural or political, as law mediates a space that
does not destabilize its own narrative of internal cohesion. As Elizabeth
Povinelli has explored in the context of land rights and native title in
Australia, this can result in the construction of specific categories of
cultural differences—where a criteria of
authenticity is
established that demands a specific “performance” of legal
subjectivity.
7 In this sense, law becomes
intimately engaged in establishing how certain legal subjectivities are
recognized—to the extent that this then affects how individuals
behave within legal contexts. At the same time, however, this is never
completely predictable, as individuals also use and modify law for their
own strategic purposes.
8 This means that legal frameworks can
also be adapted for purposeful strategies of recognition. Voicing a
concern for Indigenous property within a legal framework of intellectual
property strategically works to alert the law to a concern that it may
have otherwise been blind. Because the challenge is set within the
law's own terms of reference, it must engage the challenge. To not do
so would undermine the narrative of universalism. Thus a possibility for
utilizing law also depends upon recognizing the emancipatory potential of
property.
9 Indeed, it is important to
acknowledge that while Indigenous advocates have been at the forefront of
pointing to the limitations of Western law, intellectual property has not
been abandoned as a potentially useful political tool. For example, the
people I work with are not asking for no-property rights, instead, a
reworking of the property regime to accommodate differing interests and
expectations. Property, and hence law, remain the primary vehicles through
which Indigenous interests are being expressed, and this is why it is
important to look at the fundamental role of law in interpreting and
constructing a frame of understanding about Indigenous knowledge and
Indigenous culture(s), or in more plain terms, the making of the very
category of
indigenous within intellectual property law.
10 I thank Tim Rowse for ongoing discussion with
me about this point.
The possibility for legal frameworks to deliver important entitlements
and recognition that, although partial and incomplete, would nevertheless
be difficult to gain elsewhere, recognizes that within law, certain
politics of demand are at play that emanate from discursive positions not
necessarily (at least initially) informed by law or bureaucracy. In this
sense, although law may become a key player in making meaning about a
particular subject, there are a range of other elements involved in
bringing a particular issue to the attention of law. For instance, in
Australia, changing political environments, the rise of an international
Aboriginal art market, and the advocacy of individuals were instrumental
factors in alerting law to the problem of inappropriate use of Aboriginal
designs. It is significant that the copying of Aboriginal designs had been
encouraged and endorsed for at least a century, leading to a fundamental
question: what was the shift that saw the copying of Aboriginal designs as
a legal problem, rather than a state and socially sanctioned process
informing a nationalist aesthetic? The making of this problem within a
legal space was not necessarily predictable and thus suggests a range of
changing circumstances that influenced how law came to identify the
problem of copying Aboriginal art.
The intersection of individuals, politics, changing economic and
social environments (for instance, the articulation by Aboriginal artists
and other advocates of the problem of copying and misuse of Aboriginal
knowledge expressed in artistic forms) provided the necessary conditions
for future textual production of this problem in legislation, bureaucracy,
and courts. However, once certain claims are allowed to resonate within
legislative and adjudicative processes, the claims themselves take on new
kinds of legitimacy, even though the nature of this legitimacy may be
quite fragile.11
In the silences of law, often around
more complex issues of culture and cultural production, new kinds of
narratives are used to fill the void, and, therefore, new kinds of demands
in terms of participation and legal subjectivities are also
established.
Political Environments and Individual Influence
By the late 1960s and throughout the 1970s, two distinct policy
changes were evident in the way the Australian government approached
Indigenous people. The first was a change from a policy of assimilation to
one of self-determination, and the second was regarding land rights. The
policy shift to land rights was seen in the culmination of statutory
land-rights legislation in the Northern Territory and South Australia.
Australian law was directly affected by these changing political
environments, in effect, establishing the possibility for law to engage in
pragmatic negotiations that addressed social agendas including Indigenous
rights.12
See Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth) and the Pitjantjatjarra Land
Rights Act 1981 (South Australia).
The land-rights movement consolidated a politics concerned with
redressing the imbalance between Western law and the interests of
Aboriginal and Torres Strait Islander people. That these politics have
undergone change over the last 30 years is a testament to the dynamics of
cultural production, political agendas, academic focus, and the sustained
voice of Indigenous people. In this way, the land-rights movement
presented the opportunity for a dialogic space where the interests of
Indigenous people were spoken, governmental objectives shaped, legal
positions challenged, and academic interests honed. Although it should be
emphasized that this space was never unilateral or bounded, the historical
importance of the space enabled flows into various and multiple areas and
generated, in particular, rethinking about the function of the law, with
specific consideration of Indigenous people as citizens and, therefore, as
(new kinds of) legal subjects.13
The complex demands of political movements influence the future
direction and action of government and individuals. Recognizing Indigenous
legal rights and the importance of land-rights legislation changed the
face and direction of Australian legal history. For on one level, the
changes in governmental policy relating to Indigenous people necessitated
a reconceptualization in legal and political discourse of the relationship
between many Indigenous people to land and the importance of cultural
imagery expressed in artistic forms. However, while the development of
land rights and native title disrupt traditional jurisprudence on property
ownership and rights, such legislation remains inseparable from such
jurisprudence. This is because the dominant paradigm of property remains
the central node through which such jurisprudence depends and from which
new jurisprudence develops.
As a compliment to the increasing recognition of Indigenous people as
citizens within a nationalist gaze, attention was also (re)drawn to the
cultural practices and products of many Indigenous people. This included
recognizing the economic value of Aboriginal art.14
As Aboriginal artist Wandjuk Marika, from
northeast Arnhem Land explained in 1976:
[w]e have found that within this culture, our art
is appreciated and has material value. We have been very happy to sell our
paintings and artifacts as this has enabled us to purchase the things that
we now need so that our children can have enough to eat, go to school and
learn to live as part of two cultures.15
In tracing the early events instrumental in alerting law to the
concern for protecting Aboriginal art, the changing economic value is
important. Coupled with the advocacy of numerous individuals, this
changing economic status contributed to the convening of the first
National Seminar on Aboriginal Arts in 1973. The seminar prompted renewed
calls for consideration of Aboriginal art as legitimate art in a Western
sense complete with market signifiers. As noted by Marika, this material
value provided important economic entitlements. The increasing economic
value delivered benefits to Indigenous people and non-Indigenous people
involved in selling or marketing the art. Nevertheless, the changing
economic status did not necessarily diminish the propensity to view
Indigenous people themselves through the lens of primitivism.16
The circulation of
Indigenous products as commodities within a marketplace remained
countenanced by the (mythological) position held by Indigenous people
themselves, who remained popularly represented in romantic,
traditionalist, and communal guises, these imagined subject positions
paradoxically enhanced and increased the value of the art as
commodity.
17 Povinelli observes, “the
art market is hardly the only national social field that generates stress
on Indigenous subjects while purporting to support their spiritually
imbued customary law, encouraging them to occupy complex sites of negation
while leaving unexamined why many people within the nation might desire to
do so.” “Consuming Geist: Popontology and
the Spirit of Capital in Indigenous Australia,” 253.
Thus there existed a noticeable disjuncture where Indigenous cultural
products circulated within a contemporary framework, while the Indigenous
creators remained on the periphery occupying subject positions that were
difficult to transcend, because they were informed by a range of colonial
knowledges that produced particular images of Indigenous people and
interpretations of Indigenous subjectivity.
18 As in other colonial projects, Indigenous people occupy difficult
spaces in relation to liberalism, resultant in part from the various modes
of constructing and making the Indigenous subject known within society. In
Australia, two examples include the homogeneity assigned to Indigenous
people as a discrete group, despite the varying experiences and
ambiguities of colonization and the location of Indigenous people as
existing predominately in traditional community locales and despite the
involvement of church and state actively making communities through
programs of relocation. The effects of essentializing Indigenous people
have been profound and continue to have contemporary resonance. In the
context of this discussion, the emphasis on the traditionality of
Aboriginal culture made it difficult initially to recognize individual and
familial ownership of art and artistic styles as well as contemporary
Aboriginal engagement with marketplaces. This also meant that there was a
reluctance to consider the adaptability of strategies that had been
developed to alleviate unauthorized copying in other artistic communities.
It wasn't until Aboriginal artists themselves started articulating
their complaint in the same terms as other artists and comparing their
experience to other popular artists that a shift in considering the
problem began to occur and also the realization that law possibly provided
remedial avenues.
Thus, it is important to recognize that the space constructed for
recognizing Indigenous subjects has never been unilateral or totally
exclusionary. In this sense, the excesses of subjectivity that the
category of the traditional cannot contain have provided the
moments of discontinuity where common elements could be identified,
recognized, and spoken by the artists themselves. For example, certain
Indigenous spokespeople were able to articulate common causes of complaint
in relation to the misuse of their artworks, and the problem became
knowable to law through a moment of translation: of translating the
appropriation of the cultural product into a language of copy,
permissions, and injury.19
In 1976, Wandjuk Marika wrote in the Aboriginal News of his
anguish at finding his art reproduced onto tea towels. Marika explained
his position, one that he subsequently became the key spokesperson and
advocate for.
Sometime ago, I happened to see a tea-towel with one of my
paintings represented on it; this was one of the stories that my father
had given me, and no-one else amongst my people would have painted it
without my permission. But some unknown person copied my painting and had
it reproduced in this way, without even first asking my permission. I was
deeply upset and for some years was unable to paint.
It was then that I realised that I and my fellow Aboriginal
artists needed some form of protection. It is not that we object to people
reproducing our work, but it is essential that we be consulted first, for
only we know if a particular painting is of special sacred significance,
to be seen only by certain members of a tribe, and only we can give
permission for our works of art to be reproduced. It is hard to imagine
the works of great Australian artists such as Sydney Nolan or Pro Hart
being reproduced without their permission. We are only asking that we
be granted the same recognition, that our works be respected and that we
be acknowledged as the rightful owners of our own works of art.20
It was through the statement of common complaint, of being granted the
same recognition, that initially influenced the responsiveness of the
bureaucracy and later law in relation to these inappropriate uses of
Indigenous imagery. It was certainly not remarkable that Marika's art
was on tea towels, for Aboriginal art had been copied and reproduced in
all kinds of mundane ways informing a nationalist aesthetic and identity
for nearly a century. Indeed there existed (and still exists) a lucrative
market for products that feature Aboriginal artistic designs.
Nevertheless, Marika's concern was instrumental in initiating the
evolution of a space that recognized the legitimacy of the
complaint: recognition of artistry and (even) ownership being the key
elements contributing to the legitimacy. Law was pointed to an area to
which it had previously been blind. Yet there remained a tension that was
to later play out in court and, arguably, still exists contemporarily in
national strategies developed for protecting Indigenous
artists—namely the construction of Indigenous artists as reproducers
of traditional truths on the one hand and on the other hand the
identification of an artist as an individual author necessary for
admission into the normative framework upheld and endorsed by copyright
law.21
The Bureaucratic Response
Following from the localized identification of a problem by Marika,
his articulation of this within broader social spaces, and in keeping with
the international interest in the value of folklore at the time,
the Australian government instituted a working party to examine the
implications of protecting folklore.22
The resulting
Report of the Working
Party into the Protection of Aboriginal Folklore (1981) is important,
because it represents the first coordinated governmental effort to deal
with the issues that Marika, as well as other artists, had raised. The
report, produced in conjunction with four select governmental departments,
presented a telling moment in the development of a strategy to address
this issue that directly engaged with the scope of legal possibility, even
if, at first instance, this possibility was not conceived in terms of
copyright.
23 The four departments were
Attorney General's Department, Department of Aboriginal Affairs,
Department of Home Affairs, and the Environment and Department of Prime
Minister and Cabinet.
What is important is that through the
report, and the contributions made to it by the various governmental
department representatives, law became identified as a vehicle through
which remedy could be attained; this is fair enough given the status and
reality of law's capacity to influence and modify certain kinds of
behavior. But in looking to law, other possibilities are foreclosed,
because the problem starts to take on characteristics that only law can
deal with, for example rights in (a very specific model of) property. The
foreclosing of other possibilities is precisely because law starts making
the issue into one that it alone has jurisdiction over. The turn to law,
instead of Yolngu strategies of control for instance, is also because of
the changing dimensions of the perceived problem and that the controls
over the reproduction of imagery within the Yolngu community that Marika
is from were not easily translated into cross-cultural transactions around
Western market and commodity systems. The power dimensions inherent in
producing the problem shifted the capacity for Marika to act; for example,
there was little possibility for the company infringing on Marika's
work to be brought to account within broader Yolngu systems of law,
cultural production, and knowledge management.
Although Marika's claim for equal recognition and treatment of
Aboriginal artists as artists produced a response from the government,
there was still a reluctance to see Indigenous claims on the same terms.
In this sense, those individuals responsible for writing the Report of
the Working Party inevitably relied on the available (colonialist and
anthropological) interpretations of Aboriginality, leaving contemporary
and intercultural Indigenous exchanges as peripheral problems. This
ultimately produced an anxiety of purpose in employing law, namely whether
the purpose of future legal initiatives aimed to secure the protection of
Indigenous knowledge as a tradition, protect the economic interests of
Indigenous people, or both. Although the two purposes were not mutually
exclusive, they did take the potential recommendations in different
directions. The tension of purpose remained unresolved, but nevertheless,
it was sidestepped when the Working Party interpreted the problems set by
Marika as a special problem for law. Significantly, copyright was
initially dismissed as a viable solution (questions of determining
authorship, artistic work, and originality in traditional culture being of
key concern); hence, the options resonated around the development of
special legislation. Not only was Indigenous subjectivity
imagined in a particular way (homogenous, communal, and traditional), but
so too was the distinct nature of the concerns (protecting traditions in
folklore as against economic interests in art). This means that
participation by Indigenous people within the developing space
articulating the problem (of inappropriate use) demands that they identify
with an impossible (and imaginary) standard of authentic traditional
culture. As a consequence of interpreting the problem as uniquely derived,
Indigenous people become presented with “difficulties both in making
claims and negotiating positions” in future developments.24
Within the Working Party Report, the disjuncture between
economic interest and the preservation of cultural identity and integrity
destabilized the expectation and function of intellectual property law
with regard to Indigenous knowledge as new subject matter. In this sense,
while advocating the possibility of using laws of intellectual property,
notably copyright, the Working Party Report emphasized the
limitations of these laws (for example, that they were for individuals,
not collectivities; they were economic rights not cultural rights).25
Here, bureaucratic
intervention is also engaged in producing knowledge about Indigenous
people—knowledge production and cultural practices that set them
against the normative framework of individual artists and artistry. The
Working Party Report is instrumental in circulating signifiers of
difference that later become useful for law in determining the extent that
the new subject can be protected through judicial means. My point here is
not about the establishment of identifiers of difference, as this is quite
inevitable, and considering the history of intellectual property law,
quite a familiar process; rather, that establishing markers of difference
has certain, though not always deliberate, effects. For example, the
signifiers oscillate around key words like cultural and Aboriginal, which
in their very enunciation, seeks to emphasize that it is indigenous
difference that remains the problem. This affects how the issue itself, as
well as Indigenous participants, are understood. For the report ultimately
concluded that “the reliance on copyright was not appropriate in
order to protect Aboriginal folklore.”
26
This was in part because folklore was a vague descriptive term with no
suitable legal equivalent. It was also because folklore embodied an
unknowable cultural dimension, and this was difficult to quantify. To this
end, Indigenous cultural expression remained unidentified, and
consequently, law remained unable to define what its purpose should
be—for example, what it should be protecting and from whom.
Despite being unable to determine what the issue actually is, the
Working Party Report remains pivotal in presenting the issue as
requiring legal authority and state intervention. The key recommendation
is for a special law, to be complemented by new bureaucratic regimes, such
as Folklore Committee and a Commissioner of Folklore, which would work
together to determine claims. This production of the problem as requiring
legal and bureaucratic remedy is significant, as it normalizes the
legislative approach as the way of considering and indeed ordering any
future decisions regarding the problem of protecting Indigenous
knowledge.27
Failure of the labels of
authenticity? That each community has its own ways of dealing with the
issue?
The paradox is that although legal intervention is what
artists like Marika wanted and requested, the way in which law is
mobilized to act on the problem starts its own processes of identification
and categorization, and this carries its own costs in terms of
understanding and possibility.
The Report of the Working Party establishes a certain kind of
trajectory regarding managing Indigenous interests in controlling
intangible knowledge. It is a trajectory that highlights the
instrumentality of legal frameworks of subject making. To this end, the
Report of the Working Party can be seen as a strategic way of
making reality thinkable and practicable as well as enabling frameworks
for decisions to be made. The report makes the problem of protecting
Aboriginal folklore open to remedy, providing an account of the problem
and generating ideas that might counter the problem. The report also
functions as a specific area of governmental attention to legitimate
Indigenous knowledge. It is illustrative of how bureaucratic initiative is
an important vehicle in establishing frameworks in which practices are
developed that try to shape, mobilize, and sculpt particular choices,
needs, and wants of Indigenous and non-Indigenous people, while at the
same time producing “objects” for legal attention and action,
for example “folklore,” and later through other governmental
reports, “Aboriginal arts and cultural expression” and more
recently “Indigenous cultural and intellectual property”.28
The Report of the Working Party, as the first governmental
report on Indigenous interests in knowledge control and circulation is
intrinsic to the genesis of a space through which the problem of misusing
Indigenous knowledge is to be understood. But what are the “major
influences driving this process”? The diverse range of individuals
participating and even driving the process also illustrate the extent of
possible players involved (for instance through party politics, Indigenous
rights agendas, the academy, and later, sympathetic judges and innovative
artists and lawyers) and point to the types of actors that are part of the
unique elements that inform law and bureaucracy.
These relational elements are significant, because it ultimately means
that state-sanctioned bureaucracy and the courts themselves do not
necessarily share intentionality. The point is that while they work
together to create and establish certain identifiers about particular
subjects, the strategies that are eventually developed will not
necessarily be in keeping with the assumed trajectory. In this instance,
an obvious example is that although the bureaucratic initiative
represented through the report concluded that copyright was not a
solution, the courts, through the decision of a sympathetic judge,
demonstrated to the contrary that it was. This was in part because the
report was dealing with the problem in general, and the courts had a
specific moment through which it was required to determine a solution.
However, the shared identifiers about Indigenous people and Indigenous
knowledge remained relatively undisturbed, as the questions about
protecting Indigenous knowledge still oscillated around legal
intervention, even if the style of that of intervention remained
undecided.
Law makes systems of classification—grids and contents and
classificatory schemes—and these feed back into the process of
adjudication and legislation.29
Increasingly, Indigenous knowledge
is, for the purposes of governmental intervention, being generated and
identified as a type existing within a legal domain, produced through
governmental reports, case law, academic interest, and international
concern. Indigenous knowledge is not ahistorical and uniformly coherent,
but the need for markers of difference that differentiate Indigenous
knowledge from other kinds of subject matter have a dual function in
rendering the subject relatively stable, presuming that it is relatively
ahistorical and coherent and making it different from any other kind of
knowledge that intellectual property law has had to historically deal
with. The effect of legal rationality may appear relatively benign, for
instance, as an integral dimension in how law comes to act on the problem
and find solutions that meet Indigenous requests for action, but this in
turn, it feeds back into how Indigenous people and others voice their
claims so that they are
legally recognized.
Thus, in considering the conditions of emergence for this category in
law, including how other disciplines and forms of analysis have informed
and then, in turn, become subordinate to the legal questions that the
intersection of Indigenous knowledge and intellectual property generate,
it is now time to turn to the production and consolidation of the category
in case law.30
For instance, the focus on
the requirements of originality and authorship have pre-occupied many
writers in this area.
This is because case law is “an event
formative to law itself”
31 and an important place where
juridical technologies facilitate the fabrication of legal subjects.
32 Through moments of negotiation in and around a court of law
over the originality of Aboriginal art, it becomes easier to see the ways
in which law comes to work in its own formal processes and modes of
identification over Indigenous knowledge, making it fit in ways that suit
modes of legal intervention. The mechanics of the court process also
provides a place where we can see how the problem itself is transformed
into more manageable ways; indeed it is because complex cultural
productions are made to appear simple that difficulties later arise.
33MAKING A CASE OF ORIGINAL INDIGENOUS
PROPERTY
In 1985, Aboriginal artist Yanggarrny Wunungmurra and the Aboriginal
Arts Agency commenced action for copyright infringement against a fabric
designer/manufacturer and the proprietor of a retail shop.34
The argument was that the copyright in
the bark painting
Long Necked Fresh Water Tortoises by the Fish Trap
at Gaanan had been infringed upon when reproduced onto fabric without
the artist's consent. The case was settled with the first defendant,
the designer, being ordered to pay damages and to supply a list of all
persons to whom he had supplied fabric. The second defendant, the
retailer, was ordered to deliver all the remaining material to the
plaintiff. The case hardly made a ripple in the vast waters of copyright
litigation. That very little is published about this case, given the
previous discussion about the protection of Aboriginal art that had been
consuming various elements of the Australian Government's Home
Department, is quite surprising.
35 We can
tell the case provoked little comment for several reasons. First, it was
not reported in the intellectual property case reports, and second, there
is very little reflection on the case in the wealth of literature dealing
with Aboriginal art and copyright. Vivien Johnson makes the note that
“the case was not seen as important because the focus was on
folklore not copyright.” Copyrites:
Aboriginal Art in the Age of Reproductive Technologies,
15.
That the Yolngu clan connection between Marika, Wunungmurra,
and the changes in access to law and legal mediation in Arnhem Land
following the significant Gove land rights case,
Milirrpum v.
Nabalco36 Milirrpum v. Nabalco
(1971) 17 FLR 141.
, is similarly peculiar.
37 Vivian Johnson's assessment is
that the case was not noticed because of the interest in folklore at the
time. I would also add that the localized instance of legal success in
Arnhem Land remained just that—local. Australian politics has always
been characterized by the way it picks up some local developments and
innovations and ignores others. The marginal interest in the case (and
others if they indeed existed) also illustrates that the emergence of an
Indigenous author as artist and the consolidation of this category within
a legal frame of copyright was not automatic. For while Wandjuk Marika was
able to express his complaint in terms more readily recognizable to
society at large, his work was still considered folklore, and, therefore,
outside the direct purview of copyright. That a claim of copyright
infringement was successful and was not really noticed or discussed
suggests a subtle reluctance to embrace the inclusion of Indigenous people
and cultural products within an intellectual property regime, even when
they did happen to meet the requirements of tradition. This attention
changed four years later when two Aboriginal artists, Lin Onus and Johnny
Bulun Bulun, and one barrister, Colin Golvan, reinvigorated a space of
recognition in the context of a court.
The 1989 case Bulun Bulun v Nejlam Pty Ltd38
Bulun Bulun v. Nejlam Pty Ltd (1989) Federal Court,
unreported.
had important consequences for the incorporation of
new subject matter into intellectual property law. Significantly, this
challenge for intellectual property law in identifying new copyright
subject matter and cultural difference was mediated through “white
experts, canny lawyers and nice Judges.”
39 These mediators helped shift the issue
from a bureaucratic folkloric curio into a broader legal frame where
resolution actually became a necessity.
40 Golvan heard Lin Onus on Australia's Radio National AM
program, called up the program, and was put in touch with Onus—the
visibility of the issue on national radio also indicated its changing
status as an issue.
At play here are a variety of elements,
including individual personality and politics between artists popularly
considered to be more traditional than urban Aboriginal artists. For Lin
Onus, a recognized Koorie artist from Melbourne, had developed strong
artistic relations with artists in Arnhem Land. On discovering the
infringement of Bulun Bulun's work, Onus pursued channels available
to him in his capacity as a popularly recognized artist and a
representative on the Victorian Arts Council. He made the problem of the
infringement visible in new ways, and the serendipity of his actions is
precisely how the barrister, Colin Golvan, got involved in the case to
start with. Golvan's response upon hearing about the problem on
national radio was essentially pragmatic: he asked, “why
wouldn't copyright work?”
41 Golvan, Interview by Anderson, 19 June 2002, tape recording,
Owen Dixon Chambers, Melbourne.
Golvan had no initial knowledge
of the
Report of the Working Party, but with a legal background,
his intention was in getting copyright law to assume a position of
competence in relation to the familiar issue of copied artworks. His later
recitation of the case in international intellectual property journals
effectively established a field of action and enunciation that was
significant in authenticating a successful legal approach to the
problem.
42 Curiously, especially given the success of the Wunungmurra
case, the prevailing intuition at the time of the first Bulun
Bulun case was that Aboriginal art might not be original
enough in the relevant legal sense. According to Golvan, proving
originality of the work infringed upon was far and above the biggest
potential hurdle that he, and consequently the applicants, believed that
they would encounter in the argument for copyright infringement. The
specific nature of this problem also occupied a range of commentators.43
The initial commentary was that Aboriginal art was not original, because
Aboriginal art was derived from community traditions, copied from an early
version by countless (nameless) authors. This commentary and its
circulation amongst legal academic and more specialized networks concerned
with Indigenous rights thus brought to the fore the potential disjuncture
of the two categories for the identification of copyright subject matter:
originality and authorship. The potentially destabilizing nature of
supplanting these categories onto Indigenous knowledge and cultural
production were also endorsed by very particular colonial and
anthropologized constructions of Indigenous people and Indigenous cultural
practice that had also informed the conclusion in the
Report of the
Working Party—that copyright just wasn't a viable
solution.
As a preliminary to the case, Golvan flew up to Maningrida in Arnhem
Land and then went to the outstation Garmedie, where Bulun Bulun
lived.
We spent some time with him and talked to him about his work
and watched him working. We even filmed him to verify the originality of
the work. This probably seems a strange thing to say today, but at the
time there was quite a lively discussion in copyright circles about
whether Aboriginal artists could claim to be original authors of
traditional artworks. There was some thinking that because it was a
traditional art form—a kind of anthropological thinking—that
the artist couldn't claim copyright in it, as all they were doing was
copying an age old image.44
That the issue of originality was critical to the thinking about
whether Aboriginal art could be included at all within an intellectual
property discourse is peculiar, considering the ambiguous position of
originality within the Copyright Act 1968 (Cth).45
There is no definition of originality in
Australia's Copyright Act 1968 (Cth).
Further, and
this perhaps points most explicitly to the different subject positions
held by Indigenous people, and, consequently, Indigenous knowledge within
these discussions, there was little if any comparison made to other cases
within the long history of copyright that shared the difficulty of
determining originality. For copyright, the problem of originality is not
new and there are a substantial number of cases that have explicitly dealt
with these difficulties, including translations, maps, sea charts,
dictionaries, photographs, (and more recently) databases, and telephone
books.
46 This is not a new problem. See:
Sayre v. Moore (1785) 1 East 361, 102 Eng. Rep. 139; Cary v.
Kearsley (1802) 4 Esp. 168, 170 Eng. Rep. 679; Spiers v.
Brown (1858) 6 WR 352; University of London Press Ltd v.
University Tutorial Press Ltd (1916) 2 Ch 602; Victoria Park
Racing and Recreation Grounds Co Ltd v. Taylor (1937) 58 CLR 479.
Kalamazoo (Aust) Pty Ltd v. Compact Business Systems P/L
(1985) 5 IPR 213;Telstra Corporation Limited v. Desktop Marketing
Systems Pty Ltd [2001] FCA 612; Desktop Marketing
Systems Pty Ltd v. Telstra Corporation Limited [2002] FCAFC
112.
However, in the context of Indigenous art, the questions of
originality and authorship that arose were seen as totally distinct. The
problem was not with laws' processes of determining originality
(which are really surprisingly low, as there is no definition of
originality in the limited copyright act) but rather vested in the unique
Indigenous subject matter at hand. What is possible to describe as
occurring were dual interpretations; one relying on the primacy of
originality as a category capable of identifying copyright
subject matter and another explicitly reading the otherness and difference
within Indigenous cultures as incommensurable with categories relied upon
in law. This view of Indigenous cultures enhanced the anxiety mentioned
earlier, where Indigenous people as legal subjects were positioned between
two dislocated worlds, one of
tradition (where originality could
not be identified) and another of
modernity (that included
identification of an individual author; and an original work).
47 As other commentators have made note, law has been forced to consider
the world beyond its boundaries through the specific moments where claims
of legal expectation also incorporate arguments regarding cultural
identity.48
This
position is enhanced in the consideration of the intuition that a problem
of originality may exist in relation to Indigenous subject matter. Here
law could not escape from, and was indeed informed by, cultural factors,
for instance anthropological knowledge and writing that emphasized the
traditionality of Indigenous societies and art histories that spoke to the
repetition (in opposition to originality) of Aboriginal designs. That
Indigenous artists engaged in the same mental labor as other artists in
terms of making works that could also be sold commercially was obscured by
the differential position of Indigenous artists within Indigenous
communities. Likewise, the extent that Indigenous people were making money
from their art, and thus engaging in complex negotiations with markets,
where the damage sustained to the artist by unauthorized copying could be
measured for the benefit of law in financial terms, was obscured by the
reluctance to see Aboriginal artists as individuals and as participants
within the market. The reliance upon a concept of community and the
difficulty of individuation precluded the vision of an Aboriginal artist
as an author. In a simplistic way, the argument ran along the lines that
with Indigenous artists, as they did not choose what to paint because it
was traditionally determined, the labor exerted was that of copy rather
than creativity. Thus, interpretations of Indigenous cultural production,
made from a variety of perspectives and fields of expertise that were
predominately non-Indigenous, informed the initial hesitancy in the
position that the law took.
One of the important reasons why Indigenous art was not seen as
original was because it was characterized as tribal or primitive.49
Further, it was suggested that there was no
identifiable author in the sense that the artist was reproducing
traditional truths that had been handed down, thus voiding any arguments
regarding creativity. Similarly, any aesthetic choices made by an artist
were governed by custom and not choice: the idea of an intellectual
commons was not applicable in this context. At this point, it is
instructive to remember Mark Rose's consideration about the necessary
conditions that allowed the relationship between the figure of the author
and the text to permeate society.
50
Rose observed that before an author could be perceived as a creator, it
was first necessary that society realized the author was doing more than
replicating traditional truths.
51 So while this shift was crucial for the Western formation of
the author, it was still to occur in relation to figuring (and
understanding) Indigenous people and cultures—there was yet to be an
individuation that linked an Indigenous artist to a work that law
recognized.
The crisis in identification for intellectual property law exposed an
anxiety in the position that Indigenous people held in relation to
modernity and the traditional. As Golvan has explained in taking the video
of John Bulun Bulun working, “[w]e ascertained quickly
that there was a lot of authorial content in what otherwise appeared to
the untrained eye as simply being traditional art. For example it
wasn't hard to see that what was described as a traditional act was
in fact quite contemporary.”52
Herein lies one of the difficulties in reclaiming the
category of originality for Indigenous works, and this difficulty was
precisely because when it came to the question of originality, it was not
clear how Aboriginal art fitted because of the differing, and at times
contradictory, types of knowledge (colonial, anthropological,
bureaucratic, and Indigenous) that informed understandings and
interpretations of its character. In this context judicial decisions
became hard to make.
53 Milpurrurru &
Ors v. Indofurn Pty Ltd and Ors [1994] 30 IPR
209.
Thus, testing questions regarding the legitimacy of these categories
for the law are raised. Prior to the cases mentioned, the problem of
originality for Indigenous art was potentially the point that would
destabilize the legitimacy of the legal categories of identification and
justification of intangible subject matter. However, perhaps due to the
defensive stance taken by Golvan in the case law, originality was never
actually picked up as an issue in the court, despite the pervasive
academic writing that had perhaps “made” it into the
potential hurok. In the court, originality in Aboriginal art was assumed,
thus maintaining the coherence of legal frameworks and reaffirming that
originality as a category effectively identifies suitable work for
protection. But this generated alternative effects.
Imbuing Aboriginal Art With Originality
One of the by-products of this treatment of the question of
originality regarding Aboriginal art was the production of a slippage in
the symbolic meaning of original already circulating in art and
anthropological circles. The term becomes modified and reimagined in
relation to a broader cultural space that speaks to the authenticity of
Aboriginal cultural practice as a whole. In assuming Aboriginal art's
originality, which is an attempt by the law to sidestep the cultural
contingency and limitations of the term and its method of identification,
one effect is an enhanced authenticity of Aboriginal cultures. Thus, when
Indigenous people come before intellectual property law, they must conform
to the performance of cultural difference and authentic culture that
dually identifies the subject of protection while dislocating the
subjectivity inherent to its production. Thus, the slippage is that in
authorizing this form of originality, the category of identification for
the law moves from identifying the product of the intangible
subject matter (the art), to authenticating its genesis in
Aboriginal culture. This arises precisely because to deny Aboriginal art
originality would suggest that the culture itself is not original, because
the linkage between the art and the culture had been so effectively made
in representations to the court. So as if by default, the opposite occurs:
Aboriginal culture as a unitary whole is positioned as original. This
process of identification is heightened by the traditional style of art
that is at the center of the case.
The second point to make is that affirming the originality of
Aboriginal art effectively brings Aboriginal art into the sphere of
intellectual property. Copyright law captures an element of the object
through offering a classification of its form. Frameworks for decision
making are made that result in the production of knowledge about the new
category of law, not only within the art market but also within law too.
To this end, Aboriginal art becomes imbued with features that it otherwise
might not have; for example, the language of originality did not form part
of popular usage by Indigenous artists or in the art world prior to the
cases. Subsequent to these discussions however, there is the a priori
assumption that Aboriginal art is original, in that it is the authentic
expression of a unique cultural perspective. Thus, one step in the
categorization of Aboriginal art within an intellectual property discourse
is completed, even if it does depend upon a narrow reading of Aboriginal
cultural and artistic practice. Further, a concept of Indigenous knowledge
is legitimately captured and produced as a legal category of attention and
identification. But the slippage between the assumed originality of the
art and how this plays into the authentic Aboriginal culture means that
the category of identification for the law is necessarily caught up in not
only identifying the copyright subject matter but also linking that
subject matter to a particular cultural milieu. The difficulty of
separating the art from the distinct cultural space where it was
produced heightens the anxiety between the positioning of Aboriginal
people within both modernity and the evocation of the traditional, an
anxiety acutely experienced by urban Aboriginal artists.54
As Gordon Bennett has explained: “I
didn't go to art college to graduate as an ‘Aboriginal
Artist’. I did want to explore my Aboriginality, however, and it is
a subject of my work as much as colonialism and the narratives and
language that frame it, and the language that has consistently framed me.
Acutely aware of the frame, I graduated as a straight honours student
… to find myself positioned and contained by the language of
‘primitivism’ as an ‘Urban Aboriginal
Artist’.” G. Bennett, “The Manifest
Toe,” 58. See also Bell, “Bell's Theorem: Aboriginal Art: It's a White
Thing.” Bell went on to win the prestigious Telstra National
Aboriginal and Torres Strait Islander Art Award in 2003 for his artwork
Aboriginal Art: It's a White
Thing.
It is inevitable that the space created to make the subject
Indigenous intellectual property intelligible involves attempts
to make features of Indigenous epistemology recognizable to law while also
supplanting laws' own categories onto Indigenous cultural production.
“In law there is always conflict and always loss: the stories of the
two parties conflict or compete and do so not only in detail but in their
shape and their language, in the deepest meanings from the speaker and to
others.”55
This is most apparent in the way that
the production of the legal category of Indigenous knowledge is exposed to
a singularity of identification and justification. Thus, Indigenous
knowledge, presented in a stable and unitary form, is rendered open to
modes of categorization that help
identify the intangible subject
matter to the law. This is achieved through deploying the object of legal
protection such as art, dance, or design onto Indigenous knowledge and
mediating the shift from the intangible to the tangible. Through this
process, Indigenous experience of knowledge exchange is summarily
transformed into intelligible and preexisting categories produced both in
law and through normative social mechanisms of recognition.
CONCLUSION: WHAT LAW MAKES
As Indigenous knowledge only recently became subject to legal
attention, both nationally and internationally, this article has sought to
illustrate how this emergence in Australian intellectual property law was
influenced by a variety of social, political, individual, and economic
dimensions. There are always multiple elements at play in making complex
social and cultural issues subject to legal determination, but once an
issue is instituted within legal frameworks of classification and subject
making, law becomes a powerful forum for redistributing interpretations of
what the problem actually is (for example, property rights in knowledge)
and how to address it (for example, developing new legislative
initiatives). In this sense, law becomes actively involved in constructing
a subject that is amenable to its own forms of categorization. But this
comes at a price, and this is manifest in the commensurate effects that
law then also exerts upon the realms that influence it; for example, how
claims to law are made and how new subjectivities are created.
The power to circulate what Indigenous intellectual property
is, how it includes and excludes aspects of interpretation of what
constitutes Indigenous epistemology, political particularity and context
directly affects how processes are conceptualized that deal with, and
indeed name the problem that law has been invited to ‘solve’.
Law is a powerful vehicle that can circulate new meaning and influence
perceptions of closure around a particular issue. This is at the expense
of the complexity and contradiction that underpins the problem, or indeed,
makes it in the first place. Governmental reports, case law, and
precedent, as well as academic articles that discuss and debate Indigenous
intellectual property, also establish networks through which this concept
is understood. However, what such reports, case law, and articles produce
is a conception that Indigenous knowledge is a relatively unitary category
and an established category of intellectual property law. Importantly,
this reification of the category in law even occurs when critiques focus
on the inapplicability of intellectual property framework. The legal
language dominates such discussions to the extent that understanding the
limitations necessitates engaging in the language of intellectual property
to explain why the law won't work56
or why
Indigenous knowledge doesn't fit the legal schema.
57 The Australian example provides a unique moment in the history of
intellectual property law, and this is borne out through the repeated
story telling that draws on such case law.58
It is also significant, because what
follows from this moment of recognition is a repetition, where the
subsequent cases, governmental reports, and individual advocacy follow the
legal trajectory already set for dealing with this issue.
59 Whereas there is modification and
reinvigoration in the recognition, there is no disruption of the location
of the issue in law. Consequently, law becomes a primary vehicle for
understanding, identifying, and then circulating interpretations of
Indigenous knowledge. For all the later developments in this field
following the
Working Party Report and the 1989
Bulun
Bulun case, both in Australia and internationally, the competence and
authority of the legal domain remains affirmed. This has affected not only
how meaning about the problem is made, but also how participants are
constituted.
This paper represents one instance in an ongoing critical work derived
from the following questions: What are the cultural, political, and legal
shifts that have produced the category of Indigenous knowledge within the
field of intellectual property law? And, how does legal power produce a
domain specifically occupied by a concept of Indigenous knowledge, and how
does it seek to manage such a domain?60
As claims for cultural property are always
complicated and almost always invested with politics, it is time to start
assessing the effects of property claims as they are inevitably positioned
within legal relations of power. A significant challenge for this field is
that law has become the primary mediator for Indigenous interests when the
problem itself is historically informed by diverse relationships between
individual, cultural, economic, and political relations. What this means
is that the complexities of knowledge circulation and control within and
through Indigenous societies (in Australia, these are not all of one kind)
have been sheered off in order to uphold a logic about property and
ownership in knowledge. In this sense, every society historically and
contemporarily has particular strategies explicit or otherwise of managing
and controlling knowledge circulation and distribution, and these have
always been multiple and not necessarily coordinated. But when law becomes
the primary domain for reconciling competing interests, these same
interests will be modified in ways that correspond with what is possible
within the legal space. This will inevitably be at the expense of the
complexity that informs them. Thus, as James Leach reminds us, it is
essential to understand the distorting nature of property itself when
thinking about the implications and the costs of property ownership in
knowledge.
61 In the field of Indigenous rights and intellectual property, as well
as in my daily work, law matters considerably. This is because, quite
simply, law produces ways of seeing, of interpreting and understanding
events and issues—it makes realities that require action. Rethinking
the construction of categories of law provides new and diverse ways of
thinking about law, legal process, and legal power that reflect upon the
complexity of legal engagement within any given sociality. In this sense,
social, individual, and political elements always affect how law comes to
make frameworks for decision making, but, conversely, law also distributes
meaning back into these same spaces at the expense of the inherent
intricacy and often contradiction that informs them. That we appear
increasingly reliant upon law to solve quite complicated social and
cultural problems that have their genesis in a variety of unequal power
relations is certainly illustrative of the extent that 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”62
and to recognize this is necessarily
the first step in understanding why we must talk about what law itself
makes and through what processes a category of legal attention even
becomes possible.
ACKNOWLEDGMENTS
My thanks to Kathy Bowrey, Bryan Rochelle, Lesley Fordred-Green, and
Sita Reddy for invaluable comments and suggestions.
