The Australian Government is currently undertaking a scoping study to determine how new stand-alone legislation could help Aboriginal and Torres Strait Islander people to protect and commercialise Indigenous Cultural and Intellectual Property (ICIP).  

It is anticipated that a staged approach will be taken with the first stage of the legislation to specifically address sales of fake First Nations style art and souvenirs, and with later stages to deal with ICIP more broadly.

What happened

The 2022 Productivity Commission Report 'Aboriginal and Torres Strait Islander visual arts and crafts' revealed that up to three quarters of the Indigenous-style consumer products in the market are non-Indigenous authored and consumers had spent up to $54 million on non-Indigenous authored products.¹

The report found that non-Indigenous authored products have inundated the market through marketing descriptions such as, ‘Aboriginal designs’ or ‘handmade’ giving the impression to consumers that they are authentic products.

The report also found limitations in the current legislation governing the production and sale of inauthentic products in Australia.

Currently, the Copyright Act 1968 (Cth) and the Australian Consumer Law (ACL) (schedule 2 of the Competition and Consumer Act 2010 (Cth)) restrict the production and sale of inauthentic artistic products.

However, copyright protection for artworks only extends to a limited period of time after the death of the author and the ACL only applies to artworks which have been marketed as 'authentic'.

The lack of specific legal frameworks for ICIP means sacred symbols and motifs can be used without the permission of traditional owners.  Although there are protocols and guidelines developed by the Australia Counsel and other organisations to support appropriate ICIP practices, they are not legally enforceable.²

There are also currently limitations with other intellectual property protection mechanisms including trade marks, designs, patents and plant breeder's rights (PBRs).

IP Australia is currently looking at the possibility of the introduction of additional measures to specifically prevent registration of trade marks and designs that incorporate indigenous knowledge (IK) without consent or if offensive to Indigenous people.  

IP Australia is also considering whether the patent and PBR system should be changed so that there is a requirement for applicants to disclose whether they have used genetic resources or traditional knowledge.  

Scope of the new legislation

IP Australia has suggested four essential elements that could be covered by the new legislation:

• to provide Aboriginal and Torres Strait Islander people with new IK rights;
• implement measures to stop inauthentic products;
• establish a National IK Authority; and
• implement measures to support and build the capacity of Indigenous businesses to manage and commercialise their IK.

The legislation is set to be developed through a First Nations-led process, to ensure it is informed by and addresses the needs of First Nations peoples.³ 

Submissions will be accepted until 15 June 2024.  Matters yet to be determined include the aspects of ICIP to be covered, consent requirements, communal ownership and enforcement.

Takeaways

The Government has committed to introduce the new legislation and has allocated $13.4 million over four years for the development of the new legislation.

The first stage is anticipated to commence in 2024. Community engagement sessions will be conducted throughout Australia up to May 2024 .

Following this, expressions of interest will be requested for First Nations experts to apply to be part of an expert working group for the development of the new legislation.

The likely cultural and financial impact of this new legislation is uncertain while the framework of the legislation remains to be completed. However, we can hope that the new laws will better protect ICIP and consumers.

Further information

For more information on this issue, or with respect to protecting, enforcing or commercialising intellectual property rights generally, please contact a member of Thomson Geer’s Intellectual Property team.

Footnotes

¹ https://www.pc.gov.au/inquiries/completed/indigenous-arts/report/indigenous-arts-overview.pdf

² https://www.pc.gov.au/inquiries/completed/indigenous-arts/report/indigenous-arts-overview.pdf

³ https://www.arts.gov.au/news/seeking-views-new-laws-tackle-fake-indigenous-style-art

Authors

Katrina Chambers | Partner | +61 7 3338 7948 | kchambers@tglaw.com.au

Dona Joseph | Law Graduate

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