The Protection of Indigenous Art and Culture in Australia: The Labels of Authenticity

Abstract

The National Indigenous Arts Advocacy Association recently estimated that the Aboriginal and Torres Strait Islander arts and culture industry generates around $200 million a year. 1 With the growing international interest in Aboriginal and Torres Strait Islander art, it is likely that this figure will increase in the coming years. As with many other successful arts industries, the Australian Indigenous arts and culture industry is under threat from a growing number of fakes and rip-offs. A particular problem that faces this industry is the practice of non-Indigenous artistic works being passed off as if they were authentic Indigenous works. A number of different techniques are available under Australian law to protect against the increasing number of non-Indigenous people who manufacture and sell Indigenous artefacts at the expense of the Indigenous artistic community. These include the use of a registered trade mark; a collective mark 2 ; a certification mark 3 ; an action for passing off; an action under section 52 of the Trade Practices Act 1974 (Cth) 4 ; or the introduction of special legislation such as that introduced for the Sydney Olympic Games in 2000. 5 While each of these has their strengths, currently the preferred option is for two certification marks, referred to here collectively as the labels of authenticity. The labels of authenticity will serve to distinguish authentic Indigenous artistic goods and services from other products on the market. 6 Somewhat paradoxically, the relative success of recent copyright actions involving Indigenous art has increased the need for such labels. 7 This is because, in response to these decisions, pirates have shifted their attention away from the copying of individual works to the reproduction of styles of works: a matter which is particularly well suited to an Indigenous certification mark.