Indigenous Australian artistic designs are protected against fakes

The Federal Court of Australia has for the first time protected Indigenous Australian artistic designs without relying on copyright or other intellectual property rights.

The Federal Court of Australia has applied the Australian Consumer Law to protect Indigenous Australian artistic designs by penalising a seller of souvenir boomerangs, didgeridoos, bullroarers and message stones which were painted with fake indigenous designs, authenticity and provenance, the sum of $2.3 million.

The decision is Australian Competition and Consumer Commission v Birubi Art Pty Ltd (in liq) (No 3) [2019] FCA 996 (26 June 2019) (Justice Perry) (the “Penalty Decision”).

The decision establishes that the Australian Consumer Law can be used to protect against cultural appropriation. In this case, it was the cultural designs, images and symbols that were taken and were exploited for commercial benefit, without an understanding of the widespread economic, social and cultural harms it causes to Indigenous Australians.

The Liability Decision

The Penalty Decision followed the Liability Decision, in which Justice Perry found that Birubi Art had contravened the Australian Consumer Law.

The facts were:

Birubi Art, sourced the artefacts from Indonesia, where they were manufactured and decorated with Australian Aboriginal designs such as kangaroos, emus, crocodiles, fish and dot art by non-Aboriginal people. An Aboriginal designer, Trisha Mason, had prepared artwork for some of the products, but did not supervise or paint any of the artefacts.

Birubi Art sold the artefacts to 244 retail outlets in Australia, which sold them to tourists as authentic Aboriginal Australian artefacts. Between July 2015 and November 2017, Birubi Art sold 50,000 boomerangs, bullroarers, didgeridoos and message stones to retailers.

The Court found that the artefacts, their labelling and their packaging gave the misleading impression that they were made in Australia and had been painted by an Australian Aboriginal person. See the images.

The Penalty Decision

Shortly after the Liability Decision was handed down, Birubi Art entered into voluntary liquidation. The Court gave leave to the ACCC to proceed to a penalty hearing, for several reasons which included that the Court should impose a penalty for general deterrence.

The Court assessed the civil penalty by way of an intuitive or instinctive synthesis of all of the relevant factors rather than a sequential mathematical process. The main factors were:

1. The nature, extent and the duration of the conduct: the representations made were that the objects were traditional Aboriginal cultural objects (except the message stones) by the use of particular words (“AUSTRALIA”, “HAND PAINTED”, “Authentic Aboriginal Art”), and by the use of images, symbols and designs which are characteristic of Aboriginal artwork. No reference was made to Indonesia, where they were made.
   In the relevant period, 19,472 Didgeridoos, 7,167 Boxed boomerangs, 6,814 Message stones, 15,688 Loose boomerangs and 352 Bullroarers were sold for periods of between 11 and 28 months.
    
2. The relevant circumstances: The retail outlets included souvenir shops, museum gift shops, galleries and convenience stores. The Court found that the representations had “the potential to mislead a broad range of customers including international tourists whose familiarity with Aboriginal art and cultural practices is likely to be limited”. And that the director of Birubi Art had made the deliberate marketing choice to emphasise the association of the objects with traditional Aboriginal art and cultural objects.
    
3. Loss or damage caused: Considerable economic, social and cultural harms were caused to the Aboriginal community by this conduct. One was the loss of opportunity for sale of product in that some consumers could believe the objects to be “authentic”. Another was the undermining of benefits to Aboriginal people and communities in the Indigenous arts and souvenir sector, which was estimated to be generating revenue in the order of $300-$500 million per year. Yet another was that “the representations as to Indigenous authenticity and provenance are likely to have caused cultural harm and offence”.

The penalties were based on whether the misleading impression was “overwhelming” (or only a real risk of being misleading), the volume of sales, and the period of sales:

Didgeridoos $700,000; Boxed boomerangs $475,000: Message stones $475,000; Loose boomerangs $450,000; and Bullroarers $200,000.

The total penalties were $2.3 million.

Legislative protection for Aboriginal artworks?

In its media release, the ACCC stated:

“The ACCC will be monitoring traders of Indigenous Australian style art and souvenirs to ensure confidence in the Indigenous Australian art industry. We will take action against those who mislead consumers about the nature of their products,” ACCC Commissioner Sarah Court said.

But the powers of the ACCC are limited because the consumer and copyright laws are inadequate to protect the traditional heritage and cultural expressions of Indigenous Australian against cultural appropriation. A legislative response is needed.

In December 2018, the Australian House of Representatives Standing Committee on Indigenous Affairs released a report - Report on the impact of inauthentic art and craft in the style of First Nations Peoples.

In the Chair’s Foreword, Ann Sudmalis MP noted:

An extraordinary statistic that emerged from the evidence received is that 80% of the souvenirs sold in Australia purporting to represent First Nations cultures are in fact imitation products. These inauthentic items have no connection to First Nations peoples and are often cheaply made imports.

The Standing Committee made several recommendations. Some are:

• The committee recommends that the Australian Government begins a consultation process to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions
   
• The committee recommends that the Australian Government develops an Information Standard for authentic First Nations art in full consultation with First Nations artists and communities and the Indigenous Art Code.
   
• The committee recommends that the Australian Government develops an information guide on authentic First Nations art to be provided to all arriving passengers at an airport or any other port of entry to Australia, with a preference for a short pre-arrival video presentation.

A private member’s bill containing legislative effect for many of the recommendations awaits the consideration of Parliament.

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