White interference,bad collaborations and new norms in Indigenous art: Can intellectual property law reforms fix this?

Abstract

Indigenous art has had longstanding issues with Australian copyright law, including the issue of collaborations in Indigenous art. In 2023, a related issue concerning allegations of ‘white interference’ surfaced. Those allegations highlighted the problem of forming ethical collaborations in the Indigenous arts industry relying on existing law. Partnerships between Indigenous and non-Indigenous people to produce art have also been validly made leading to collaborations known as the ‘new norm'. This article explores white interference, bad collaborations, and new norms in Indigenous art. It analyses existing legal protections and those proposed by IP Australia, the Productivity Commission, and a Parliamentary Standing Committee aimed at protecting communal Indigenous Knowledge and the rights of Indigenous artists.

Allegations of ‘white interference’ in the creation of Indigenous art in April 2023 highlighted weaknesses in copyright law. While copyright law reform is required, other regulatory reforms including the sui generis protection of rights have been called for by many experts. ¹ White interference occurs where non-Indigenous people have involved themselves in the painting of Indigenous art without establishing a formal collaboration. Chansey Paech, the Minister for Arts, Culture and Heritage in the Northern Territory (NT), explained that for Indigenous artists:

[it] is their dreaming, it is their narrative piece, and any form of disruption or interfering with that erodes a very important spiritual narrative that is expressed on that canvas. ²

However, it brings to light the possibility of collaborations between Indigenous and non-Indigenous artists that would occur if there was a valid collaboration. This can be seen in the National Aboriginal and Torres Strait Islander Art Awards (NATSIAA) where collaborations have been regarded by some as ‘new norms’. ³ This article discusses the issues regarding white interference, bad collaborations and these new norms in Indigenous art, and analyses the efficacy of potential reforms in this area.

White interference, bad collaborations and new norms

The alleged white interference at Tjala Arts in South Australia (SA) occurred in April 2023 when footage was revealed of a non-Indigenous assistant being involved in the creation of an Indigenous artistic work, raising questions about the artwork's authenticity. ⁴ The footage, secretly obtained by The Australian newspaper, showed a non-Indigenous assistant making creative decisions and painting on renowned artist Yaritji Young’s depiction of the Tjukurpa, which is the spiritual and sacred law that governs the culture of these Anangu artists. ⁵ Five Indigenous artists who worked at the APY Arts Centre Collective's Adelaide studio claimed that there was white interference in the artistic creation. ⁶ The painting was then sold as authentic Indigenous art, ⁷ but the APY Art Centre Collective, to which Tjala Arts belongs, has denied these allegations. ⁸

This resulted in calls from the NT Arts Minister for an independent investigation into allegations of such practices in the Indigenous arts industry. ⁹ He commented that it had affected the sale of Indigenous artworks, where some art centres had reported a 40 per cent drop in sales. ¹⁰ The SA government will be leading a review on the issue of the alleged white interference in Indigenous art and will work in partnership with the NT and federal governments. ¹¹ The APY Art Centre Collective was later expelled from the Indigenous Art Code for alleged unethical behaviour after the Indigenous Art Code concluded a long investigation into the issues of ‘white interference’. ¹² The voluntary Indigenous Art Code requires that artworks are ethically sourced. ¹³ Subsequently, the Museum and Art Gallery of the Northern Territory (MAGNT) announced that it will no longer work with the APY Art Centre Collective. ¹⁴

Furthermore, Cecilia Alfonso, who manages the Warlukurlangu Art Centre in the NT, expressed disappointment that the work by Yaritji Young was a finalist in the NATSIAA. ¹⁵ She noted that the guidelines for prospective entrants of NATSIAA had recently been changed to permit non-Indigenous collaboration for the award, and questioned the lack of debate on the change, as well as whether this ‘new norm’ is what people would want. ¹⁶ Bad collaborations have occurred in the past, resulting in the exploitation of Indigenous people. ¹⁷ The difference between bad collaborations and white interference is the lack of a partnership agreement in situations where white interference has occurred. Therefore, allegations of ‘white interference’ are different due to the absence of a formal agreement and the extent of active involvement by non-Indigenous people.

Furthermore, bad collaborations range from unfavourable collaborations to exploitative ones. For example, the Nyoongar Artist Collective at Japingka Aboriginal Art was created to deal with exploitative collaborations where Nyoongar elders were found to have been exploited for their knowledge and culture by people who had befriended them. ¹⁸ Japingka Aboriginal Art later worked with non-Indigenous artists to obtain mentoring assistance for their Indigenous artists as they were lacking the experience to work autonomously. However, Japingka Aboriginal Art was paying these non-Indigenous artists more than they were paying their own Indigenous artists for these mentoring services. Hence, the Nyoongar Artist Collective was formed to enable them to be less reliant on these non-Indigenous artists in the future.

Collaborations in Indigenous art and IP law reform

Traditionally, collaborations are in the form of commissioned artworks which are fully drawn by Indigenous artists. An example is the collaboration between IKEA and Indigenous artists from Pwerle Gallery to have Indigenous art on IKEA’s homewares. ¹⁹ However, collaborations today can be artistic works done together with non-Indigenous artists. These are the new norms in collaborations. Intellectual Property (IP) law reform needs to address the issues in these new collaborations, such as how these artworks would be protected under copyright law or whether these artworks need to be protected by new laws. Furthermore, there are issues of bad collaborations and white interferences which IP law reform should address.

In 2018, the Standing Committee on Indigenous Affairs (‘Standing Committee’) tabled its Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples. ²⁰ The report recommended better funding for the Indigenous arts industry and the Indigenous Business Sector Strategy for First Nations art centres, ²¹ improvements to the Indigenous Art Code, educational measures to ensure that consumers know what amounts to authentic Indigenous art and new legislation to protect Indigenous art. It referred several matters to the Productivity Commission for review, and to IP Australia to look into a Certification Trade Mark scheme to create a label of authenticity. ²²

The Productivity Commission conducted the review and recommended that there should be mandatory disclosure for Indigenous-style products that are not made or licensed by an Indigenous artist, that new laws be enacted to give traditional owners greater control over how their cultural assets are used in visual arts and crafts, and that government funding be evaluated to strengthen the Indigenous Art Code and enhance workforce development. ²³ This was followed recently by IP Australia’s consultation process in the Indigenous Knowledge Work Plan 2022–23 ²⁴ which recommended stand-alone legislation for Indigenous Knowledge. ²⁵ It recommended that the Australian government develop the legislation by way of a co-design process in partnership with Indigenous people. The four potential elements that could form part of this proposed legislation are:

• recognising communal ownership of Traditional Knowledge and Traditional Cultural Expressions,

• aiming to curb trade and import of inauthentic products by using a labelling system to distinguish authentic products from fake products,

• providing a National Indigenous Knowledge Authority, and

• providing for the management and commercialisation of the Indigenous Knowledge of Traditional Owners.

The discussions below will analyse the usefulness of the reforms when the work of IP Australia, the Productivity Commission and the Standing Committee are put together in a way that promotes synergy. This is in tandem with IP Australia’s consultation findings that their proposed stand-alone legislation should be complemented by other policies, resources, support and reforms. ²⁶

The need for new laws

There have been difficulties in applying Western copyright principles to Indigenous art. For example, copyright law requires that there must be an author and it must be an original work for that artistic work to be able to obtain copyright protection. However, Indigenous artworks are close to the original design that is handed down through generations and are communal in origin.

Justice French in Yumbulul v Reserve Bank of Australia observed that, ‘Australia’s copyright law does not provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin.’ ²⁷ The later case of Bulun Bulun v R & T Textiles gave partial recognition to the notion of communal ownership, and recognised the existence of a fiduciary duty. ²⁸ According to Kenyon, ‘at least some Aborigines who create copyright works will have fiduciary obligations to their communities’. ²⁹ Furthermore, the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 was introduced to improve the limited protections under copyright law following these and other cases to include moral rights which would have helped protect Indigenous Knowledge. However, it did not proceed to become law. ³⁰

IP Australia has suggested that the law be reformed to recognise communal ownership. This is necessary to help alleviate a tension that can arise between an Indigenous artist who obtains copyright over an artform that originated from communal Indigenous Knowledge. Copyright law affords protection to the artists but not the custodians of the Knowledge. Therefore, new laws are needed to ensure Indigenous communities and the traditional custodians can authorise whether knowledge is shared by an artist from their group.

Hence, reforming the law to recognise communal ownership would ensure free and informed consent prior to copyright arising in an artist. This would enable artists to licence the use of their artwork to businesses which may then gain economic benefits from it, ³¹ provided those businesses obtained free prior informed consent from the Indigenous artists and collaborated with them. ³² The Productivity Commission made similar recommendations, but also proposed that there should be communal cultural rights legislation which would grant Indigenous people the rights in their artworks in perpetuity. The suggestion for new laws was also echoed by the Standing Committee.

However, there are other issues that involve the new norms in collaborations that need to be addressed. For example, would a collaborative artwork between Indigenous and non-Indigenous artists be protected under copyright law or other laws such as the proposed cultural rights legislation? Would it still be considered as authentic Indigenous art? Maintaining that it is Indigenous art when it is not fully drawn by Indigenous artists seems analogous to the old ‘pigeon-hole’ situation where the artist Gordon Bennett was categorised as an Indigenous artist in Australia, although overseas he regarded himself as a contemporary artist. ³³ Therefore, arguably collaborative artwork between Indigenous and non-Indigenous artists can be seen as contemporary art if it has the characteristics of contemporary art, which could more easily be protected under copyright law. However, as a mixture of Indigenous and non-Indigenous work, it may be likely that it could find legal protection under the proposed cultural rights legislation as well, although much would depend on the scope of the new laws and whether it is acceptable within the culture of the Indigenous people. Hence, reforms would be required to clarify what this type of art should be classified as, and how it should be protected. More importantly, the new laws should not contradict other legal structures. ³⁴ Additionally, it would be useful to revisit the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 that never came into law.

Furthermore, new laws which enable collaborations alone will not suffice, as this is an area where the law meets culture. Whether the ‘new norms’ are acceptable or not would depend on whether they are acceptable within the culture of the Indigenous communities.

Forming collaborations and the element of culture

In the absence of a proper legal structure, cultural protocols have been used to form collaborations. ³⁵ Creative Australia’s Aboriginal and Torres Strait Islander Arts Board created these cultural protocols, based on key principles such as Indigenous control and communication, consultation and consent. ³⁶ These cultural protocols remain important even if there are new laws being made as the formation of collaborations between Indigenous and non-Indigenous artists is dependent on whether they are acceptable within the Indigenous people’s cultures.

The change in guidelines for NATSIAA, mentioned above, which made non-Indigenous collaborations permissible for the award, attracted little debate and arguably lacked proper consultation. If there was consent, it may be the case that the consultation ‘net’ which resulted in the consent was not cast wide enough for something that has resulted in a ‘new norm’. In such a case, the National Indigenous Knowledge Authority recommended by IP Australia could help facilitate the consultations, which is a pre-cursor to obtaining the consent for collaborations. A National Indigenous Knowledge Authority would have services that could help Traditional Owners negotiate licences and permissions to make genuine products, start legal proceedings against producers of inauthentic products and work with border officials in the task of the identification and seizure of imports of fake products.

In 2018 and 2019, there were calls from sector participants for the Australia Council (now Creative Australia) to move forward the idea of a national peak body for Indigenous arts, and a National Indigenous Arts and Cultural Authority (NIACA) consultation was held. The consultation found that there was overwhelming support for a NIACA and the activities of high priority were for:

• developing protocols and facilitating prior and informed consent for the use of cultural material,

• providing advice on Indigenous Cultural and Intellectual Property (ICIP) and protocols,

• influencing recognition of First Nations cultures in policy settings,

• championing First Nations arts and cultures nationally and internationally, representing First Nations artists, cultural practices and cultural custodians on policy issues, and

• ensuring First Nations arts and culture programs come from a position of cultural authority. ³⁷

As these new norms are areas that are more complex, there will be a diversity of opinion as to what types of collaborations would be acceptable within individual cultures especially when there are so many different cultures and Indigenous communities. In that way, debates and discussions would be useful to help in rationalising whether a new form of collaboration would be acceptable within their own culture. A peak body such as an NIACA would be a useful part of this organisational structure as it could provide much guidance in helping navigate these new norms. On the other hand, traditional collaborations which are commissioned works would have a more straightforward process.

Using dedicated organisations to facilitate consultation around collaborative art could be a useful way to record collaborations protecting communal knowledge and promoting integrity in the art industry. If these collaborations attract media attention or any similar attention, the validity of these collaborations could be assessed quickly using such records and other available evidence to reduce the potential loss of profits.

The meaning of ‘authentic’

Consumer response to the notion of ‘authenticity’ is an important factor, as can be seen from the 40 per cent drop in sales following the alleged issue of white interference. ³⁸ It illustrates that consumers perceive authentic Indigenous art to be art drawn by Indigenous artists only. It is easy to see commissioned Indigenous artworks as authentic because they are fully drawn by Indigenous artists. However, that notion is diluted when the work is a collaboration between Indigenous and non-Indigenous artists. Hence, Code Certificates, which are already used by some art centres, may be useful in determining the authenticity of artwork. ³⁹

Code certificates

Dealers who have agreed to the Indigenous Art Code are able to use code certificates which give buyers an assurance about the art's origins and whether it was ethically sourced. ⁴⁰ The voluntary code certificate comes with a complaints procedure and legal framework to ensure that ethical standards are maintained. ⁴¹ These code certificates are useful to provide information on whether the collaborations are commissioned works and are therefore authentic artworks. They generally do not cause any confusion on the issues of authenticity for those artworks that are sold on the streets and in other places, such as within the grounds of the Uluru-Kata Tjuta National Park, which do not use code certificates. This may be partly due to the tourist guides who talk to tourists about Indigenous artworks. This is the experience in the NT, although the Standing Committee noted that measures to inform tourists about authenticity seem to be more coordinated in the NT than in other jurisdictions. ⁴²

The Standing Committee recommended that education be improved, and that the development of an Information Standard for authentic Indigenous art be made to educate tourists entering the country. The Productivity Commission has recommended that improvements should be made to the complaint and dispute resolution processes, and that legal and other support services should be available to Indigenous artists. It recommended that the government increase funding to the Indigenous Art Code. Similarly, the Standing Committee recommended that an evaluation be made no later than two years after the provision of the funding, and a mandatory code implemented if the review indicated few improvements in industry behaviour. It recommended that the government consult with the Indigenous Art Code and Indigenous art sector on what resources are required for the Indigenous Art Code Ltd. The Indigenous Art Code Ltd was established by the Australian government to administer the Indigenous Art Commercial Code of Conduct. ⁴³

The proposed labelling system

Another way of proving the authenticity of artworks is by use of a labelling scheme. This idea is not new as a labelling scheme operated in Australia between 1999 to 2002. ⁴⁴ It was launched in 1999 by the National Indigenous Arts Advocacy Association (NIAAA), which used a boomerang tick logo. It had two certification marks which were the authenticity label and the collaboration mark. The collaboration mark is designed for collaborations, such as products that involved assistance from a non-Indigenous person. The scheme was expensive to administer, and it was reported that there was maladministration and misuse of funds, thus resulting in the discontinuance of government funding. ⁴⁵ It was reported that the NIAAA scheme received government funding of more than $500,000 per year through the then Australia Council for the Arts. ⁴⁶ Other problems with the NIAAA included a lack of consultation with Indigenous communities, resulting in a top-down approach to the management of Indigenous knowledge and, consequently, its failure to adequately address questions of Indigenous identity and authenticity. ⁴⁷ The old labelling system was said to be too restrictive as it required applicants to prove Aboriginality with supporting documentation provided under the common seal of two Indigenous organisations, and 75 per cent of the applications were lacking the proper supporting documentation. ⁴⁸ It also did not take account of region-specific styles of art. ⁴⁹

Under reforms proposed by the Productivity Commission and IP Australia, it will be an offence to sell fake products unless they are labelled as inauthentic or fake products. ⁵⁰ IP Australia further suggested using an authenticity labelling system which would consist of logos attached to the product and digital labels with links to direct the consumer to information about provenance and consent from Traditional Owners. Marketing campaigns could be used to help promote these labels to tourists and consumers so that they would use these labels to determine the authenticity of a product. As mentioned above, the Standing Committee recommended the development of an Information Standard for authentic Indigenous art to educate tourists, and this proposal would apply to the labels as much as to code certificates. However, unlike the code certificates that are already in existence, the labels would be a new measure. Hence, the timing of the education and launch of the new labels will need to coincide to ensure that people understand the use of the labels. One of the failures of the old labelling scheme was the timing of issuing information to travellers by the then Australian Customs Service. Information was issued to people entering Australia that artworks without a label were not genuine, before the authenticity marks were even introduced. ⁵¹ This caused unnecessary confusion as no artworks had a label at that time and people may have thought that they were not genuine.

Furthermore, information on an artwork’s authenticity must appear on the label when purchased from an art shop. Given the more nuanced position in collaborations which can range from commissioned works to collaborations between Indigenous and non-Indigenous artists, these labels would need to provide a clear picture of the element of authenticity in the logo itself. A commissioned work is authentic because it is fully drawn by Indigenous artists, whereas a collaborative work between Indigenous artists and non-Indigenous artists would not have that same ‘look and feel’ of authenticity that usually comes with art that is fully drawn by Indigenous artists.

The labels will need to be able to assure customers of the authenticity of the artwork and this should be established at the place of purchase before buying the artwork, rather than through a digital link which may not be accessible for all customers unless the art shop in question has free Internet access. The digital link, however, would be useful for obtaining further information on any collaborations. Arguably, collaborations between Indigenous and non-Indigenous artists may be regarded as contemporary art, in the same way Gordon Bennett is well-known as a contemporary artist. His 1999 painting, ‘“(AB)original”, could indeed be read as a critique of the authenticity label system’. ⁵² In such a situation, the label would not need to apply to these collaborative artworks, and this would simplify the labelling system. Also, the findings of IP Australia’s consultation revealed that having this authenticity label is unlikely to be able to address the issue of the sale of fake art. ⁵³

It is noted that, as code certificates are already performing similar functions, they overshadow authenticity labels. The reforms suggested by IP Australia are also wider than that of the Standing Committee and the Productivity Commission, as it looks at IP rights for other items as well, such as the difficulty in obtaining patents for boomerangs. This adds further implications to the meaning of ‘authenticity’ in collaborations because the usual patent collaborations and traditional collaborations in artworks in the form of commissioned works have very different characteristics in terms of the level of active participation of non-Indigenous people involved in the collaboration. Commissioned artworks are solely drawn by Indigenous artists, whereas the established patent collaborations are collaborations between Indigenous and non-Indigenous people working together on the making of products, such as medicinal products. Therefore, if these labels are adopted, they will need to be very clear of the meaning of ‘authenticity’. Collaborations in artistic works where the artwork is fully drawn by Indigenous artists is different from collaborations in copyright protected products where the collaboration is between Indigenous and non-Indigenous people.

Management, commercialisation, funding and enforcement

IP Australia recommended measures to help with the management and commercialisation of the Indigenous artworks. ⁵⁴ These measures are complemented by the Standing Committee’s recommendation that the government provide funding for a separate arm of the Indigenous Business Sector Strategy aimed at arts centres and would include a business advisory hub to advise art centres on how to access mainstream souvenir markets, provide seed funding for art centres to build capacity (ranging from training to entering mainstream souvenir markets), and include mentoring and monitoring strategies. The funding could help solve issues regarding the lack of infrastructure, such as housing, which in the past have made it difficult for many art centres to hire and retain art centre managers.

The synergies between the two measures suggested by IP Australia and the Standing Committee above would be helpful as these strategies would fulfill some of the needs of art centres such as the Japingka Aboriginal Art. The Nyoongar Artist Collective at Japingka Aboriginal Arts is now relying on mentoring by non-Indigenous artists to upskill and be able to manage their own projects as they currently lack the experience to work autonomously. ⁵⁵ If the Standing Committee’s recommendations to provide mentoring are implemented, then it would help Indigenous artists such as those at Japingka Aboriginal Arts regain their autonomy. It may also be useful to create a more culturally appropriate way for artists to submit their artworks to public art galleries. ⁵⁶ There is usually a requirement for an expression of interest written in a Westernised format, and this has proven difficult for some Indigenous artists as writing is not part of their culture. ⁵⁷ As a consequence, the management and commercialisation aspects in relation to collaborations in Indigenous art seem two-pronged in nature – to help Indigenous artists become more autonomous, and to assist in the commercialisation of other collaborations.

Having a National Indigenous Knowledge Authority would also be useful in helping curb unethical issues such as ‘white interference’. Currently, it has fallen on the SA government which will be leading a review on the issue in partnership with the NT and federal governments. ⁵⁸ Having such an organisation would help relieve the burden that currently is placed on state and territory governments to investigate such issues of white interference.

Conclusion

The IP law reforms would be helpful in dealing with issues of ‘white interference’, bad collaborations, and ‘new norms’ only if they are directed towards dealing with these issues. Cultural protocols have been used due to the lack of proper legal structures in this area. It is important that the reforms work in tandem with cultural protocols so as not to disrupt already existing structures and practices that have been relied on for decades. In addition, these cultural protocols will be useful in determining whether collaborations that are new norms are acceptable within the Indigenous communities and their cultures. Reforms could certainly build on cultural protocols, as it would mean having the full legal protection which the IP regime can offer. Reforms would, of course, need full consultation with the Indigenous communities and to be fully accepted by them to be workable in both the legal and cultural sense. The element of culture, the meaning of ‘authenticity’ and the notions of Indigenous identity are of paramount importance in ensuring that the reforms are workable for the Indigenous arts industry. In addition, while the legal reforms will help ensure that collaborations can be made more easily, they must also address issues that relate to bad collaborations, white interferences and new norms in collaborations.