No law says you can’t sell fake Indigenous art

After the Federal Court of Australia found that company Birubi Art had been falsely promoting and selling art as Indigenous Australian, three organisations are calling for better protections for Indigenous artists.

The Court found Birubi were promoting boomerangs, didgeridoos, bullroarers and message stones as items made in Australia and hand painted by Indigenous Australians, when they were actually produced in Indonesia.

The misleading products featured designs associated with traditional Indigenous art as well as words like “genuine,” “Aboriginal Art” and “Australia.”

Although Birubi breached consumer law, the company is unlikely to have to pay the $2.3 million fine as it’s now in liquidation.

The judgment does not make it illegal to sell fake Indigenous art.

As long as misleading representations are not made about the products’ authenticity then fake Indigenous art can be sold just the same.

The Indigenous Art Code, Arts Law Centre of Australia and Copyright Agency have called on the government to make tougher laws to protect Indigenous Australian artists.

CEO of Indigenous Art Code Gabrielle Sullivan is backing Indigenous artists.

“While the ACCC [Australian Competition and Consumer Commission] acknowledges the cultural harm caused, it must be made clear that Birubi (in liquidation) were not on trial for abuses of Indigenous Cultural and Intellectual Property and producing ‘fake art,’ there is no law in Australia that says you can’t make fake art and you can’t misappropriate Aboriginal and Torres Strait Islander culture,” Ms Sullivan said.

In a joint statement, Copyright Agency is also calling for greater transparency and fairness in licensing agreements with Aboriginal and Torres Strait Islander artists.

The Agency has often had Indigenous artists ask for assistance after becoming party to unfair arrangements with distributors or producers of art products.

“Sometimes an Aboriginal or Torres Strait Islander artist will come to us and voice their concerns,” said Stephanie Parkin, Indigenous Engagement Manager at Copyright Agency.

“We speak with artists about those issues and we assist where we can.”

Ms Parkin said the three organisations are pushing for new legislation.

“[We want] standalone legislation that’s specific … that would specifically protect and recognise Indigenous artist rights,” Ms Parkin said.

Ms Parkin also said law makers should amend current consumer laws so that artists can have better control over their art through fair and transparent licensing.

“We certainly need the decision makers to get behind this,” Ms Parkin said.

“But changes to laws are only one part of it … it needs a holistic approach.”

Vice-President of Arts Law Centre of Australia Andrew Wiseman said the Birubi decision proves that Australia needs more than the current Australian Consumer Law protections.

Mr Wiseman said protection from the misappropriation of traditional cultural rights is what is needed to protect Indigenous Australian artists.

Arts Law Centre CEO Robyn Ayres said there are currently no laws preventing non-Indigenous people from using Aboriginal or Torres Strait Islander peoples’ traditional cultural expressions such as songs, stories, designs and traditional knowledge, so long as they are not copied works or misleading and deceptive.

“Once the product is repackaged and is correctly labelled so people are no longer misled, then the Australian Consumer Law does nothing to prevent the misappropriation of Aboriginal and Torres Strait Islander arts and culture,” Ms Ayres said.

“The banning of fake Indigenous arts and crafts is a first step, but it is really the tip of the iceberg in terms of providing stronger protection for Indigenous cultural and intellectual property.”

Ms Ayres supports calls to the Federal Government to make the necessary changes to protect Indigenous artists.

“It really requires a national approach,” Ms Ayres said.

By Hannah Cross

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