“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.”

This extraordinary statistic was presented by Ann Sudmalis MP, Chair of the Standing Committee on Indigenous Affairs which tabled the 2018 Report on the impact of inauthentic art and craft in the style of First Nations peoples (Report).

First Nations art and craft are not simply aesthetic, but are considered integral to cultural identity, stories and history. As the Hon Linda Burney MP, Minister for Indigenous Australians, stated in July 2022:

“Art is fundamental to Indigenous cultures, and allows Aboriginal and Torres Strait Islander peoples to share stories, connect to Country, strengthen cultures and communities, and to access a range of employment and economic opportunities…

Inauthentic art products and merchandise have no connection to First Nations communities and do not provide them with any economic benefits…”

As such, the significant misappropriation resulting from the manufacture and sale of generic imitations of Aboriginal and Torres Strait Islander designs and styles is particularly devastating.

Existing intellectual property laws in Australia do not sufficiently protect First Nations artists and their traditional cultural practices. However, in response to the Report, the Federal Government has undertaken to introduce new policy and legislation to reduce the production and sale of imitation First Nations art and craft in Australia, particularly through reform to intellectual property protections.

National Indigenous Visual Arts Action Plan

In October 2021, the Australian Government released its five-year National Indigenous Visual Arts Action Plan (Plan), which sets the Government’s priorities to support the visual arts sector between 2021 and 2025. It focuses on the ability of Aboriginal and Torres Strait Islander artists, organisations and businesses to direct and decide on their cultural and economic interests and the evolution of their industry, including through intellectual property-related actions. The aim of the Plan is to prevent inauthentic products from being produced or sold in the Australian market, and provide avenues for recourse where Aboriginal and Torres Strait Islander artists and rights holders have their rights infringed.

Of particular interest for intellectual property lawyers, the Plan proposes working with Indigenous communities to determine a labelling scheme using Certification Trade Marks (CTMs), that would more effectively protect Indigenous culture and the rights of Indigenous artists and designers.

CTMs identify goods or services that possess a particular standard or characteristic, and are used by authorised users to guarantee that goods or services possess a particular standard (quality, content, manufacturing method or geographic origin). Consider, for example, the Australia Made logo. CTMs are approved by the ACCC, and are designed to ensure customers know exactly what quality they will receive when buying particular goods or taking on particular services.

In the context of First Nations art, a CTM which recognises Indigenous Knowledge would allow owners and custodians to retain ownership and control over cultural names, signs and symbols; and support authentic Indigenous industries by assisting consumers in identifying authentic products.

The Plan also proposed working with Indigenous communities to consider how new stand-alone legislation on Indigenous cultural intellectual protection would more effectively protect Indigenous culture and the rights of Indigenous artists and designers. However, at the time the Plan was released, potential legislative changes had not been forecast.

Productivity Commission – Aboriginal and Torres Strait Islander Visual Arts and Crafts

On 19 July 2022, the Australian Government’s Productivity Commission released the draft report for Aboriginal and Torres Strait Islander Visual Arts and Crafts (Draft Report).

Amongst other things, the Draft Report found that some inauthentic products, inappropriately and without authorisation from traditional custodians, feature Indigenous Cultural and Intellectual Property (ICIP).

According to the Draft Report, ICIP is an international term which encompasses all dimensions of Indigenous heritage and culture, including knowledge, language and performance. There is no comprehensive legal recognition of ICIP in Australia, and thus there are currently few limits on how ICIP can be used.

The Draft Report considers in extensive detail how to protect Indigenous culture and the rights of Indigenous artists and designers through stand-alone legislation. For example:

• Draft Recommendation 7.2 concludes that the Australian Government should introduce new legislation that formally recognises the interests of Aboriginal and Torres Strait Islander communities in their traditional cultural assets. Specifically, it recommends the introduction of a new cause of action which prohibits the use of a cultural asset to create cultural expression without the authorisation of a traditional owner.

• Draft Recommendation 7.1 suggests that an ICIP strategy be developed and published by the Minister for Indigenous Australians, in partnership with state and territory governments and Aboriginal and Torres Strait Islander people, which sets out how policy and regulatory measures will address different aspects of ICIP

Interestingly, conversely to the Plan, the Draft Report finds at Draft Finding 5.2 that CTMs are unlikely to significantly reduce the prevalence and harms of inauthentic products. Rather than labelling authentic products, it suggests at Draft Recommendation 5.1 that the Australian Government should develop a mandatory information standard for labelling of inauthentic Indigenous-style products to indicate to consumers that they are not created by or under licence from an Aboriginal or Torres Strait Islander person.

What happens next?

The Australian Government is expected to release a final version of the Draft Report this month, following public consultation. We look forward to the release of the ultimate recommendations and understanding the subsequent expected development of intellectual property law in Australia.