Aiming Straight: The Use of Indigenous Customary Law to Protect Traditional Cultural Expressions

Abstract

I. INTRODUCTIONIn 1980, John Bulun Bulun, an Australian Aboriginal artist, created a painting titled Magpie Geese and Waterlilies at the Waterhole.1 The painting incorporated images sacred to his clan (the Ganalbingu people),2 and he created it with the clan's consent and according to its traditional laws and customs.3 Under Ganalbingu customary law,4 Mr. Bulun Bulun could use his artwork in restricted ways depending on the mode and purpose of reproduction.5 Accordingly, he sold the painting to the Maningrida Arts and Crafts Centre, which resold it to the Northern Territory Museum of Arts and Science.6 Mr. Bulun Bulun also gave his permission to reproduce the painting in a book about Australia's living heritage.7 Roughly eight years later, he learned that a modified version of his painting8 had been incorporated into some fabric.9 The fabric, which was to be used to make uniforms, was produced without his consent.10As a result, Mr. Bulun Bulun and a high ranking Ganalbingu member (on behalf of the clan) sued the textile company that had produced the fabric.11 Mr. Bulun Bulun claimed that the textile company had infringed his copyright in the painting under Australia's Copyright Act of 1968.12 The clan on the other hand claimed that it was the equitable owner of the copyright in the painting, or alternatively, that the artist's copyright created fiduciary obligations in favor of the clan.13 Mr. Bulun Bulun obtained injunctions to prevent future infringement of his work because the defendants admitted to breaching his copyright.14 However, the clan's claim was dismissed.15 The clan argued that the Ganalbingu people are the traditional owners of the body of ritual knowledge from which the artistic work is derived, including the subject matter of the artistic work and the artistic work itself.16 According to the clan, the painting depicted sacred17 knowledge concerning one of the two most important cultural sites for the Ganalbingu people, located in Ganalbingu country.18 Moreover, under Ganalbingu customary law, the ownership of the land was tied to a responsibility to create accompanying cultural expressions.19 Although Mr. Bulun Bulun was entrusted by his clan with the sacred duty to create images,20 the unauthorized reproduction and misuse of the artwork interfered with the relationship among the Ganalbingu people, their ancestors, and their land, and threatened the stability of their society.21 In addition, the image had certain secret aspects to it, which necessitated controlling its reproduction. Mr. Bulun Bulun explained that his painting has all the inside [secret] meaning of our ceremony, law and custom encoded in it. . . . To produce [the painting] without strict observance of the law governing its production diminishes its importance and interferes adversely with the relationship and trust established between myself, my ancestors, and Barnda [the long-neck tortoise, a creator being].22 Thus, the clan suffered harm as a result of the infringement. In dismissing the clan's complaint, the court found that the clan and the artist did not share an equitable interest in the painting because they were not joint authors as required by Australian copyright law.23 However, the court found that a fiduciary duty did exist between the artist and the clan, and if the artist had failed to protect the work, the clan could have brought legal action against the textile company.24 Because Mr. Bulun Bulun had taken action to protect the painting, in this case, the clan had no need for a remedy.25Cases such as Mr. Bulun Bulun's raise important questions regarding the intellectual property rights of indigenous peoples 6 with respect to expressions of their traditional culture. Issues surrounding the adequate protection of traditional cultural expressions ('TCEs)27 have been raised in Australia and around the world.28 Some resultant questions include whether communities own the cultural expressions, whether the cultural expressions should be owned at all, and if so, how they can best be protected. …

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 9 citations exist upstream.