Melbourne Law School - Theses

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Start date: 1990 × End date: 1999 × Type: Masters Research thesis × Author: GRAY, STEPHEN ×

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    Legal avenues for protection of the work of Aboriginal artists
    GRAY, STEPHEN ( 1996)
    Summary of Argument: The aim of this paper is to consider the legal avenues by which Aboriginal artists or their communities may seek solutions to the problem of appropriation of their art. It will also consider what legislative or other changes might be introduced in order to resolve any such problems. The paper will suggest that legislative or other changes should be the product of consultation with Aboriginal artists and communities, and be clearly directed to legal problems faced by them. In particular, legal change should be as far as possible consistent with Aboriginal laws and customs existing across Australia, while not compromising basic principles of Australian intellectual property law. The attempt to impose an inflexible legislative scheme may be counter-productive. The paper will outline a proposal for legal change which, it will be submitted, is capable of accommodating a variety of Aboriginal customs and laws. The paper will consider the capacity of the Copyright Act 1968 (Cth), and of equitable doctrines of trust and breach of confidence, to resolve the problems of Aboriginal artists and communities in a manner consistent with Aboriginal law. Through an analysis of the decided cases, and through an examination of statutory and judge-made law, it will be established that the existing law is not capable adequately of meeting Aboriginal needs. In particular, the existing law is not capable of accommodating the communal nature of Aboriginal ownership of intellectual property rights in art, its lack of limitation in time, and the variety of interests which individuals or groups may possess in a work of art, or in a story or design underlying such a work. It will be suggested that it is undesirable to attempt to define the interests of Aboriginal groups or individuals in a work of art in advance. At the same time it is necessary that the law in this area be relatively workable and certain. It is possible, it will be submitted, to accommodate these two goals by adopting in relation to questions of appropriation of Aboriginal art principles similar to those adopted in relation to Aboriginal land in the Mabo decision. Such principles could, it will be submitted, be translated into practical proposals for legislative change which would be consistent with basic principles of intellectual property law, and would in addition be relatively consistent with Aboriginal customs and laws.