Recent Ravings

Protecting Indigenous Art - From T-shirts to the Flag

Discover how copyright law is empowering Indigenous creatives

There is the country non-Indigenous people can see, and then there is the country Indigenous people see that the rest of us can barely comprehend, but glimpse through the vivid colours, shapes and imagery of the artworks, and their visual recounting of ancient stories and settings.

The unauthorised use of Indigenous artworks is a global industry that damages cultural integrity and harms the livelihoods of artists and their communities. While the western idea of private or individual ownership can be at significant odds with tenets of Indigenous ownership and control, copyright remains one of the primary tools available to protect Indigenous visual artists from fakes, cultural threat and appropriation. In Protecting Indigenous Art, leading intellectual-property barrister Colin Golvan provides a privileged insight into how legal protection of Indigenous art offers unique opportunities to empower Indigenous artists and their communities. Golvan gives a first-hand account of landmark legal campaigns such as the unauthorised reproduction of prominent Bulun Bulun artworks on to T-shirts, the seminal carpets case, the campaign to recover the copyright of Arrernte artist Albert Namatjira and the extraordinary story of the Aboriginal flag. Altogether, we get an understanding of the importance of protection for this much-loved form of artistic and cultural expression.

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Japan

Tokyo

Team Lab Borderless (preferred to Team Lab Planets). As hard as they try (very hard), they still can’t beat the real thing. Also a caution about AI as art - whatever happened to authors?; and is interaction the future of visits to art galleries? Otherwise a show stealer.

Billboard Jazz – very cool (icey – meet the Tokyo set and see a show).

Imperial Palace Gardens – not many great parks in Tokyo – this is one.

Miho Gallery – also cool.

Suntory Gallery – very smart, and requires slow engagement of the great Japanese art of ceramics. Go slowly

Hotel Mume 12 years later

cherry blossom in bloom in japan 01

Not much has changed at Hotel Mume in Kyoto. It still feels like you have walked into the house of old friends, ready to help with lots of terrific suggestions for things to do and eat. This house has eight bedrooms (ie. rooms) and all comers are treated the same way, no matter how many times they have stayed, or whether it is the very first time. Hisako moves from group to group – with an “excuse me” as a new group arrives.

What has changed is Japan. It is faster – the Shinkanzen appears to go everywhere and as fast as ever. It is a fabulous service, but goes so fast, you arrive virtually before you have time to sit down and get organised. I do not suppose they have thought of slowing down these F1-type speedsters.

Design/Copyright Overlap Issues - do we actually need a Designs Act?

Powerpoint based on a talk given to AIPPI (The International Association for the Protection of Intellectual Property), Australian Group, September 2020.

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Copyright and the ‘Profession’ of Authorship

Victor Hugo, the creative colossus of the nineteenth century, was one of the great champions of the rights of the author. Speaking in 1878, Hugo
said: 'All the old monarchical laws denied and still deny literary property. For what purpose? For the purpose of control. The writer-owner is a free writer. To take his property is to take away his independence.'¹ Hugo's involvement in the discussions leading to the first international copyright convention is the stuff of legend. His focus on the rights of the author shaped the drafting of the Berne Convention, the subject of such considerable scholarship of Sam Ricketson.²

Where we come from

The Bar is obviously a place of privilege and opportunity. We practise our craft with considerable independence, and with special access to the inner workings of justice. It is at the opposite corner of experience to the subjugated circumstances of the refugee.

My parents arrived in Australia in 1951 as stateless Jewish refugees from Poland. Opportunity fell the way of their sons, who both ended up at the Bar.

The Willing Licensee and the Willing Licensor – a Sound Imagination and the Broad Axe

The Australian Approach

How does one go about determining fair remuneration for damages for infringement of copyright?

One of the important issues raised by the question goes to the very nature of the asset sought to be protected. It is intangible. It may have a trading history (in the form of licensing whether by private contract or on a compulsory basis (such as in the case of music)). It may have an esteemed value in the eyes of the author, but little to show by way of monetary value as such.

Combatting Fake Indigenous Art

Birubi Art Fake Trisha Mason Advertisement

Fakery and Indigenous art can, and does regrettably, take many forms. It is one of the sad predicaments that such vulnerable people are subject to so many challenges to the integrity of their cultural property.

First, there is the fakery of the alleged Indigenous creation of works which are made by non-Indigenous people. Secondly, there is the unauthorised reproduction of genuine works of Indigenous art – copyright infringement. Thirdly, there are works which are falsely attributed to Indigenous artists. Fourthly, though no readily attributed as fakery, there are works which are distorted in their presentation without authorial approval.