Aboriginal Art, Identity and Appropriation

Elizabeth Burns Coleman

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351961301
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Anthropologie

The belief held by Aboriginal people that their art is ultimately related to their identity, and to the continued existence of their culture, has made the protection of indigenous peoples' art a pressing matter in many postcolonial countries. The issue has prompted calls for stronger copyright legislation to protect Aboriginal art. Although this claim is not particular to Australian Aboriginal people, the Australian experience clearly illustrates this debate. In this work, Elizabeth Burns Coleman analyses art from an Australian Aboriginal community to interpret Aboriginal claims about the relationship between their art, identity and culture, and how the art should be protected in law. Through her study of Yolngu art, Coleman finds Aboriginal claims to be substantially true. This is an issue equally relevant to North American debates about the appropriation of indigenous art, and the book additionally engages with this literature.

Chapter 1

Mapping the Problem

One of Australia’s current political issues concerns intellectual property and Aboriginal culture. Aboriginal people are lobbying for stronger copyright laws. They maintain that the protection of their art should recognise collective ownership, should allow the work to be maintained in perpetuity, and should protect their stories, not just particular expressions of them. They also maintain that, without this protection of their art forms, their communities will cease to exist. The reason for their concern about how their cultures are protected is that they believe that their art is intimately related to their identity and to their continued existence.

D. Scott Mundine is quoted as saying, ‘Having taken away the land, children and lives, the only thing left [to Aboriginal people] is identity through art, and this is now being abused’.¹ In the television documentary Copyrites, Bunduk Marika explains that ‘stealing Aboriginal imagery is stealing identity, laws and spirituality’. ‘Art’, she says, is ‘essential to our existence’.² Later in the documentary she says, ‘Art and land is very important because it is the identity. It’s what gives me an identification. If I didn’t have those I wouldn’t know who I would be or where I come from. I wouldn’t have any identification of who I am and how I fit into society’. The documentary also shows Marika’s deceased father, the founding chairperson of the Aboriginal Artists Agency and a member of the original board of the Australia Council, saying that when he saw a copy of one of his paintings on a T-shirt he lost his power to paint, to tell the story, and to teach. He didn’t paint for some time.³ In the same program Bronwyn Bancroft suggests that non-Aboriginal artists shouldn’t use Aboriginal motifs because it would allow dispossessed Aboriginal people ‘to replace the culture that has been taken; that’s just as relevant as the one that’s been there for millions of years, or thousands of years’.

The second claim that is made by Aboriginal people is that if their art is not appropriately protected, then Aboriginal communities will cease to exist. In the Copyrites television documentary, Marika claimed that art ‘is essential to our existence’.⁴ Similarly, Galarruway Yunupingu has claimed that the unauthorised use of Aboriginal motifs is a form of assimilation that will effectively destroy Aboriginal communities:

They are using the same old tactics of assimilation, except this time they are trying to assimilate our culture into their world because it is fashionable in their eyes and will make money. … [W]e will survive these attempts to wipe out our peoples. … Just as our struggle for land is still strong, so is our fight to maintain and revive our culture, for our land and our culture are indivisible from our lives.⁵

In his evidence to a court, John Bulan Bulan claimed that the unauthorised reproduction of his painting Magpie Geese and Water Lilies at the Waterhole threatened ‘the whole system and ways that underpin the stability and continuance of Yolngu society’.⁶

Terri Janke (an Aboriginal lawyer) writes: ‘Indigenous people are concerned that the wider Australian community has tended to appropriate their arts and cultural expression and that once appropriated, these have been marketed as an integral part of Australian identity’.⁷ As Janke points out, the act of appropriation fails to recognise that the artworks could be considered property, or that the values that Aboriginal people place on the artwork is relevant: ‘use of Indigenous arts and cultural expression is being made without the knowledge or permission of the indigenous artist, or the artist’s community. Sometimes, such use is inappropriate, derogatory, culturally offensive and out of context.’⁸

This book is concerned with how those of us who are non-Aboriginal Australians might interpret these claims about art and identity. Whether we agree that the claims about identity provide a good reason for changing our intellectual property laws depends on this interpretation. In effect, I will explore whether the claims made about identity and intellectual property are ambit claims made with a political agenda of power redistribution in postcolonial Australia, or claims with which we can fully agree as necessary changes to the law in the interests of ‘justice’. If these are ambit claims, we might not concede that stronger protection is a necessary or desirable adjustment to our legal system, even while being sympathetic with the need for a redistribution of power, and even while seeking to redistribute power. These claims might be seen as fundamentally a postcolonial issue.

§1.1 Postcolonial Claims

Internationally, indigenous peoples have been asserting for over three decades that they have special rights in cultural property. Following the Second World War, European powers negotiated a number of treaties in which they agreed to refrain from the destruction of objects of aesthetic or religious value during war, and to repatriate them to their country of origin. These treaties became the basis for the 1954 Hague Convention for the Protection of Cultural Property. Cultural property was defined as ‘movable or immovable property of great importance to the heritage of every people’, and this definition was supplemented by an in-exhaustive list of examples.⁹ Each nation state was to determine on its own terms those items covered by the convention.

At the 1970 United Nations Economic, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, newly decolonised states were instrumental in the expansion of the concept of cultural property to encompass a broad range of objects deemed to be of cultural value and the list of examples of what might be included as cultural property was expanded.¹⁰ The examples of cultural property include rare collections and specimens; products relating to history; products of archaeological excavations or discoveries; antiquities more than one hundred years old; property of artistic interest; rare manuscripts and incunabula; postage, revenue or stamps; archives; furniture; and ethnological materials.¹¹ These cultural possessions are seen as intrinsically linked to a nation’s identity. In 1976, a UNESCO panel formulated the principle that ‘cultural property is a basic element of a people’s identity’.¹² In 1982, the then chairperson of UNESCO’s Inter-governmental Committee for the Return or Restitution of Cultural Property described the loss of cultural property in terms of the loss of being.¹³

Significantly, the items on the list all refer to tangible property. Indigenous peoples are now arguing that it should include intellectual property, including intellectual creations that have not previously been considered ‘property’, such as folklore and traditional knowledge. The United Nations Commission of Human Rights supports these broader claims, asserting that ‘each indigenous community must retain permanent control over all elements of its own heritage’.¹⁴ ‘Heritage’ is defined as ‘all expressions of the relationship between the people, their land and the other living beings and spirits which share the land, and is the basis for maintaining social, economic and diplomatic relations – through sharing – with other peoples’.¹⁵ In summary, the international political context is supporting everbroader claims concerning rights over cultural property on the basis that the existence and identity of collective entities depends on these property rights. These claimed rights, moreover, now extend beyond tangible property and recognized intellectual property to folklore, ideas, and knowledge.¹⁶

These claims are now being discussed and recognized in international conventions. The World Intellectual Property Organization’s 1996 Tunis Model Law provides protection for cultural expressions, without the requirement that they be ‘fixed’, for an indefinite period of time.¹⁷ Other international conventions are also seen as fundamental to the protection of indigenous peoples’ culture, such as the Berne Convention for the Protection of Literary and Artistic Works, which recognizes and protects an artist’s ‘right of integrity’ and ‘right of attribution’, both of which are seen as fundamental to issues concerning the exploitation of indigenous cultural forms. Article 15 of the International Covenant on Economic, Social and Cultural Rights states that these rights are human rights.

Domestically, Aboriginal and Torres Strait Islander representative groups are lobbying for these broader intellectual property rights to be recognized in legislation. Indigenous interest groups were among the lobbyists for the inclusion of moral rights within copyright legislation. The National Indigenous Arts Advocacy Association (NIAAA) has been developing a label to protect the ‘authenticity’ of ‘Aboriginal art’, participating in international forums to develop joint policy positions (for example, with Pacific Island nations), and has produced the documentary Copyrites from which I quoted earlier.¹⁸ A report published recently by the Aboriginal and Torres Strait Islander Commission, Our Culture, Our Future: Proposals for the recognition and protection of Indigenous cultural and intellectual property, frames its approach to cultural heritage issues within United Nations structures. These programs and proposals are unsatisfying in that they lack the power to persuade.

The connection between power, identity and forms of expression is inexplicit and the moral significance of the connection is unexplored. For instance, the author of Our Culture, Our Future, Terri Janke, states that:

Indigenous people view the world in which they live as an integrated whole. Their beliefs, knowledge, arts and other forms of cultural expression have been handed down through the generations. The many stories, songs, dances, paintings and other forms of expression are therefore important aspects of Indigenous cultural knowledge, power, and identity.¹⁹

We may believe that these claims are true based on intuitions or other independent reasons, but we are not given reason for believing them to be true. All we are given is a string of propositions about Aboriginal beliefs and desires – Aboriginal people think X and Y and want stronger laws for Z. But knowing that Aboriginal people believe X and Y does not give anyone else a reason to believe it. Aboriginal people might believe that the world is flat. No-one need agree because Aboriginal people believe it. Similar claims about land rights have been dismissed as romantic rhetoric when raised in the context of the Canadian legal system because the claims resist immediate understanding. As the legal commentator B. Morito has pointed out, in the mouth of a European North American, indigenous statements about land, such as ‘When I see the land being torn up, I feel like my own flesh is being torn’, might be perceived as nonsense.²⁰ If we think indigenous people are talking nonsense, then we have no reason to agree with them about changes to the law.

In the quotation from Janke’s report, it is unclear why the fact that beliefs, knowledge, arts and other forms of cultural expression are handed down from generation to generation leads to the conclusion that they are important aspects of indigenous people’s knowledge, power, and identity. It is unclear how the intergenerational nature of culture can be seen as a justification of stronger intellectual property laws, particularly as this is part of an argument for special laws for indigenous peoples. One might also say of Anglo-Australians that their beliefs, knowledge, arts and other forms of cultural expression have been handed down through the generations. Similar arguments could be presented in relation to other forms of Australian culture; and they are.

We are familiar with these arguments. We hear them all the time. For example, a recent issue in Australian politics has been concerned with the restriction of the importation of CDs under copyright legislation. An argument was put forward that if we don’t restrict the importation of CDs under copyright then local recording companies will not be able to support local artists, and if local companies cannot support local artists then Australia will not have a music industry, and if Australia does not have a music industry then it will lose a part of its cultural identity, and that, therefore, if we don’t restrict the importation of CDs under copyright then Australia will lose part of its cultural identity. Our response to the CD argument depends on whether we think this consequence will follow. If we can’t make sense of the idea that Australia will lose its cultural identity, then there is no reason for u...