Wp/nys/Intellectual Property (IP)

Intellectual Property (IP) is a concern for Aboriginal people who are fed up with Wadjela making money off the back of Aboriginal culture and traditions without putting anything back. For example:

• Selling souvenirs, such as boomerangs, art works, T shirts etc., which are faked abroad and sold to tourists in Australia with money rarely going to any Aboriginal person.
• Non indigenous artists inappropriately appropriating the style and culture of Aboriginal artists without permission. For some reason especially prevalent over the misappropriation of Wandjina figures. When a court upheld a decision by the Blue Mountains City Council to remove a Wandjina statue because of the offence being caused to Aboriginal elders, art academic Donald Richardson complained about the restriction on (white) artist's freedom of expression:

“ When they want to stop us practising the freedom of expression that Western artists have had for 300 or 400 years, then they get quite upset about it. ”

An extra irritation in this story is that although the work of traditional Aboriginal artists is protected by traditional law, in the same way as the work of Western artists is protected by Western IP law, some Western artists feel they can just ignore traditional law in the name of individual self-expression. But there is the suspicion that these same Western artists would not be shy of using IP law to protect their own work. Some of these issues are expanded on in the section below on Intellectual Property (IP)#Donald Richardson on Aboriginal and Western art.

• Wadjela companies trying to appropriate traditional medicine and food, and even claiming IP rights over Aboriginal heritage.

A Parliamentary inquiry into the proliferation of inauthentic Indigenous art made a recommendation (recommendation 8) in 2018 for standalone legislation to protect Aboriginal cultural and intellectual property rights, but the legislation as of January 2020 has yet to be enacted.

In a long-awaited federal response to the inquiry's report, on Wednesday 2 September 2020 the Minister for First Australians Ken Wyatt committed the Liberal government to cracking down on fake Aboriginal art:

“ It really is staggering, given tourists come here wanting authentic Indigenous artwork and they assume that the artwork they are buying is genuine, when in fact they are buying a fake ”

Donald Richardson on Aboriginal and Western art

Donald Richardson is a non Aboriginal Australian artist. He strongly believes that the modern Western art tradition is a fundamental and globally important shift in the way art is conceived and executed, and needs to be protected, see his website. As a consequence of the importance of Western art, he further believes artists working in the Western tradition have absolute freedom of expression and can use whatever inspires them to create art, including Aboriginal art. He therefore clashes with Aboriginal artists who seek to protect their culture, as expressed in art, from what they see as exploitation. His is an argument about what is freedom of expression and what is copying/appropriation.

Richardson is clear that Aboriginal art and modern Western art are very different things, and therefore should not be considered together - they should not be exhibited together as equal traditions nor judged (or awarded Australian government grants!) together. This is because, in his opinion, modern Western art has a coherent theoretical construction and Aboriginal art doesn't - it is rather to be considered as a type of 'folk art'. He is incoherent in this argument because he also believes that it is the freedom of expression of Western style artists that is a key element of the Western tradition, and it is the restrictions placed on Aboriginal artists by elders and tradition which disqualifies Aboriginal art from being 'art' (in his sense of 'art'). It is acknowledged here that Aboriginal art has restrictions in who can work on what subject matter, in what form, etc, and that these restrictions are policed by elders who are themselves artists. Richardson though does not realise it is precisely these restrictions that establishes that Aboriginal art has a strong theoretical framework. What is clearly demonstrated is Richardson's incomprehension that art is not just a Western tradition or defined solely by the way Western artists work today.

Stripping away the confusion of his arguments (e.g. he notes "not even western art theory can agree on what art is" - so much for his idea of a "coherent theoretical construction"!) what remains is his belief that the core value of modern Western art is the "right of the artist to individual self-expression" and his abhorrence of the limitations placed on Aboriginal artists working within a tradition "which proscribes - and even punishes - innovation and individual expression".

It is clear that, almost by definition, groundbreaking works of Western art have been produced when an artist is working within but against some strong constraints or tradition, e.g. Soviet artists working under Soviet era censorship, artists painting for bourgeois art markets, etc. But without a strong tradition or enormous artistic drive, what passes for art can be fatuous, with self-expression merely the ramblings of the self-deluded. The strongest similarity between Aboriginal art and Western art is actually to be found in Renaissance art, a time when Western artists served long apprenticeships, had to be very skilful in following tradition so that journeyman artists would produce kwop work, and masterworks were produced by consummate masters working within but somehow transcending tradition. To be fair, Richardson is at least consistent in that he does not believe Renaissance art to be art, in his sense of art as exemplified by modern Western art.

Richardson introduces another false dichotomy in art, in addition to his false dichotomy between artists who are free to use (or abuse) their self-expression and those who work within a tradition, and that is between 'art' and design. These dichotomies are closely related, as the reason he thinks design is not art is because a designer has to work within external constraints - set by the function of the work, by the customer, tradition or whatever. An 'artist' on the other hand has no such constraints and is free to express their self-expression. Richardson believes that because Western artists in the European Renaissance had to work within constraints their work is not art, that Michelangelo's Sistine Chapel ceiling is design but not art because Michelangelo had a brief to only use the Old Testament of the bible, and had to work within the constraints of the existing ceiling. It follows from Richardson's arguments that Aboriginal artists working in the traditional way have far more in common with the Renaissance period of Western art (one of its greatest periods) than with modern Western art. However, most people would think of all three traditions as art and capable of bearing comparison to each other.

If you follow and accept Richardson's arguments (rather than simply accept his statements) it is clear that traditional Aboriginal art and Renaissance art both have a strong theoretical framework, something which modern Western art doesn't have.