A $1.5 million price tag for unlawfully exploiting Aboriginal intangible heritage

Nine out of 10 Australians agree that Aboriginal art is an important part of Australian culture.¹ This recognition, however, is not always reflected in laws that would ordinarily be expected to protect Australian cultural heritage. The significant value of Aboriginal art and tradition, both financially and culturally, makes it a target for exploitation within the Australian and overseas markets, and not always lawfully.

While works by individual artists are generally protected by copyright, there are limited statutory rights for the broader protection of what is characterised as ‘intangible’ cultural heritage.  Whilst this remains the position in every Australian jurisdiction, the State of Victoria has now broken ranks.

In August 2016, Part 5A of the Aboriginal Heritage Act 2006 (Victoria) (the Act) was introduced to provide Victoria’s traditional owners with more control over their ‘intangible heritage’.  Usually known for dealing with the protection of ‘tangible’ cultural heritage, such as ancestral remains, objects or places, the Act extends protection to ‘Aboriginal intangible heritage’.  According to the Victorian Minister for Aboriginal Affairs, after Quebec, the State of Victoria is the second Commonwealth jurisdiction to establish such protections for Aboriginal heritage.

The Act broadly defines ‘Aboriginal intangible heritage’ as ‘any knowledge of or expression of Aboriginal tradition other than Aboriginal cultural heritage’ and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts and environmental and ecological knowledge.

The new laws prohibit ‘knowingly’ exploiting registered Aboriginal intangible heritage for commercial purposes without the consent of traditional owners, with penalties of $273,000 for individuals or $1.5 million for corporations.  In addition, ‘reckless’ use of registered intangible heritage without consent attracts fines of $183,000 for individuals and $911,000 for corporations.  The Act also provides the right for traditional owners in Victoria to enter into and register ‘Aboriginal intangible heritage agreements’ addressing the protection, management and compensation payable for a party’s use of registered intangible heritage.

The new laws will provide Victoria’s traditional owners with the opportunity to control their intangible heritage, together with the prospect of economic benefits through contracts with third parties seeking to use and commercialise Aboriginal intangible heritage.  The laws are in contrast to the existing Copyright Act 1968 (Cth) which does not extend protection to Aboriginal communal works nor traditions or practices that have been known and passed down through generations over thousands of years.  Indeed, copyright purists may point to this constituting a blurring of the idea/expression dichotomy but that is an analysis for another day.

What does this mean for you if you deal in Aboriginal art?
If your business operates within the Aboriginal art and cultural space, consideration should be given to the ways in which your business obtains, develops and commercialises Aboriginal intangible heritage, particularly intangible heritage belonging to traditional owner groups in Victoria.  As a matter of good business and cultural practice (and to avoid potential penalties), this means developing appropriate protocols and policies that comply with the Part 5A provisions, including how consent for commercialising registered Aboriginal intangible heritage is obtained from relevant traditional owner groups and maintained over time.

What does this mean for you if you are a member of a traditional owner group?
If you are a traditional owner group in Victoria, consideration should be given to the registration of your intangible heritage so that it is afforded protection under the new laws.  This is particularly the case if traditional owner groups are negotiating with third parties who want to use and commercialise traditional knowledge or other intangible heritage.  Traditional owner groups should also take advice on registering ‘Aboriginal intangible heritage agreements’ as set out in the new Part 5A provisions.

To avoid breaching any statutory obligations, or to further understand the benefit of the new laws, you should seek expert advice.

Stephanie Parkin

This article was prepared and written by Stephanie Parkin (07 3233 8835 or sparkin@mccullough.com.au) a commercial lawyer in McCullough Robertson’s Intellectual Property and Competition team and a descendent of the Quandamooka people of Minjerribah (North Stradbroke Island).

¹ Australia Council for the Arts 2015, Arts Nation: An Overview of Australian Arts, 2015 Edition, System, Australia.