overview
Australia
New Zealand
elsewhere
related
Guides:
Intellectual
Property
related
Profiles:
Appellations
Trademarks
Human
Rights
Identity
Fraud
Forgery
& Fraud
Trustmarks
|
overview
This page provides an introduction to indigenous 'authenticity
label' and 'origin mark' schemes in Australia, New Zealand
and elsewhere.
It covers -
It
supplements discussion elsewhere on this site regarding
indigenous intellectual property regimes, forgery, trustmarks
and identity crime.
introduction
Since at least the 1930s there have been efforts to identify
contemporary indigenous cultural expression - everything
from beadwork, baskets and blankets to dot paintings with
polymer pigment on canvas - as 'authentic'.
That identification has typically taken the form of a
certificate or label that signals properties of the particular
work, for example that it was created by an indigenous
person or that it embodies symbols and styles that are
'owned' by that individual (or by a group that the creator
represents).
The expectation has been that such authenticity labels
or indigenous origin marks would encourage respect for
indigenous cultural expression and underpin the economic
development of indigenous communities - inhibiting appropriation
of techniques, styles and symbols. In essence they would
serve as trustmarks
for consumers, rather than for connoisseurs or curators
in museums and other institutions.
Indigenous mark regimes have proven to be strongly contested,
characterised by disagreement within indigenous communities
and within broader consumer markets.
As the following pages note, that disagreement is not
surprising. It reflects uncertainty about the shape of
'authenticity' and entitlement, along with difficulties
in applying authenticity mark principles on a day by day
basis. More broadly it reflects difficulties explored
in the intellectual property
guide regarding rights and administration of knowledge/expression
that has a 'timeless' and collective basis.
Disagreement is evident in claims that establishment/maintenance
of origin mark schemes has inappropriately preoccupied
the attention of indigenous activists and supporters at
the expense of more meaningful achievements, or alternately
that such schemes are achievable.
Some critics have charged that broad-ranging schemes are
irrelevant, perhaps even dangerous because readily subverted
in principle and practice or because they are divisive.
On occasion that has provoked responses that authenticity
labelling is a first step towards wider recognition and
protection of traditional cultures, including biorights
and acknowledgement of customary justice.
Authenticity/indigenous origin mark schemes are independent
of geographical indications or appellations
in global trade and IP agreements, ie place names (in
some nations also words associated with a place) that
are used to identify the origin and quality, reputation
or other characteristics of products such as Champagne
and Roquefort.
regimes
Regimes for mark-based recognition of indigenous cultural
expression have essentially taken two forms.
The first essentially 'freeze dries' indigenous or folk
culture, often through a canon of works in a national
museum or other public collection.
'Authenticity' is restricted to works that embody traditional
materials and processes (eg flax rather than synthetics,
mineral pigments rather than polymer paint), traditional
formats and symbols and that have been produced by creators
within the country. Such regimes do not accommodate use
of new techniques, formats and styles.
In contrast, the second type of regime encompasses contemporary
cultural production by indigenous peoples.
That production may include new techniques and materials
(eg acrylic on canvas dot paintings by desert communities
in Australia) using traditional motifs. It may feature
new styles. It may feature symbols that have been traditionally
associated with a particular group: some regimes seek
to restrict use of such symbols (or even genres) to that
group, others recognise ay use of a symbol subject to
the creator meeting some test of ethnicity.
Either type of regime may have legal recognition under
national law, whether directly through some sort of sui
generis IP or culture enactment or indirectly through
trademark law and 'passing
off' provisions.
There is no international agreement about identification
of indigenous cultural expression. Harsher critics of
some of the negotiations highlighted in the IP guide elsewhere
on this site argue that they are primarily concerned with
gesture politics or with reinforcing the legitimacy of
individual participants and advocacy organisations.
issues
Issues relating to indigenous mark regimes include -
- the
nature of authenticity
- creator
and consumer expectations
- use
of sui generis or existing law such as trademark
legislation and 'passing off' provisions
- administration
and enforcement
Questions
about the shape of 'authenticity' lie at the heart of
any indigenous
origin
mark or authenticity label scheme.
Should it cover any cultural production by indigenous
people or instead be more circumscribed, for example concerned
only with traditional crafts. Does authenticity involve
restricting use of particular motifs - or even genres
- to specific lineage groups that assert exclusive ownership,
excluding use by other lineage groups. Can a Wiradjuri
artist from NSW authentically create a work in a genre
that prior to the 1970s was only recorded in northern
Australia. What is the authenticity of a Navajo textile
or jewelry created by a Mohawk? Is authenticity problematical
in talking about a painting by an artist in an Australian
nomadic community whose first exposure to acrylic paints
and canvas was via an art dealer within the past thirty
years?
Does the notion of mark-based authenticity replace a Western
fetish about the individual creator with a new fetish
about the creator (and collaborator's) genome?
What of creator and consumer expectations?
Some observers have commented that creators - or their
advocates - have arguably overestimated the benefits of
large-scale mark schemes, eg one that in principle covers
all Australian Indigenous and Torres Strait Islander creators.
Schemes might be desirable on the basis of principle and
for raising community awareness but might not provide
significant direct financial benefit to creators and might
not meaningfully exclude 'indigenous' works created in
China or other locations.
Critics note low recognition of marks among consumers,
confusion about their meaning, subversion by distributors
and indifference by many creators. In Australia one stumbling
block for establishment of a national scheme has been
the existence - and apparent effectiveness - of marks
used by particular communities and accepted by influential
retailers.
Other observers have asked whether a label identifies
all production or instead serves as a quality mark, an
indicator of excellence rather than merely the creator's
genome and adherence to particular canons. The New Zealand
toi iho 'maori made' arts and crafts mark discussed later
in this note is of interest because it is explicitly presented
as an indication of artistic quality.
How can an indigenous identification regime be established?
Some proponents have advocated sui generis legislation,
either restricted to a mark or as part of broader protection
of traditional knowledge (eg including provisions restricting
biopiracy and publication of 'sacred & secret' oral
tradition).
Others have suggested that special legislation is not
feasible (eg politically impractical and of uncertain
status under international trade law) or necessary. Such
figures have argued that aims can be achieved through
a mix of existing trademark law (along with 'passing off'
provisions in trade practices law) and efficient administration
that minimises abuses, eg monitoring and prosecution of
breaches such as label tampering.
Susan Scafidi's
2001 Intellectual Property & Cultural Products
(PDF)
commented that
While
a source community may be unable to prevent
nonconforming use or outsider appropriation, it can
at least charge that the modified or stolen cultural
product is not "the real thing". ... The absence
of an authenticity mark would alert potential consumers
of cultural products of a lack of association with the
presumed source community. This compromise between ownership
and anarchy does not settle the conflicts associated
with contested internal use or objectionable external
appropriation, but it is one potential vehicle for recognizing
the significance of cultural
products
Concerns about the administration of schemes range from
costs (with some critics arguing that mandatory registration
is essential because individual creators will receive
insufficient returns to induce voluntary participation)
to skepticism about technical and economic bases (eg recurrent
ambitious proposals in Australia for DNA-
or microdot-based labels) and unhappiness about dispute
resolution mechanisms. Administration is difficult in
states where there are few population registers and in
circumstances where individuals are prepared to lend their
identity to works of which they were not the principal
author (and indeed may not have sighted).
Should labels be operated by a government agency or by
a nongovernment body, for example similar to a copyright
collecting society? Should governments provide
such a body with seed funding for establishment and initial
activity, a period that might last for more than ten years
until the agency become self-sustaining? Should funding
be provided through a special levy on sales (by dealers
or artists) or by a grant on the basis that an indigenous
mark regime has a broad cultural/social equity basis rather
than a mechanism for rewarding individual creators and
distributors?
studies
There has been no over-arching international study of
indigenous mark regimes and much of the literature concentrates
on advocacy rather evaluation.
Works on the shape of intellectual property or other protection
and recognition for indigenous cultural expression and
knowledge are highlighted in the Intellectual Property
guide elsewhere on this site.
Items of particular value include Intellectual Property
Rights for Indigenous Peoples: A Sourcebook (Oklahoma
City: Society for Applied Anthropology 1994) edited by
Thomas Greaves, Rosemary Coombe's The Cultural Life
of Intellectual Properties: Authorship, Appropriation
& the Law (Durham: Duke Uni Press 1998), Michael
Brown's Who Owns Native Culture (Cambridge: Harvard
Uni Press 2003), Peter Drahos' 2004 Towards An International
Framework for the Protection of Traditional Group Knowledge
& Practice (PDF)
and the 2003 WIPO Consolidated Analysis of the Legal
Protection of Traditional Cultural Expressions report
(PDF).
There is a broader view in The Origins of Indigenism:
Human Rights and the Politics of Identity (Berkeley:
Uni of California Press 2003) by Ronald Niezen.
Shelly Errington's The Death of Authentic Primitive
Art & Other Tales of Progress (Berkeley: Uni
of California Press 1998), The Invention of Tradition
(Cambridge: Cambridge Uni Press 1983) edited by Eric Hobsbawm
& Terence Ranger and Time, Histories & Ethnologies
(Ann Arbor: Uni of Michigan Press 1995) edited by Diane
Hughes & Thomas Trautmann and Who Owns Culture?:
Appropriation & Authenticity In American Law
(New Brunswick: Rutgers Uni Press 2005) by Susan Scafidi
offer perspectives on authenticity. Other works are highlighted
here as part of the
discussion of ethographic forgery.
For Australia see Terri Janke's 2002 Indigenous Arts
Certification Mark WIPO Case Study (PDF)
as part of her 2003 Minding Culture studies
for WIPO, Leanne Wiseman's 2001 'The Protection of Indigenous
Art and Culture in Australia: The Label of Authenticity'
in European Intellectual Property Reports, Michael
Blakeney's 1999 paper (PDF)
on Intellectual Property in the Dreamtime - Protecting
the Cultural Creativity of Indigenous Peoples, Elizabeth
Coleman's Aboriginal Art, Identity & Appropriation
(Aldershot: Ashgate 2005) and Marianna Annas'
1997 paper
The Label of Authenticity: A Certification Trade Mark
for Goods and Services of Indigenous Origin.
Janke's broader 1998 Our Culture, Our Future
report and the 1994 Stopping The Ripoffs: Intellectual
Property Protection for Aboriginal & Torres Strait
Islander Peoples discussion paper
are highlighted in the IP Guide. They might be supplemented
by Janke's 2000 Money for Arts Sake article
and Kathryn Wells' 1996 Alternative Law Journal
article on 'The Development of an Authenticity Trade Mark
for Indigenous Artists: law reform'. Maree Sainsbury's
cogent Moral Rights & their Application in Australia
(Leichhardt: Federation Press 2003) is also value for
broader moral rights questions in Australia.
Concerns about forgery and appropriation are highlighted
in Christine Alder's Challenges to authenticity in
the Aboriginal art market (PDF)
and Karen Dayman's Authentication: the role of the
Aboriginal art centres (PDF).
Other works are highlighted here
as part of discussion of the contemporary art market.
Benchmarks about collectibles are provided here.
Context in New Zealand is provided by Aroha Te Pareake
Mead's 2002 paper
Understanding Maori Intellectual Property Rights.
The 1990 US Indian Arts & Crafts Act is discussed
in The Arbitrary Indian: The Indian Arts &
Crafts Act of 1990 (Tulsa: Uni of Oklahoma Press 1997)
by Gail Sheffield. The 1999 US Patent & Trademark
Office report (PDF)
on Official Insignia of Native American Tribes
takes a dim view of the need for special protection for
some cultural expression.
next page
(Australia)
|
|
Ketupa