Art by Aborigines became very fashionable in the 1980s. It had many attractions: it was decorative, and had a strong authentic ethnic look easily adapted into T-shirts and tourist souvenirs. Originals could be collected to enhance Australian identity or assuage colonial guilt. Consequently, because of the boom the core of genuinely vital works was watered down by a flood of production-line paintings and fakes. It still has enduring appeal to anyone wanting to flaunt their sympathy with eco-spirituality.

In Australia there is currently no national origin mark or authenticity label to identify indigenous cultural expression.

Proposals in the late 1990s for an Australian 'authenticity label' covering arts and crafts created by Indigenous and Torres Strait Islander peoples faded at the end of that decade amid lack of support by the federal government, cutbacks at the National Indigenous Arts Advocacy Association (NIAAA) and disagreements within the Indigenous and Torres Strait Islander communities.

Marks under the auspices of particular Indigenous community arts centres have a more limited application and in practice serve much as trademarks.

There is no national legislation protecting indigenous cultural production (visual arts, crafts, performance) as such and movement towards some form of discrete intellectual property protection such as a sui generis enactment or modification of the moral rights regime has been contested.

     the proposals

Calls in the early 1990s for some form of origin mark reflected concerns about the remuneration of indigenous creators (evident for example in discussion of droit de suite) and the appropriation of culture by non-Indigenous Australians or even by people outside the country (eg artifacts being manufactured in China, Thailand or Indonesia but marketed as the work of Australians).

Those concerns were evident in the the 1994 Stopping The Ripoffs: Intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples discussion paper.

Calls also reflected conflicts between Indigenous creators and advocates in different parts of the country, notably disagreements about lineage groups producing work in the style of another group or appropriating motifs.

Disagreements were exacerbated by the fractious nature of Indigenous cultural politics and by tensions about the legitimacy of particular individuals to represent groups or the community as a whole, with for example claims that some urban residents had "sold out" or merely lost a vital connection with the land.

Concerns about misrepresentation of work by indigenous creators were, it should be noted, often echoed in claims about forgery or misrepresentation of the works of other Australian artists.

Assistance was accordingly sought from the federal government for development and establishment of two marks. Both marks were signifiers of origin and, in contrast to the New Zealand scheme described in the following page of this note, were not intended as an indicator of quality. The proposed marks were thus closer in spirit to the US regime.

Advocates envisaged that a 'Label of Authenticity' would indicate that any work to which that label was attached was "the authentic work of an Aboriginal or Torres Strait Islander".

A complementary 'Collaboration Mark' would identify a work - such as a tshirt - as being the result of a collaboration in which an Aboriginal or Torres Strait Islander had "a significant creative input" and that was the subject of "a fair agreement with a non-indigenous manufacturer or other collaborator".

The two marks would embody

a declaration by Indigenous Australian artists of identity with, belonging to, knowledge about, respect for and responsibility towards the works of art they create. Identity is about upbringing, beliefs, stories, cultural ways of living and thinking, and knowing what it is to be Aboriginal or Torres Strait Islander. Belonging means to be either connected with stories about country or connected with the experiences of history in being Indigenous in Australia. Knowledge is about the familiarity gained from actual experience and also having a clear and certain individual perception of expression. Respect and responsibility is about having regard for and looking after culture. It is about acting in a way which is sensitive to others and which does not exploit other peoples' identity, knowledge and belonging

The expectation was that the marks would provide -

• "a quick way for consumers and retailers to know that art, crafts, souvenirs and other work is the authentic product of either an indigenous creator or a collaboration between indigenous creators and others, and not a 'rip-off'"
• a "focus for efforts which create a real marketing advantage for authentic indigenous work"
• a platform for public education about authenticity, the 'rip-off' problem and the range of indigenous creative expression.

Proponent Michael Davis commented in 1999 that

Although the authenticity label is essentially a 'marketing tool', designed to protect the consumer more than the Indigenous producer or community, by ensuring that products are 'authentic' it may in time act as an inducement for galleries, traders, and others in the commercial art and cultural products market to recognise and respect Indigenous art, and thereby mitigate the potential for exploitation and misappropriation. It is also proposed that the development of the label be accompanied by an information and education strategy about Indigenous art and authenticity - an initiative that would also assist in protecting Indigenous peoples' intellectual property rights.

The intention was that the marks would operate under the Trade Marks Act 1995 (TMA), with licensing by NIAA as a not-for-profit nongovernment body controlled by indigenous people. Operation of the marks would be subject to oversight by the Australian Competition & Consumer Commission (ACCC), the national trade practices regulator. There was a hope that the ACCC would also take action under the Trade Practices Act if there was unauthorised use of the labels.

Some people called for a specific enactment to underpin the regime, on the model of the Advance Australia Logo Protection Act 1984 (AALPA), protecting the 'Advance Australia' logo, the Olympic Insignia Protection Act 1987 (OIPA) and associated Sydney 2000 Games (Indicia & Images) Protection Act 1996 (S2GPA) restricting use of Olympics insignia and the Scout Association Act 1924 (SAA) restricting use of the name 'Scout Association' and registration of its uniforms and insignia.

Promotion of the marks featured claims that they would feature state-of-the-art DNA-based labels - dismissed by some as "the spit label" and criticised by others as requiring a DNA register - to assist authentication and impede counterfeiting.

Consideration of the proposals and other matters in the more ambitious 1998 Our Culture, Our Future report (PDF) was inhibited by the federal government's restructuring of indigenous agencies such as ATSIC, disagreement between Aboriginal and Torres Strait Islander organisations and individuals, questions about the claimed economic viability of the marks and difficulties in NIAAA amid the withdrawal of federal support in 2002. Some of those problems were wryly alluded to by federal arts executive Damian Stevens in his 1999 Aboriginal Art: Is Protection or Education the Issue? paper (PDF).

By 2003, when the scheme went into abeyance, some 160 creators had used the marks, primarily the Collaboration Mark. New Zealand proceeded with a more restricted - and arguably more effective - quality mark scheme that was influenced by the Australian proposals.

Calls for a high-tech label were revived in 2007, with for example a submission (PDF) by promoter IdenteArt to a Senate Committee calling for a voluntary national certification system. That system centres on a certificate of authenticity and a microdot "tamper proof label" that provides "embedded protective technologies" that are

capable of being field read to enable consumer affairs, police, customs, govt officials etc the ability to generate real-time investigations and reports against those seeking to harm the Industry.

     issues

The issues highlighted on the preceding page of this note have been evident in discussion about Australian origin or authenticity labels.

They include -

• costs
• outside the imprimatur?
• certification
• non-recognition by some stakeholders
• certifying origin, not quality or style

Proponents indicated that administration of the scheme would involve a small fee to cover the cost of processing each application and a separate fee to cover the purchase of individual labels. For the Authentic Collaboration Mark there would be an additional licence fee for each product, for example each tshirt. "All fees will be used to cover the cost of managing the Label of Authenticity Project".

The marks featured a stylised 'tick' of approval, something that appears to featured in criticisms that the scheme was overly exclusive and that creators were apprehensive that those not participating would be perceived as unauthentic. Such criticisms were echoed by the ACCC and federal Treasury Department. Janke's WIPO case study commented that

The marks are not the only means of identifying authentic Indigenous artistic and cultural work. There are other means of identifying authentic works - for instance, the production of artistic works from Aboriginal arts centres. These centres adopt logos and trade marks of their own to denote authenticity of origin. ... The Label's rules also expressly state that this is not an intended function of the Label

Certification proved to be particularly contentious. It was envisaged that an indigenous creator who was certified to use the Label of Authenticity Mark could use that mark on any/all of their work. The Collaboration Mark could only be used for specific work (and mass production of that work) that had been certified. Certification was to be provided by NIAAA, which indicated that it would

make initial decisions on whether creators are Aboriginals or Torres Strait Islanders, after consultation with others where necessary or appropriate. Similarly, NIAAA will make the initial decision as to whether or not any collaboration is the subject of a fair agreement between indigenous creators and the non- indigenous people involved in the production of any work for which the Authentic Collaboration Mark is to be used.

Criteria for certification of ethnicity - as a Certified Indigenous Creator - would reflect recognition under the former ATSIC legislation, with

• a statutory declaration attesting to descent from Aboriginals or Torres Strait Islanders
• self-identification as an Aboriginal or Torres Strait Islander
• acceptance as as an Aboriginal or Torres Strait Islander within a relevant Aboriginal or Torres Strait Islander community
• confirmation by two Aboriginal or Torres Strait Islander organisations (eg entities incorporated under the Aboriginal Councils & Associations Act 1976) that the individual was recognised.

NIAA would provide public access to a database featuring the creator's name, art form, community and individual registration number. NIAAA would be required to give reasons where it refused certification and might seek advice from an independent expert where there where disputes.

The criteria for assessing the fairness of a collaboration were to centre on attributes such as the existence of a written agreement between the creator and collaborator, whether the creator had an opportunity to gain independent advice and whether the terms were discriminatory. Assessment was not, however, to consider whether the amount of any payment was fair.

For observers a key question was the apparent indifference, or even hostility, to the two marks by some Indigenous communities and more broadly by retailers and policymakers.

Janke for example commented in 2003 that

the Label of Authenticity has failed to gain wide support at the primary production level, particularly among Aboriginal Arts and Craft Centres that are the major producers of Aboriginal art in the regions. ... Many regional bodies are already using their own trade marks and logos to sell and distribute their art via Aboriginal arts center networks. Many centers feel they do not need to apply for the NIAAA mark to show that their products are 'authentic'.

There appears to have been little recognition of the marks among retailers generally and among government agencies. That might have been offset over time by a concerted marketing campaign - one rationale for substantial and sustained government funding - and by provision of information about the regime to accompany each work purchased by consumers.

Suggestions in 1999 by Adrian Newstead for some form of registration of dealers (PDF) apparently fell on deaf ears and in 2007 he was reportedly strongly critical of the IdenteArt microdot proposal as "anti-competitive and colonialist".

As in the US, the Australian proposals faced the challenge of accommodating disputes about entitlement to content and genres rather than ethnicity. Should authenticity labelling quarantine symbols and techniques.

Janke for example noted

appropriation of Indigenous art styles, stories and themes by Indigenous artists not associated with the particular style or dreaming stories they have depicted in their artwork. For example, Indigenous artists from Southern states painting rarrk or crosshatch styles, originating from Arnhem Land, Northern Australia, and an eastern Indigenous artists painting wandjinas, creation beings that originate traditionally from the north west of Australia

The proposed marks were explicitly not indicators of aesthetic value, quality or compliance with cultural protocols etc. NIAAA somewhat ambiguously commented that a certified creator might lose the right to use the Label if use was made of "stories, symbols, styles or the like without obtaining any necessary permissions" from the communities traditionally associated with that content.

   next page  (New Zealand)