Australia's Heritage Protection Act: An Alternative to Copyright in the Struggle to Protect Communal Interests in Authored Works of Folklore

By Phillips, Jake | Washington International Law Journal, August 2009 | Go to article overview

Australia's Heritage Protection Act: An Alternative to Copyright in the Struggle to Protect Communal Interests in Authored Works of Folklore


Phillips, Jake, Washington International Law Journal


I. INTRODUCTION

Over the past four decades, the demand for Aboriginal artwork has grown tremendously.1 In 1988, retail sales of Australian Aboriginal art totaled $18.5 million dollars (AUD).2 By 1997, estimates valued the indigenous arts and crafts industry at over $200 million.3 Regrettably, this increase in demand has been accompanied by an increase in the misuse4 of artwork representing indigenous folklore.5 Such artwork takes various forms including visual art, song, dance, and oral stories.6 While the focus has often been placed on the harms incurred by individual artists and creators of folklore,7 indigenous communities also experience significant harm when an author's works are misused. In one representative case before the Federal Court of Australia,8 Milpurrurru v. Indofurn Pty. Lmt.,9 a carpet company reproduced various designs created by indigenous artists on manufactured carpets, which it then sold within Australia.10 The unauthorized reproduction of the sacred images on carpets, to be trampled by homeowners, was "completely inappropriate and offensive" to both the artists and their respective communities.11 In fact, even though the artists had no control over the misuse of their artwork, they themselves faced serious consequences within their communities.12 Potential forms of punishment include being exiled from the community, being denied the right to paint the community's stories, or in times past, the offender could be put to death.13

The Milpurrurru case illustrates the importance of folklore within indigenous communities. Indigenous works of folklore symbolize more than a product of individual accomplishment worthy of economic reward.14 Such works represent "the symbolic connection to [indigenous] culture."15 For instance, certain forms of art are grounded "in myth and ancestral spirituality" and are "vehicles for narratives that remain central to ritual, landholding, and other aspects of lived culture past and present."16 Indigenous society has a vital interest, both at the individual and communal level, in protecting its culture that has been, and remains, embodied in its folklore.

The Australian government is aware of concerns regarding indigenous folklore and has recently taken steps to address the protection of such works. For instance, the 2000 Copyright Amendment (Moral Rights) Act17 added an effective tool to the Copyright Act18 for attributing credit for an author's work and providing protection against derogatory uses of that work.19 Derogatory use includes a use or alteration of the work that is "prejudicial to the author's honour or reputation."20 Although the Copyright Act governs the intellectual property of creators of artistic works, the Act fails to provide adequate protection for works of folklore involving indigenous community interests. This failure is due in large part to the Copyright Act's focus upon individual protection of authors for a limited period of time; a focus that conflicts with the communal and perpetual ownership of such property under indigenous customary law.

This Comment argues that the Aboriginal and Torres Strait Islander Heritage Protection Act ("HPA")21 offers a more promising vehicle for guarding against the misuse of folklore because its protections apply to communal works and extend over generations, in contrast to the limited protections currently offered under the Copyright Act. The goals of the HPA fit more squarely with indigenous concerns and thus it serves as a stronger legal tool for implementing protection of Indigenous folklore. Part II of this Comment examines the historical and contemporary background of current Australian law protecting Indigenous creative works. Part III explores relevant international laws and models relating to indigenous folklore. Part IV analyzes the shortcomings of both existing and proposed copyright legislation within Australia. Finally, Part V argues that Australia must reform the HPA to specifically include safeguards for indigenous folklore to ensure adequate protection of this important element of communal culture. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Australia's Heritage Protection Act: An Alternative to Copyright in the Struggle to Protect Communal Interests in Authored Works of Folklore
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.