1

Yolngu Paintings, Appropriation and Intellectual Property Rights Michael Chew

In this essay I seek to explore the underlying issues behind the problem of appropriation and

intellectual property rights for Yolngu paintings in cross-cultural contexts. By unpacking and

contrasting the philosophical and knowledge systems that lie behind both Yolngu and

Western art forms, we are in a better position to understand both the damaging effects of the

appropriation of Yolngu art, and the limitations of the protection afforded by the current

Euro-centric discourse of copyright. This understanding of the Yolngu discourse can then

assist in evaluating future and current directions for change.

The debates around the legal protection of Yolngu art occurs at the interface between

indigenous and non-indigenous regulatory systems, and must be seen as occurring in several

contexts simultaneously: legal, cultural, economic and historical. These contexts intersect

each other with the continuing struggles the Yolngu face for sovereignty, land rights, health

and education.1 These wider issues impact on Yolngu cultural identity and cultural

production, just as cultural production is the vehicle for the expression of these struggles,

inside and outside their community. The relationships, meanings, or codes which Yolngu

paintings carries within their society cannot map onto the Western meaning system which

receives such paintings as part of their commercial circulation in white Australia. These two

worlds, or ‘frames’, as Morphy designates them, provide ‘the encompassing set of cultural

practices and understandings that define the meaning of an object in a particular context.’2

The exploitation of Yolngu art through breeches in copyright law has its basis in the very

different systems of valuing and positioning art inherent in these two frames, together with

the inequality between them that can allow for the dominance of one by the other. Despite

the success of individual copyright cases, there are fundamental inadequacies in the copyright

discourse, emerging from these differences. The potential for positive change within such a

context lies in understanding the basis for such differences.

This inquiry is to be conducted with caution. There is a risk of perpetuating what

Williams calls a ‘two class universe’, in which the generalisations are made about indigenous

society based on comparisons with models that exist as only ideals in Western society. They

1 Australian Copyright Council 1998:3.

frequently conclude that the indigenous society is lacking in some feature of the Western

society.3 In the following comparisons I attempt to explore Yolngu concepts of property as

part of their holistic knowledge system, rather than merely in contrast to the Western

concepts themselves, or in terms of these alone. However, to do so the inquiry makes broad

generalisations of Yolngu artistic practices and posits the associated concepts in generality.

A closer examination of regional variation across time and space would provide for a more

realistic inquiry – my aim is only to elucidate the beginnings of a proper analysis of

intellectual property issues in the cross cultural context, highlighting the main issues and

approaches. I have self consciously avoided discussing the economic issues concerning

appropriation, as well as the actual mechanics of the copyright court cases since I wish to

focus on the value systems behind these aspects of the debate.

Part I considers the motivations, assumptions and context of the European frame with

respect to Yolngu and indigenous art in general. Part II examines the Yolngu cultural

systems surrounding the use of paintings and how they form disjunctures with the Euro-

centric copyright discourse. Part III briefly discusses the limitations and potentials of current

and future methods of protection.

Part I – The Euro-centric Frame and its relation to Yolngu Painting The concept of private property is deeply enshrined in the liberalist tradition that

contemporary Anglo-Australian society, law and culture inherit. What can be considered

private property - whether land, possessions or cultural works - is accorded protection and

recognition in the Western legal system. However that which falls outside the Western

concept of property does not receive these rights.4 John Locke referred to a shell on a beach

as an ‘unowned thing’, there for the taking.5 Indigenous images or the beliefs that are tied to

them may also be ‘unowned things’ within the Euro-centric frame if they are old or

‘traditional’. By examining the motivations and assumptions behind both the Western

protection and appropriation of Yolngu art, I hope to lay out the wider context surrounding

the issue of copyright and Yolngu art works.

2 Morphy 1991:21. 3 Williams 1986:4. 4 Justice Blackburn’s put forward this idea of property as recognised by the legal system as implying ‘the right to use or enjoy, the right to exclude others, and the right to alienate’. Australian Copyright Council 1998:25.

While the contemporary copyright issues are associated with the present treatment of

Yolngu art as a transferable commodity, the latter has not always been received this way by

Anglo-Australians. For a long time indigenous art had been solely located in the domain of

anthropology by white observers.6 Prior to the 1950’s indigenous designs and artefacts

belonged in natural history museums rather than art galleries, testament to prevailing view of

these items as exotic relics from a fading archaic culture.7 Yolngu ‘artefacts’ would often fall

under the category of ‘craft’ in the longstanding Western hierarchy of pure, ‘high art’

overshading the mundaneness of ‘folk craft’.8 The situation changed rapidly from a few

missionaries encouraging the trade of Yolngu art in the early periods of white contact, while

a few decades later Yolngu presented their law to church and government authorities in series

of historic bark petitions which called for a recognition of their sovereignty over their lands,

defined through Yolngu law or rom and embodied in the bark paintings themselves. 9

These two important aims of art exchange - making money for the Yolngu, and

seeking white recognition of Yolngu culture and rights - continued through the subsequent

boom of the indigenous visual arts in 1970s and 1980s. Within these decades’ indigenous

arts as a whole expanded rapidly to become Australia largest visual arts industry, with over

$100 million in annual sales, outstripping the sale of art from non-indigenous artists three to

one.10 Yolngu art was no exception to this expansion. The advantages of the art industry to

the Yolngu were and are numerous; it capitalises on skills already in the community, requires

virtually no capital outlay, enables people to work in their own camp and determine their own

work programmes, provides a degree of independence and autonomy that is lacking in many

other occupations.11 However, it is its current popularity and marketability that has increased

the arts potential to be appropriated for illegal reproductions; the volume of available designs

makes illegal appropriation easier, while the market demand for such art makes such

appropriation financially worthwhile.

Yolngu art is illegally appropriated in a number of ways. These include; the

appropriation of cultural objects in museums (there are around 150,000 items of Indigenous

5 Penner 1997:7. See also Australian Copyright Council 1998:4. 6 Thomas 1978:29. 7 The artist Margaret Preston and the anthropologist A. P. Elkin were amongst the few to argue for the recognition of indigenous art as art. See Morphy 1991:23, Johnson 1990:85. 8 Australian Copyright Council 1998:12-13. 9 The missionaries services provided indigenous communities with a little money or tobacco - the latter which was actually to provide an incentive for the Yolngu to stay at the missions. See Morphy 1991:14. 10 McCulloch 1999:10. 11 Morphy 1980:86-7. He describes these attributes when discussing art and craft at Yirrkala.

cultural property in State and national museums,12), the appropriation of identity (there has

been several cases of non-indigenous artists adopting an indigenous identity), and the

appropriation designs themselves, reproducing them in part or whole without Yolngu

permission. 13 It is the last form, of appropriating artworks which is the most widespread and

represents the most detrimental effect on Yolngu culture.

These forms of appropriation are interlinked and demonstrate the general cultural

dynamics of colonisation, where the colonisers take and use elements of the colonised Other

to satisfy their desires for exoticism and to - much later -take up politically fashionable

positions. Indigenous paintings come to be recontextualised in the Western world, where

they offer a relationship of self-possession to the Western self – ‘a self immersed in a myth of

self–alienation’ where the art is seen to be ‘filling a void, recovering a lost soul’14. As these

desires underlie much of the commerical demand for Yolngu art, the complexities of the

commercial art system are exposured – offering desparately needed financial automony while

relying on images of exoticism which often run against the Yolngu desire for cultural

recognition through disseminated art.

Until the last few decades the established institutions of Euro-Australian art have

relied upon core assumptions regarding Yolngu art that have revolved around perceived

dichotomies of the art between the two worlds. European art was seen as having named and

distinct authors, with unique works tied to specific historical contexts, in contrast to

indigenous art, which involved nameless tribesmen as artists, works which were

representative of a clan as a fixed, ahistorical totality.15 Although the boom in indigenous art

has seen Yolngu artists being finally being accepted as individuals, together with the

recognition of their distinct styles, the essentialised poles above still often persist, especially

in the context of commercial art for souvenirs, where it is often used to market the item.16

This is seen through the binaries of language used to describe indigenous and non-indigenous

works: exotic, timeless, authentic, versus engaged, contemporary, and original.

This key separation of the Yolngu sphere as ‘other’ - which harnesses the desire and

the demand for their art - that makes the notion of authenticity central to indigenous art. The

12 Fourmile 1989:7. 13 Australian Copyright Council 1998:6. 14 Magowan 2001:284. 15 A famous example of this assumption is seen in the unauthorised use of the indigenous designs for the one dollar note in 1966 - the then Governour of the Reserve Bank, H.C. Coombs, assuming that the work was probably by some ‘anonymous and long dead’ indigenous artist. Johnson 1996:13. 16 Johnson 1990:8.

paradoxical quest for the ‘authentic’ other to emerge as art within the Western system,

problematicising as it does so its very claim to a ‘genuine’ or ‘traditional’ place within that

category. Problems arise – firstly Yolngu paintings that do not fit this ideal of authenticity -

because they use ‘non-traditional’ styles or materials - often do not get the same commercial

success because of the market demand for authentic art.17 Secondarily, the Euro-centric

discourse of authenticity demands copyright protection that focuses on the work coming from

‘genuine indigenous artists’, which may not match up with the Yolngu approaches towards

the protection of their art from appropriation, as seen in Part II.

This emphasis on authenticity is the central component in the wider discourse of

preservation, which seeks to preserve indigenous culture as undisturbed by external market

forces that may assimilate or distort the culture. These aims can have the effect of

‘fossilising’ culture, where instead of local decision-making, the ‘caretakers of our heritage

become not ourselves, but.... archaeologists and anthropologists’18. The alternative

discourse of nationalism provides a different motivation for protecting indigenous art – it co-

opts it in the search for an ‘authentic’ Australian artistic style and identity.19 This can

represent a process of cultural assimilation for artefacts and artworks; the boomerang being

the prototypical example of how white Australia has appropriated an indigenous form for its

identity. The icon communicates Australian culture internationally, while concealing the

political realities of the indigenous communities behind its sign.20 This nationalist-

assimilation approach must be seen as having a background in the assimilation policies of the

1950s and 1960s whose target was the destruction and absorption of indigenous culture itself

into the white mainstream.21 Both these approaches form coherent ways of ordering

concerns over the meaning of indigenous traditions to non-indigenous people. They illustrate

the complex ulterior motives at play behind calls for the protection of indigenous heritage,

and form the backdrop to the debates over indigenous intellectual property and copyright.

Copyright laws stand as the Western defence of Yolngu intellectual property. The

17 See for instance ‘...the tendency to equate Aboriginal art employing tradition techniques, materials and imagery with ‘authenticity’ does many artists a disservice and reinforce public misconceptions.’ Australian Copyright Council 1998:27. 18 Fourmile 1989:6. 19 For instance, the Keating Governments statement on cultural policy takes this explicit stance, ‘To speak of Australian culture is to recognise our common heritage. ...The culture and identity of Aboriginal and Torres Strait Islander Australians has become an essential element of Australian identity, a vital expression of who we all are...’. Commonwealth of Australia:1994. 20 Fourmile 1989:8. 21 See Morphy 1980:85.

central ideas behind Euro-centric copyright law has shifted over the last two hundred years

from censorship and state control to rewarding (and thereby encouraging) creative and

intellectual endeavours.22 A philosophy of balance underlies contemporary copyright law -

the balance between the rights of the author and those of the general community. The first

has been long based on discourses privileged the aesthetic ideal of the original, which comes

into conflict with its simulacra in mechanical reproduction, being faced with the loss of its

originality, with the complementary concepts of originality and authenticity being central

here.23 The other pull emerges from the economic benefits arising from the commodification

of art, together with the broader cultural benefits that the exposure of the work has in public

circulation.24 The period of protection sets this balance – in Australia it is the author’s

lifespan plus an additional fifty years. During this time, if the copyrights of a work are not

sold or transferred, the work is protected from unauthorised uses and reproductions. After

this period, the copyrighted work moves into ‘public domain’, where it may be freely shared

and exploited by all. This balance between the interests of the individual and that of the

community is therefore central to the idea of copyright, being part of a long legal-

philosophical tradition in which the private and public are clearly demarked.

Although the aforementioned Euro-centric discourses are in hegemonic positions

materially and culturally, the latter’s modernist philosophical, aesthetic and economic

foundations are subject to criticism from within its own tradition. Postmodernist critiques

have (at least within academic and art circles) eroded the traditional hegemonic status of

concepts such as originality and authorship through assessing the meaning and value of art

works as they appear in the context of which they are presented (place of reception), rather

than just the place of their creation (place of conception).25 Although this critique has been

useful in deconstructing the oppressive truth-values of colonising discourse (such as claims to

civilising ‘progress’), it similarly erodes claims to authenticity by Yolngu art works. In the

postmodern perspective, a painting or item containing Yolngu designs circulating within the

22 Australian Copyright Council:1998:16. 23 See Benjamin 1970:220-8 for an extended discussion. 24 These two pulls are enshrined in the ‘Universal Declaration of Human Rights’, which advances the dual right in Article 27: 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author. United Nations, ‘Universal Declaration of Human Rights’, http//www.udhr50.org/UN/default.htm 25 For a more detailed discussion of postmodernism and copyright, see Wood 1996:72-76. See also Jameson

European world - while resisting forced ‘ethnographic’ or ‘primordial’ readings - is stripped

of its cultural content, and any latent ‘values’ it contains. Postmodernist thinking thus forms

a philosophical basis for the commodification and mass production of Yolngu art without

necessary outlining a positive contribution to the complexities of the problem of preserving

the values and integrity of commercialised Yolngu art while encouraging and sustaining a

market for the works.

Thus the Euro-Australian frame - which forms the receptacle for the circulated

Yolngu works – has a complex relationship towards these art works. The motivations behind

the Euro-centric drive to protect indigenous heritage, and their working assumptions behind

the notion of copyright are entwined with essentialised notions of the traditional indigenous

other, which underscores the idea of authentic Yolngu painting and its protection. To

continue our analysis, we turn to the Yolngu frame to examine the processes behind art

production in this context.

Part II – Yolngu knowledge and copyright

Art in Yolngu culture is not positioned as peripheral to the basic reproduction of society and

its laws, as in the Euro-centric frame. Instead it is of central importance - interweaved in the

domains of politics, in communication between and within clans, in recreating ancestral

events, and forming and articulating various levels of knowledge and secrecy. This matrix of

meanings in which the art object is created encompasses challenges to the Euro-centric ideas

of private/public, creativity/authenticity/originality, aesthetics and artistic use-value which

we have seen underscoring the copyright discourse. By exploring the related Yolngu

concepts we can sketch the unique problems that arise through the translation of Yolngu art

work between the two value and meaning systems.

Like any system of art, a proper understanding of the Yolngu context comes from

understanding its society. Yolngu society has its basis in the loose association of clans, each

sharing a common matha (language) and tracing its descent back to a wangarr (ancestral

being.26 It is the formulative acts of these ancestral beings in the ‘creation period’ that

1984:56-7. 26 In reality the notion of the ‘clan’ as a sociological-linguistic group is far more complicated and contested. Rather than discrete groupings, they seem to form ‘structure[s] of overlapping, interlocking, and open social

provide the landscape with its natural features and the Yolngu their mardayin (sacred law and

objects). The ancestors gave mardayin to the people, which determines the proper way of

living with land and acting in within the Yolngu clan (as articulated through rom – ‘right

practice’). The entire Yolngu universe which encompasses the land, sea, humans, animals

and ancestors are separated into two fundamental types, or moieties, Dhuwa and Yirritja.

Along with determining kin relations, moieties are vastly important ancestrally, with each

ancestral being referred to almost exclusively by one moiety only, and their creative land

forming acts occurring in land of one moiety, while avoiding the land associated with the

opposite moiety.27

Paintings, or dhulay, form part of a broader set of miny’tji (designs), which include

derrang (carvings), buyu (weavings) and molk (ground sculptures). These are all in turn part

of the ancestral inheritance, along with bunggul (dances), manikay (songs series) and likan

(names signifying wangarr and containing their power). These wangarr miny’tji do not

merely represent the mardayin, they are manifestations of it. They serve as ‘meaning

creation systems’28 which articulate the interplay between ancestral law and Yolngu society.

Paintings are articulations of this shared clan ancestral knowledge, rather than an individual’s

personal expression about the world. The knowledge of a clan’s mardayin that is transmitted

through painting is essential to clan members if they are to fulfil their obligations to the

wangarr who entrusted them with looking after their land.29

At the same time as paintings reflect a clan’s obligation to mardayin, they also are a source of

the wangarr power. The designs in paintings which emulate the designs worn by the

wangarr themselves extend the latter’s power by the metonymic extension of the ancestral

realm into the present.30 This ancestral power, märr, is identical to the power contained by

sacred objects and the calling of likan. Aesthetics in Yolngu paintings are intrinsically

connected to notions of märr, unlike the ‘secular’ aesthetics discourse of Western art. The

power is important for a multitude of aspects of Yolngu society - for instance in ensuring

plentiful hunting and gathering31. Thus for the Yolngu, as with other indigenous groups, ‘Art

networks’ Kenn 1994:63. A useful discussion of the problems around specifying the term ‘clan’ as mala (group) or matha (language) is found in Morphy 1991:46-7. Much anthropological discussion of Yolngu clans contain implicit notions of bounded structures and enclosures which are tend to be idealised models of closure. According to Keen ‘group identity of country is not unambiguous and is often contested...’ Keen 1995:510. 27 Morphy 1991:44. 28 Morphy 1991:6. 29 Morphy 1991:102. 30 Taylor 1996:92. 31 For instance the attitude that ‘If we paint rarrk there will be more djeni [fish] and more manme [vegetable

is considered to be precious, not as an object, but for its life sustaining qualities. The

language it uses- the signs, symbols and codes may all be information necessary for

survival’32. Therefore the Western individualised approach to paintings, in terms of an

original author and unique aesthetics, is destabilised, instead favouring notions of clan-owned

wangarr miny’tji which, although may be painted by an individual, has a wangarr as its true

creator. If an individual has the right to paint (see below), the fact that they may copy

designs from other artists working in the same tradition is not offensive in itself, as the same

expectation that an artist within that tradition will be ‘original’ in the work they create does

not exist.33 Painting is often conducted in groups, which further erodes the idea of a single

artist-creator.

Just as Yolngu notions of the artist are different to European conceptions, so is their

concept of the viewing public. The ancestral basis of paintings distinguishes them between

clans, and their wangarr significance enfolds them in the complex system of knowledge and

secrecy within the clan. Who has knowledge and access to the ancestral law propagated

through paintings depends on the individual’s position in the complex Yolngu system of

knowledge and secrecy. This system bases itself on an ideology whereby woman and

uninitiated men are allowed access to generally available ‘public’ knowledge, whereas

initiated men access increasingly restricted knowledge as they acquire seniority.34 In this

system, a person’s right to participate - paint in this context - often comes before the right to

know the special meaning of the painted designs is conferred. The system serves to create

knowledge hierarchies where the most senior men control the ritual ancestral knowledge and

hence power inside and outside the clan.35 Because of this fundamentally different version

of the public, there is no such thing the homogenous notion of ‘public domain’ which is so

important to the Western copyright system. Designs bearing the mardayin will always be

embedded in the discourse of knowledge and secrecy, and therefore are liable to upset the

mardayin if altered in a way that is offensive.

The different orders of Yolngu painting were categorised by Thomson in 1930s - he

food]’ , quoted in Taylor 1996:92. 32 Australian Copyright Council 1998:40. 33 Australian Copyright Council 1998:41. 34 This is an oversimplification of the process but suits ours purposes of discussion. For a more detailed discussion, see Keen 1994:171-191. 35 These rights do not form a fixed, preformed structure but are conditional on other factors, such as competence. For instance senile elders are non longer consulted, while the spread of alcoholism amongst young Yolngu males and their corresponding incompetence has meant some older men choose to teach their daughters painting instead. Morphy 1991:63,73.

determined five different categories - wakinngu, garma, bulgu, ngaarrapuy, likanbuy -

ascending in degree of restriction and ancestral power. The last two categories traditionally

could not be seen by women or non-initiates. These categories encompass either or both of

the two key representational elements in Yolngu design - figurative and geometric. The

former refers to designs that have a likeness to what is represented, and while latter are of a

more abstract, geometric nature.36 An important aspect of the latter is clan designs, the

geometric patterns owned by clans within the same moiety. Clan designs are an important

part of mardayin that are handed down the generations, maintaining continuity between the

land, clan, and ancestral past. They confer clearly identifiable clan ownership of paintings37,

and as such demonstrate the ‘author’ in the Western sense. However copyright law does not

extend to these clan designs as they constitute a general style – they do not demonstrate

originality. Therefore even these very markings of ownership could be legally reproduced -

without Yolngu permission - according to the Euro-centric system. In addition, because of

the ancestral power invested in the designs, misappropriation may empower the violator – the

fear is for ‘the potential for such a stolen design to convey rights and authority to the thief’.38

It may also have grave repercussions for the health of the clan that owned the designs.

Another key distinction from Euro-centric art lies in the usage of Yolngu art.

Western aesthetics demands contemplation and analysis from a strict subject/object,

observer/artwork distinction. Yolngu paintings instead has a key place within performed

ceremony, where it is the interplay between the painting and manikay, bunggul and likan

which serve to communicate or reveal an aspect of the painting, and by doing so, (re)inscribe

mardayin.39. The märr residing in paintings is properly transmitted through ceremonial

performance, where power can be conferred to the thing that is painted - the body of an

initiate, a coffin lid or other ritual implement.40

Therefore the context in which the painting is used is very important - and thus there

exists potential ramifications for commercial sale of paintings to dishonour the ancestral

36 In the Saussurian sense all representations are signs, with figurative as having a degree of formal similarity between the signified and the signifier, and geometric as having a more or less arbitrary relation. See Munn 1973:87-88., Morphy 1991:150. 37 ‘If I painted only pictures [figurative representations], then someone could say I was stealing the painting. If I paint the clan designs, then it shows the painting belongs to me’ Marrkarakara, quoted in Morphy 1991:170. 38 Anderson 1990:12. 39 Paintings are part of what Morphy calls ‘chunks’ of ancestral law associated with particular name places in the clans territory. These ‘chunks’ must be performed at ceremonies to have their knowledge communicated. See Morphy 1991:101. 40 Taylor 1996:20.

power.41 The artwork is not just an independent object - the commercial reproduction serves

to displace the art from its Yolngu context, where it forms a node in a web of ancestral

knowledge relations and their corresponding political power, to the secular European setting,

which does not nurture these connections, relying instead on aesthetics. In the words of

Walter Benjamin, ‘unique value of authentic art has been its place in ritual... the technique of

reproduction detaches the reproduced object from the domain of tradition’42 Thus Yolngu

art manifests itself in a much wider context than the strictly visual - it is entwined with the

sounds, smells, and tactility of the ceremony.

It is these less tangible manifestations of Yolngu paintings – their performative

context – which are not covered under the Copyright Act. Instead, the Act confines protected

works to be in ‘material form’.43 Thus the Act protects paintings in isolation, but does not

recognise the explicit connections between the articulation of mardayin through paintings and

the other expressions in the ceremonial context.

This ‘domain of tradition’ can stipulate very different physical manifestations of art

form than in the West. The impermanence of ceremony provides the controlled context for

knowledge transmission, a context whose very brevity of exposure enhances the painting’s

power.44 The Yolngu do not share the Western notions of uni-directional linear causality.

Instead time is considered in a more circular fashion, such that the ancestral events are not

simply located in the distance past, but are also co-present, available to be evoked in

ceremony.45 This poses a problem for the limited duration that copyright law offers

protection. In this Yolngu frame, such a measured, fixed quantity of time makes no logical

sense when the mardayin contained in the designs refers back to the deep past and the

ongoing present simultaneously. In this light the essential balance between the private and

public in Western copyright, the point where the design is released into public domain, is

nonsensical – designs must be protected from misappropriation forever or not at all. In this

41 An example is the case of Milpurrurru vs. Indofurn Pty Ltd, where sacred designs were reproduced on carpet – the fact that the designs would be walked on was offensive and dishonouring. Australian Copyright Council 1998:31. 42 Benjamin 1970:242. Benjamin did not necessarily see mechanical reproduction as a negative - later he writes ‘mechanical reproduction emancipates the work of art from its parasitical dependence on ritual’ (256). 43 ‘Material form’ in relation to work is defined to be ‘any form of storage from which the work or adaptation, or a substantial part of the adaptation, can be reproduced’. Section 10(1) Copyright Act 1968 (Commonwealth). 44 Corn, pers. com, 2003. Body paintings only generally lasts the duration of the ceremony or less, and bark paintings were frequently buried afterwards. 45 Williams describes Yolngu time as such that ‘from any particular time, what is past may be future, and what is future may be past’ . Williams 1986:30.

way Yolngu art can be connected to Weiner’s concept of ‘inalienable possessions’ – objects

whose power ‘to authenticate cosmology’ is forever inseparable from the physical form, and

whose significance extends beyond the concerns of the immediate owner to that of the social

group.46

So far we have tried to sketch some of the discontinualities between the Yolngu

system of art and Western copyright. However to solely rely on this perspective of a static

indigenous society at odds with the white ‘system’ is dangerously close to the paternalistic

approach of the past. In the decades since paintings were given to missionaries under the

cover of darkness, Yolngu clans have adapted in various ways to the sale of commercial art.

The rise in paintings produced solely for commercial purposes has shifted the types of

paintings produced and the knowledge/secrecy discourse that have surrounded them - in

certain cases this has seen the opening out of paintings from the men’s ceremony to the

gallery context.47 The prime example involved likanbuy paintings, whose fine cross-hatching

- which produces the effect of bir’yun (the shimmering brilliance associated with ancestral

power) - explains their high demand for commercial sale.48 The painting’s restrictedness may

also have a bearing – adding to its authenticity and exotica. These paintings are no longer a

solely restricted class, with their sale and corresponding release into the (Western) public

realm. The latter context has its closest correlation with the Yolngu garma (public) level of

access, contrasting to its former restricted status. As these paintings are still used in their

proper restricted ceremonial setting, it is the particular contexts in which the paintings appear

which determine how the mardayin is expressed, if at all.

However the often-closed geometric form of likanbuy paintings is impervious to

deciphering by untrained Western viewers. Hence there is also demand for figurative designs

that correlate more closely with Western ideas of aesthetics; therefore modified likanbuy

paintings -with the inclusion of a large number of figurative elements - are produced for sale

as well.49 Market forces are not only factors affecting art production – the educational value

of Yolngu painting is also highly important in the continual struggle for cultural recognition.

Designs destined for sale were often made more figurative not only for commercial demand,

46 Weiner 1992:6. 47 Morphy outlines a new schema for classifying the paintings produced solely for commercial sale See Morphy 1991:201-213. 48 For a detailed discussion of bir’yun, see Morphy 1989. 49 Morphy 1980:90.

but to also emphasise their meanings to ngäpaki (non-Yolngu people).50 This situation has

been sometimes reversed if the artists have felt that, despite selling well, the stories

associated with the works were not being transmitted.51 Art intended to be ideally produced

for educational purposes often fit into the ‘fine art’ category and not necessarily the ‘mass

market’, the former yielding the most monetary returns. However, as noted above, these

distinctions are often blurred, with Yolngu artists adapting to the demands of both.

The adaptation of Yolngu artists and knowledge frameworks to meet commercial

demand has led them to develop pragmatic solutions to problems of restricted knowledge.

However the complex system of mardayin embeds Yolngu paintings in a web of relationships

that conflict with the assumptions of the independent artwork underlying the copyright

discourse. Thus although legal cases have set precedents with regard to protecting

indigenous interests in terms of copyright infringements, it is a deeper change which is

required to ensure proper and lasting protection to Yolngu artists.52

Part III – Conclusions: Directions for change

We have seen that the problems that exist in the meeting of the two frames are complex – the

aesthetics system of the Yolgnu is intertwined with both its contextual communicative ability

and its power as sacred knowledge, while that of the West relies on vastly different notions of

public and private, and of originality and authenticity. Hence approaches to protection of

paintings must recognise and intermesh with these systems of knowledge.

We have been examining the implications and assumptions of the Copyright Act so

far. It is useful to consider the recent amendment of the Copyright Act to include moral

rights as it offers some possibilties for a recognition of Yolngu paintings not offered so far in

the former (1968) Act while still illustrating the limitations of this type of approach. Moral

rights were introduced into Copyright Act by the Copyright Amendment (Moral Rights) Act

2000.53 They include: the right of attribution of authorship, right not to have authorship

50 Dussart 1996:194. 51 n such cases, artists have either magnifed the figurative elements to an even greater extent, or returned back to painting in the original more symbolic styles – the latter from a realisation of the limits of cross-cultural communication. See Dussart 1996:194-5. 52 For details of such copyright cases, see Australian Copyright Council 1998:24-32. 53 They came into effect on 21st December 2000, long time after their initial adoption into the Berne Convention in 1928, of which Australia holds obligations to. Janke 2002:2.

falsely atttributed, and the right to intergrity of authorship.54 These rights are additional to

copyright, but are inalienable – they still exist even if copyright is sold or transfered. This

may protect Yolgnu designs whose sacred power is inalienable and leaves the work open to

heightened vulnerability from inappropriate reproduction, not the act of reproduction itself

which standard copyright protects. The right to integrity offers legal recourses for

‘derogatory treatment’ with respect to artistic works - offering the potential to protect Yolgnu

paintings whose sacred meanings are affronted from their appearance in certain forms or

alterations.55 In the case of Milpurrurru vs. Indofurn Pty Ltd, in which designs relating to

sacred men’s stories were substantially altered and reproduced on carpets, the indigenous

claiments could have argued an additional case for the infringement of the right of integrity in

that the form of the reproductions was derogatory.

The right to false attrition may assist in cases where a work is still attributed to the artist

despite its signifigant alteration by a manufacturer (which may or may not be offensive).56

However, as moral rights fit within the existing copyright system, the same fundamental

problems exist as with conventional copyright. Only individuals can possess them, not

groups, only material items are protected, and the right exists for only the duration of

copyright.57

Therefore we must look outside of the existing system if we are going to identify

future approaches. There are many different proposed avenues for reconciling the Yolngu and

Euro-centric frames and improving on the existing form of copyright protection. The High

Court decision on Mabo (No. 2) has meant that indigenous customary law is no longer

invisible, and thus the application of Yolngu customary intellectual property law is a legal

possibility. In such cases issues arise concerning the jurisdictions of Yolngu and European

law – whether the former overrides the later in conflict, or whether a blend of the two

systems can operate.58 Other approaches may be to adapt existing common law - such as the

54 Section 193(1) Copyright Act 1968 (Commonwealth). 55 ‘Derogatory treatment’ is defined as the ‘doing, in relation to the work, of anything which results in a material distortion of, the destruction or mutilation of, or material alteration to, the work that is prejudicaial to the author’s honour or reputation’. Section 195AK Copyright Act 1968 (Commonwealth). 56 See Janke 2002:4 for the case of an indigenous artist that was in this situation. 57 During the final passage of the bill, Sneator Aden Ridgeway proposed an amendment that would have given recognition to indignous groups through a custodian nominated by the group. The amendment was not supported, but remains a useful model for future alteration of the Copyright Act. Janke 2002:6. 58 The general problems and benefits of combined Yolgnu and European legal frameworks are discussed in more detail in Williams 1987:126-149.

creative use of the legal prohibition of blasphemy.59 Labelling schemes are another option –

either as representing a standard of ‘authentic’ indigenous work,60 or to provide a ‘notice of

custodian interest’ in addition to copyright notice.61 International approaches through

organisations such as UNESCO (United Nations Educational, Scientific, and Cultural

Organision) and WIPO (World Intellectual Property Organisation) may form other avenues.

The problems that we have seen arising from both present and past discontiuities

between the Yolngu and Eurocentric frames can help us develop criterea for guiding future

directions in protecting Yolngu paintings. Given preservationalist or nationalist motivations

for protecting indigenous intellectual property and their assumptions regarding the proper

usuage of art works, the mechanism must opperate to protect works under the Yolngu artist

terms. It must recognise in detail the Yolngu knowledge systems surrounding the particular

paintings and the specific detrimental effects that appropriation has on them so that it can

properly protect against this occurance. Present copyright principles demand that Yolngu

claiments assert a notion of ‘ownership’ and ‘originality’ which is antithetical to their society

understanding of these concepts.

We are at stage now where we do not have to go through the paternalistic debate of

whether indigenous communities should sell their art for commercial gain. The selling of art

in Yolngu communities is vital for principles of self-determinations and cultural exchange.

What the debate needs to centre on now is ensuring the right methods for the protection of

these paintings, hundreds of which make their journey from the Yolngu frame to the Euro-

centric frame everyday. Only the proper understanding of the intricate Yolngu knowledge

systems that stand behind the art works can provide for their protection from unauthorised

appropriation. For anything less will ensure the continual erosion of Yolgnu culture and by

extension the entire system which lies behind the production of its artistic works. In this case

the latter would become truly dead artifacts, endlessly circulating and without the sustaining

märr, the nourishing connection with the wangarr broken. 4876 words

59 Australian Copyright Council 1998:59-60. Blasphemy is designed to safeguard ‘the core values of society’ – however it is unclear whether blasphemy can be applied legally to contexts coutside Christianity. 60 For an extensive discussion on labelling, see Johnson 1990:35-51. 61 This notice is intended to preserve the indigenous custodian interest by ensuring that appropriate information over restricted usuages are propagated to third parties dealing with the artwork. See McCausland 1999:12-23.

Bibliography Altman, J. [ed.], Marketing Aboriginal Art in the 1990s, Aboriginal Studies Press, 1991. Anderson, P., ‘Aboriginal Imagery: Influence, Appropriation or Theft’, in Eyeline, vol. 8, 1990. Australian Copyright Council, Protecting Indigenous Intellectual Property: A Discussion Paper,

ACC, 1998.

Aboriginal Arts and Copyright, ACC, 1994. Benjamin, W., ‘The Work of Art in the Age of Mechanical Reproduction’, in Illuminations, Cape London, 1970. Cole, K., The Aborigines of Arnhem Land, Ribgy, 1979. Commonwealth of Australia, Creative Nation, Department of Communications and Arts, 1994.

Copyright Act 1968, (2000). Dussart, F., ‘A body painting in translation’, in Banks [ed.] Rethinking Visual Anthropology Yale University Press,1997. Edwards, W. H. Traditional Aboriginal Society: A Reader, MacMillan, 1987. Fourmile, H., ‘Some background to issues concerning the appropriation of aboriginal imagery’, in Cramer, S[ed.], Postmodernism: a consideration of the appropriation of Aboriginal imagery - Forum Papers, Institute of Modern Art, 1989. Jameson, F., ‘Postmodernism, or the Cultural Logic of Late Capitalism’, New Left Review, vol. 146 (July/August 1984), pp. 53-92. Janke, T., Moral Rights and Indigenous People’s Cultural Rights, National Indigenous Arts Advocacy Association, 2002. Johnson, V., Copyrites: Aboriginal Art in the Age of Reproductive Technologies, National Indigenous

Advocacy Association, 1996.

The Copyright Issue, Macquarie University, 1990. Keen, I, Knowledge and Secrecy in Aboriginal Religion, Clarendon Press, 1994.

‘Metaphor and the metalanguage: ‘groups’ in northeast Arnhem Land’, in American Ethnologist, 22(3), 1995, pp. 502-527.

Kleinert, S., Neale, M., [eds.], The Oxford Companion to Aboriginal Art and Culture, Oxford University Press, 2000. Magowan, F.,’Syncretism or Sychronicity? Remaking the Yolngu Feel of Place’, in The Australia Journal of Anthropology, 12(3), 2001, pp. 275-290. McCausland, S., ‘Protecting Communal Interests in Indigenous Artworks after the Bulun Bulun case’, Indigenous Law Bulletin, July 1999, pp. 12-23. Morphy, H., Ancestral Connections: Art and an Aboriginal System of Knowledge, University of Chicago

Press, 1991.

“From dull to Brilliant: the aesthetics of spiritual power among the Yolngu’, in Man, 24(1), 1989, pp. 21-40. ‘The impact of the commercial development of art on traditional culture’, in Preserving indigenous cultures, Edwards [ed.], Australian Government Publishing Service, 1980.

McCulloch, S., Contemporary Aboriginal Art, Allen & Unwin, 1999. Munn, N. D., Walbiri iconography, Cornell University Press, 1973. Penner, J., The idea of property in law, Oxford University Press, 1997. Taylor, L., Seeing the Inside: Bark Painting in Western Arnhem Land, Clarendon Press, 1996. Thomas, D, ‘Aboriginal Art and Art’, in Edwards, R., [ed.], Aboriginal Art in Australia, Ure Smith, 1978. Warner, L., A Black Civilisation: A social study of an Australian tribe, Harper & Brother Publishers, 1937. Watson, H., Singing the Land, Signing the land, Deakin University. 1989. Weiner, A., Inalienable Possession: The paradox of Keeping While Giving, University of California Press, 1992. Williams, N., The Yolngu and their Land: A System of Land Tenure and the Fight for its Recognition’,

Australian Institute of Aboriginal Studies, 1986. Two Laws: managing disputes in a contemporary Aboriginal community, Australian Institute of Aboriginal Studies, 1987.

Wood, L-J., ‘Copyright Law and Postmodern Artistic Practice: Paradox and Difference’, in Media and Arts Law Review, 1(2), 1996.