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<nettime> Indigenous IP
m hardie on Mon, 27 Jan 2003 19:41:49 +0100 (CET)

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<nettime> Indigenous IP

I am new to this list but I see that a debate raged last October 
concerning Ned Rossiter's approach tot he question of Indigenous IP.
Unlike Ned I do not think that the legilsative road is the one to 
follow. And it has not been followed in Australia despite calls for it 
since the later 1960's.
I am not holding my breath for the current or future governments of that 
country to pass a law as proposed by Ned and others.
having worked this issue through the courts in Australia (where I no 
longer live) I think that a solution has been reached which is more in 
conformity with the ideas of singularities, repititon, Empier/counter 
Empire .... (if I am allowed to use some shorthand). I am interested in 
debating this further here, privately or wherever but to get it going I 
post an abstarct of a paper I will soon present (see below)

Conference: Born of Desertion: Singularity, Collectivity, Revolution -
March 20-22 at the University of Florida, Gainesville, USA.
Presented by Center for the Humanities and Public Sphere, the Department
of English, and the Marxist Reading Group.

Abstract: "Australian Aboriginal Art, Copyright Law and the Australian
Courts - an example of the flexible management of difference?"
Martin Hardie, Florida State University, Panama City, Republic of Panama.

This presentation seeks to give an outline of the facts involving the
challenges posed by Australia Aboriginal art and indigenous concepts of
ownership to the law of Copyright in Australia. The draft paper upon
which the presentation is based can be found at:

In the cases examined in the paper we see the courts undergo a passage
from the perceived exclusion of Aboriginal artists from the protection
of the law to one were they are capable of seeking remedies under both
the existing Copyright regime and the ancient principles of doing equity.

After many years of the existence of a perceived wisdom to the effect
that Aboriginal art was not capable of protection by copyright law it
was in the final case of the series examined (Bulun Bulun v R & T
Textiles Pty Ltd) that the Federal Court of Australia cleared away any
obstacles and created a precedent for courts to intervene to protect
Aboriginal ritual knowledge from exploitation that is contrary to the
particular law and custom shown to exist in any one case. In doing so
the court recognised a separate and distinct right to the right
subsisting in an artistic work of a copyright owner based upon the
ancient principles of doing "equity". Prior to this series of cases
Aboriginal art was originally perceived as not being subject to the law
of copyright because of the "traditional" nature of its designs - simply
it was argued they were regarded as not capable of being "original"
within the meaning of the relevant law. The approach taken by the
Federal Court in Bulun Bulun allows for both communal interests and
copyright interests to be litigated.

Nevertheless their continues in some quarters a call for legislative
intervention in order that all members of Aboriginal communities,
wherever they are situated and whatever their custom could enforce a
general legal right. I argue that this general approach misunderstands
the importance of the case by case (differential approach) adopted by
the Federal Court in the Bulun Bulun case. It is arguable that a
legislative response would entail a law that would treat all the
subjects of the proposed law (Aboriginal artists) generally and
according to the overarching applicable law. It would call for a static
definition of what is Aboriginal "tradition" applicable to
interchangeable particulars.

It may be the Federal Court's approach is an example of the flexible
management of difference whereby it repeats in different cases its role
to do equity between the parties. Not only do I argue that the approach
is sensible and just, taking account of difference as it does, it may be
an example of conduct concerning "non-exchangeable and non-substitutable
singularities". In short the Federal Court may repeat the Bulun Bulun
case in other circumstances - that is it may "behave in a certain
manner, but in relation to something unique or singular which has no
equal or equivalent."

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