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Standing Committee on Indigenous Affairs
02/03/2018
Growing presence of inauthentic Aboriginal and Torres Strait Islander 'style' art and craft products and merchandise for sale across Australia

BOURKE, Mr Brendan, Acting Assistant General Manager, Policy and Governance Group, IP Australia

NIXON, Mr Will, Policy Officer, Trade and Policy Projects, IP Australia

[09:54]

CHAIR: Welcome. These proceedings are public and are being broadcast and recorded by Hansard. If you wish to have evidence heard in private please let the committee know and we'll consider your request. Although the committee does not require you to give evidence under oath, I wish to advise you that this hearing is a formal proceeding of the parliament. Giving false or misleading evidence is a serious matter and may be regarded as contempt of parliament. If you object to answering a question, please state your reasons for the objection, and the committee will consider the matter. I now invite you to make an opening statement.

Mr Bourke : IP Australia is pleased to assist the committee in its inquiry. We can provide you with information on the administration of registered intellectual property rights and legislation relating to trademarks, designs, patents and plant breeders rights. IP Australia is aware of the concerns around the production and sale of inauthentic Aboriginal and Torres Strait Islander products, and we're also aware of the concerns that the presence of these products can have an effect on cultural integrity and economic opportunities for Indigenous communities. Our colleagues from the Department of Communications and the Arts have just given you an indication of the scale of those problems.

There are some limited ways in which the IP system can be used in this area, but the nature and diversity of traditional cultural expressions makes it difficult to effectively protect them under existing IP rights. The trademark system provides some options that can be used to promote authentic products in the market. For example, a standard trademark is used to distinguish the goods of one trader from those of another, so that could be used for an Indigenous business to define certain characteristics. For example, the Body Shop is known for selling products that are not tested on animals. Consumers are aware of that information when they see the Body Shop trademark. In a similar way, an Indigenous business could establish a reputation for a trademark for selling authentic goods.

The second type of trademark is a certification trademark that can be used to indicate that a particular product meets an official set of requirements and can be available to any trader whose product satisfies those requirements and pays a licence fee to the certifier. Indigenous producers could use the certification trademark to communicate the authenticity of their products to consumers while inauthentic products could be denied that certification.

A third type of trademark is a collective trademark, which can be used by members of an association in relation to their goods. A collective trademark is governed by the relevant association's rules of membership and can be used by any member acting in accordance with those rules. This type of trademark can be used by an association of Indigenous traders, artists, craftspeople and other producers to promote authentic goods.

However, I would like to emphasise that none of those options would prevent the sale of inauthentic products in the market. Those are all options that can be used to promote products that are authentic and that have certain characteristics. As set out in our submission, IP Australia provides education and awareness materials specifically focused on the IP needs and interests of Indigenous people. We also play a lead role in efforts to develop an international instrument in the World Intellectual Property Organisation to protect Indigenous IP rights in areas including traditional knowledge and folklore. And we're working with the Department of Industry, Innovation and Science and relevant consultants to examine our domestic regime. We hope that all these efforts will lead to a better framework for the protection of Indigenous intellectual property rights in the future. Our written submission to the inquiry provides an overview of the role of the IP system as it's relevance to the inquiry's terms of reference. We're happy to elaborate further on any items of interest to the committee.

Mr SNOWDON: I'm really interested in the individual collective trademark issue. We used to have a collective trademark, by the sound of things, through the National Aboriginal Arts Advocacy Organisation, until 2003. Why did it close shop? And what happened to its trademark?

Mr Bourke : They had a certification trademark, and my understanding is that the organisation ceased. I think there were also some issues around the trademark itself in terms of identifying authenticity, take-up by producers—a number of issues.

Mr SNOWDON: Are there any current examples of collective trademarks in the Aboriginal art industry?

Mr Bourke : Not that we're aware of in Australia. As the previous speaker said, in New Zealand there's a Maori certification trademark, but we're not aware of any current ones in the Australian industry.

Mr SNOWDON: You were here for the previous witnesses. You heard us refer to Desart and ANKAAA.

Mr Bourke : Yes.

Mr SNOWDON: Presumably it would be possible for them to apply for a trademark.

Mr Bourke : Yes, that's right. And, as I said, there are three types of trademarks. A collective trademark would allow any members of that association to use it, according to the rules of membership.

Mr SNOWDON: I'm a bit surprised that they haven't got one.

CHAIR: In the past—and I'm hopeful that it's changed—in order to register a trademark you had to be selling those goods across the nation; you couldn't register a trademark that was limited to a specific region. And you had to demonstrate that you were actually selling the goods across the country.

Mr Bourke : There's a requirement with trademarks that you use a trademark, but that doesn't require you to use it broadly across Australia, as long as you can show that you're selling it in a market and use a sticker.

CHAIR: Okay; so, it has changed. I did, back in the day. We had to demonstrate that we were selling from Perth to Sydney, to Queensland, to the Northern Territory. Otherwise, we were not allowed to register it.

Mr Bourke : Sometimes if there are conflicting trademarks there might be some requirements like that.

Mr SNOWDON: It wouldn't be an issue for ANKAAA, because their products go internationally.

Mr Bourke : Yes.

CHAIR: So, they could get a collective one. Is that what you're after?

Mr SNOWDON: That's what I'm suggesting. But I'm just wondering why they haven't. We'll ask them.

CHAIR: But then if they wanted to sell in a tourist shop and there were different groups, somebody would have to have a list saying that these are all authentic trademarks, if they're all different.

Mr SNOWDON: Potentially, but that's a question of marketing. It's a bit like Clean and Green from Tasmania.

Mr Bourke : Yes, you're right. Once they've got a trademark, they then need to promote it so that people are familiar with it and it develops a reputation—

Mr SNOWDON: For quality and—

Mr Bourke : for quality and so that consumers trust it. It gives a signal to consumers. I guess in the souvenir market you've also got international tourists, and developing a reputation with that market presents its own challenges.

Mr SNOWDON: It's interesting: there's a big art fair in Central Australia, Desert Mob. You turn up there and there'll be art, just put out on tables, from art centres right across the Central Desert. On the first day they have art dealers come in, and they pick through them, and they buy. Then the next afternoon it's open to the general public, and anyone can come in and go to an art centre, effectively, because they've got a stall, and buy their art. You know it's authentic, but there's nothing on it that says that it is—no trademark.

Mr Bourke : There's a bit of a distinction here between a painting, which will be covered by copyright, and something that is put onto a product like a didgeridoo or a tea towel, to which they can then apply a trademark and say that it is being sold under this brand.

Ms CLAYDON: Are you suggesting that the trademark in the fine art level wouldn't be as useful? I mean, what would be the advantage? Maybe that's it. What would be the advantage, if any, of having a trademark for fine art?

Mr Bourke : Trademarks are directed primarily to goods and services. You might have a trademark saying, 'Our company sells paintings', but for the painting itself the protection is really through the copyright system for the fine art.

CHAIR: More like a trademark—small like the Ausbuy logo, 'Made in Australia'. They're different.

Mr SNOWDON: Yes, I understand. It wouldn't matter because, if you're selling a product internationally or wherever and you have a trademark, it's sold within that trademark, isn't it?

Mr Bourke : Yes. The two basic types of trademarks are the standard trademarks which identify who's selling the good, like Coca-Cola, Qantas or whatever—

Mr SNOWDON: Or ANKAAA, in this case.

Mr Bourke : Or ANKAAA—yes. The other ones are certification trademarks, like the Woolmark symbol or the healthy heart tick and so on, which have a central certifier. People pay a license fee to use that to show that it meets a particular characteristic.

Mr SNOWDON: It would be more the class of thing that we'd be looking at for art, which is what we talked about yesterday.

CHAIR: Particularly souvenir art and things like that. I have a question for you on education materials that you prepare in order to protect Indigenous rights. Whom do you prepare that for?

Mr Bourke : It's prepared primarily for Indigenous business and it's directed to trademarks and patents in the intellectual property space.

CHAIR: I'm just wondering who communicates that to the end artist—the first-base artist. We've already found out that a very high percentage of our Indigenous artists do not have English as their first language. How do they know that they have some protection rights?

Mr Bourke : I might need to take that one on notice and talk to our communications people.

Mr SNOWDON: But you'd expect that there are centres through which they sell their art that would talk to them about it.

Mr Bourke : Yes. We attended, for example, an Indigenous business forum last year. We can disseminate in the Northern Territory and we can disseminate some of the information at events like that or through social media and web presences.

Mr SNOWDON: You can be assured that organisations like ANKAAA and Desart are red hot on this stuff.

Mr Bourke : Yes, certainly.

Mr SNOWDON: They'd be talking to their producers and would explaining to them how their art can be protected, otherwise they wouldn't be doing their job.

Mr Bourke : Yes. The more sophisticated organisations are probably easier to access with this material. Getting to the actual artists is more difficult.

Mr SNOWDON: Yes. To pick up on the chair's question, even though there are centres—and all that's terrific—if you go to Alice Springs, Darwin, Katherine or anywhere in the west, similarly, you'll have individual artists who are flogging their wares in the street. That's fine, but we would think that they probably lack information about the protections that are available to them. I think that goes to—

CHAIR: It just worries me that there's more talent out there and they don't know that they can actually protect that talent. I think that's fairly important. Part of this is a recognition of that talent pool and acknowledgement that it is very special, and having some sort of recognition on the outside that it is unique. That's all part of the IP and the labelling. It's all part of it and, collectively, hopefully we get a good outcome. In that way, we'll protect those individuals as well as the organisations. It's high time that this happened.

Mr Bourke : Yes. Certainly part of the issue is educating those people about what their rights are and what they can do to protect themselves and their artwork.

Ms CLAYDON: Do you think IP laws are indeed one of the more effective ways in which we might protect? Whether they're current or they need amendments, do you think IP laws are a worthwhile avenue to pursue for the protection of authentic arts and crafts?

Mr Bourke : I don't think IP rights are a complete solution. They can protect aspects of it like, for example, copyright through the fine arts and trademarks, as I've mentioned. There is a tension between IP rights and Indigenous products, in that IP rights are all based on individual ownership, whereas a lot of Aboriginal knowledge belongs to a community.

Ms CLAYDON: We'll have to think about that tension quite a bit. Do you think existing IP laws are up to it, or would there need to be new laws or amendments to more adequately respond to the protection issues?

Mr Bourke : The other area where it's difficult for IP laws to give full protection is that IP laws protect a specific implementation—for example, a registered design, a trademark or a specific painting—but don't protect a particular style of work, so I don't think that's something that can be protected through the IP system.

Ms CLAYDON: IP laws are often grossly inadequate to deal with intellectual property issues on a collective and communal basis. How are you dealing with those tensions? I understood you had an education and awareness program on this. Is that still operating?

Mr Bourke : The education and awareness program is Dream Shield. It's based on how Indigenous business can engage with the existing IP rights system. As I mentioned in my statement, we're working with the World Intellectual Property Organisation on developing those other issues. I think a lot of countries are struggling with the same. IP Australia have commissioned Indigenous consultants to do some work. We're having a look at the issues within the IP system and are hoping to take that work into the future and investigate it further.

CHAIR: You're addressing the fact that in non-Indigenous culture IP is predominantly for an individual, whereas in Indigenous culture that is done differently, where the IP rights belong to a collective, so it's a different strata of rules and regs, and that's what you're trying to establish?

Mr Bourke : The traditional knowledge and the stories and culture belong to the community rather than to particular individuals who can then protect it.

CHAIR: It makes it very difficult.

Mr Bourke : That's right.

CHAIR: How do you think you could best move this forward to help educate both the consumer and the producers on how to differentiate their products? We asked the last group to come back with something similar about the next steps forward. Has your group considered the next steps?

Mr Bourke : A specific solution to the problem we have identified?

CHAIR: Yes. It's quite nebulous at the moment and there are so many different factors coming in, but from the perspective of IP, what are the best actions your organisation think should be included as recommendations?

Mr Bourke : As I mentioned, we've engaged some consultants to look at and develop those issues so we can get an overall picture of the scope of the issues affecting Indigenous IP and culture. The issues that your committee is looking at are one part of that, but there are a number of other issues in the IP system as well. We're hoping to publish a paper on that in the next month or two, and then we're talking with our colleagues from other agencies about going out and consulting with Indigenous stakeholders on some of the aspects that are specific to the work IP Australia does. That's looking at a program of work over the next year or so.

CHAIR: It might be interesting to get a copy of that paper that you're about to publish, if you wouldn't mind sending that through to the committee.

Mr Bourke : Sure.

CHAIR: The other thing is something that we've touched on briefly, by saying that the minister jumps into tourist venues at all the different airports he's at and looks at authenticity. But is there any other way of surveying consumer opinion that could be taken on, like a pop survey saying: 'Is that authentic? Does it worry you if it's not?' Is there some way of finding out the consumer point of view? Hopefully we're going to evolve that to make the consumer aware that it needs to be authentic. Do we have a benchmark now? Who would be the person responsible for measuring that benchmark about consumer opinion about authenticity?

Mr Bourke : I'm not sure whether you're talking to Tourism Australia but they might have some views on surveying consumers and what their opinions are, what they're buying and whether they're looking to buy authentic goods. Our understanding is tourists are generally looking for a legitimate experience when they come here.

CHAIR: I think that would be an interesting question. It's clearly not in your purvey, though, but that's okay.

Mr Bourke : No.

Mr SNOWDON: Mr Nixon, is there anything you'd like to say?

Mr Nixon : I think the only thing I wanted to add on top of the discussion on certification schemes was that most of the effort, if you were to set up a scheme, would be around defining the characteristic that you wanted to certify. Authenticity is a concept where you'd have to nail down exactly what those characteristics are you are looking for. That might be helpful outside of the certification scheme as well, if you're looking at this through other policy levers. We don't have a definition of authenticity to present, but that would be something that I think would have to be the subject of a lot of consultation with producers.

Mr SNOWDON: If you're just thinking about it, what sorts of things might you include in defining authenticity?

Mr Nixon : I think you'd have to consider the authenticity of the producer, the IP and the Indigenous producer, but also the product. The previous speakers were talking about not narrowing it down simply to just Australian-made products as it may cut off Indigenous producers who are designing products, manufacturing overseas and then importing them back in, and also materials used, whether they are authentically used in that community. You don't want to stifle innovation in Indigenous art communities. I think that's what I'd add to the consideration of certification and what we mean by authenticity.

Mr SNOWDON: Is anyone giving that any thought, do you know?

Mr Nixon : It's under consideration certainly by the interdepartmental committee, which we're participating in with the Department of Communications and the Arts.

Mr SNOWDON: If we were to talk to you in a couple of months, or talk to the guys from Communications and the Arts and PM&C and ask them, 'Have you got a definition of authenticity?' that might be useful.

Mr Nixon : Perhaps.

CHAIR: There's a challenge.

Mr Bourke : You could ask the question but whether you would get a—

Ms CLAYDON: What's the interdepartmental committee?

Mr SNOWDON: The one that the previous witnesses—

Ms CLAYDON: Okay.

Mr SNOWDON: But we might be just emphasising that we think there's a body of work you could do for us whilst you're actually considering it, and in a shorter period of time than you might otherwise have thought. Are you with me?

CHAIR: I think there might be an expectation that you come up with at least a concept of what you would define as authenticity, and then it would probably be tossed into the pot with the other bodies to say, 'And how else would you tweak that to get a confirmed set of conditions that would mean this product is authentic?' It would be worth thinking about in the short term and not waiting until we see you next.

Mr Bourke : It's something we could think about, but it's probably something that really needs to come from the Indigenous producers.

Mr SNOWDON: I agree with you, but you would take your idea of what authenticity might include to someone and say, 'Well, this is what we think it could include. What do you think?' At the moment we don't have that, and it would be very useful given the role of the IDC and given the timing of this committee—they're running parallel—so it might be useful to exercise the IDC's minds.

CHAIR: I would like to commend that thought because it's no good going to a community and saying, 'What do you think 'authenticity' means?' You could lay down a set of options that may be included and then they could say, 'No, we don't think that's right.' But starting with nothing is too hard. It's like going to a year 8 science class and saying, 'What do you think an atom is made of?' before they've even had a chance to read a book or study it. You could say, 'There's this and this and this. Do you think these could be part of an atom?' It's far better to have a platform to work from than an empty space.

Mr SNOWDON: Who's chairing the IDC?

Mr Bourke : The Department of Communications and the Arts and the Department of the Prime Minister and Cabinet are co-chairing it.

Mr SNOWDON: Our previous witnesses.

Mr Bourke : That's right.

Mr SNOWDON: We need to write a letter, saying, 'Get thinking.' How often do you convene?

Mr Bourke : About every month or so.

Mr Nixon : Every couple of months.

Mr SNOWDON: We might have to suggest that you make it more often.

CHAIR: Or just send an email; it's no big deal! On that note, I thank both of you for coming in. I think that last little bit about authenticity was very valuable. If you have been asked to provide any additional information or there is anything else you would like to provide, please forward it to the secretariat by 16 March. You'll be sent a copy of the transcript of your evidence to which you may suggest corrections. Thank you both very much.