Beware of Bogus Boomerangs: Should we protect Traditional Cultural Expression in the public domain?
Updated: Dec 14, 2020
My presentation at the WIPO Seminar in Geneva
This June, I travelled to Geneva to attend the WIPO Seminar on Intellectual Property and Traditional Cultural Expressions. The seminar was held by WIPO, the World Intellectual Property Organisation and it focused on policy issues for Indigenous Intellectual Property and Traditional Cultural Expressions. I spoke in the Roundtable discussion on Key Policy Issues and I was able to present my ideas.
A big problem with existing intellectual property law is that Indigenous cultural expression is deemed to be in the ‘public domain’. Public domain refers to creative materials that are not protected by intellectual property law. Materials in the public domain can be used and copied without permission from the original cultural proprietors. See our Law Way video, for more information on Indigenous cultural and intellectual property.
Cultural expressions in the public domain can legally be copied, and misappropriated without much control from the traditional owners. A key concern is for the law to address is the appropriation of traditional cultural expression in design industries, including fashion (commonly known as fake art).
In May 2017, the international media reported that the well-known fashion house Chanel created their own boomerang for sale. It was made out of wood and resin, and for sale at almost $2000. Indigenous people were outraged that the boomerang was taken with no context or connection to its Indigenous origins. When traditional cultural expression is misappropriated in design, Indigenous culture is misrepresented and disconnected. In response, Chanel did remove the item from sale and also issues a public apology. It was raised in discussions in the Seminar, that these large companies are often unaware of Indigenous protocols and don’t set out to offend but are merely ignorant. This highlights the importance of getting information about protocols to the fashion and design industry.
So who owns the intellectual property of a boomerang? Intellectual property law does not recognise that the concept or idea of the boomerang belongs to the Australian Aboriginal people. But items of cultural expression like the boomerang are an important part of the living culture of Indigenous groups today.
Many Aboriginal artists handcraft these boomerangs, for example craftspeople from Maruku Arts and Craft in Central Australia. The Anangu group of artists, which include Fred Ward, have built on the tradition of hand carved craft or punu. They can make a living out of their craft, but it is also a way of cultural expression for them.
Avoiding misappropriation is therefore about maintaining connection between Indigenous people and their cultural expressions. Design companies should be encouraged to work with Indigenous artists or communities to allow them to express their own culture.
This is the aim of the ‘Fake Art Harms Culture’ campaign. The recent amendment Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 enforces these very principles. This law should promote benefit-sharing with Aboriginal or Torres Strait artist, or the Indigenous community.
It’s offensive and disheartening for Indigenous people when Indigenous culture is misappropriated. There is a need for more education for designers, and better recognition of Indigenous cultural content in the law. Copying from Indigenous cultures is really not being fair. A better way to approach it would be to encourage collaborations through protocols and consent agreements.
For those who wish to use Indigenous intellectual property in an ethically responsible way, I have created protocols to assist them to navigate these cultural issues when using Indigenous culture. There are ways for designers to form positive collaborations with Indigenous people including licensing arrangements and using trademarks to better protect art.
My vision for Australia and other countries is to have our own National Indigenous Cultural Authority. The Authority would exist to provide guidance to potential users and adapters of Indigenous culture. It can be difficult for individuals outside the Indigenous community to understand the cultural issues and to find the right people to talk to. I've written more about this in my publication, Beyond Guarding Ground.
 Terri Janke and Aideen Fitzgerald, IP Australia
 Panel discussions with Aroha Te Pareake Mead, a member of the Ngati Awa and Ngati Porou from New Zealand