Have Your Say on New Laws to Address Fake Art

The Australian Government is working on making new laws to address harm caused by fake art, merchandise and souvenirs. It has asked communities and organisations across the country to provide their views to help the Government to develop these laws. 

Arts Law encourages everyone, and in particular Aboriginal and Torres Strait Islander people, communities and organisations, to have their say – tell the Government about the changes that you would like to see. 

You can have your say by taking part in a public engagement session or by making a written submission. You can find more information on the Government’s website here and here. 

What is the background to this consultation? 

The Australian Government has said that it will introduce stand-alone legislation to protect Indigenous Cultural and Intellectual Property (ICIP). The Government made this commitment in January 2023 as part of the National Cultural Policy, Revive. 

In Revive, the Government said that tangible and intangible heritage require protection. It said that its work will be “founded on the following ten principles for respecting Indigenous Cultural and Intellectual Property: respect, self-determination, consent and consultation, interpretation, cultural integrity, secrecy and privacy, attribution, benefit sharing, maintaining First Nations culture, and recognition and protection (Janke 2021)”. 

Previously, the House of Representatives Standing Committee on Indigenous Affairs’ Report on the impact of inauthentic art and craft in the style of First Nations peoples found that existing laws were inappropriate for protection of traditional communal rights. A 2021 study, by IP Australia and Ninti One, looked into the scope and feasibility of stand-alone legislation to protect ICIP, including traditional knowledge and traditional cultural expressions. In 2022, the Productivity Commission released a report into Aboriginal and Torres Strait Islander visual arts and crafts. The Productivity Commission recommended the introduction of new cultural rights legislation to address inauthentic visual arts and crafts. 

Why introduce news laws to address fake art? 

The Government has stated that Australia’s laws do not currently provide adequate protections to make sure that “only art made by First Nations artists and communities with the approval of traditional custodians are created and sold”.  

The Productivity Commission report found that more than half of all purchased souvenirs were inauthentic. Arts Law estimates that up to 80% of ‘Aboriginal style’ tourist, merchandise and craft products available for sale in Australia are fakes. 

Fake art causes harm to Aboriginal and Torres Strait Islander peoples as it misappropriates and exploits the stories, imagery, knowledge and heritage embodied in authentic works. It also deprives artists’ of income streams that could be earned from selling genuine arts and craft works to the many consumers wanting to connect with Indigenous Australia. 

How will the new legislation be developed? 

The Government has said that the legislation will be developed through a First Nations-led process, with any solution informed by the needs of First Nations peoples and addressing the needs of First Nations people.  

In the first half of 2024, the Government will establish a partnership with First Nations experts to guide the development of the legislation. The group will contain a core group of 8 to 10 experts. Applications to be part of this group can be made here.  

Will the Government introduce laws to protect Indigenous and Cultural Intellectual Property more generally? 

While the Government has committed to introducing legislation to protect ICIP more generally, it is taking a staged approach.   

The first stage (in 2024) will address the harm caused by fake First Nations style art, merchandise and souvenirs. Later stages will address the broader rights relating to ICIP. 

How can I have my say? 

You can take part in a community engagement session. The Government will be running community engagement sessions in person in 38 places around Australia between 4 March and 2 May 2024. It will also hold online sessions in June 2024. Details of the dates and places of the engagement sessions are online here. 

You can also send the Government your views in writing by 15 June 2024. You can do this by sending a written submission here. 

What questions will I be asked to answer? 

The Government has published a list of questions. These are the questions that will guide discussions at the engagement sessions. You can read the questions here. 

If there are other questions or issues that you think are important to protect ICIP that are not addressed, you should feel free to raise them. 

What is Arts Law doing? 

Since 2016, Arts Law has campaigned for changes to address the problems associated with fake art as part of our Fake Art Harms Culture campaign, together with the Indigenous Art Code and Copyright Agency. You can read about the campaign and some of Arts Law’s previous submissions here. Arts Law will continue to campaign for change to protect Aboriginal and Torres Strait Islander art and artists. 

Arts Law also provides free and low cost legal advice to artists and arts organisations. If you need legal advice, please contact Arts Law.