Significant new government report confirms that Fake Art Harms Culture

“Inauthentic arts and crafts … disrespect and misrepresent culture and, by misleading consumers and denting confidence in the market, they deprive Aboriginal and Torres Strait Islander artists of income.” This is one of the major findings from a new draft report by the Productivity Commission on Aboriginal and Torres Strait Islander visual arts and crafts.

The Productivity Commission is an independent advisory body that conducts research and makes recommendations to government to develop policy and legislation. In 2021 the commission was tasked with looking into the Aboriginal arts and crafts market with a specific focus on “Fake Art” and the impact that inauthentic products have on Aboriginal and Torres Strait Islander artists, communities and the wider Australian economy.

The Fake Art Harms Culture Standing Committee, made up of Arts Law, Copyright Agency and the Indigenous Art Code, made a joint submission to the commission earlier this year. We highlighted some of the central issues and made the following recommendations:

Amendments to the Australian Consumer Law (ACL) should be implemented to combat the fake art market.
The need for recognition of Indigenous Cultural Intellectual Property (ICIP) in legislation.
Exploitation of artists need to be addressed; from bad licensing arrangements through to working conditions for artists.
An increase in support and funding of the arts and the peak organisations who provide critical resources and assistance to artists is integral.

You can read our full submission here.

What are the findings from the Commission’s Draft Report?

The full report is comprehensive and comes in at over 300 pages, but the main findings include:

Aboriginal and Torres Strait Islander people have been creating visual arts and crafts for tens of thousands of years. This practice has grown into a significant industry, generating income for artists and art workers, creating economic opportunities for communities, and helping to maintain, strengthen and share Aboriginal and Torres Strait Islander cultures.
The fake art issue is front and centre and acknowledged by the Commission as being a significant issue. The Commission found that Aboriginal and Torres Strait Islander visual arts and crafts markets are strong, dynamic and growing however inauthentic arts and crafts are pervasive and cause significant cultural and economic harm. ICIP is commonly misappropriated in the production of visual arts and crafts — undermining customary laws and traditions and damaging culture.
The souvenir market is largely made up of inauthentic product, with the Commission estimating that two-thirds to three-quarters of product is inauthentic.
Indigenous Cultural Intellectual Property (ICIP) is often used in visual arts and crafts without the permission of traditional custodians and dedicated cultural rights legislation would give traditional owners control over their cultural assets

The Commission has recommended the following:

Mandatory labelling of inauthentic products. Labelling inauthentic products would help consumers make better choices.
A new law that strengthens protection for aspects of ICIP used in visual arts and crafts would formally recognise the interests of Aboriginal and Torres Strait Islander communities in their cultural assets. ICIP laws would promote respectful collaborations and allow for legal action where protected cultural assets are used in visual arts and crafts without the authorisation of traditional owners. The legislation would give traditional owners the right to:
– control their cultural assets
– choose whether to authorise the use of their cultural assets
– place conditions on the use of their cultural assets (including payment)
– protect their cultural assets from misappropriation, including by taking legal action.
Funding models need to be evaluated so that appropriate funding is provided to the Indigenous Visual Arts and Crafts sector to sustain it.

What does Arts Law think?

We are pleased that the Commission has agreed with the concerns that the Fake Art Harms Culture campaign raised in 2016 – that there is a significant issue with inauthentic arts and crafts saturating the market – disrespecting culture and depriving Aboriginal and Torres Strait Islander artists of income.

Labelling of ‘fake art’ is not enough of a response. We are disappointed that the Commission has not supported our recommendation to change the Australian Consumer Law to ban inauthentic Indigenous art and products altogether. Instead, the Commission has prioritised businesses and consumers by allowing these products to remain and instead recommending mandatory labelling of inauthentic products. Given the Australian Government’s commitment to ‘Closing the Gap’ and the ‘Indigenous Advancement Strategy’, why would we want to continue to allow inauthentic product in the market at all? We have many skilled and diverse Indigenous and Torres Strait Islander artists who already create authentic products. Once the mandatory labelling and packaging has been removed from an inauthentic product, the cultural harm and damage will still exist.

The newly elected Labor Government said that they are committed to strengthening economic and job opportunities for First Nations people. We would like to see this election promise honored by the Government making enacting legislation to ban ‘fake art’ to give a real opportunity for the enrichment of the social, economic and cultural lives of Aboriginal and Torres Strait Islander people and communities.

The Commission has acknowledged that current intellectual property laws do not do enough to recognise and protect ICIP and have agreed with our view that standalone legislation must be introduced. While the Commission’s scope was limited to the visual arts and craft market, we recognise that ICIP needs protection across other art form areas and products available to consumers and will be advocating for this to be considered with the introduction of standalone ICIP legislation. We are also interested in more detail on how enforcement of the laws will operate and how accessible it will be for traditional custodians to take legal action.

What can you do?

Whether you have been following these issues since the launch of our Fake Art Harms Culture campaign or have recently become aware of our advocacy work in this area, we invite all stakeholders to either make a submission via the Commissions website, prior to the deadline of 29 August 2022. We also welcome you to contact us at [email protected] to share your concerns and views, so we can consider your point of view to raise in our own submission.