Visual arts

It’s Agreed by the Government: Fake Art Harms First Nations Culture

This is a report that took a long time to land. And hopefully one that doesn’t air in its intent, given its lengthy 300-page delivery and fresh round of submissions.

We talk about the Productivity Commission’s draft Aboriginal and Torres Strait Islander Visual Arts and Crafts report, tabled in recent weeks (July 19), which is only now receiving comment from agencies such as Arts Law Australia and NAVA (National Association for the Visual Arts).

This is a key recommendation of the House of Representatives report on the impact of inauthentic arts and crafts in the style of First Nations peoplesfiled in 2018, suggesting that the Productivity Commission conduct a thorough investigation into the value and structure of current markets for First Nations arts and crafts.

The government ‘approved’ the inquiry in Parliament in September 2020.

So what does this new investigative report do, and does it provide a protective framework?

Two out of three native-style souvenirs are inauthentic, with no connection to Aboriginal and Torres Strait Islander people.

Productivity Committee, 2022

Key result

The Commission is calling for mandatory labeling of inauthentic products to warn consumers, a strengthened code of conduct and protections for Aboriginal and Torres Strait Islander cultural expressions.

Productivity Commissioner Romlie Mokak said: “Inauthentic products can mislead consumers, deprive Aboriginal and Torres Strait Islander artists of income and disrespect culture.”

He added: “Mandatory labeling would steer consumers towards genuine products and place the burden of compliance on those making counterfeit products, not Aboriginal and Torres Strait Islander performers.

Read: Protecting Aboriginal and Torres Strait Islander visual arts and crafts

“Overall, we consider this to be a more practical response than trying to ban inauthentic products,” Mokak said.

But the industry says the recommendation doesn’t go far enough.

Main recommendations of the report
Industry Feedback
Understand changes in legislation

Main conclusions of the Commission

Total sales of Aboriginal and Torres Strait Islander visual arts and crafts reached approximately $250 million in 2019-20; this includes at least $83 million in sales of merchandise and consumer products (mostly souvenirs) bearing Aboriginal and Torres Strait Islander artwork and designs.

They estimate that in 2019-2020 alone, spending on inauthentic Aboriginal-style souvenir products totaled $41-54 million, accounting for 55-61% of Aboriginal and Torres Strait Islander souvenir spending.

Additionally, over 80% of stock images depicting Aboriginal and Torres Strait Islander designs, styles and patterns are inauthentic, made by foreign creators without proof of a licensing agreement with an Aboriginal and Torres Strait Islander. Torres Strait.

Only about one in six of the sampled archive images are from Australia.

The Commission also analyzed a random sample of listings from one of the largest and largest online print-on-demand merchandise marketplaces. About 60% of the sampled listings appearing under the search terms “Aboriginal art”, “Australian Aboriginal Art”, “Australia Aboriginal Art”, “Australian Indigenous Art” and “Australia Indigenous Art” were likely inauthentic.

The Commission also agreed that the legal recognition and protection of CIPI (indigenous cultural and intellectual property) is uneven, with very few limits on whether, how and by whom CIPI is used in the visual arts and craftsmanship.

They added that the capacity of the sector is under pressure; some arts centers are struggling to fulfill their cultural and social role…(and) labor and skills issues persist.

Alongside but integral to their findings, they also determined that the current approach to funding targets in the sector is not characterized by shared decision-making between governments and Aboriginal and Torres Strait Islander people in under the National Accord to Close the Gap.

Main recommendations of the draft report

The report states: “Inauthentic arts and crafts are a pervasive and long-standing problem. They disrespect and distort culture and, by misleading consumers and undermining confidence in the market, they deprive Aboriginal and Torres Strait Islander artists of income.

Its main recommendations are:

  • A mandatory labeling system for non-genuine products should be developed by the Australian government
  • New cultural rights legislation should be introduced to recognize and protect cultural property related to visual arts and crafts. It would be a new law that would allow legal action
  • An ICIP strategy is needed to coordinate regulatory measures
  • The Australian Government should commission an independent evaluation of the effectiveness of Australian Government spending on the Aboriginal and Torres Strait Islander visual arts and crafts sector. The scope of the review should include the Indigenous Visual Arts Industry Support Scheme (IVAIS), the National Indigenous Visual Arts Action Plan (NIVA) and relevant Australian Council programmes. This is expected to be completed by December 2025
  • The Australian Government, in partnership with state and territory governments, is expected to slightly increase funding to Indigenous Art Code Limited to support key priorities
  • The Australian government should ensure that legal aid services for artists are accessible.

To read the draft report preview

Industry feedback on the draft report

Arts Law Australia championed the need to protect the industry from day one, when it co-launched the Fake Art Harms campaign in 2016 at that year’s Darwin Festival. Almost six years to the day, we are still caught in the feedback phase.

A key advocate for the Fake Art Harms Culture Standing Committee, alongside the Copyright Agency and the Indigenous Art Code, Arts Law said in a statement (August 1) that it was “pleased that the Commission accepted the concerns” raised by the 2016 Campaign.

But continued, “Labelling ‘fake art’ is not a sufficient answer. We are disappointed that the Commission did not support our recommendation to amend Australian Consumer Law to ban non-authentic indigenous art and products altogether.

It was a view shared by in a statement, Penelope Benton for NAVA: “Unfortunately, the report recommends mandatory labeling of inauthentic products rather than an outright ban.

Arts Law added: “The Commission has put businesses and consumers first by allowing these products to remain and instead recommending mandatory labeling of inauthentic products.”

They make the point: “Given the Australian Government’s commitment to ‘Bridging the Gap’ and the ‘Indigenous Advancement Strategy’, why would we want to continue to allow inauthentic products on the market? “

“The newly elected Labor government has said it is committed to strengthening economic and employment opportunities for First Nations people. We would like to see this election promise honored by the government which would enact legislation prohibiting ‘false art’ in order to provide a real opportunity to enrich the social, economic and cultural life of Aboriginal and Torres Strait Islander peoples and communities” , said Arts Law.

Learn more about what tougher legislation means

The Commission recognized that current intellectual property laws do not do enough to recognize and protect ICIP, and agreed that stand-alone legislation should be introduced.

“Our draft report proposes new legislation that would recognize the rights of Aboriginal and Torres Strait Islander people to protect these cultural expressions,” Commissioner Lisa Gropp said. “(Currently) Communities have limited legal means to protect their sacred stories and symbols from unauthorized and out-of-context use.”

As proposed, the CIPI laws would only allow legal action when protected cultural property is used in visual arts and crafts without the permission of the traditional owners.

Arts Law added: “While the Commission’s scope is limited to the visual arts and crafts market, we recognize that CIPI needs protection in other areas of the form of ‘art and products available to consumers and we will advocate for this to be addressed with the introduction of stand-alone CIPI legislation.’

The report says such legislation would give traditional owners the right to:

  • control their cultural property
  • choose whether or not to authorize the use of their cultural property
  • impose conditions on the use of their cultural property (including payment)
  • protect their cultural property against misappropriation, including by taking legal action.

“These rights would also be inalienable, meaning they can only belong to traditional owners and cannot be sold or transferred to another party,” they said.

The Productivity Committee welcomes responses to its draft report with a deadline for submission until Monday, August 29, 2022.

The final report is expected to be delivered to the Australian government in November 2022.

The Productivity Commission is an independent advisory body that conducts research and makes recommendations to government to develop policy and legislation..