Introduction
Indigenous Cultural and Intellectual Property (ICIP) is vital to Australian Aboriginal and Torres Strait Islander people and communities, as a key form and source of cultural expression, cultural identity and income.
The Australia Council for the Arts defines ICIP as referring to “all aspects of Indigenous peoples’ cultural heritage” including traditional knowledge, cultural expression, performances and cultural objects. ICIP rights therefore refer to the rights of Indigenous people to protect their ICIP, including the right to protect traditional knowledge and sacred cultural material, the right to be paid, the right to full and proper attribution and the right to prevent insulting, offensive and misleading use.
These rights are consistent with Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples which states that “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions… [and] their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions. In conjunction with Indigenous peoples, States shall take effective measures to recognise and protect the exercise of these rights”.
Misappropriation of Australian Aboriginal and Torres Strait Islander art may occur when artists sell goods that use Indigenous symbols or designs, or have the overall appearance or style of Indigenous art, despite not being created by Australian Aboriginal or Torres Strait Islander people, or having no connection to Australia’s Indigenous people. The Australian Arts Minister, Tony Burke, has labelled this ‘cultural theft’. Misappropriation of Indigenous art may also occur when Indigenous art is exploited for commercial benefit without permission from the original artist, or when the work is purchased from the Indigenous artist for a low price and is then sold for a significant profit. In both of these circumstances, the artist is not adequately compensated.
The creation of inauthentic Indigenous art results in significant economic, social and cultural harms to Australian Aboriginal and Torres Strait Islander artists and communities. These harms include a loss of income for Aboriginal and Torres Strait Islander artists, arising from the loss of opportunity to sell authentic Indigenous art or the devaluing of authentic Indigenous art. Further, inauthentic or fake Indigenous art can cause cultural offence by undermining the cultural significance attached to the designs and symbols used in the work. It is therefore important to ensure that inauthentic Indigenous art is addressed appropriately, to ensure that Australian Aboriginal and Torres Strait Islander culture can be maintained and passed down to future generations.
While literary and artistic works are protected by copyright, there are currently no specific legal rights in Australia preventing misuse and misrepresentation of Australian Aboriginal and Torres Strait Islander art. However, Australian courts have recently indicated that selling inauthentic Indigenous art, designs or symbols may amount to a breach of the Australian Consumer Law if it is found to be misleading or deceptive to consumers (i.e., consumers may believe that they are purchasing authentic Indigenous art).
This policy provides an overarching framework for the use of Australian Aboriginal and Torres Strait Islander art on Redbubble’s marketplace and is to be read in conjunction with Redbubble’s User Agreement, IP/Publicity Rights Policy and Community and Content Guidelines.
Redbubble wholeheartedly supports Aboriginal and Torres Strait Islander peoples’ in their assertion of rights in relation to, and efforts towards safeguarding, their valuable ICIP, and encourages their use of Redbubble’s reporting functions to flag any potentially problematic use of ICIP on the platform, irrespective of whether they are participants in the Redbubble Marketplace. Redbubble is committed to making the marketplace a space in which Aboriginal and Torres Strait Islander artists may commercialise their works, and that Aboriginal and Torres Strait Islander art may flourish.
1.1 Respect and acknowledgement
Redbubble respects the rights of Australian Aboriginal and Torres Strait Islander people to their Indigenous Cultural and Intellectual Property (ICIP) and acknowledges the importance of Indigenous art to the cultural identity of Aboriginal and Torres Strait Islander people.
Redbubble recognises the deep harm and cultural offence arising from misuse and misappropriation of Australian Indigenous art and encourages Users to notify Redbubble of any potential misappropriation of ICIP occurring on the marketplace through one of the reporting functions on the site.
1.2 Empowerment
Redbubble encourages Australian Aboriginal and Torres Strait Islander Artists to use the marketplace for their expression of self-determination, and for their economic and cultural empowerment, and welcomes feedback from Users on how this can be improved.
1.3 Understanding and appreciation
Redbubble is committed to the development of understanding and appreciation of Australian Aboriginal and Torres Strait Islander Art.
1.4 False or misleading representations by sellers
Sellers on the Redbubble marketplace must not make false or misleading representations about the provenance of their Content and must take extra care when labelling Content as Australian Aboriginal and Torres Strait Islander Art. Content which is not created by an Australian Aboriginal or Torres Strait Islander Artist should not be titled or tagged in a false or misleading way.
Redbubble will remove any Content found to be false or misleading with respect to the Content being Aboriginal and Torres Strait Islander Art or by an Aboriginal and Torres Strait Islander Artist. If you believe any Content falls in this category, please flag it through one of the reporting functions on our marketplace.
1.5 Authorised use of ICIP
Users must use their best endeavours to ensure their use of ICIP is authorised, and adheres to Indigenous cultural practices.
This includes not uploading Content which a reasonable person would know is sacred or secret, or is restricted to the relevant Indigenous community and/or traditional owners.
Users whose Content refers to or incorporates ICIP should ensure they have permission from the relevant Indigenous community and/or traditional owners before uploading that Content to the marketplace.
Redbubble will remove any Content which is found to misappropriate ICIP.