title for Indigenous Marks note
home | about | site use | resources | publications | timeline   spacer graphic   Ketupa

overview

Australia

New Zealand

elsewhere





















related pages icon
related
Guides:

Intellectual
Property






related pages icon
related
Profiles:


Appellations

Trademarks

Human
Rights

Identity
Fraud


Forgery
& Fraud


Trustmarks






section heading icon     overview

This page provides an introduction to indigenous 'authenticity label' and 'origin mark' schemes in Australia, New Zealand and elsewhere.

It covers -

It supplements discussion elsewhere on this site regarding indigenous intellectual property regimes, forgery, trustmarks and identity crime.

     introduction

Since at least the 1930s there have been efforts to identify contemporary indigenous cultural expression - everything from beadwork, baskets and blankets to dot paintings with polymer pigment on canvas - as 'authentic'.

That identification has typically taken the form of a certificate or label that signals properties of the particular work, for example that it was created by an indigenous person or that it embodies symbols and styles that are 'owned' by that individual (or by a group that the creator represents).

The expectation has been that such authenticity labels or indigenous origin marks would encourage respect for indigenous cultural expression and underpin the economic development of indigenous communities - inhibiting appropriation of techniques, styles and symbols. In essence they would serve as trustmarks for consumers, rather than for connoisseurs or curators in museums and other institutions.

Indigenous mark regimes have proven to be strongly contested, characterised by disagreement within indigenous communities and within broader consumer markets.

As the following pages note, that disagreement is not surprising. It reflects uncertainty about the shape of 'authenticity' and entitlement, along with difficulties in applying authenticity mark principles on a day by day basis. More broadly it reflects difficulties explored in the intellectual property guide regarding rights and administration of knowledge/expression that has a 'timeless' and collective basis.

Disagreement is evident in claims that establishment/maintenance of origin mark schemes has inappropriately preoccupied the attention of indigenous activists and supporters at the expense of more meaningful achievements, or alternately that such schemes are achievable.

Some critics have charged that broad-ranging schemes are irrelevant, perhaps even dangerous because readily subverted in principle and practice or because they are divisive. On occasion that has provoked responses that authenticity labelling is a first step towards wider recognition and protection of traditional cultures, including biorights and acknowledgement of customary justice.

Authenticity/indigenous origin mark schemes are independent of geographical indications or appellations in global trade and IP agreements, ie place names (in some nations also words associated with a place) that are used to identify the origin and quality, reputation or other characteristics of products such as Champagne and Roquefort.

     regimes

Regimes for mark-based recognition of indigenous cultural expression have essentially taken two forms.

The first essentially 'freeze dries' indigenous or folk culture, often through a canon of works in a national museum or other public collection.

'Authenticity' is restricted to works that embody traditional materials and processes (eg flax rather than synthetics, mineral pigments rather than polymer paint), traditional formats and symbols and that have been produced by creators within the country. Such regimes do not accommodate use of new techniques, formats and styles.

In contrast, the second type of regime encompasses contemporary cultural production by indigenous peoples.

That production may include new techniques and materials (eg acrylic on canvas dot paintings by desert communities in Australia) using traditional motifs. It may feature new styles. It may feature symbols that have been traditionally associated with a particular group: some regimes seek to restrict use of such symbols (or even genres) to that group, others recognise ay use of a symbol subject to the creator meeting some test of ethnicity.

Either type of regime may have legal recognition under national law, whether directly through some sort of sui generis IP or culture enactment or indirectly through trademark law and 'passing off' provisions.

There is no international agreement about identification of indigenous cultural expression. Harsher critics of some of the negotiations highlighted in the IP guide elsewhere on this site argue that they are primarily concerned with gesture politics or with reinforcing the legitimacy of individual participants and advocacy organisations.

    
issues

Issues relating to indigenous mark regimes include -

  • the nature of authenticity
  • creator and consumer expectations
  • use of sui generis or existing law such as trademark legislation and 'passing off' provisions
  • administration and enforcement

Questions about the shape of 'authenticity' lie at the heart of any indigenous origin mark or authenticity label scheme.

Should it cover any cultural production by indigenous people or instead be more circumscribed, for example concerned only with traditional crafts. Does authenticity involve restricting use of particular motifs - or even genres - to specific lineage groups that assert exclusive ownership, excluding use by other lineage groups. Can a Wiradjuri artist from NSW authentically create a work in a genre that prior to the 1970s was only recorded in northern Australia. What is the authenticity of a Navajo textile or jewelry created by a Mohawk? Is authenticity problematical in talking about a painting by an artist in an Australian nomadic community whose first exposure to acrylic paints and canvas was via an art dealer within the past thirty years?

Does the notion of mark-based authenticity replace a Western fetish about the individual creator with a new fetish about the creator (and collaborator's) genome?

What of creator and consumer expectations?

Some observers have commented that creators - or their advocates - have arguably overestimated the benefits of large-scale mark schemes, eg one that in principle covers all Australian Indigenous and Torres Strait Islander creators. Schemes might be desirable on the basis of principle and for raising community awareness but might not provide significant direct financial benefit to creators and might not meaningfully exclude 'indigenous' works created in China or other locations.

Critics note low recognition of marks among consumers, confusion about their meaning, subversion by distributors and indifference by many creators. In Australia one stumbling block for establishment of a national scheme has been the existence - and apparent effectiveness - of marks used by particular communities and accepted by influential retailers.

Other observers have asked whether a label identifies all production or instead serves as a quality mark, an indicator of excellence rather than merely the creator's genome and adherence to particular canons. The New Zealand toi iho 'maori made' arts and crafts mark discussed later in this note is of interest because it is explicitly presented as an indication of artistic quality.

How can an indigenous identification regime be established?

Some proponents have advocated sui generis legislation, either restricted to a mark or as part of broader protection of traditional knowledge (eg including provisions restricting biopiracy and publication of 'sacred & secret' oral tradition).

Others have suggested that special legislation is not feasible (eg politically impractical and of uncertain status under international trade law) or necessary. Such figures have argued that aims can be achieved through a mix of existing trademark law (along with 'passing off' provisions in trade practices law) and efficient administration that minimises abuses, eg monitoring and prosecution of breaches such as label tampering.

Susan Scafidi's 2001 Intellectual Property & Cultural Products (PDF) commented that

While a source community may be unable to prevent
nonconforming use or outsider appropriation, it can at least charge that the modified or stolen cultural product is not "the real thing". ... The absence of an authenticity mark would alert potential consumers of cultural products of a lack of association with the presumed source community. This compromise between ownership and anarchy does not settle the conflicts associated with contested internal use or objectionable external appropriation, but it is one potential vehicle for recognizing the significance of cultural
products

Concerns about the administration of schemes range from costs (with some critics arguing that mandatory registration is essential because individual creators will receive insufficient returns to induce voluntary participation) to skepticism about technical and economic bases (eg recurrent ambitious proposals in Australia for DNA- or microdot-based labels) and unhappiness about dispute resolution mechanisms. Administration is difficult in states where there are few population registers and in circumstances where individuals are prepared to lend their identity to works of which they were not the principal author (and indeed may not have sighted).

Should labels be operated by a government agency or by a nongovernment body, for example similar to a copyright collecting society
? Should governments provide such a body with seed funding for establishment and initial activity, a period that might last for more than ten years until the agency become self-sustaining? Should funding be provided through a special levy on sales (by dealers or artists) or by a grant on the basis that an indigenous mark regime has a broad cultural/social equity basis rather than a mechanism for rewarding individual creators and distributors?

     studies

There has been no over-arching international study of indigenous mark regimes and much of the literature concentrates on advocacy rather evaluation.

Works on the shape of intellectual property or other protection and recognition for indigenous cultural expression and knowledge are highlighted in the Intellectual Property guide elsewhere on this site.

Items of particular value include Intellectual Property Rights for Indigenous Peoples: A Sourcebook (Oklahoma City: Society for Applied Anthropology 1994) edited by Thomas Greaves, Rosemary Coombe's The Cultural Life of Intellectual Properties: Authorship, Appropriation & the Law (Durham: Duke Uni Press 1998), Michael Brown's Who Owns Native Culture (Cambridge: Harvard Uni Press 2003), Peter Drahos' 2004 Towards An International Framework for the Protection of Traditional Group Knowledge & Practice (PDF) and the 2003 WIPO Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions report (PDF). There is a broader view in The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley: Uni of California Press 2003) by Ronald Niezen.

Shelly Errington's The Death of Authentic Primitive Art & Other Tales of Progress (Berkeley: Uni of California Press 1998), The Invention of Tradition (Cambridge: Cambridge Uni Press 1983) edited by Eric Hobsbawm & Terence Ranger and Time, Histories & Ethnologies (Ann Arbor: Uni of Michigan Press 1995) edited by Diane Hughes & Thomas Trautmann and Who Owns Culture?: Appropriation & Authenticity In American Law (New Brunswick: Rutgers Uni Press 2005) by Susan Scafidi offer perspectives on authenticity. Other works are highlighted here as part of the discussion of ethographic forgery.

For Australia see Terri Janke's 2002 Indigenous Arts Certification Mark WIPO Case Study (PDF) as part of her 2003 Minding Culture studies for WIPO, Leanne Wiseman's 2001 'The Protection of Indigenous Art and Culture in Australia: The Label of Authenticity' in European Intellectual Property Reports, Michael Blakeney's 1999 paper (PDF) on Intellectual Property in the Dreamtime - Protecting the Cultural Creativity of Indigenous Peoples, Elizabeth Coleman's Aboriginal Art, Identity & Appropriation (Aldershot: Ashgate 2005) and Marianna Annas' 1997 paper The Label of Authenticity: A Certification Trade Mark for Goods and Services of Indigenous Origin.

Janke's broader 1998 Our Culture, Our Future report and the 1994 Stopping The Ripoffs: Intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples discussion paper are highlighted in the IP Guide. They might be supplemented by Janke's 2000 Money for Arts Sake article and Kathryn Wells' 1996 Alternative Law Journal article on 'The Development of an Authenticity Trade Mark for Indigenous Artists: law reform'. Maree Sainsbury's cogent Moral Rights & their Application in Australia (Leichhardt: Federation Press 2003) is also value for broader moral rights questions in Australia.

Concerns about forgery and appropriation are highlighted in Christine Alder's Challenges to authenticity in the Aboriginal art market (PDF) and Karen Dayman's Authentication: the role of the Aboriginal art centres (PDF). Other works are highlighted here as part of discussion of the contemporary art market. Benchmarks about collectibles are provided here.

Context in New Zealand is provided by Aroha Te Pareake Mead's 2002 paper Understanding Maori Intellectual Property Rights.

The 1990 US Indian Arts & Crafts Act is discussed in The Arbitrary Indian: The Indian Arts & Crafts Act of 1990 (Tulsa: Uni of Oklahoma Press 1997) by Gail Sheffield. The 1999 US Patent & Trademark Office report (PDF) on Official Insignia of Native American Tribes takes a dim view of the need for special protection for some cultural expression.



   next page  (Australia)








this site
the web

Google

 

 

version of February 2006
© Bruce Arnold
caslon.com.au | caslon analytics