Addressing Cultural Difference in Indigenous Copyright Cases

ABSTRACTThis article presents and discusses two different ways through which the Ganalbingu people (Australia) addressed cultural differences in the normative conceptualisation of artworks in a judicial setting. The analysis focuses on linguistic conduct held by the plaintiffs, their representatives, and expert witnesses in two cases discussed before the Australian Federal Court (Northern Territory): Bulun Bulun v Nejlam Pty Ltd (1989) and Bulun Bulun v R & T Textiles Pty Ltd (1998). In both cases, Ganalbingu artist Johnny Bulun Bulun lamented a violation of his copyright in two paintings. This article mostly relies on affidavits and judicial documentation, and aims to show and attempts to explain the existence of two opposed tendencies in the judicial narrative on copyright law: namely, an enforced (attempt to) assimilation of Ganalbingu culture to the Western legal categories of (intellectual) property and copyright law, however simultaneously 'insisting on difference', that is emphasising the fundamental distinctions between Ganalbingu and Western normative conception of artworks. The article particularly enlightens the impact on the Ganalbingu judicial narrative of anthropological accounts rendered through affidavits, especially in one of the two cases in which Bulun Bulun was involved. After investigating the nature and function of those accounts, it concludes that several factors can explain the seemingly ambivalent nature of Ganalbingu linguistic conduct, ranging from a ‘spurious’ nature of misappropriated artworks to forms of resistance to an unbalance of power potentially leading to unwanted colonisation.KEYWORDS: Traditional cultural expressionsintellectual propertycopyrightinterlegalityYolngu people Disclosure StatementNo potential conflict of interest was reported by the author(s).Notes1 ‘Indigenous’ (and ‘Indigenous Australians’) is used here with the awareness of the existing debate on the appropriateness of this word to designate a wide variety of peoples and cultures around the world, but with no intention to comment on the said debate. Occasionally, the judicial documents quoted in this article refer to Indigenous Australians as ‘Aboriginal people’ and ‘Aborigines’.2 The same approach characterised former works of the author on the same topic (Mazzola Citation2018, 115–134; Citation2020). Some of those works quoted excerpts of affidavits also reported in this article. However, the present study offers a deeper analysis of the two cases in which Bulun Bulun was involved and additional materials. The main sources for the judicial documentation reproduced in this article are Colin Golvan’s website (section ‘Indigenous documents’) and the Indigenous Law Resources database of the Indigenous Law Centre (UNSW) and AustLII.3 Specifically: Colin Golvan (in 2016), Martin Hardie (in 2019), Frances and Howard Morphy (in 2016 and 2019).4 After the agreement, Milpurrurru continued the lawsuit lamenting that R & T Textiles’ conduct violated Ganalbingu communal ownership right in Bulun Bulun’s paintings. Communal ownership of Indigenous art traditionally identifies another conceptual reason (Oguamanan Citation2004, 144) that historically prevented the recognition of Indigenous copyright. As will be shown, the Federal Court in Textiles handed a judgment ultimately denying recognition of a ‘communal copyright’ belonging to the Ganalbingu people.5 For a historical survey and analysis on the engagement of anthropologists as expert witnesses in legal proceedings concerning Indigenous people in Australia see Burke (Citation2011).6 On the application of ‘rights’ terminology to discussions surrounding Indigenous Australian ‘ownership’ see Keen (Citation2014).7 The relationship between land and artworks can be summarised through the ethnographic lexicon found in Magowan (Citation2001; see also Keen Citation2011): the ‘polymorphism’ of sacred ancestors allowed them to ‘objectify’ into land and artworks. Therefore, both ‘simultaneously’ identify different faces of the same thing (a polymorphic, ancestral entity). This ontological construct also reflected in linguistic phenomena examined in the Yolngu language, such as so-called likan concepts (H. Morphy Citation1991, 292; Keen Citation1994, 102).8 This issue is commonly addressed in discussions about so-called cultural property. On the contrast between the idea of ‘cultural’ – suggesting a relationship between objects and the group identity – and ‘property’, usually focusing on individual rights, see Gerstenblith (Citation1995, 567).