Some ramifications of the decision for intellectual property law
Whilst the decision has not, at least thus far, had an appreciable impact on intellectual property laws or practice, certain commentators have explored its potential application to this area.
Kamal Puri outlines the vulnerability of Aboriginal cultural expression to exploitation and debasement and the inadequacies in the protections afforded to expressions of Aboriginal 'folklore' by the existing Copyright Act. Puri notes that way back in 1981 the Commonwealth's Working Party on the Protection of Aboriginal Folklore recommended the enactment of specific legislation to protect indigenous cultural and intellectual property. The recommendation was never implemented, with the result that Indigenous people must attempt to squeeze what protection they can from existing intellectual property statutes. While the wait for improved statutory protections continues, Puri suggests that the Mabo decision may provide a catalyst for expanded common law protection:
'Brennan J saw no reason why the common law should not recognise novel interests in land ...This reasoning could be applied to rights and interests not related to land and perhaps to sacred objects, ceremonies or customs, which could be recognised at law even though they do not stem from the common law ...' (Kamal Puri 'Copyright Protection for Aborigines' in Mabo: 'A Judicial Revolution' at 157).
The fundamental idea of Puri's article is sound, although his argument applies with even more force if one acknowledges the connection between these aspects of cultural property and land.
Stephen Gray recognises this connection, writing of the inter-twined relationship which can exist between Aboriginal painting and land. Noting Brennan J's comment in Mabo that 'the nature and incidents of native title must be ascertained as a matter of fact by reference to those [indigenous] laws and customs' [175 CLR at 58], Gray suggests that such art can be viewed as an incident of native title. As a result, the protections afforded native title land may also extend to protecting traditional paintings, songs and ceremonies. Just as with native title land, rights in these artistic incidents of native title could only be transferred in ways consistent with traditional law or by surrender to the Crown. Gray suggests that these inalienable rights founded in native title may deliver to the traditional custodians of these designs, songs and ceremonies rights which are 'perhaps akin to the moral rights of an author recognised by European law.' His argument provides an interesting illustration of the relevance of the Mabo decision in areas beyond property law.
Keywords: Brennan, Chief Justice Gerard, High Court judgement, intellectual property, Mabo judgement, native title
Gray, Stephen 'Wheeling, Dealing and Deconstruction - Aboriginal Art and Land Post-Mabo', 'Aboriginal Law Bulletin', Vol 63, no.2 at 10.
Author: Kenna, Jonathan