Australia: Fakes welcome? IP protection lags behind for Indigenous artworks in Australia

Last Updated: 14 August 2019
Article by Helen Macpherson and Isobel Taylor

In a symbolic win for Indigenous artists, the Federal Court of Australia has recently ordered a seller of fake Indigenous-style souvenirs to pay AU$2.3 million in pecuniary penalties for contraventions of the misleading and deceptive conduct provisions of the Australian Consumer Law (ACL).

While the Court's ruling appears to be a positive move in the fight to stem the flood of inauthentic Indigenous-style products into the Australian marketplace, it underscores the gaps in existing legislation when it comes to adequately protecting the rights of authentic Indigenous artists and communities.

ACCC v Birubi Art Pty Ltd (in liquidation)

The Australian Competition and Consumer Commission (ACCC) commenced action against Birubi Art Pty Ltd (in liquidation) back in 2018 for making false claims that its tourists souvenirs, including didgeridoos, boomerangs, message stones and bull-roarers, all painted in Indigenous styles, were made in Australia and hand painted by Indigenous persons, when this was not the case. The products were in fact mass-produced in Indonesia and had no genuine association with Indigenous communities or culture, but were being marketed to unwitting consumers as the real deal.

The Federal Court handed down its decision on Birubi's liability late last year, and this has now been followed by the unprecedented pecuniary penalties order. The ACCC Commissioner Sarah Court commented that "this penalty sends a strong message to anyone considering selling fake Australian Aboriginal style art as the genuine article".

It is highly unlikely that the ACCC will be able to successfully recoup the damages, given that Birubi has already been liquidated. However, the significant penalty figure ordered should have a deterrent effect on other companies considering trading in fake Indigenous-style art and misleading consumers about its origins.

In any event, it has been reported that for many Indigenous artists and members of Indigenous communities whose cultural expressions have been misappropriated by non-Indigenous people in this way, the social and cultural harms may outweigh the financial cost. The House of Representatives Standing Committee on Indigenous Affairs published its 2018 Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples. This report noted that the misappropriation of Indigenous culture through the supply of imitation products, aside from denying authentic artists and artisans a chance to earn a living from their own culture, cheapens, demeans and disrespects Indigenous traditions and communities more broadly. As noted in the report, this has a "profound and harmful effect" on their culture and heritage and a "negative impact on Australia's image abroad".

The current Australian legislative framework

The same report also estimated that around 80% of the souvenirs sold in Australia purporting to be associated with Indigenous cultures are imitation products with no genuine connection to Indigenous people.

There is no Australian legislation which protects Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions, in its own right. This means that Indigenous artists and communities are forced to rely on general legislation, such as the ACL or Copyright Act 1968 (Cth), which are in many cases unfit for purpose.

This means that a company could offer fake Indigenous-style souvenirs for sale, but if there are no false and misleading claims about the provenance of these products, the provisions of the ACL are unlikely to apply. However, the products continue to be painted in a faux-Indigenous style and, as Gabrielle Sullivan, CEO of the Indigenous Arts Code notes, currently "there is no law in Australia that says you can't make fake art and you can't misappropriate Aboriginal and Torres Strait Islander culture".

It is also difficult in many cases for Indigenous artists and artisans to enforce their rights by relying upon copyright law, which is founded on Western principles of authorship and ownership. By contrast, many Indigenous cultural expressions are very ancient (meaning any copyright in them has long since expired) and/or do not have an identifiable 'author', but rather are communally created and transferred through generations of a single community. This means that despite these communities being the cultural custodians of such expressions, there is nothing to prevent third parties from reproducing them, often in culturally inappropriate ways.

As the saying goes "good artists copy; great artists steal", and it is common in the art world for artists to be inspired by trends that have come before them in creating their own style. However, in the context of art by Indigenous artists, which may not merely be art, but may also be a visual manifestation of the artist's cultural heritage, it may not be appropriate to treat it in the same way as Western art.

Next steps

The somewhat unsatisfactory outcome of the Birubi case and the broader legal issues it highlights has led many stakeholders to renew their calls for law reform in this area. In a joint statement by the Indigenous Art Code, the Copyright Agency and the Arts Law Centre of Australia, in response to the ruling, called for tougher laws to protect against the sale of fake art more broadly, including in circumstances where the existing provisions of the ACL would not apply.

A bill proposing amendments to the Australian Consumer Law to address this issue was introduced to Parliament twice during 2017 but has not been passed into law. The bill includes provisions prohibiting the sale of products containing 'Indigenous cultural expressions', except where such products are made in Australia and are supplied by or in accordance with an arrangement with each Indigenous community or artist with whom the expression is connected.

One of the recommendations made by the House of Representatives Standing Committee on Indigenous Affairs in its report was to begin a consultation process to develop standalone legislation to protect Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions. One benefit of separate legislation addressing this area (rather than attempting to amend existing legislation) is that it would not be tied to Western concepts of authorship and ownership of intellectual property. The notion of having sui generis legal protections for matters of cultural significance is not novel – existing examples include legislation limiting the use of the word 'Anzac' and the Olympic rings, and even geographical indicators for wine. The Government is yet to make a formal response to the report, so it remains to be seen whether this or any of the Committee's other recommendations will be implemented.

Another source of protection could come from expanding the scope of Australia's existing customs legislation and import provisions under the Copyright Act 1968 (Cth), Trade Marks Act 1995 (Cth), Olympic Insignia Protection Act 1987 (Cth) and other existing laws. Such avenues are already used to restrict the importation of goods into Australia containing restricted symbols or which infringe a third party's copyright or trade mark rights. A similar regime could be envisaged that takes advantage of Australia's existing customs infrastructure to screen for the mass importation of fake Indigenous art.

While different stakeholders may disagree on the precise form of any legislative changes required to address this pervasive issue – one thing is clear – fake art harms culture and, despite increased scrutiny both from the ACCC and the broader public, Australia's current legislative framework is insufficient to adequately address these harms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions