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  3. Protecting Australian Indigenous art
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  5. Mechanisms for protection in Australia
  6. Breach of confidence laws
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Breach of confidence laws

These laws may apply when it can be shown that information has been shared under an obligation of confidentiality, and that the information is later used or disclosed in a way that is likely to harm those who first parted with the information. To succeed the artist would have to show that:

  • the information shared is of a confidential nature, ie it is not trivial or publicly known;
  • the information was given in circumstances where there was an obligation of confidence accepted or implicit from the context;
  • there was an unauthorised use or threatened use of this information; and
  • disclosure of the information would harm the artist in some way.

The laws were used in an unprecedented way in 1976, when Pitjantjatjara people prevented the sale and distribution of a book within the Northern Territory because it contained secret knowledge (see ‘Case study 1: The ownership of knowledge’).

Although it is not essential to have a written document to prove that an obligation of confidence exists, it is always advisable to confirm in writing that certain information should be kept confidential. This can usually be achieved simply by marking such information ‘Confidential’.

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Breach of confidence laws