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  2. Aboriginal Art
  3. Protecting Australian Indigenous art
  4. Considerations for teaching and learning
  5. Reproducing or displaying Aboriginal artworks
  6. Ownership
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Ownership

Australian law protects individual property rights. When an artwork is sold, the artist enters into a form of contract in which physical property rights are exchanged. The buyer is the new owner of the object that is traded, and enjoys considerable freedom in determining the future uses of their property. This freedom includes choices about display and exhibition. It may even extend to making profit by setting conditions of access to an artwork, for example, charging a fee to viewers. When schools or students buy Aboriginal craftworks or artworks, they are at liberty to exercise this discretion.

However, the buyer of an artwork does not buy the copyright. Copyright is generally vested primarily in the creator of an artwork[18] and another type of agreement is necessary in order to transfer this right. For copyright to be transferred, an agreement must be in writing and signed by the person assigning ownership of the copyright. This agreement may be in the form of an assignment (in which copyright is entirely signed over to another person or organisation) or a licence (in which copyright is transferred for particular purposes under specific, agreed conditions).

By extension, similar rights are held by the owners of calendars, magazines, posters etc that contain images by Aboriginal artists. That is, the owners have rights of display but not reproduction. Students should be aware that if they photocopy, scan or republish such images, they may be infringing the copyright of the artist, the publisher, or both.

Ownership and Moral Rights

Students must also recognise the moral rights that artists and communities have. For example, in giving a class presentation, a student might want to use a poster or calendar reproduction of an Aboriginal artwork. A student who is the owner of such a calendar or poster may legally display it but is not legally able to draw over the work, to fasten pins or stickers, or to cut it into sections in order to assist the presentation. Such acts would infringe the moral rights of the artist(s). Also, the use of an artist’s work means that they must be named as the creator. While there is currently no law stating that a community is to be named as creator or contributor to an artwork, a student might want to consider this.

Through discussion and debate, students could consider what the significance of the original image might be (and whether there might also be meanings that are hidden). They could discuss whether some images (such as those that contain sacred/totemic imagery) have more sensitive content than others and whether this means that they should be treated differently. Students could also discuss or debate whether the buyers of artworks have a responsibility to the creators, or if the exchange of money should give complete freedom to the purchaser. They could consider the differences, if any, between owning an original work and owning a reproduction: should any responsibility attach to the use of reproductions?

Another element of moral rights might be explored where students are involved in design. For example, students may use art reproductions, which they have purchased, to create a collage or to create a tray through decoupage, without infringing copyright as they have made no reproductions. But students should be mindful of the issue of artistic integrity. Artists have the lawful right to ensure the integrity of their artistic reputation is protected. It is an illegal act (in most circumstances) to alter an artistic work in a way that harms the honour or reputation of the artist without the permission of the creator. (The use of Aboriginal art reproductions to create place mats has been noted in 'Fair game: 'Aboriginal' designs in the marketplace'.)

[18] There are some exceptions to this such as works produced under a contract of employment where copyright vests in the employer, and works produced under the control of the Crown where the Crown can assert copyright ownership over the resulting works.

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