Now, I’m a little bit late on this, because it only came up on my podcast USB drive today, but I doubt it’s been resolved in the two months since. I also doubt it’s all that politically sensible for me to raise the subject, given that I am undoubtedly (as with the Uluru climb debate) going to be on the opposite side as most of my usual allies on this site – hell, looking at the comments to the Law Report episode linked to above, it appears that Andrew Bolt weighed in at the time, and although we’ll have come to it from completely contrary perspectives on the plight of indigenous Australians, we’ll likely have come to a similar conclusion in relation to this specific issue, something which disturbs me greatly and in relation to which the only comfort is the “even a stopped clock is right twice a day” aphorism – but I’m going to do it anyway, because I think there’s a lot of confusion and muddled thinking on the issue.
In essence, it’s about the outrage of an indigenous community and its supporters towards a non-indigenous gallery owner commissioning a work somewhat inaccurately representing an image sacred to them.
And the idea that perhaps our copyright law should be amended so that this sort of free expression by the artist who dared not to be born into a community which permits itself to represent this image becomes somehow prohibited. Maybe we could make copyright even more restrictive than it already is! Maybe we could give special copyright rights to ethnic groups, and your right to reproduce or enjoy them is determined by a blood sample. Perhaps we could extend copyright terms from the already absurd 70 years after the artist’s death to 70,000 years after the artist’s death. Perhaps we could just lock up all intellectual property forever in an unrecoverably entangled mess that results in vast masses of human culture and development being permanently lost.
You might guess that I’m not a big fan of this approach.
I’m also not a great supporter of the idea that anyone gets to limit another’s right to freedom of religion. That it’s anybody’s business what religion, or what religious expression, Vesna Tenodi chooses to engage in. Obviously she has no right to pretend that her sculpture is endorsed by groups who don’t approve of it, and if she’s making that kind of claim (or implying it) then indeed it may well be deceptive and misleading conduct and something about which the Trade Practices Act might relate. But otherwise – it is absurd for someone to declare that they “own” an idea created tens of thousands of years before they were born. Or that that it is “theft” to use such an image (frankly, the corporate copyright industry has a lot to answer for trying to mix copyright infringement up with the very specific concept of “theft”, which involves permanently depriving someone of something tangible, something quite different from what occurs when something is copied).
As for the “making it up to them” argument, such as expressed by Jenny Wright from the Mowanjum Arts and Cultural Centre:
I think one part of me would say, Vesna we’ve taken everything from these people, we’ve taken their land, we’ve taken their language, we’ve destroyed their culture. Are we going to take their religion too? It just seems to me, and I know I’m making a very strong statement here, but I do feel this in my heart, that it just seems to me that that’s so grossly unfair, and as an Australian I think you should feel ashamed of yourself, seriously. Appropriation of absolutely everything. Is there nothing left of these people that we won’t take?
Well, Jenny, how about, instead of compounding our errors by taking rights from another group of people, we work to assist indigenous Australians to overcome the disadvantage to which we’ve consigned them? There are concrete things we can do to counter the very specific and real problems individual indigenous people face, without taking away someone else’s free expression. What you’re proposing here just adds another set of victims to the ones we’ve already created.
It is indeed very true that our country, on our behalf, has spent the last two and a quarter centuries treating indigenous people appallingly. We dispossessed them. We tore apart their families. We took their land. We set them in a position of unmatched disadvantage in our community, and owe it to them to restore that balance. It was right for us as a country to apologise for what we as a country did. And it is right for us to provide services and funds and effort to work to undo the ongoing effects of those two and a quarter centuries on indigenous people living today.
But that does not mean building resentment by doing stupid things like applying indigenous law to people who do not choose to be part of it. We have a binding legal system in this country, and it’s one enacted by the governments (approximately) democratically elected by (approximately) all of us. It (except in locations where administrators of that system have gotten away with acting above the law) treats all of us equally, regardless of race or gender. There are no reasonable grounds for a competing “legal” system which does distinguish against people on the grounds of race and gender to be imposed on anyone. Declaring something “contrary to indigenous law” is not a debate-ending point, and nor should it be.
It also does not mean building resentment by granting absurd over-the-top rights to people as if crimes committed against their ancestors were committed against them, personally. They weren’t. There are ongoing effects as a result of those crimes, but that’s not the same thing. We as a country have certainly established a system in which most of us as non-indigenous Australians are beneficiaries of our parents’ privilege, and they of theirs, all the way back to those who actually committed the offences against our indigenous brethren – and accordingly we certainly owe the disadvantaged assistance to make up for that which they were unfairly denied as a result of our system. But assistance to overcome disadvantage does not require anything like race-based control over our common human heritage. And just as that includes the cultural achievements of the ancient Egyptians, ancient Greeks, ancient Romans… it also includes those of ancient Australians.
I’m sorry, but I cannot go along with those who would seek to limit other people’s freedom of expression on the basis of their religious sensibilities. Whatever the religion. Whatever our country has done in the past to its practitioners.