During his four decades at the Victorian Bar, Colin Golvan AM KC has made a significant contribution to intellectual property (“IP”) law and practice in Australia. He is particularly well known for his role in advancing the protection of Indigenous IP. This is documented in his recent book Protecting Indigenous Art: From T-shirts to the Flag. I was privileged to sit down and have coffee with Colin in Sydney recently.

Held on Friday the 9th of September, 2022 in the Mal Nairn Auditorium at Charles Darwin University.

In a safe place: Artist Harold Thomas signs the agreement for his Aboriginal flag design

The flag’s reappearance on football grounds this year is the result of two years of negotiations by Clayton Utz and Corrs Chambers Westgarth IP Lawyers and Colin Golvan QC.

After an absence of two years, the Aboriginal flag was back in its rightful place painted on AFL football grounds around the country for the Sir Doug Nicholls Indigenous round in May.

In 2020 the AFL stopped using the flag after the company that owned the exclusive copyright licence to the flag’s use on products issued it with a bill for its past use of the Aboriginal flag on merchandise produced during the Indigenous round. The company had also issued cease and desist letters to Indigenous groups seeking to sell products featuring the flag.

Powerpoint based on a talk given to AIPPI (The International Association for the Protection of Intellectual Property), Australian Group, September 2020.

Victor Hugo, the creative colossus of the nineteenth century, was one of the great champions of the rights of the author. Speaking in 1878, Hugo
said: 'All the old monarchical laws denied and still deny literary property. For what purpose? For the purpose of control. The writer-owner is a free writer. To take his property is to take away his independence.'¹ Hugo's involvement in the discussions leading to the first international copyright convention is the stuff of legend. His focus on the rights of the author shaped the drafting of the Berne Convention, the subject of such considerable scholarship of Sam Ricketson.²

The Bar is obviously a place of privilege and opportunity. We practise our craft with considerable independence, and with special access to the inner workings of justice. It is at the opposite corner of experience to the subjugated circumstances of the refugee.

My parents arrived in Australia in 1951 as stateless Jewish refugees from Poland. Opportunity fell the way of their sons, who both ended up at the Bar.

The Australian Approach

How does one go about determining fair remuneration for damages for infringement of copyright?

One of the important issues raised by the question goes to the very nature of the asset sought to be protected. It is intangible. It may have a trading history (in the form of licensing whether by private contract or on a compulsory basis (such as in the case of music)). It may have an esteemed value in the eyes of the author, but little to show by way of monetary value as such.

Fakery and Indigenous art can, and does regrettably, take many forms. It is one of the sad predicaments that such vulnerable people are subject to so many challenges to the integrity of their cultural property.

First, there is the fakery of the alleged Indigenous creation of works which are made by non-Indigenous people. Secondly, there is the unauthorised reproduction of genuine works of Indigenous art – copyright infringement. Thirdly, there are works which are falsely attributed to Indigenous artists. Fourthly, though no readily attributed as fakery, there are works which are distorted in their presentation without authorial approval.

Aboriginal and Torres Strait Islander readers should be aware that this commentary contains images or names of people who have since passed away.

Following a concerted media and legal campaign, the Namatjira Legacy Trust has succeeded in securing the ownership of the copyright of Albert Namatjira following a recent resolution of claims made by the Trust against the long-time copyright owner Legend Press.

You see them driving from Kings Canyon to Alice Springs, the majestic ghost white river gums depicted so faithfully in the paintings of Albert Namatjira. You would think you were looking at a Namatjira painting. And then there is the vista of the craggy hills of the West McDonnell Ranges in their mysterious blue hue – a signature feature of Namatjira’s art.