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A Case Study on Bulun Bulun Case

The statement of claim alleges on the reduction to material form of a part of the ritual knowledge of the Ganalbingu people by the creation of the artistic work, the first applicant held the copyright subsisting in the artistic work as a fiduciary and/or alternatively on trust, for the second applicant and the people he […]

The statement of claim alleges on the reduction to material form of a part of the ritual knowledge of the Ganalbingu people by the creation of the artistic work, the first applicant held the copyright subsisting in the artistic work as a fiduciary and/or alternatively on trust, for the second applicant and the people he represents.[1]

It is contended that these rights arise because second applicant and those he represents have the power under customary law to regulate and control the production and reproduction of the corpus of ritual knowledge.

It is contended that the customs and traditions regulating this use of the corpus of ritual knowledge places Mr Bulun Bulun as the author of the artistic work in the position of a fiduciary, and, moreover, make Mr Bulun Bulun a trustee for the artwork, either pursuant to some form of express trust, or pursuant to a constructive trust in favour of the Ganalbingu people.[2]

The right to control the production and reproduction of the corpus of ritual knowledge is said to arise by virtue of the strong ties which continue to exist between the Ganalbingu people and their land.

EQUITABLE RIGHTS

Equitable rights are rights created and enforced by the court where it would be unconscionable to permit the legal owner of property to keep the benefit of property to herself.[3] The Applicant argued that equitable rights were created in the artistic work given the nature of the artwork. Mr. George M represented those who have the power under customary law to regulate and control the production and reproduction of the corpus of ritual knowledge of the Ganalbingu people. It was argued that Mr. Bulun Bulun held the copyright subsisting in the artistic work on trust or alternatively as a fiduciary for Mr. George  and the Ganalbingu people.[4]

Was there an Express Trust?

The existence of an express trust depends on the intention of the creator. To express an intention to create trust, it is not necessary that there be any formal or technical words. Any apt expression of intention will suffice. The intention to create a trust must be manifested in some form or another.[5] Mr. Bulun Bulun did not hold either the artwork or the copyright in it in trust for the Ganalbingu people. The fact that Mr. Bulun Bulun was entitled in customary law to sell his work and retain the profits himself was seen by the judge to be inconsistent with there being an intention to create an express trust.

Was there a Fiduciary Duty?

Fiduciary refers to a relationship of one person to another, where the former is bound to exercise rights and powers in good faith for the benefit of the other. Unless expressly entitled, a court of equity will not allow a person in a fiduciary position to make a personal profit or to put himself in a position where her duty and her interest conflict. [6] In Fiduciary relationships, the Fiduciary agrees to act on behalf of another person in the exercise of power which shall affect him in legal or practical sense.

ISSUE

Whether or not Mr. Bulun Bulun owed a fiduciary duty to the Ganalbingu people in respect of his role as author and copyright owner of the artistic work?

APPLICATION AND ANALYSIS

  • The Court considered that a fiduciary relationship existed between the artist and the clan group and that the artist had a fiduciary duty towards his community. The artwork contained ritual knowledge that was of great importance to members of the Ganalbingu people.
  • The Court noted that while the artist was entitled to pursue the exploitation of the artwork for his own benefit, he was still required under customary obligation to refrain from taking any steps which might harm the communal interests of the clan in the artwork.
  • The right of the Ganalbingu clan, in the event of a breach of obligation by the fiduciary, is a right In personam to bring an action against the fiduciary to enforce the obligation. The court considered that Mr. Bulun Bulun had fulfilled this obligation by taking legal action against the infringers.[7]
  • The Court established that the author had taken necessary actions through bringing the case to the Court.
  • The Court dismissed the claims brought by Mr. George M due to the existence of fiduciary obligations owed by Mr. Bulun Bulun to the Ganalbingu people and fulfillment of these obligations.

CONCLUSION

The case switched from classical copyright dispute to the consideration of the indigenous communal rights. This case has become very famous in the field of indigenous traditional knowledge since the Court implied in its reasoning that communal right in artwork should be recognized. Moreover, it assumed that Australian legal system would permit for indigenous clan to bring an action to protect the artwork under other circumstances. On the whole, this case provides us with the following main observations. First, the recognition of communal ownership in indigenous artwork is supposed to be an adequate means of protection for indigenous interests. Second, the Court concluded that communal ownership in artwork cannot be recognized under existing copyright law.

[1] Bulun Bulun v R & T Textiles Pty Ltd. (1998) 41 IPR 513

[2] Australian Law Reports, John Bulun Bulun & Anor v R & T Textiles Pty Ltd(von Doussa J.), 157 ALR 193; available at http://www.utexas.edu/law/journals/tlr/sources/Issue%2090.1/Walker/Walker.fn075.Bulun%20v%20R%20and%20T%20Textiles.pdf

[3] Reproduced in Colin Golvan, ‘Aboriginal art and copyright: The case for Johnny Bulun Bulun’, in

European Intellectual Property Review, Vol 10, 1989, pp. 347–354

 

[4] Sally McCausland, “Protecting Communal Interests in Indigenous Artworks after the Bulun Bulun Case”, Indigenous Law Bulletin, July 1999

[5] Michael Hall, “Case Note: Bulun Bulun v R & T Textiles”, Vol 16, No 3 Copyright Reporter,November 1998.

[6] Nicholas Blackmore, “The Search for a Culturally Sensitive Approach to Legal Protection of Aboriginal Art”, (October 1999) 17 (2) Copyright Reporter.

[7] V. J. Vann “Copyright by way of fiduciary obligation – finding a way to protect Aboriginal art works” Media & Arts Law Review (2000) March p. 13

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