"Australian
Aboriginal Art, Copyright Law and the Australian
Courts - an example of the flexible management of
difference?"
Martin Hardie, Florida State University, Panama
City, Republic of Panama.
Conference: Born of Desertion: Singularity, Collectivity,
Revolution - March 20-22 at the University of Florida,
Gainesville, USA.
Presented by Center for the Humanities and Public Sphere,
the Department of English, and the Marxist Reading Group.
This presentation seeks to give an outline of the facts
involving the challenges posed by Australia Aboriginal
art and indigenous concepts of ownership to the law of
Copyright in Australia. The draft paper upon which the
presentation is based can be found at:
http://mailer.fsu.edu/~mhardie/wandjuk.html.
In the cases examined in the paper we see the courts
undergo a passage from the perceived exclusion of
Aboriginal artists from the protection of the law to one
were they are capable of seeking remedies under both the
existing Copyright regime and the ancient principles of
doing equity.
After many years of the existence of a perceived wisdom
to the effect that Aboriginal art was not capable of
protection by copyright law it was in the final case of
the series examined (Bulun Bulun v R & T Textiles Pty
Ltd) that the Federal Court of Australia cleared away any
obstacles and created a precedent for courts to intervene
to protect Aboriginal ritual knowledge from exploitation
that is contrary to the particular law and custom shown
to exist in any one case. In doing so the court
recognised a separate and distinct right to the right
subsisting in an artistic work of a copyright owner based
upon the ancient principles of doing "equity".
Prior to this series of cases Aboriginal art was
originally perceived as not being subject to the law of
copyright because of the "traditional" nature
of its designs - simply it was argued they were regarded
as not capable of being "original" within the
meaning of the relevant law. The approach taken by the
Federal Court in Bulun Bulun allows for both communal
interests and copyright interests to be litigated.
Nevertheless their continues in some quarters a call for
legislative intervention in order that all members of
Aboriginal communities, wherever they are situated and
whatever their custom could enforce a general legal
right. I argue that this general approach misunderstands
the importance of the case by case (differential
approach) adopted by the Federal Court in the Bulun Bulun
case. It is arguable that a legislative response would
entail a law that would treat all the subjects of the
proposed law (Aboriginal artists) generally and according
to the overarching applicable law. It would call for a
static definition of what is Aboriginal
"tradition" applicable to interchangeable
particulars.
It may be the Federal Court's approach is an example of
the flexible management of difference whereby it repeats
in different cases its role to do equity between the
parties. Not only do I argue that the approach is
sensible and just, taking account of difference as it
does, it may be an example of conduct concerning
"non-exchangeable and non-substitutable
singularities". In short the Federal Court may
repeat the Bulun Bulun case in other circumstances - that
is it may "behave in a certain manner, but in
relation to something unique or singular which has no
equal or equivalent."
'
“Art
Across Borders”
Mission
Statement/Iraqi-Palestinian Exhibit
It is our
belief that art is a powerful means of raising
cross-cultural awareness, creating a dialogue between
peoples that have been caught in a long history of
misconceptions about one another, and of providing a
human face to peoples that have been largely vilified.
It is based on this belief that
we have organized “Art Across Borders,” a
traveling exhibition of artwork from artists who are
currently living in Iraq and Palestine. Organizers
of this project spent ten days in Iraq and over a month
in Palestine this summer. There we worked and
lived side by side with artists in these countries,
people that are facing incredible odds against their very
survival yet continue to find the ability to create.
In Iraq, organizers met with around
20 artists, including two pioneers of the modern Iraqi
art movement, Mohammed Ghani and Noori Al-Rawi. Organizers
conducted video interviews with artists in Iraq, which
have been made into a short documentary. This
documentary will be included with the more than forty
Iraqi artworks that will be included with this exhibit.
These
works reflect an unparalleled diversity of styles and
subject matter, from traditional Arabic calligraphy, to
the experiments with symbols and texture of modern
painter Shaddad, who focuses on relations between men and
women in his works. The history of over six
thousand years of civilization is evident in the
paintings of these artists, as well as the development of
a modern society that knows it has been cut off from the
rest of the world.
During our six-week journey
to Palestine, we were able to see first hand the
disruption the current occupation creates in daily life.
Simple tasks such as buying groceries for your family, or
taking your children to school often become life-risking
endeavors. In the midst of this violence and
upheaval, the artists we met bravely continue to use
their art as a way to provide hope and inspiration to
themselves and their people.
Although the Palestinian
people and the artists in their society have continually
been made refugees, from the Al-Nakba of 1948 to the
latest Israeli land grab and settlements of today, these
artists continue to search for a sense of home and
permanency through their art. An example of this
is the work of Mohammed Abu-Sall one of the emerging
talents from the Gaza Breij refugee camp in the Gaza
Strip, which celebrates the cactus as a symbol of the
tenacity and resistance of the Palestinian people.
The more than thirty
Palestinian works that will be exhibited reflect the
strength of a people who have survived more than fifty
years of occupation. Through displaying these
varied works, we will challenge the viewer to see
Palestinians as individual human beings, as creators of
beauty, as people not so different from us. Already, the
people of Palestine feel that they have been forgotten or
at least forsaken by the International community. Through
the artwork that we have been honored to carry from
Palestine, so too do we carry the hope and strength of
the Palestinian people -that they may not be forgotten.
Our goal with this exhibit,
first and foremost, is to provide an opportunity for
Iraqi and Palestinian artists to speak in their own
voices about the conditions in their countries. Through
their art, these artists reflect the greater humanity of
countries who’s individuality and rich cultures have
been drowned in a sea of political maneuvering. We
hope that this exposure of the world audience to these
art works will reassert the place of Iraqis and
Palestinians in the world’s conscience.
Secondly,
we hope to exhibit these works to the widest possible
audience, and to use this as a way to create a dialogue
about the conditions these works reflect. We invite
you to join with us in this process of opening doors to a
discussion that will elevate our own understanding of our
place in the world, and the commonality and vitality of
the human existence, no matter where a person happens to
live.
Lastly,
we see this exhibit as a beginning rather than a final
product. We intend to continue this exchange with
Iraqi and Palestinian artists, with the next Art Across
Borders trip to the Middle East slated for spring/summer
of 2003. We are also considering other projects,
such as a continually bringing art journals and supplies
to artists in Iraq, organizing a joint U.S./Iraqi show in
Baghdad (organizers received invitations from three
different galleries), and further collaborative projects
such as murals and workshops. Through this
continual exchange of ideas, technique and work, we hope
to foster a person to person, artist to artist dialogue
that weakens the dangerous and destructive divisions that
are being drawn throughout the world by forces greater
than the average human being.
If you
are interested in getting involved in this project, or
organizing a showing of the exhibition in your area,
please contact Meg Novak at (612) 722-5438, or
megbabylon@hotmail.com.
The
MARTYR GHASSAN KANAFANI CULTURAL FOUNDATION (Martyr
Ghassan Kanafani was assassinated by the Israeli Moussad
in Beirut on July 8,1972) had published a book entitled:
Like Roses in the
Wind; Self Portraits and
Thoughts
The Introduction of the book says: During the summer of
2000, we decided to work on a self-portrait project
with children aged 5 to 6 and a small group of older,
mentally disabled children. The subject, both
educationally and artistically, is not new, but
nevertheless of great visual, psychological and
emotional importance because it deals with identity. The
main aim of the project was for the children to express,
visually and verbally, their self perception and their
perception of, and identification with, the world they
live in and interacts with.
The children participating in this project all attend The
Ghassan Kanafani Cultural Foundation's kindergartens in
six different Palestinian refugee camps, suburban and
rural areas in Lebanon. They are fourth generation
Palestinian refugees and descendants of the Palestinians
who were expelled from Palestine to Lebanon during the
Nakba ( the catastrophe) in 1948 as a result of the
establishment of Israel (The Zionist State). their status
remains as refugees up till today.
The book was coordinated and edited by Laila Ghassan
Kanafani.
All proceeds from the sale of this book will go to
support Ghassan Kanafani cultural Foundation.
P.O.BOX: 13-5375 Beirut - Lebanon
E- mail: gkcf@cyberia.net.lb
Kandahar'
offers glimpse of Afghanistan's terrible beauty 
By CLAIRE DUQUETTE
The Daily Press
Friday, January 24th, 2003
"Kandahar" opens and closes with the image of a
solar eclipse, the blotting out of life-giving sun that
is both beautiful and dangerous to look upon. So it is
with the Afghanistan of Mohsen Makhmalbaf's film, which
takes us into a pre-9/11 journey into a country torn by
years of war and oppressed under strict Taliban rule.
The film tells the story of Nafas, an Afghan expatriot
living in Canada who returns to her native land to find
and rescue her sister, who has told Nafas she plans to
commit suicide during the final eclipse of the 20th
century. Nafas, a journalist, undertakes the perilous
trip to Kandahar, unsure of how to find her sister, but
determined to save her and restore her hope.
Nafas, a journalist records her trip on a black tape
recorder - her "black box" as she calls it,
relaying her hopes and her horror at all she finds.
Smuggled into Afghanistan by way of an Iranian refugee
camp posing as the fourth wife of an Afghan man, Nafas
soon finds herself robbed and heading to Kandahar with
only the guidance of a school-age boy.
Throughout the short, desperate journey she is made
keenly aware of the oppression of women, the absurdities
of trying to obtain medical care, and the shock of
encountering a camp of men maimed by landmines, an
ever-present danger.
She is aided in her journey by an American who came to
Afghanistan "to find God" but has found only a
suffering people he helps by supplying rudimentary
medical care, and by an local con man, who hides under a
burqa to help Nafas journey to Kandahar mixed in with a
wedding party.
Although the film is shot to resemble a documentary, it
is filled with beautiful landscapes and surreal imagery.
The opening sequence offers a vision of figures scurrying
across the desert sand the is reminiscent of the
computerized army in a 'Star Wars' film. But this army's
peculiar gait is the result of being a one-legged troupe
racing across the sand in a desperate attempt to be the
first to reach sets of artificial limbs dropping from the
sky - parachuted in by the Red Cross.
The legs themselves, drifting lazily through the sky
could have come from a painting by Magritte or Dali,
limbs cut off from all other reality.
Indeed, this is a world full of cruel cuts. The people
are cut from their limbs. Girls are cut off from
education, and women are cut off from the world by
religious dogma and the ever-present burqa.
There is no neat or happy ending in "Kandahar"
just as there is still no neat or happy ending for the
people living in Afghanistan. Just a terrible beauty and
determination to survive.
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