Recent Developments in Art Law in Australia

Recently Guest Work Agency Director, Alana Kushnir was invited to present on developments in art law at the Melbourne Law School for the intensive graduate subject, Entertainment Law, alongside Colin Golvan QC AM. The subject is coordinated by Professor Megan Richardson and visiting Senior Fellow Professor David Caudill, the Arthur M Goldberg Family Chair in Law at Villanova University, Pennsylvania and focuses on the areas of law which are relevant to the present day entertainment industry as well as related fields, including art. Here’s Alana’s takeaway report.

While Colin gave the students a first-hand account of his involvement in some of the most significant art-related cases that have been brought before the Federal Court, I discussed recent developments in art law that have taken place beyond the court room. Most recently, the Indigenous Affairs Committee of the Federal Parliament published the Report on the Impact of Inauthentic Art and Craft in the Style of First Nations Peoples in December 2018. Although we are yet to see the recommendations of the report being addressed by incumbent Federal Government, there were certain observations made in the Report that had not been made in previous similar government-led enquiries that I wanted to stress to the students. Firstly, that most, that is, around 80% of souvenirs sold in Australia that appear to be indigenous have in fact no connection to indigenous communities in Australia. Secondly, that there is an increasing prevalence of inauthentic art and craft products, which indicates a market demand for these items, particularly the souvenir trade. Another key area of recommendation was the need for increased funding support for the Indigenous Art Codeorganisation, which has been particularly active in the field through its ongoing Fake Art Harms Culture campaign. 

Introducing the Report on Inauthentic Art and the work of the Indigenous Art Code proved to be an opportune means to then steer the talk towards the direction of technological advances. Certain types of technology, such as blockchain, are currently being trialled as a potential means of tackling legal issues in fake art, and the tracking of provenance of artworks more generally. I have been particularly interested in Desart’s project to research and pilot the digital labelling of objects created by certain remote First Nations communities. Since mid-last year the project has been trialled in conjunction with the Copyright Agency’s research project on the viability of applying blockchain technology to better identify sales of artworks which attract resale royalties. Unsurprisingly, the findings of the Copyright Agency’s research have been that it will be some time before blockchain technology will develop enough for it to be readily adaptable to the art industry, including to the exploitation of intellectual property and resale royalty rights. As I suggested to the students, when it comes to art, blockchain technology is currently in the age of MySpace, rather Facebook.

I ended my presentation on a personal note, introducing the students to a project that Guest Work Agency has been working on with the Serpentine Galleries, a leading art institution based in London. As part of the Galleries’ recently established R&D department, Guest Work Agency is the Principal Investigator for the Legal Lab, an initiative which is focused on building a design-led solution to legal issues in art and technology collaborations. 

It was a real pleasure to be invited back to the Melbourne Law School, where I graduated from, to share with the students my knowledge in an area of law that I am deeply passionate about. 

Next up I’ll be reporting on my recent participation in the annual International Society for the History and Theory of Intellectual Property (ISHTIP) Conference, which took place in Sydney in July 2019.