Personhoods

'Legal personhood for cultural heritage? Some preliminary reflections' by Alberto Frigerio in (2026) International Journal of Cultural Property 1-8 comments

 Cultural heritage occupies a paradoxical position in law: It is protected as property but experienced as a repository of identity, memory, and dignity. This article examines whether cultural heritage could, in principle, be recognized as a subject of law, drawing on emerging developments in environmental and nonhuman personhood. After tracing the historical and conceptual evolution of legal personhood—from human and corporate subjects to nature and ecosystems—it explores the moral, relational, and symbolic dimensions that might justify extending personhood to heritage. The analysis highlights both the potential benefits of such recognition, including stronger ethical and representational protections, and the associated risks, such as legal inflation, state appropriation, and conflicts with ownership and restitution law. Ultimately, it argues that rethinking heritage through the lens of relational personhood reveals the need for a more pluralistic and ethically responsive legal imagination. 

Sergio Alberto Gramitto Ricci, 'Legal Personhood for Artwork' by Sergio Alberto Gramitto Ricci in (2025) 76(5/6) University of California San Francisco Law Journal 1429 states 

Artwork is unique and irreplaceable. It is signifier and signified. The signified of a work of art is its coherent purpose. But the signified of a work of art can be altered when not protected. The ramifications of unduly altering the signified of a work of art are consequential for both living and future generations. While the law provides protection to artists and art owners, it fails to grant rights to works of art themselves. The current legal paradigm, designed around the interest of owners and artists, also falls short of protecting Indigenous art aimed at conserving traditions and cultural identity, rather than monetizing creativity. This Article provides a theoretical framework for recognizing legal personhood for works of art, in the interests of art in and of itself as well as of current and future generations of human beings. This new paradigm protects artwork through the features of legal personhood.

Fakes and Indigenous Cultural Expression

The Productivity Commission's Draft Report on Aboriginal and Torres Strait Islander visual arts and crafts features the following key points 

Aboriginal and Torres Strait Islander people have been creating visual arts and crafts for tens of thousands of years. This practice has grown into a significant industry, generating income for artists and art workers, creating economic opportunities for communities, and helping to maintain, strengthen and share Aboriginal and Torres Strait Islander cultures. 

Total sales of Aboriginal and Torres Strait Islander visual arts and crafts reached about $250 million in 2019–20 — this includes $30–47 million in artwork sales through art centres and at least $83 million in sales of merchandise and consumer products (mostly souvenirs) bearing Aboriginal and Torres Strait Islander art and designs. While a small number of artists command high prices, the average income for the 5800–7700 artists who sold art through an art centre in 2019 20 was just over $2700. For independent artists, average income was about $6000. 

Inauthentic arts and crafts — predominantly Indigenous style consumer products not created by Aboriginal and Torres Strait Islander people — are a pervasive and longstanding problem. They disrespect and misrepresent culture and, by misleading consumers and denting confidence in the market, they deprive Aboriginal and Torres Strait Islander artists of income. Inauthentic products accounted for well over half of spending on Aboriginal and Torres Strait Islander souvenirs in 2019 20. 

Mandatory labelling of inauthentic products would raise consumer awareness and help them distinguish between authentic and inauthentic products, impose a negligible compliance burden on Aboriginal and Torres Strait Islander artists (and their commercial partners), and involve modest establishment and administration costs. 

Some visual arts and crafts make use of Indigenous Cultural and Intellectual Property (ICIP), such as sacred symbols, without the authorisation of traditional custodians. This undermines customary laws and limits the economic benefits flowing back to Aboriginal and Torres Strait Islander people. Legal recognition and protection of ICIP is patchy, with very few limits on whether, how and by whom ICIP is used in visual arts and crafts. 

A new law that strengthens protection for aspects of ICIP used in visual arts and crafts would formally recognise the interests of Aboriginal and Torres Strait Islander communities in their cultural assets, promote respectful collaborations and allow for legal action where protected cultural assets are used in visual arts and crafts without the authorisation of traditional owners. 

Art centres assist thousands of established and emerging artists to practise their arts and crafts and engage in the marketplace; they fulfil important cultural and social roles. Other organisations provide vital services to artists — including addressing instances of unethical conduct from other market participants. Improving funding and the effectiveness of support services, as well as strengthening the Aboriginal and Torres Strait Islander arts sector workforce, will be critical for future growth. An independent evaluation of Australian Government funding to the sector — undertaken in partnership with Aboriginal and Torres Strait Islander people — is needed to inform future funding needs, objectives and strategic priorities.

The Commission's  draft findings and recommendations  are -

Aboriginal and Torres Strait Islander arts and crafts are a cornerstone of culture 

Draft Finding 2.1 Aboriginal and Torres Strait Islander arts and crafts generate broad cultural and economic benefits  

isual arts and crafts have been central to the practice and preservation of Aboriginal and Torres Strait Islander cultures for tens of thousands of years. Arts and crafts — as expressions of Aboriginal and Torres Strait Islander people’s connection to culture, Country and kin — are fundamental to the wellbeing of Aboriginal and Torres Strait Islander people, and bring wider benefits for all Australians. Aboriginal and Torres Strait Islander visual arts and crafts are foundational to Australia’s national identity. The visual arts and crafts sector generates income for artists and economic opportunities for communities, and is a major source of direct employment and income in many remote areas. It also supports complementary industries such as tourism. Visual arts and crafts markets are substantial, diverse and growing 

Draft Finding 3.1 The total value of annual spending on Aboriginal and Torres Strait Islander visual arts and crafts — including artworks and consumer products — is about $250 million 

In 2019 20, the total value of spending on (authentic and inauthentic) Aboriginal and Torres Strait Islander visual arts and crafts was about $250 million. This includes sales of original art made through art centres, commercial galleries, auction houses and other retailers, as well as consumer products such as souvenirs and homewares. Some of the spending on these consumer products was on inauthentic arts and crafts — about 55–61% of spending on souvenirs was on inauthentic Indigenous style products, purchased predominantly by international visitors.   

Draft Finding 3.2 Visual arts and crafts sales contribute to the economic wellbeing of Aboriginal and Torres Strait Islander artists 

For many Aboriginal and Torres Strait Islander artists across Australia, selling their arts and crafts contributes to their economic wellbeing. In remote areas, arts and crafts activities provide economic opportunities for artists, through artwork sales and the teaching of art and culture. Artists in regional and metropolitan areas also benefit economically from the sale of their arts and crafts, although they are more likely to have access to a wider range of income sources. 

Draft Finding 3.3 Art centres support most of the production and sales of art in remote areas The Commission estimates that sales of artworks produced by art centre artists totalled between $30–47 million in the 2019 20 financial year, from about 5800–7700 artists who sold at least one artwork. Total sales by art centres have more than doubled since 2012, but growth has been concentrated mostly in Northern Territory art centres. The scale of production at art centres varies substantially, with the largest scale operations taking place in the Western Desert, Arnhem Land and APY Lands art regions. Art centres rely on several methods to sell artworks, but have shifted towards sales through consignment agreements with intermediaries such as commercial galleries. Art centres have also moved towards selling art direct to consumers, either through their own galleries or through art fairs. 

Draft Finding 3.4 Artworks by independent artists have a material presence in Aboriginal and Torres Strait Islander arts and crafts markets Independent artists have a material presence in markets for Aboriginal and Torres Strait Islander visual arts and crafts — the Commission’s preliminary estimates based on limited data show that about 1700 independent artists generate sales of about $10 million a year. About half of art dealer businesses sell the works of independent artists. In addition, independent artists produce commissioned artworks and sell direct to consumers through art fairs, online marketplaces and social media. 

Draft Finding 3.5 The total value of Aboriginal and Torres Strait Islander artworks sold on the secondary market remains below its peak 

Following strong growth up to 2008, resales of Aboriginal and Torres Strait Islander artworks collapsed following the Global Financial Crisis (GFC). The total value of resales has since remained below the pre GFC peak, with average prices of Aboriginal and Torres Strait Islander artworks sold by public auction houses lower than resales of artworks by non Indigenous artists. 

Inauthentic visual arts and crafts are pervasive and cause significant cultural harm and economic costs 

Draft Finding 4.1 Visual arts and crafts are considered authentic Aboriginal and Torres Strait Islander arts and crafts if they are authored by an Aboriginal and Torres Strait Islander person, or produced under a licensing agreement 

For the purpose of this study, a product or artwork is considered authentic Aboriginal and Torres Strait Islander visual art or craft if it is: • an original piece authored (or co authored) by an Aboriginal and Torres Strait Islander person, or • produced under a licensing agreement with the Aboriginal and Torres Strait Islander artist(s). Aboriginal and Torres Strait Islander visual arts and crafts that do not meet these criteria, including those that infringe the copyright of an Aboriginal and Torres Strait Islander artist’s work, or are Indigenous style arts and crafts made by non Indigenous people without licensing agreements, are considered inauthentic. 

Draft Finding 4.2 Inauthentic Aboriginal and Torres Strait Islander arts and crafts are rife in the consumer product, digital and print on demand merchandise markets 

Inauthentic products dominate the consumer product (mostly wholesale souvenirs), digital, and print on demand merchandise markets. Copyright infringement is also common in the print on demand merchandise market. In the consumer product (wholesale souvenirs) market: • approximately two thirds to three quarters of product offerings are inauthentic, though the prevalence of inauthenticity varies by product category • on average, authentic products are nearly twice as expensive as an inauthentic product of the same type • most consumer products are manufactured overseas regardless of their authenticity. Based on random sampling, inauthentic products are commonplace in the print on demand merchandise market (over 60% of Aboriginal and Torres Strait Islander merchandise was found to be inauthentic) and even more prevalent in the digital art marketplace (over 80% of digital stock images depicting Aboriginal and Torres Strait Islander designs, styles and motifs were inauthentic).   

Draft Finding 4.3 The negative effects of inauthentic visual arts and crafts outweigh any benefits 

The existence and prevalence of inauthentic arts and crafts in the market has wide ranging and predominantly detrimental effects on both Aboriginal and Torres Strait Islander people and the broader Australian community. These include personal and cultural harms (such as emotional distress, loss of identity and self) and economic harms (such as a loss of income for Aboriginal and Torres Strait Islander artists, and consumer hesitancy in purchasing Aboriginal and Torres Strait Islander arts and crafts). Inauthentic products disrespect and misrepresent Aboriginal and Torres Strait Islander cultures, and have the potential to mislead consumers. 

Draft Finding 4.4 Consumers’ lack of awareness and difficulties in identifying authentic products, as well as the legal landscape are the main enablers of inauthentic arts and crafts 

Inauthentic Indigenous style visual arts and crafts continue to be prevalent in the market due to: • limited legal barriers to the creation or sale of inauthentic arts and crafts under Australian law (in particular, the Copyright Act and the Australian Consumer Law) • a lack of awareness and understanding of inauthenticity and its harms by producers and purchasers of inauthentic arts and crafts • difficulties identifying and distinguishing inauthentic products from authentic ones. 

A mandatory labelling scheme to reduce trade in inauthentic products 

Draft Finding 5.1 Some approaches to distinguish between authentic and inauthentic Aboriginal and Torres Strait Islander art and craft products are already in place 

Some approaches are already in place to help consumers distinguish between authentic and inauthentic Aboriginal and Torres Strait Islander artworks and other products. These include certificates of authenticity provided by art dealers (such as those produced in accordance with the Indigenous Art Code), as well as other branding and marketing initiatives used by artists and dealers to provide information and assurances to consumers. However, only limited information is provided for some products, particularly in the lower end of the market, including souvenirs and digital products.   

Draft Finding 5.2 Voluntary industry-wide labelling schemes for authentic products are unlikely to be effective in materially reducing inauthentic arts and crafts 

Notwithstanding the possible marketing benefits to participants themselves, industry wide voluntary labelling schemes (such as certification trade marks) are unlikely to reduce the prevalence and harms of inauthentic products substantially. To address information gaps in the market and allow consumers to distinguish between authentic and inauthentic products, voluntary labelling schemes require high levels of participation. Yet the risk of limited uptake by Aboriginal and Torres Strait Islander artists, coupled with the costs of establishing and administering an industry wide voluntary labelling scheme, make the net benefits uncertain. 

Draft Finding 5.3 Education and awareness-raising measures should complement other initiatives 

Education and awareness raising measures can inform consumers and businesses about the existence and harms of inauthentic products. However, on their own their effectiveness in countering inauthentic products is limited, especially where the information used to promote and label products is confusing or inaccurate. Education measures are more effective where they accompany measures that help consumers distinguish between authentic and inauthentic products. 

Draft Finding 5.4 Banning inauthentic products is unlikely to be the most cost effective response 

A ban on the sale of inauthentic products could be an effective way to mitigate the economic and cultural harms they cause and prevent consumers from unwittingly purchasing inauthentic products. However, there are substantial risks in imposing a ban. A broad ban would increase the risk of costly errors (for example, authentic products incorrectly excluded from sale). A narrow ban would not resolve the harms caused by many inauthentic products. A ban would also limit choice in the market, and consumers would arguably be better served by being able to make more fully‑informed choices. Therefore, the Commission considers that a ban is unlikely to be the most appropriate response. 

Draft Finding 5.5 Labelling inauthentic products is a targeted and cost effective way of informing consumers and improving the functioning of the market for Aboriginal and Torres Strait Islander visual arts and crafts 

A mandatory labelling scheme for inauthentic products could be a targeted and cost effective option for addressing the issue of inauthentic Indigenous style products. While it would not eliminate inauthentic products, it would improve the operation of the market, by helping consumers to distinguish between authentic and inauthentic products. A well designed labelling scheme focused on inauthentic products would only impose minimal compliance burdens on Aboriginal and Torres Strait Islander artists. 

Draft Recommendation 5.1 A mandatory labelling scheme for inauthentic products should be developed 

The Australian Government should develop a mandatory information standard to require the labelling of inauthentic Indigenous style products to indicate to consumers that they are not created by or under licence from an Aboriginal and Torres Strait Islander person. In developing the standard, the Australian Government should engage effectively with Aboriginal and Torres Strait Islander people. 

Information request 5.1 How might a mandatory labelling scheme for inauthentic products operate in practice and what should be considered further in its design? • Is the suggested approach to product coverage workable? Are there ways to provide greater certainty about coverage without unduly narrowing its scope? • Are the authenticity criteria for the scheme appropriate? Do they pose any unintended consequences? If so, how could these be addressed? • Are there any other considerations about the design and implementation of the standard? 

Indigenous Cultural and Intellectual Property is used in arts and crafts without permission and inappropriately 

Draft Finding 6.1 Indigenous Cultural and Intellectual Property has intrinsic value 

Indigenous Cultural and Intellectual Property (ICIP) refers to all dimensions of Aboriginal and Torres Strait Islander heritage and cultures, from languages and performances to traditional scientific and ecological knowledge. It has intrinsic value to Aboriginal and Torres Strait Islander people and is a unique national asset that forms an important part of Australia’s identity. Expressions of ICIP in the form of visual arts and crafts are often more than creative outputs. They can play a role in transmitting and thereby preserving laws, history, culture and customs of Aboriginal and Torres Strait Islander people.   

Draft Finding 6.2 Existing laws do not directly protect Indigenous Cultural and Intellectual Property in Aboriginal and Torres Strait Islander visual arts and crafts 

Current laws provide some protection of Indigenous Cultural and Intellectual Property (ICIP) in visual arts and crafts. But these protections are piecemeal and do not enable Aboriginal and Torres Strait Islander people and communities to directly control whether and how their ICIP is used in visual arts and crafts. This means that Aboriginal and Torres Strait Islander ICIP is often used in inappropriate contexts without the consent of the relevant Aboriginal and Torres Strait Islander people and communities. There is a strong case for examining how legal protections for ICIP in visual arts and crafts could be strengthened to reduce misappropriation and help to protect and preserve ICIP in visual arts and crafts. 

Draft Finding 6.3 Dedicated legal protections may assist in addressing misappropriation of Indigenous Cultural and Intellectual Property in visual arts and crafts 

Minor amendments to existing laws could improve protection of Indigenous Cultural and Intellectual Property (ICIP) in visual arts and crafts, but gaps would remain. Larger scale amendments are likely to be incompatible with the frameworks or objectives of existing legislation. Dedicated legislation has the potential to provide stronger recognition and more fit for purpose protection for ICIP used in visual arts and crafts. Legislation directly focused on ICIP in visual arts and crafts would provide a framework for negotiation and presents an opportunity to do so in a way that promotes a fair allocation of benefits. 

Recognising cultural rights to protect the ICIP in visual arts and crafts 

Draft Recommendation 7.2 New cultural rights legislation should be introduced to recognise and protect cultural assets in relation to visual arts and crafts 

To address the issue of Indigenous Cultural and Intellectual Property being used in visual arts and crafts without authorisation from traditional owners, the Australian Government should introduce new legislation that formally recognises the interests of Aboriginal and Torres Strait Islander communities in their traditional cultural assets. To achieve this, the legislation should create a new cause of action that specifies that a traditional owner’s rights are infringed if a person uses a cultural asset to create a cultural expression, such as a piece of art or craft, without the authorisation of a traditional owner, unless an exception applies. 

Draft Finding 7.2 A cultural rights regime must balance the interests of traditional owners and those seeking access to cultural assets 

The recognition of cultural rights needs to strike the right balance between the interests of traditional owners and the interests of those seeking to access and use cultural assets. This will help ensure that the preservation and maintenance of culture does not come at the cost of preventing traditions and culture from evolving or adapting over time. To achieve this, checks and balances should be built into the legislative regime — including by specifying criteria for: what is protected under the legislation; who can take action to assert cultural rights; and what uses of cultural assets require authorisation. 

Information request 7.1 What should be protected by the new cultural rights legislation? • What is the best way to define what should be in scope for protection? • Should there be limits on protection, such as conditions on when protections apply or threshold criteria for what is protected? If so, what should they be? 

Information request 7.2 How should the legislation deal with the issue of standing to bring a cultural rights action? • What criteria should determine whether a claimant has standing? • What is the best way to recognise communities or groups as having standing? • What are the merits, drawbacks and challenges of giving a government regulator the power to bring cases in relation to cultural misappropriation? 

Information request 7.3 What types of conduct should be considered an infringement of a traditional owner’s cultural rights? • What types of uses of cultural assets should be recognised as having the potential to be infringing? For example, should there be a requirement for the use to be in material form or a substantial use? • How should a court determine whether a user has been granted authorisation to use a cultural asset in a certain way? • Should there be exceptions when cultural assets are used for certain purposes? If so, what should those exceptions be? What should the legislation say about remedies for infringements of cultural rights? • What suite of remedies are needed to achieve fair and just outcomes? • What should the new cultural rights legislation say about how remedies are awarded? 

Information request 7.4 What institutional arrangements are needed to support a new cultural rights regime? • What types of dispute resolution options should be available? What is needed to ensure that dispute resolution processes are responsive to the needs of Aboriginal and Torres Strait Islander people and communities? • Is there a case for a statutory Cultural Authority? What would its remit, functions and powers be? 

Draft Finding 7.1 There are advantages to taking a multi pronged approach to protecting Indigenous Cultural and Intellectual Property 

Given its multi faceted nature, it is not clear that stronger legal protection for all aspects of Indigenous Cultural and Intellectual Property (ICIP) could be pursued through a single regulatory measure. A multi pronged approach to protecting ICIP would enable regulatory responses to be tailored to specific types of ICIP, resulting in more nuanced and fit for purpose protections. It would also take the pressure off any single measure to solve all issues relating to ICIP and give implementation bodies the licence to focus on specific policy issues. 

Draft Recommendation 7.1 An Indigenous Cultural and Intellectual Property Strategy is needed to coordinate regulatory measures 

The Australian Government should develop and publish an Indigenous Cultural and Intellectual Property (ICIP) strategy that sets out how policy and regulatory measures will address different aspects of ICIP. The development of the strategy should be led by the Minister for Indigenous Australians, in partnership with state and territory governments and Aboriginal and Torres Strait Islander people.   

Some artists encounter unfair and unethical conduct     

Draft Finding 8.1 Unethical conduct towards Aboriginal and Torres Strait Islander artists still occurs  

Longstanding and serious allegations continue to be made of exploitation of Aboriginal and Torres Strait Islander artists in some remote areas of Australia. There are also examples across the country of unfair contract terms, copyright infringement and plagiarism, which affect the rights, wellbeing and economic returns to Aboriginal and Torres Strait Islander artists and their communities. 

Draft Finding 8.2 Enforcement of the Indigenous Art Code is constrained by resourcing 

The Indigenous Art Code is one of the key mechanisms used to mediate interactions between artists and the market. However, the company enforcing the code is under resourced and overstretched. 

Draft Finding 8.3 Artists face difficulties accessing justice and other support services 

Key legal protections, including copyright and the prohibition on unconscionable conduct, can be difficult for artists to access. There are also gaps in support services for independent artists, including those working outside of areas served by art centres and regional peak organisations. 

There is scope to improve government support to the sector 

Draft Finding 9.1 The big picture of government funding is hard to piece together 

Aboriginal and Torres Strait Islander artists and art organisations receive funding from a multitude of sources, including targeted and mainstream arts programs and various non arts portfolios across all levels of government, as well as from philanthropy and corporate sponsorship. Outside of the few targeted programs, data on funding provided to Aboriginal and Torres Strait Islander visual arts and crafts is not reported. As a result, it is hard to determine the overall amount of funding available to the sector, or assess how well different funding streams are addressing the needs of the sector.   

Draft Finding 9.2 The National Indigenous Visual Arts Action Plan provides a time-limited funding increase 

The Aboriginal and Torres Strait Islander visual arts and crafts sector has seen recent injections of funds both directly through the Australian Government’s National Indigenous Visual Arts Action Plan, and indirectly through commitments to establish Aboriginal and Torres Strait Islander art and cultural centres. The National Indigenous Visual Arts Action Plan provides $25 million of additional funding to the sector over five years, including for infrastructure upgrades and building digital capacity. The governments of the Northern Territory, South Australia and Western Australia are funding art and cultural centres in their respective jurisdictions while New South Wales is investigating similar opportunities. The Australian Government has also committed to establishing a National Aboriginal and Torres Strait Islander cultural complex in Canberra, which will include art and artefact collections. 

Draft Finding 9.3 Primary funding sources from the Australian Government have plateaued in real terms in recent years The Australian Government provides targeted annual funding of about $24.5 million to the Aboriginal and Torres Strait Islander visual arts and crafts sector through its key art funding programs: the Indigenous Visual Arts Industry Support (IVAIS) and the Australia Council’s Aboriginal and Torres Strait Islander Arts programs. After increasing for many years, since 2015–16, total IVAIS funding has declined in real terms by 5%. Average funding for art centres — the main recipients of government support — has fallen by 6.3% as the number of art centres has increased while funding under the program has remained fixed. Since 2016 17, funding to the Aboriginal and Torres Strait Islander Arts Program under the Australia Council has fallen in real terms by 5%. The recent funding commitments through the National Indigenous Visual Arts Action Plan will assist a number of art centres over a five year period, but there has been no change to the ongoing operational funding provided by IVAIS.   

Draft Finding 9.4 Many roles that art centres fulfil are out of scope for arts funding programs 

The Australian Government’s flagship funding program for the sector, the Indigenous Visual Arts Industry Support (IVAIS) program, focuses on art production and operational costs. Aboriginal and Torres Strait Islander community-controlled art organisations fulfil a range of important cultural and social roles within their communities, which are not funded under IVAIS. This increases the administrative burden on art organisations (as they seek to secure funding from other sources) and limits their ability to undertake activities highly valued by their communities. Securing funding to meet the infrastructure needs of art centres has been a longstanding issue. While some funding has been made available for this purpose under the National Indigenous Visual Arts Action Plan, this commitment is only for five years at this stage. 

Building the Aboriginal and Torres Strait Islander arts workforce requires a strategic approach 

Draft Finding 9.5 A strategic approach to building the Aboriginal and Torres Strait Islander arts workforce is lacking 

Art centres and other art organisations continue to face significant difficulty recruiting and retaining skilled art workers, especially in remote areas. There is no strategic approach at the national level to build the pipeline of Aboriginal and Torres Strait Islander visual arts and crafts workers — and leaders — in remote, regional and urban areas. The Aboriginal and Torres Strait Islander arts sector was not included as an area of focus under the National Roadmap for Indigenous Skills, Jobs and Wealth Creation, and there is a risk that strategic opportunities will be missed as a result. With a number of Aboriginal and Torres Strait Islander art and cultural institutions being built across the country, investment in career pathways and traineeships is required to ensure Aboriginal and Torres Strait Islander people lead — and are employed by — these institutions, and to meet broader policy goals as agreed by governments on Aboriginal and Torres Strait Islander employment, self determination, leadership and empowerment. 

Draft Finding 9.6 Appropriate training and professional development opportunities appear limited 

Governments provide funding for professional development and training for workers in the visual arts and crafts sector. However, only a limited number of targeted training, professional development and support programs are available to existing and aspiring Aboriginal and Torres Strait Islander visual arts and crafts workers and artists. In particular, it is not clear how adequate or accessible professional development opportunities are for independent artists. 

Information request 9.1 • What are the barriers facing Aboriginal and Torres Strait Islander people wishing to develop the skills required for leadership and senior management positions in the visual arts sector? For example, is funding support to study or gain accreditation while away from home a barrier? • Is there merit in establishing an accreditation that formally recognises the practices, skills and knowledges learnt from Elders on Country? • Are the professional development programs offered to arts workers (and independent artists) by art centres, industry service organisations and regional hubs delivering the skills required by the industry? • Are these programs over subscribed? If so by how much? If not, how can art workers be supported to attend? 

Strengthening the sector 

Draft Recommendation 10.3 Australian Government funding should be evaluated to inform future arrangements 

The Australian Government should commission an independent evaluation of the effectiveness of Australian Government expenditure directed to the Aboriginal and Torres Strait Islander visual arts and crafts sector. The scope of the review should include the Indigenous Visual Arts Industry Support (IVAIS) program, the National Indigenous Visual Arts (NIVA) Action Plan and relevant Australia Council programs. This evaluation should be undertaken in partnership with Aboriginal and Torres Strait Islander representatives of the sector, in accordance with the principles of the Productivity Commission’s Indigenous Evaluation Strategy, and be completed by December 2025. The evaluation should consider: • how effectively funding has met existing objectives, and whether these objectives are the right ones • whether and what additional support is required to help meet sector priorities (for example, whether a sector wide Aboriginal and Torres Strait Islander workforce strategy is required) • what aspects of the NIVA Action Plan, such as support for independent artists, should be maintained as part of ongoing government funding to the sector.   

Draft Recommendation 10.4 Aboriginal and Torres Strait Islander people should be part of shared decision-making in setting objectives for government funding for visual arts and crafts 

Under the National Agreement on Closing the Gap, governments committed to build and strengthen the structures that empower Aboriginal and Torres Strait Islander people to share decision making authority with governments. The current approach to determining funding objectives in the Aboriginal and Torres Strait Islander visual arts and crafts sector is not characterised by shared decision making between governments and Aboriginal and Torres Strait Islander people. The Australian Government (led by the Australian Government’s Office for the Arts) should establish a formal shared decision making partnership with Aboriginal and Torres Strait Islander artists and art organisations to help identify funding priorities and strategic initiatives to support growth across the sector. 

Information request 10.1 • What is the best approach to bring together the range of perspectives of the sector to establish a formal shared decision making partnership with government? • Does the sector support the development of a national peak organisation to advocate on behalf of the sector? • What would be required to develop a national peak organisation? How should governments support this process? 

Draft Finding 10.1 The case for an ACCC enforced mandatory or voluntary Indigenous Art Code is not strong Although there is some indication of ongoing unethical conduct in some remote areas of Australia, there is inadequate evidence that this conduct is sufficiently widespread to justify an ACCC enforced voluntary or mandatory code of conduct for the Aboriginal and Torres Strait Islander arts and crafts industry. An industry wide code risks being a blunt and costly tool that would not necessarily address existing shortcomings.   

Draft Recommendation 10.1 The Indigenous Art Code can be strengthened through a joint commitment of government and industry The Australian Government, in partnership with state and territory governments, should modestly increase funding to Indigenous Art Code Limited to support key priorities, including: • an enhanced dispute resolution process, with a referral pathway to independent review of decisions and public reporting of deidentified dispute outcomes • more detailed performance indicators to inform evaluation of the Code’s effectiveness, alongside public reporting of progress. Additional funding should be subject to ongoing monitoring and evaluation of the Code’s effectiveness. Commensurately higher membership fees from dealer members should also be levied to co fund these improvements. 

Draft Recommendation 10.2 Artists should be aware of and able to access legal support services The Australian Government should ensure that legal support services for artists are accessible. Referral pathways should be comprehensive and accessible to independent artists, and promoted such that artists are aware of them. Through its review of the Indigenous Art Code Limited, the Australian Government should assess whether it is the best organisation to undertake this role. Depending on the outcome of that review, the Australian Government should provide funding to the responsible organisation to maintain these referral pathways. 

Information request 8.1 • Are there shortcomings in the processes that governments, large corporations and non government organisations use to purchase Aboriginal and Torres Strait Islander art and design services? • What changes could be made to enable artists to better engage with these procurement processes?

Laundering and Art

The US Treasury has released a Study of the Facilitation of Money Laundering and Terrorist Through the Trade in Works of Art.

The report states

Section 6110(c) of the Anti-Money Laundering Act of 2020, enacted as part of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, directs the U.S. Department of the Treasury to study the facilitation of money laundering (ML) and terror finance (TF) through the trade in works of art (the “Study”). This Study identifies art market participants and sectors of the high-value art market in the United States that may present ML and TF risks to the U.S. financial system. The Study also examines what efforts U.S. government agencies, regulators, and market participants should explore to further mitigate these risks. 

Most art market participants, including some entities that provide financial services within the high-value art market, are not subject to anti-money laundering/countering the financing of terrorism (AML/CFT) obligations. Several qualities inherent to art, the high-value art market, and market participants may make the market attractive for ML by illicit actors. Specifically, the high-dollar values of single transactions, the ease of transportability of works of art, the long-standing culture of privacy in the market (including private sales and transactions), and the increasing use of art as an investment or financial asset, all could make trade in high-value art vulnerable to ML. 

However, the infrequent use of cash in the high-value art market and preexisting requirements for financial institutions and commercial businesses to report high-value cash transactions, both of which are described later in this Study, may make the institutional high-value art market a poor vehicle for laundering illicit cash proceeds. The Study found some evidence of ML risk in the institutional high-value art market but found little evidence of TF risk. Furthermore, the emerging online art market may present new risks, depending on the structure and incentives of certain activity in this sector of the market (i.e., the purchase of non-fungible tokens [NFTs], digital units on an underlying blockchain that can represent ownership of a digital work of art). 

To mitigate these risks, some institutional art market participants, such as certain auction houses and galleries, maintain procedures for conducting due diligence on potential buyers and sellers. Institutional art market participants have inherent economic incentives, such as credit risk issues and reputation maintenance, to collect this information. These good business practices can collect information that may help reduce ML in the art market. However, these programs are purely voluntary, and the procedures can be suspended or disregarded at the institution’s discretion without the risk of the U.S. government (USG) bringing a civil or criminal enforcement action, which presents a vulnerability to the U.S. financial system. These programs are less common in certain areas of the online art market, such as with exchanges that host digital art transactions. Furthermore, illicit actors may attempt to utilize or bribe merchants, professionals, and financial services employees in the art market to ignore policies and best practices for a desired transaction. A significant portion of ML in the high-value art market is likely conducted with the help of such complicit professionals. While the use of complicit professionals is not unique to the art market—it can happen in any profession or service—the historically private nature of the high-value art market makes it more challenging for government authorities to identify and investigate potential ML.

To address these ML risks, the Study considers several regulatory and nonregulatory actions the USG should consider. Nonregulatory options include (1) providing government support for the creation and enhancement of private sector information-sharing programs to encourage transparency among art market participants and (2) updating guidance and training for law enforcement, customs enforcement, and asset recovery agencies. Regulatory options include (1) using targeted recordkeeping and reporting requirements to support information collection and ML activity analyses and (2) applying comprehensive AML/CFT measures to certain art market participants. Weighed against other sectors that pose ML/TF risks, the Study concludes that the art market should not be an immediate focus for the imposition of comprehensive AML/CFT requirements.

On January 1, 2021, the U.S. Congress enacted the Anti-Money Laundering Act of 2020 (the AML Act) as part of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (NDAA). Section 6110 of the AML Act includes several AML/CFT provisions related to antiquities and art. Section 6110(c) of the AML Act directs the U.S. Department of the Treasury (Treasury) to conduct a study of the facilitation of ML and TF through the trade in works of art, including an analysis of the following:

1. The extent to which the facilitation of ML and TF through the trade in works of art may enter or affect the financial system of the United States, including any qualitative or quantitative data or statistics; 

2. An evaluation of which markets, by size, entity type, domestic or international geographical locations, or otherwise, should be subject to any regulations; 

3. The degree to which the regulations, if any, should focus on high-value trade in works of art and on the need to identify the actual purchasers of such works, in addition to the agents or intermediaries acting for or on behalf of such purchasers; 

4. The need, if any, to identify persons who are dealers, advisors, consultants, or any other persons who engage as a business in the trade in works of art; 

5. Whether thresholds and definitions should apply in determining which entities, if any, to regulate; 

6. An evaluation of whether certain exemptions should apply; 

7. Whether information on certain transactions in the trade in works of art has a high degree of usefulness in criminal, tax, or regulatory matters; and 

8. Any other matter the Secretary of the Treasury determines is appropriate.

The report comments 

The global trade in art is a multi-billion-dollar industry. According to The Art Market 2021, a leading industry report published by UBS and Art Basel,2 in 2020, global sales of art were valued at an estimated $50 billion, down from approximately $67 billion worldwide just a few years earlier. This decrease is likely primarily due to the ongoing COVID-19 pandemic. According to the same study, the United States, the United Kingdom, and China account for an estimated 82 percent of global art sales by value, with the U.S. share estimated at 42 percent ($21.3 billion). Headlines consistently identify paintings sold by galleries or at auctions that are valued in the hundreds of millions of dollars. In 2017, Christie’s auction house sold a painting for nearly half a billion dollars, the most expensive sale on record. High-value art has even been purchased by investors speculating with excess capital to allocate, demonstrating the viability of art as an investment asset class. Economic growth, rising purchasing power, and growing disposable income in the global economy are also likely driving factors behind the thriving high-value art market. Technological innovations, such as the rise of distributed ledger technology and NFTs, have presented and continue to present new opportunities for the exploration of creative media, and financial innovations in cross-border payments have allowed the global art market to thrive and expand. 

The substantial number of art-related transactions taking place globally in the high-value art market provides an opportunity for disguising illicit transactions as legitimate commercial transactions. Highnet-worth individuals (HNWI) seek high-value goods or commodities for personal consumption or as an investment. Illicit actors attempting to launder large amounts of illegitimate wealth, such as kleptocrats and drug traffickers, are among those who seek out such possessions or investments. While the risk that high-value art can be a conduit to launder illicit proceeds is long-standing, this Study considers market indicators and case studies of misuse to assess the extent to which the high-value art market attracts illicit finance and whether certain sectors of the market are particularly vulnerable to abuse by criminal actors. The Study also examines what efforts should be undertaken by U.S. government agencies, regulators, and market participants to further mitigate the laundering of illicit proceeds through the high-value art market. 

The high-value art market is the part of the market that is of greatest concern from a ML perspective but represents a limited portion of the broader art market. According to the UBS and Art Basel report, in 2020, less than 20 percent of works sold internationally by art dealers had values over $50,000. Approximately 10 percent of sales by auction houses internationally in 2020 had values over $50,000, but those sales accounted for over 85 percent of the total sales value. 

The high-value art market and art market participants who routinely transact in the type of high-value artworks have certain inherent qualities that make them potentially vulnerable to a range of financial crimes. These qualities include the following:

• The relatively high value of art compared to other retail goods and commodities; 

• The historically opaque nature of the high-value art market; 

• Subjective valuations and the lack of stable and predictable pricing; 

• The transportability of certain types of artworks, including across international borders; 

• The difficulty faced by law enforcement to monitor such movements and assess the value of artwork, including across borders;  and 

• The accepted use of third-party intermediaries to purchase, sell, and hold artwork while their clients remain anonymous (i.e., art dealers, advisors, interior designers, shell companies, trusts). 

For example, in September 2005, Brazilian financial institution Banco Santos went bankrupt, and its owner, Edemar Cid Ferreira, was convicted of bank fraud and ML in Brazil. As part of the case, a Sao Paulo Court judge also ordered the search, seizure, and confiscation of assets that Ferreira, his associates, and members of his family had acquired with unlawfully obtained funds from Banco Santos.  Brazilian authorities ordered the seizure of his art collection, valued at $20 to $30 million, which included high-value works of art. However, when Brazilian law enforcement searched Ferreira’s properties, several of the most valuable works of art were missing. In 2007, a U.S. investigation revealed that one of these high-value works of art had been illegally imported into the United States from a storage facility in the Netherlands with an invoice that valued the work at $100; however, it had been recently appraised for approximately $8 million. 

The Ferreira case highlights the ease of transfer, even across international borders, of high-value art. National border authorities can struggle to identify when high-value works are mis-declared as they lack the specialized experience to detect and appraise high-value art. 

AML/CFT and Other Reporting Requirements in the United States 

In the United States, AML/CFT laws and implementing regulations require that financial institutions establish and implement AML/CFT programs, which generally include the following elements: 

(1) designation of a compliance officer; 

(2) maintenance of a system of internal compliance controls; 

(3) ongoing, relevant training of employees; and 

(4) independent testing and review.  

As part of their AML/CFT programs, certain financial institutions are also required to identify and verify the identity of the beneficial owners of legal entity customers who own, control, and profit from companies when those companies open accounts.   Most financial institutions are also required to file Suspicious Activity Reports (SARs) with Treasury’s Financial Crimes Enforcement Network (FinCEN) when they know, suspect, or have reason to suspect that a transaction or group of transactions involve funds over applicable thresholds that are designed to evade federal reporting requirements, have no business or apparent lawful purpose, involve the use of the financial institution to conduct criminal activity, involve funds derived from illegal activity or are intended or conducted in order to hide or disguise funds or assets derived from illegal activity, or when the financial institution believes the reporting may be relevant to possible violations of the law. 

While banks are defined as financial institutions under FinCEN’s implementing regulations, other participants in the art market are not subject to comprehensive AML/CFT requirements.Although a bank is required to establish and implement an AML/CFT program, including appropriate risk-based procedures for conducting ongoing customer due diligence (CDD), and to file SARs, it is generally the bank’s customers, such as galleries, auction houses, or other art market participants, that are in a position to collect information regarding specific transactions, such as the identities of buyers and sellers and other transaction data. That said, some banks may require some supporting documentation before processing certain payments. In addition to SARs, certain financial institutions must file Currency Transaction Reports whenever a transaction in currency exceeds $10,000. 

Though they are not subject to AML/CFT obligations, participants in the U.S. art market are subject to certain general reporting requirements. First, any person engaged in a trade or business in the United States must file a “Report of Cash Payments Over $10,000 in a Trade or Business” (referred to as the “Form 8300”) for the receipt of more than $10,000 in cash, coins, or certain monetary instruments in one transaction or two or more related transactions (meaning that large currency and monetary instrument transactions are mandated to be reported by art industry participants that are not financial institutions). A Form 8300 may also be filed voluntarily for certain suspicious transactions, even if the total amount does not exceed $10,000. The Form 8300 provides valuable information on the movement and use of cash to the Internal Revenue Service (IRS), FinCEN, and the broader law enforcement community. Second, all U.S. persons must comply with Office of Foreign Assets Control (OFAC) regulations, including all U.S. citizens and lawful permanent residents regardless of where they are located, all individuals and entities within the United States, and all U.S. incorporated entities and their foreign branches.  For some OFAC programs, foreign subsidiaries owned or controlled by U.S. persons also must comply. Since the enactment of the “Berman Amendment,” U.S. sanctions regulations administered by OFAC generally exempt from regulation transactions related to sanctioned jurisdictions that involve “the importation from any country, or the exportation to any country…of any information or informational materials, including but not limited to…artworks.”  OFAC has issued public guidance indicating that it does not interpret this exemption to allow blocked persons or their facilitators to evade sanctions by exchanging financial assets for high-value artwork or vice versa.  OFAC has further noted it will apply its sanctions to transactions involving artworks in which a blocked person has an interest, to the extent the artwork functions primarily as an investment asset or medium of exchange. 

Outreach conducted by Treasury over the course of this Study revealed that while most art market participants are not mandated by federal regulations to maintain AML/CFT programs, many maintain voluntary programs that may include procedures for collecting information on customers. These voluntary programs can include information collection regarding “obtaining the provenance history of the object, requesting identification information from the seller, establishing credibility and plausibility references relating to the seller, referring to publicly available databases and listings relating to the parties to the transaction and the art object respectively, obtaining any relevant and available legal documents, witness declarations, expert opinions as the case may be, and checking the restoration history as appropriate and presenting circumstantial evidence when no direct documentation is available.” Whether the establishment and implementation of these programs are due to inherent art market incentives, such as knowing the customer for credit risk issues or to maintain the reputation of art market participants, adoption of these voluntary programs appears to be a best practice in the industry for high-value art. Additionally, some trade groups that represent auction houses, galleries, or other dealers maintain certain required due diligence policies and procedures that member businesses must adhere to as a membership requirement. That said, all these programs are not legally mandated and can be suspended or amended by the institution or trade group categorically or on a case-by-case basis. Moreover, the lack of regulatory requirements for such programs also means that government authorities cannot take administrative or enforcement actions when such programs are ineffective or nonexistent. 

While some art market participants may provide information in response to informal law enforcement requests, this is at the discretion of individual art market participants. There may be few other legal mechanisms for obtaining customer information other than a subpoena or court order. Based on these facts and the evidence presented throughout the rest of the Study, this report concludes that there is some evidence of ML risk in the high-value art market and little evidence of TF risk.

Shredder

'Law Is in the Bin: New Frontiers in Conceptual Art and Legal Liability' by Katelyn E Doering in (2021) 97 Notre Dame Law Review 441 comments 

Part I of this Note begins with a discussion of who Banksy is and why his work is important to this legal debate, finishing with a detailed description of the features of conceptual art that are relevant for legal analysis and an argument that the shredding stunt – the event itself, not the partially shredded canvas – is a work of conceptual art. Part II argues that the unique features of the shredding stunt, and of future works in the same artistic category, present a novel legal problem both for artists and for buyers. This novel problem is explored through the lens of the legal recourse available to buyers of modern art who become aware at the time of purchase that the artist had different plans for the tangible elements of the work than were communicated prior to purchase. Whether the court adopts the artist’s or the buyer’s definition of the ‘artwork’ is crucial to the resolution of these disputes. Existing law governing sales of artwork indicates that a reviewing court is more likely to side with the buyer. 

In light of the ramifications of the shredding stunt and the new questions it raises, Part III issues recommendations for artists seeking to realize their creative goals and buyers seeking to avoid harm to themselves and liability to third parties. In the absence of formal copyright protection for conceptual artworks, artists can avoid legal action from potential buyers by ensuring they only sell to willing buyers. While this option has adverse consequences for artistic integrity, as risk mitigation is antithetical to the element of surprise at the heart of works like the shredding stunt, artists might need to voluntarily accept this reality as a limitation on their ability to pursue any concepts they desire. Buyers, on the other hand, need to begin scrutinizing art transactions with more caution if they want to avoid becoming unwilling participants in conceptual artworks. In fully evaluating risk, buyers may also be able to rely on industry norms to incentivize artists to be mindful of their interests.

NFTs

'The thousand-and-second tale of NFTs, as foretold by Edgar Allan Poe' by Johanna Gibson in (2021) 11(3) Queen Mary Journal of Intellectual Property 3249–269 comments 

Everything went virtual in 2020, which may or may not have created the perfect storm for the apparent eruption of non-fungible tokens (NFTs) in the mainstream press. Of course, NFTs had been around for several years before this but, in March 2021, seemingly all of a sudden and everywhere at once, they were occupying almost the entire news cycle. Everything was NFTs, which is not bad for something that is nothing. The application of NFTs has continued with considerable momentum in recent months, with NFTs entering high-profile art markets in sales at the top auction houses, including: Christie’s, who sold Beeple, the first NFT based on an art work; Sotheby’s; and Phillips. But NFTs are now well beyond the elite world of contemporary art and moving into the mainstream consumer environments of fashion, film, music, food, publishing, and even architecture. I too am so under their spell, so to speak, that I have even minted my own NFTs into this article ... in a manner of speaking. 

The current excitement has led to a proliferation of commentary and explication (of which this is merely the thousand-and-second), articles teeming with somewhat predictably obligatory references to Walter Benjamin and the age of mechanical reproduction, frenzied denunciations of any connection between NFTs and art, money, property, and everything in between, met with an almost revelational rhetoric of reverence in their defence. The tale of NFTs is indeed an absurdist one. But it is also a tale of detection. It boils down to cryptography ... and it’s a puzzle worth solving. An absurd cryptogram? We need a cryptographer for this strange tale. And who better to ask than Edgar Allan Poe? ...

So much of the noise around NFTs is preoccupied with their perceived nothingness, faddishness, and technomancy; the apparent inconsequence and untethered explanation for their value – afloat, adrift, and unbound. At the same time, so much of the suspicion and fear betrays a certain nostalgia for traditions of ownership, property, and objects, including the traditions of intellectual property and of money. NFTs and the surrounding technology have been described variously as alchemy, snake oil and spin, and even a hoax. And far from democratizing the market, the NFT marketplace has been criticized as nothing more than a secret world of nerds, fortune-hunting, and tricks.  As well as confusion over what is being made, what is being sold, and what is being owned, cryptocurrency itself is notoriously volatile and described as a bubble or a fad, not a permanent development in representative currencies. That one of the newer cryptocurrencies is called Tether  is all too fantastically connected. Balloons and inflations, indeed. Just another block in the chain. 

But in the apparent emergence of NFTs from the elite world of art markets and into the mainstream, the tension between the original work of art and the mass production of consumer markets is persistent. What is the ‘original’ digital art to which the NFT relates, and what does owning that NFT mean? Is it originality in an idea? Is it ownership in an idea? Or is it all smoke and mirrors and nothing more than a date stamp? A contrivance of digital scarcity? Perhaps the joke is a twice-told tale, an originality in repetition, and this is where the real innovation, not only for art but also for ownership, might be found. Indeed, more than a digital provenance, or artificial scarcity, NFTs refer ownership not to the work, but to the encounter, the ritual, the communication itself. In this way, a multitude of NFTs might relate to one work, but what is repro- duced and yet produced anew each time is ownership in the original and unique encounter. In other words, the scarcity is not in the work but in each item of attention on the work. I would therefore disagree that the brand of digital scarcity created by NFTs is somehow at odds with the philosophy of the Internet. It is immaterial, quite literally, that Jack Dorsey’s tweet is still available, free as air even. NFTs place the value elsewhere, and bring res familiaris into play, a sociable property of affiliation and sympathy, as distinct from the rivalrous combat and traditional property lines of objects. As for the object, the NFT is a notice for taking; the objects proliferate because there is nothing for trade but preference. In other words, the competition is for attention – but not on the work or product amidst a sea of objects, as much as it is on the relationship between creator and buyer. Rather than scarcity, the value is generated through an abundance of encounters and an ownership of preferences: ‘This image is not an artwork, it is a description of an artwork. The artwork is how you feel when you read this’. No, an NFT is not art, at least not in the conventional, marketable sense. But the ritual may well be.

Deplatforming

The NY Times reports on deplatforming at the Metropolitan Museum of Art, stating that the Met and the Sackler family 

jointly announced on Thursday that the Sackler name would be removed from seven exhibition spaces, including the wing that houses the Temple of Dendur. 

“Our families have always strongly supported the Met, and we believe this to be in the best interest of the museum and the important mission that it serves,” the descendants of Dr. Mortimer Sackler and Dr. Raymond Sackler said in a statement. “The earliest of these gifts were made almost 50 years ago, and now we are passing the torch to others who might wish to step forward to support the museum.” ... 

Other museums have refused Sackler money, such as the Serpentine Gallery in London, and some were quicker to remove the Sackler name, including the Louvre in Paris. But since the Met is a leader in the field, its announcement is likely to make more institutions reconsider their own Sackler galleries.  ...

The museum had already severed ties to the family’s funding, announcing in 2019 that it would no longer accept gifts from the Sacklers, given their links to the maker of OxyContin. 

Two spaces at the Met will continue to bear their Sackler names: the Arthur M. Sackler Gallery in the Asian wing and the Marietta Lutze Sackler Gallery in the Modern and contemporary wing (which will presumably carry over into its renovation). 

While the Met would not explain this, both galleries are associated with the family of Arthur Sackler, who died in 1987 before OxyContin’s creation. His side of the family, which has supported institutions like the Smithsonian and the Brooklyn Museum, sold his stake in the pharmaceutical business after his death. 

“The Met has been built by the philanthropy of generations of donors — and the Sacklers have been among our most generous supporters,” said Dan Weiss, the Met’s president and chief executive officer. “This gracious gesture by the Sacklers aids the museum in continuing to serve this and future generations. We greatly appreciate it.” 

In the immediate aftermath of the Met’s announcement, several other museums with Sackler-named spaces said they currently had no similar plans, including the National Gallery in London — where the Sackler Room contains some of the museum’s most prized works — and the Victoria & Albert Museum, whose entrance is named the Sackler Courtyard.

Indigenous Arts

The Treasurer has announced a Productivity Commission inquiry into the nature and structure of the markets for Aboriginal and Torres Strait Islander Visual Arts and Crafts alongside policies to address deficiencies in these markets. 

The announcement states - 

 The Australian Government recognises that art is an important way for Aboriginal and Torres Strait Islander peoples to tell stories, share and strengthen cultures and connection to Country, promote understanding of history, strengthen communities, and expand economic opportunities. Aboriginal and Torres Strait Islander art is a vital part of Australia's identity and makes a large contribution to the economy. A significant and increasing proportion of products in the 'style' of Aboriginal and Torres Strait Islander arts and crafts that are sold in Australia are imitations that do not have any connection to Aboriginal and Torres Strait Islander peoples and provide no economic benefit to their communities. These products cause offence and harm to Aboriginal and Torres Strait Islander peoples and cultures and mislead consumers. The House of Representatives Report on the impact of inauthentic art and craft in the style of First Nations peoples (the Report), tabled in 2018, found that there is a lack of information and analysis on the markets for Aboriginal and Torres Strait Islander arts and crafts. Recommendation 1 of the report stated: The committee recommends as a matter of urgency that the Productivity Commission conducts a comprehensive inquiry into the value and structure of the current markets for First Nations art and crafts. The Government Response to this Report was tabled in Parliament on 2 September 2020. The Government agreed to Recommendation 1 of the Report, stating: The Government will commission a Productivity Commission study into the nature and structure of the markets for Aboriginal and Torres Strait Islander arts and crafts and policies to address deficiencies in these markets.

The Commission is asked to 

examine the value, nature and structure of the markets for Aboriginal and Torres Strait Islander arts and crafts and policies to address deficiencies in the markets. 

In undertaking the study, the Commission should:

• examine the nature and structure of the different parts of the domestic and international markets including authentic and inauthentic products 

• identify deficiencies and barriers in the markets and how they affect artists and other stakeholders 

• assess costs, benefits, governance arrangements, risks, practicalities and implementation challenges of any policy responses.

In doing so, the Commission should have regard to:

3.1. both regulatory and non-regulatory responses to the problems in the relevant markets, including education and social marketing measures, labelling and other certification arrangements, industry codes and the role of existing consumer and intellectual property laws 

3.2. the impacts on Aboriginal and Torres Strait Islander artists, and more broadly, the Australian Indigenous and the wider community from policy and regulatory reform 

3.3. the advantages and disadvantages of current initiatives that intend to remedy problems in the Aboriginal and Torres Strait Islander art and craft markets, and the lessons that can be learnt from them 

3.4. proposing possible policy and regulatory responses to address the identified deficiencies in the markets 

3.5. where it is feasible, indicate any quantitative estimates of the benefits, costs and commercial impacts of policy reforms.

In undertaking this research, the Commission should also consider: House of Representatives Standing Committee reports, including the Indigenous Affairs inquiry into the impact of inauthentic art and craft in the style of First Nations peoples and submissions received as part of the development of the Indigenous Visual Arts Industry Action Plan being led by the Australian Government and to be released in the first half of 2021.

Personhood and Simian Copyright

'Why A Monkey's Action of taking a Selfie should expand the definition of Author in the Copyright Act' by David Schneider in (2018) 34(4) Touro Law Review 1350 comments

In 2011, wildlife photographer David Slater set up a camera on an island in Indonesia and hoped to capture a picture of the Celebes Crested Macaque, an endangered monkey species indigenous to Indonesia.  Naruto, a six-year old Celebes Crested Macaque, came upon Slater’s camera and took multiple pictures of himself.  Naruto, considered “highly intelligent,” familiarized himself with the operation of the camera by observing humans who used the camera. Multiple parties, including the parties who filed a lawsuit on Naruto’s behalf, claimed copyright to one particular photograph, informally known as the “Monkey Selfie.” Subsequently, the People for the Ethical Treatment of Animals (hereinafter “PETA”) and Antje Engelhardt filed a complaint against Slater in the United States District Court for the Northern District of California alleging that Slater infringed Naruto’s copyright in the photograph.  The court granted Slater’s motion to dismiss because “the Copyright Act [did] not confer standing upon animals like Naruto.”  

The Copyright Act (hereinafter “the Act”) does not specifically define who is protected by copyright.7 Rather, the Act broadly states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”  Congress enacted the Copyright Act of 1976 to preserve and promote artistic creations by giving legal recourse to those whose work is copied and exploited. Although the Act does not specifically identify those entitled to copyright protection, based on a combination of case law precedent and the United States Copyright Office’s interpretation of the Act, courts have refused to recognize that higher intelligence animals, such as monkeys, can create original works of authorship fixed in tangible media of expression, such as photographs. However, such interpretation of the Act directly conflicts with Congress’s overall intent when it implemented the copyright system in the United States. 

Animals can create new works of art, which should be protected by copyright to prevent humans from exploiting them for personal profit. Because of the combination of ever-increasing public interest in protecting animals and their rights with scientific discoveries based on the intelligence of animals, animals should be afforded similar protections in copyright as humans. Courts should expand the definition of “works of authorship” to include works created by higher intelligence animals, such as monkeys, dolphins, pigs, crows, raccoons, and elephants, who have demonstrated that they can communicate with humans in some form or another and understand human technology. 

Part II of this Note introduces the case Naruto v. Slater, which PETA and Engelhardt brought in the Northern District of California on behalf of Naruto. This Part also discusses the subsequent history of the case, which includes an appeal and settlement. Part III examines the Copyright Act of 1976 and analyzes Congress’s intent when it enacted the statute. This Part also explains why courts should interpret the statute to protect original works of authorship in animals. Part IV argues that courts should disregard the Copyright Compendium’s interpretation that an author needs to be a human being. Part V discusses the Northern District of California’s flawed reasoning in Naruto. Part VI discusses recommendations for courts to use in the future when dealing with similar animal rights issues. Part VII evaluates the Copyright Act and provides examples where the Act itself provides protections for animals. Finally, Part VIII concludes that animals should be permitted to bring copyright infringement lawsuits because they can create original works of authorship.

Cultures

I occasionally allow myself to step away from writing about data protection (privacy, confidentiality, secrecy) and health sector regulation by taking a walk on the wild side. Here's the abstract from a presentation at Griffith Law School earlier this week and associated book chapter.

Bullies, Blokes and Buggery: Homosociality, Justice and Male Rape through an Australian lens 

The depiction in Australian cinema of male-on-male sexual assault offers a lens for understanding homosociality and justice within Australia and across the globe. 

Male rape – an assault that objectifies the victim and valorises the perpetrator as both powerful and outside the rules – is a recurring but largely unrecognised feature of the Australian screen. It is evident in for example iconic works such as Wake in Fright (1971), The Chant of Jimmie Blacksmith (1978), Mad Max (1979) and Ghosts of the Civil Dead (1988). Those works often use a distinctly Australian landscape, one that is recognisably not the American West or Scandinavia. 

They involve brutality in an environment in which legal authority – conventions about rules and remedies – is absent, weak or indifferent. It is an environment in which bystanders, the homosocial ‘mates’ whose deepest emotional relationships are with each other, are contemptuous or even amused by the ‘unmanning’ of a victim through force or intoxication, placed outside their brotherhood and without the redemptive ending in for example The Shawshank Redemption (1994). 

The chapter suggests that the films offer a view of belonging, power and exclusion that is at odds with the celebration of difference in Priscilla, Queen of the Desert (1994) or Holding The Man (2015) and with adventures such as Deliverance (1972). If ‘mateship’ is a distinctively, although increasingly fictive, Australian value the films offer a dark view of complicity and violence within the sunburnt country, a land of sweeping plains, kangaroos and eyes wide shut to brutality. At a global level they tell us something interesting about anxieties at the heart of manhood and about the efficacy of law where victimisation excludes men from justice.

En route I caught up with 'Biohacking by Ali K. Yetisen in (2018) 36(8) Trends in Biotechnology 744.

Yetisen comments

Biohacking is a do-it-yourself citizen science merging body modification with technology.The motivations of biohackers include cybernetic exploration, personal data acquisition, and advocating for privacy rights and open-source medicine. The emergence of a bio-hacking community has influenced discussions of cultural values,medical ethics, safety, and con-sent in transhumanist technology. 

Epidermal electronics, biosensors, and artificial intelligence have converged as healthcare technologies to monitor patients in point-of-care settings within the Internet of Things (IoT). These technologies have created a community of hobbyist software developers involved in the quantified-self movement. The self-experimentalist community is primarily interested in tracking their daily physical and biochemical activities to build a library of personal informatics in order to main-tain a healthy lifestyle or improve body performance. The growing interest in this‘tech-savvy’community has motivated questioning the possibility of experimenting with implantable technologies. The emergence of implantables for biometric animal identification has encouraged self-experimentalists to chipify themselves in order to interact with computers in the IoT. Inspired by transhumanism, which advocates the enhancement of human body and intelligence by technology,the overlap between self-experimentation and medical implant domains has created a vision to modify the human body and document their experiences in social media for open-source medicine. 

The movement of biohacking has begun with a self-experimentation project(Cyborg 1.0, 1998) of Kevin Warwick who implanted a radio frequency identification (RFID) tag to his arm in order to control electronic devices. In another experiment, a multielectrode array was implanted in Warwick’s arm to create a neural interface, which allowed controlling a robotic arm and establishing telepathy system with another human implantee via the Internet. Self-experimentation with biomaterials has also been popularized with the performance art works of Stelarc,who had a scaffold implanted in his arm (Third Ear, 2007). The synergy of cybernetics, biopunk, and citizen science has led to the formation of a media-activist biohacking community. Figures in this transhumanist community include Amal Graafstra (tagger), Tim Cannon, LephtAnonym, and Neil Harbisson. These technology activists, also known as grinders,implant chips in their bodies or have them implanted. Their primary motivations include human–electronic device communication and self-quantification, and cosmetic enhancement[. Another over-arching goal of this community is to increase scientific literacy as citizen scientists. The biohacking community is actively engaged in the development of off-the-shelf protocols at low cost, open access research and collaboration by creating individual pursuit of inquiry. Bio-hackers document and share their protocols, equipment designs, and experiences on the Internet

The article has a useful inventory of implants.

'The Security Implications of Synthetic Biology' by Gigi Gronvall, a more insightful piece in (2018) 60(4) Survival: Global Politics and Strategy 165-180, comments

Advances in synthetic biology hold great promise, but to minimise security threats, national and international regulation will need to keep pace. Consumers have grown accustomed to personalised products. There are T-shirts made to order, books printed on demand, music-streaming services that cater to individual tastes, personalised news feeds and lists of suggested apps. 

This trend towards personalisation has even been extended to biology: genetic information and biological techniques can now be used by individuals to meet their personal needs. Biological information, such as the number of steps one takes in a day, one's heart rate or one's genetic code, has become trackable, and can be compiled for individualised purposes. Biological laboratory techniques, once the sole purview of scientific professionals, are likewise becoming increasingly accessible to amateurs, yielding information such as what a person eats or where they live. The trend towards the personalisation of biology would not be possible without synthetic biology, a growing technical field that aims to make biology easier to engineer. Synthetic biology is widely seen as an exciting new branch of the life sciences, but can be difficult to define  One group of researchers has described synthetic biology as ‘a) the design and fabrication of biological components and systems that do not already exist in the natural world and b) the re-design and fabrication of existing biological systems’. Others define synthetic biology in terms of what the field aims to do: make biology easier to engineer. While bioengineering has been around for a while, synthetic biology is more powerful: it has been described as ‘genetic engineering on steroids’ by one of its founding practitioners. Synthetic-biology tools, such as CRISPR (clustered regularly interspaced short palindromic repeats) for gene editing, gene synthesis and gene drives, are being used in a wide range of life sciences.

Scientists working in synthetic biology envision a time when biological traits, functions and products may be programmed like a computer. While there is a great deal of research yet to be done to allow for this, the convergence of high-speed computing power, intense research interest and some early commercial successes during the last decade has spurred the growth of the field. Publications about synthetic biology have increased from 170 per year in 2000–05 to more than 1,200 per year in 2015 More than 700 research organisations in over 40 countries are undertaking work in the field.

One major outcome of this growth is that biology is becoming industrialised. While biological processes have long been used in industrial settings – for example, to produce some medicines and vaccines, as well as certain consumer products such as beer and wine – they are increasingly being exploited for manufacturing, replacing the use of petrochemicals and resource-intensive harvesting from nature. Synthetic biology is now used to alter the internal machinery of microbes so that they produce a variety of desired molecules, from biofuels to flavour compounds to pharmaceuticals.  This has expanded the biological footprint of a range of industries including fuel, agriculture, medicines and mining, and of products such as construction materials, perfumes, fibres and adhesives. The economic implications of synthetic biology are vast and growing: the global market was valued at $3.9 billion in 2016, and is anticipated to grow at an annual rate of 24.4% to reach over $11bn by 2021. McKinsey and Company has reported that the total economic impact of synthetic biology, including applications in energy, agriculture and chemicals, could reach $700bn to $1.6 trillion annually by 2025.

While clearly useful on an industrial scale, synthetic biology can also be useful to individuals. It can yield information that would never merit a traditional research grant from the National Institutes of Health (NIH) or the Wellcome Trust. In contrast to the research funded by agencies like these, which is intended to foster benefits at a societal level, personalisation allows for the acquisition of information and products that are immediately useful to particular individuals. Scientific advances and the democratisation of synthetic biology should bring about an exciting future, but will also lead to changes in national and international security, the governance of biological research, and safety. 

Do-it-yourself biology 

Synthetic biology has already produced one of the most promising developments in cancer treatments for years, known as chimeric antigen receptor T-cell therapy, or CAR-T therapies.  In this treatment, a patient's own T cells are altered in a laboratory so that they will attack cancer cells. The Food and Drug Administration (FDA) has approved two CAR-T therapies, one to treat children with acute lymphoblastic leukaemia and the other to treat adults with advanced lymphomas. The complete remission rate in a trial of 100 adults with refractory or relapsed large B-cell lymphoma was 51%. 

The trend towards the personalisation of biology is not limited to FDA-approved therapies, but is also in the hands of individuals curious about their own bodies. There is intense public interest in harvesting and making sense of personal biological information from health-monitoring devices.  Services like 23andMe and Ancestry.com provide clients with detailed genetic information, including clues – and sometimes surprises – about their ancestry. Their users can find out whether they potentially have a higher likelihood of developing breast cancer (as established by the presence of BRCA genes) or Parkinson's disease. 

PatientsLikeMe is another example of a service generating personalised health information. On this for-profit site, people who suffer from one or more of 2,800 listed conditions share their medical data and reactions to investigational drugs. The company claims that patients who use their service will learn more about their medications and conditions, make connections with others who share their illnesses, and ultimately ‘change the future of personalised health’.  The data provided to this site has led to original published research, and to the development of an easier way to enrol patients in clinical studies.  

Non-traditional research environments, including home- or community-based laboratories, are becoming more common, an approach that has been called DIY Bio (do-it-yourself biology), bio-hacking or citizen science. Community laboratories where bio enthusiasts can gather and work together, alongside many more DIY communities that lack laboratory space, have been established in New York, Boston, Seattle, San Francisco and Baltimore – as well as in Budapest, Manchester, Munich, Paris and Prague.  According to DIYBio.org, a charitable organisation formed with the mission of ‘establishing a vibrant, productive and safe community of DIY biologists’, there were 44 DIY Bio groups across the US and Canada, 31 in Europe, and 17 in Asia, South America and Oceania as of early June 2018.  These laboratories, which typically charge membership fees to purchase equipment, are dedicated to making science accessible and frequently offer educational programmes. 

The Baltimore Underground Science Space (BUGSS), for example, recently held a class for people aged ten and up to learn about bioluminescence in bacteria, during which a gadget was built that puffs air into bacterial cultures to make the bacteria glow.  Participants were directed to take a stool sample at home and to quickly inactivate it so that no living microbes were brought into the laboratory. At the lab, the participants attempted to use polymerase chain reaction (PCR) to amplify the DNA of the microbes so as to identify them. Participants could also compare samples taken before and after embarking on a diet, or of two different people. 

In the hands of amateurs, straightforward ‘DNA-barcoding’ techniques can be used to determine whether purchased sushi is actually made from the species advertised.  Other techniques can be used to detect the presence of melamine, a poison, in baby formula.  The ease of use offered by such technologies has inspired new biological services as well. For instance, apartment-complex owners have required stool samples from tenants’ pets to genetically identify them, for the purpose of identifying and deterring those who do not pick up after them.

The pipeline for non-traditional biological exploration is expanding, thanks to iGEM, the International Genetically Engineered Machine competition. iGEM began more than a decade ago as a class offered at the Massachusetts Institute of Technology (MIT) in Cambridge, MA, that was modelled on robotics competitions intended to draw students into engineering fields.  In iGEM competitions, teams comprising undergraduates from around the world are given a kit of standard biological parts called BioBricks. Over a summer, and with the help of instructors, the teams use the parts and others they create to engineer biological systems and operate them within living cells. The competition has grown from involving fewer than two dozen undergraduates in its early years to drawing more than 6,000 undergraduates, high-school students, DIY Bio practitioners and ‘overgrads’ per year from more than 40 countries, with 30,000 alumni having already participated. Many of the projects aim to tackle real-world problems and to develop solutions that can be used in low-resource settings, such as a bacteria-produced blood substitute that may be stored for long periods. 

As people acquire more biological information about their environment, they will increasingly have the opportunity to make more personalised and biologically informed choices to improve their health, pursue new hobbies and even care for new types of pets. While these are positive outcomes, there is also the potential for negative outcomes, given the possibility that synthetic biology could be misused to cause deliberate harm. There will also be many new opportunities for quackery and dangerous self-experimentation that could spread via social media and thus become a contagious phenomenon. Biological safety practices will be challenged, and there could be some unwelcome surprises