Addressing Cultural Difference in Indigenous Copyright Cases

This article presents and discusses two different ways through which the Ganalbingu people (Australia) addressed cultural differences in the normative conceptualisation of artworks in a judicial setting. The analysis focuses on linguistic conduct held by the plaintiffs, their representatives, and expert witnesses in two cases discussed before the Australian Federal Court (Northern Territory): Bulun Bulun v Nejlam Pty Ltd (1989) and Bulun Bulun v R & T Textiles Pty Ltd (1998). In both cases, Ganalbingu artist Johnny Bulun Bulun lamented a violation of his copyright in two paintings. This article mostly relies on affidavits and judicial documentation, and aims to show and attempts to explain the existence of two opposed tendencies in the judicial narrative on copyright law: namely, an enforced (attempt to) assimilation of Ganalbingu culture to the Western legal categories of (intellectual) property and copyright law, however simultaneously ’insisting on difference’, that is emphasising the fundamental distinctions between Ganalbingu and Western normative conception of artworks. The article particularly enlightens the impact on the Ganalbingu judicial narrative of anthropological accounts rendered through affidavits, especially in one of the two cases in which Bulun Bulun was involved. After investigating the nature and function of those accounts, it concludes that several factors can explain the seemingly ambivalent nature of Ganalbingu linguistic conduct, ranging from a ‘spurious’ nature of misappropriated artworks to forms of resistance to an unbalance of power potentially leading to unwanted colonisation.