Legislation to protect Indigenous intellectual property as fakes explode online

A lengthy consultation process with First Nations experts has identified counterfeit art and AI as serious threats to Indigenous artists and creatives.

Indigenous artist Emma Hollingsworth recently discovered one of her paintings ('Guiding Light') was being sold by unauthorised sellers on Temu for $5. Picture: Lyndon Mechielsen / The Australian

The intellectual property of Indigenous artists and creatives will be protected from copyright frauds and artificial intelligence under new legislation being drafted by the Albanese government.

Almost $15m has been committed to develop the legislation in collaboration with First Nations experts under the Revive National Cultural Policy, announced in 2023, with the subsequent consultation process identifying the proliferation of fake art as a serious issue.

It follows reporting by The Australian that potentially thousands of counterfeit Indigenous artworks are being sold on Temu for as little as $5.

Kaanju, Kuku Ya’u and Girramay artist Emma Hollingsworth – whose original painting, Guiding Light, was listed on the Chinese-owned online marketplace for a fraction of the true cost – told The Australian the government must do more to protect Australian intellectual property.

“Whether it’s Indigenous or non-Indigenous art, it definitely needs to be policed,” she said.

“It’s so hard to make a living as an artist and it’s (the government’s) responsibility to be tough on it.”

A spokesperson for the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts told The Australian the government recognises the risk posed to Indigenous Cultural and Intellectual Property by AI and counterfeit art.

“These concerns are being considered as part of our commitment to introduce new laws to protect ICIP, including to address the harm caused by fake art, merchandise and souvenirs,” they said.

“Artificial intelligence and emerging technologies were key themes identified for discussion as part of consultation conducted in 2024.”

Hollingsworth's painting titled 'Guiding Light' for sale on TEMU without permission.

The department established the Aboriginal and Torres Strait Islander Expert Working Group on Indigenous Cultural and Intellectual Property to ensure the new legislation is underpinned by First Nations expertise and lived experience.

“The group brings together Aboriginal and Torres Strait Islander experts to work with representatives from Australian government departments to collaborate in the development of the stand-alone legislation to protect ICIP,” the spokesperson said.

The department did not say if it will crack down on Temu for rampant infringement of Australian and Indigenous intellectual property.

Temu is owned by a Delaware-based subsidiary of Chinese e-commerce company PDD Holdings, meaning its terms of use fall under US law. Because the majority of the counterfeit listings are made by third-party sellers, the company has immunity from liability and is not required to proactively moderate product listings.

The company previously told The Australian it takes intellectual property protection seriously and encouraged rights holders to report violations through its IP Protection Portal but declined to say if Indigenous and Australian artists whose works were illegally sold on the platform would be compensated for theft of their intellectual property.

A Productivity Commission report in August suggested watering down copyright laws so generative AI platforms can be trained on Australian art, literature, film and music.

Indigenous artwork being stolen then used by cheap online retailers like TEMU without copyright consent from the artists.

The PC report argued tech companies such as Google, Meta, OpenAI, Microsoft and Amazon are already leveraging gaps in the legislation to fuel their AI capabilities, and said embracing the technology rather than regulating it could “spark growth” in the national economy.

In an approach championed by Atlassian co-founder Scott Farquhar, tech companies would be offered a fair dealing exception to mine text and data, meaning artists and creatives wouldn’t be paid for the use of their intellectual property.

“Australia’s copyright laws are out of sync with the rest of the world,” Mr Farquhar said in an address to the National Press Club in July.

“Today, large language model providers don’t want to train their models in Australia.

“We are in a perverse situation where copyright holders aren’t seeing any more money, but we also don’t see the economic upside of training models in Australia.”

Musicians Peter Garrett and Missy Higgins blasted the Productivity Commission proposal as “shameful”.

“The rampant opportunism of Big Tech aiming to pillage other people’s work for their own profit is galling and shameful,” Garrett told The Australian in August.

Treasurer Jim Chalmers, whose economic roundtable precipitated the suggestion, said the Albanese Labor government had no plans to water down copyright laws.

“And as the Attorney-General (Michelle Rowland) rightly pointed out … there’s already a process to manage the complexities,” Dr Chalmers told the ABC.

“But we really value the contribution made to our society by artists and musicians, content creators, journalists and others. And so we come to these important considerations in that light.”

The Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts spokesperson told The Australian the department is collaborating with other government departments on the path forward.

“The Office for the Arts is working closely with a number of other government agencies to determine the best way forward to address the concerns around AI raised by the broader creative industries sector,” the spokesperson said.