CASE STUDY 1: BULUN

BULUN CASE
Individual Copyright v. Community Copyright

AUGUST 15, 2016

TAVISHI SRIVASTAVA
SYMBIOSIS LAW SCHOOL PUNE
B.A LL.B (V)
 Case Study 1: John Bulun Bulun & Milpurrurru (M*) v. R&T Textiles, [1998] ALR 157

Facts:

The 1998 case on relationship between an individual’s copyright and the community’s
traditional knowledge began with the unauthorised reproduction of artist Bulun Bulun’s 1978
bark painting ‘Magpie Geese and Water Lilies at the Waterhole’ as a fabric print in Indonesia
which was imported into Australia. Applicant 1-Bulun Bulun, brought action against
Respondent 1- R & T Textiles Pvt. Ltd., for breach of his copyright over the painting. Applicant
2, a senior clan elder, M*1 acting as representative of the Ganalbingu tribe of the Yolngu people
of North Central Arnhem land, also brought proceedings claiming his equitable right in the
copyright subsisting on the painting.

As was required by the traditions of the Ganalbingu community, Bulun Bulun created
the painting only after taking prior permission of the senior members of the community. He
later sold the work to Maningrida Arts and Crafts Centre, where it was sold to the Northern
Territory Museum of Arts and Sciences. The work was also reproduced with Bulun Bulun’s
consent in a book by Jennifer Isaacs, Art of The Dreaming- Australia’s Living Heritage.
However, he never gave authorisation to reproduce his works on fabric.

R & T Textiles immediately acquiesced to the fact that they had indeed infringed upon
the copyright of Bulun Bulun but stated that they were unaware of such ownership of the artistic
work. The infringement was immediately curtailed by the Respondent’s withdrawing the fabric
from the market. Approximately 7,600 metres of the fabric had been imported and
approximately 4,200 metres had been sold.2 While it was settled that Bulun was entitled to
damages from the infringement of copyright, the case dealt into the question of whether Mr. M
as the representative of the Ganalbingu community, was also entitled to damages.

Issues:

(i) Whether the Ganalbingu people have a copyright over the works of Bulun in the context of
him being a trustee

(ii) Whether the Ganalbingu community has an equitable interest in the works of Bulun.

Rule:

1
Applicant 2 has been referred to as M hereon on account of his demise.
2
Ms. Terri Janke, “MINDING CULTURE CASE STUDIES ON INTELLECTUAL PROPERTY AND TRADITIONAL
CULTURAL EXPRESSIONS” 2003 http://www.wipo.int/edocs/pubdocs/en/tk/781/wipo_pub_781.pdf (Accessed
on: August 16, 2016)
 Case Study 1: John Bulun Bulun & Milpurrurru (M*) v. R&T Textiles, [1998] ALR 157

 Section 35(2) of the Copyright Act 1968, (“the Act”) provides that the author of an
artistic work is the owner of the copyright which subsists by virtue of the Act.
 Section 10(1) of the Act states that a “work of joint authorship” means a work that has
been produced by the collaboration of two or more authors and in which the
contribution of each author is not separate from the contribution of the other author or
the contributions of the other authors.

Argument by Applicant 2, Mr. M:

It was argued that the artistic work of Mr. Bulun incorporated the traditional knowledge of the
Ganalbingu community. In his affidavits, Mr. Bulun admitted that his creation was to be in
accordance with Ganalbingu custom and decisions on what form the work would be reproduced
in was also to be taken by first discussing with the community. Pursuant to the relationship
between Bulun and Mr. M, the latter was entitled to an equitable interest in the copyright of
the artistic work and therefore he too could claim damages.

Argument by Respondent, R & T Textiles Pvt. Ltd.:

Even though Bulun is entitled to claim copyright infringement over his works, the Ganalbingu
community is not. The statutes are clear that a copyright over a work only exists with the
individual who has created it unless it’s a work of joint authorship u/s 10 (1) of the Act. As the
Ganalbingu community did not create the painting alongwith Bulun, they cannot claim relief
for copyright infringement.

Held:

The Court dismissed M’s claim for equitable ownership, stating that unless the artistic work is
a work of joint ownership i.e. unless the Gunulbingu community created the work alongwith
Bulun, they would not be entitled to copyright protection.

It was held by Justice Von Doussa that under customary law, Bulun had a fiduciary relationship
with the community. However, even though Bulun shared a fiduciary relationship with the
Ganalbingu community and was indeed their trustee, this could not be interpreted to widen the
ambit of copyright ownership. Further, Bulun had fulfilled his fiduciary duties by taking action
against the infringer of copyright- Respondent 1 and thus no relief could be sought by them.
He had preserved the integrity of their culture and ritual knowledge.
 Case Study 1: John Bulun Bulun & Milpurrurru (M*) v. R&T Textiles, [1998] ALR 157

The right to equitable interest of the Ganalbingu community did exist and could only be
invoked if Bulun was gaining some unconscionable benefit out of the traditional knowledge
that he gained from the community. However, in this case Bulun himself took permission from
the community to create the painting and deliberated on the reproduction of his copyright in
other forms. Equitable interest cannot be claimed to receive additional remedy for an
infringement action.

The question of whether the community would have copyright over the painting by virtue of
perpetuity of traditional knowledge or under common law principles was considered. However,
to grant them copyright under these principles would mean to go against the provisions of the
Australian legal statute by conferring such right over them where it is not recognised under the
letter of law.

Analysis and Conclusion:

The judgment is a landmark one as it was the first time that the obligations under aboriginal
law of preserving traditional knowledge were intertwined with fiduciary obligations under
Australian law. Even though the Court did not decide in favour of the community, it upheld the
values of traditional knowledge and in no way undermined them. It exuded the message that
when a person acts as a trustee for a community, and has drawn inspiration from the traditional
knowledge of the community itself, it is his responsibility to preserve, protect and uphold the
integrity and values of the community. The bottom-line is that the right over a particular work
of creation must not be exploited and should be rightly provided to the people who actually
create it and not merely provide inspiration for such creation.