Introduction
Indigenous traditional knowledge, culture and resources make up and extremely valuable and diverse section of the Australian culture, tourist and art industries. The indigenous art market alone is estimated at between $100-300 million . However, this valuable intellectual and cultural property has historically suffered significantly less protection than its western counterparts. Following a number of high profile cases, this issue was brought to the forefront of legal debate in Australia from the 1960s onward. As a result of a number of key qualities of this kind of indigenous knowledge and art it does not conform to the requirements of western intellectual property (IP). This means that it can ‘easily be misappropriated, because existing IP rights do not adequately protect it’ . It is well established that the legal landscape needs changed to account for this failure to protect – but this is easier said than done. A variety of solutions have been proposed and explored, but the indigenous rights under IP are still far from equal. Through a focus on Copyright legislation, this pieces aims to demonstrate that WHAT DO YOU AIM TO DEMONSTRATE?
Part 1: The IP system and its conflicts with indigenous material
Historically, customary law protected indigenous interests in intellectual and cultural property. This allowed appropriate care and respect to the cultural heritage and significance of the art, practices and resources. As is discussed in the following, the current modern IP system does not adequately protect the uniqueness of a system ‘riddled with cultural dynamics and complexities’ .
1.1 A matter of principle
The existing system of intellectual property rights (IPRs) is very Western, and stemmed from early Europ...
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...p in the right direction.
Another potential amendment to the legal landscape could be to the resale royalty rights. As above, the overwhelming issue with this otherwise successful scheme is the lack of recognition of a community-based right. As mentioned previously (Part 1.2) it has previously been suggested that such a right be recognised to overcome high morality and intestacy rates in indigenous communities.
In recent case law, the judiciary have begun to acknowledge a series of methods of attempting to recognise and enforce indigenous rights within the statutory framework. Some of these ideas could be recognised and channelled into reform.
Whilst it has been established that copyright does not protect indigenous themes, nor the general look and style of the art work the Australian Competition and Consumer Commission (ACCC) have been exploring methods of
The validity of British’s occupation of Australia has been fundamentally shaken. The decision protected Aboriginal people’s cultures and lifestyles to a certain degree. Moreover, it guaranteed that some of the lands they live will not be developed. There were five key issues of importance to legal precedent in the Mabo decision for the recognition of Indigenous peoples’ rights in Australia (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2017). For example, it helps to promote the idea of non-discrimination. From then on, a series of laws had been introduced to help safeguard their standard legal rights and
The two forms of traditional Aboriginal law were ‘sacred’ and ‘secular’ laws. Sacred laws were entrusted to the elders, teaching Aboriginal customs, acceptable behaviour, and adequate use of the land. Secular laws focused on the responsibilities of individuals. There were also ‘secret’ laws and different people...
Kent Monkman is an artist of ‘Aboriginal and Irish descent’ (Filgiano) who was commissioned to create a large scale Acrylic on canvas, measuring 72” x 108”.“The Academy” is a parody piece which makes reference to art created in the European tradition, alongside Aboriginal art and artifacts. It hangs in the Museum Gallery alongside some of the very pieces that are featured within it. It’s as though Monkman is playfully gossiping about his neighbors in the Gallery, both figuratively and literally. While his work is significant enough to hang in the Gallery alongside these other masterworks, Monkman makes a tongue-in-cheek observation that Academy work has historically been regarded as the only legitimate Fine Art. Traditionally, Aboriginal Art and Artifacts have been confined to separate exhibits or ancillary displays, but never alongside classical European pieces. The piece makes reference to a vast...
Indigenous Australian artist Gordon Bennett re-contextualises the work of Colin McCahon by borrowing and transforming key visual features. Bennett’s work challenges the viewer and gives them an alternative perspective of the culture and identity of Indigenous Australians. The quote by The National Gallery of Victoria states, “Often describing his own practice of borrowing images as ‘quoting’, Bennett re-contextualises existing images to challenge the viewer to question and see alternative perspectives.” This quote is clear through analyzing the visual features as well as the meaning behind the work of Gordon Bennett’s appropriated artwork ‘Self-portrait (but I always wanted to be one of the good guys)’ (1990) and comparing it to Colin McCahon’s
Their main vision is to empower the idea of a shared country and encourage opportunities for growth. With the perplexed requirements set out by the Native Title Act, this tribunal has helped claimants by providing legal aid to increase the chances of regaining lost land. For example, the Wik Peoples v Queensland (1996) 187 CLR 1 case was successful in recognising the lost land of the Wik people of Cape York. “They claimed native title over land that had previously been leased by the State Government to farmers for pastoral use” (Woodgate, Black, Biggs & Owens, 2011, p.354). The court then decided by a 4:3 majority that pastoral leases did not necessarily extinguish native title. This means that, in some cases, native title rights will co-exist with the rights of the pastoralists. Therefore, through progression and more native title cases heard, the laws surrounding the Native Title Act will adapt to further assist the Indigenous Australians in reclaiming their land. For instance, the processes surrounding Native Title issues are constantly being refined. As more and more people and political parties become aware of this process, the easier court litigation will become (Dow, 2002)
Of the 8 successful, the 1967 referendum which proposed the removal of the words in section 51 (xxvi) ‘… other than the aboriginal people in any State’ (National Archives of Australia ND), and the deletion of section 127, both, which were discriminative in their nature toward the Aboriginal race, recorded a 90.77% nationwide vote in favour of change (National Archives of Australia, 2014). As a result, the Constitution was altered; highlighting what was believed to be significant positive political change within Indigenous affairs at the time (National Archives of Australia, 2014). Approaching 50 years on, discussion has resurfa...
An issue facing society is whether the Native Title Act 1993 (Cth), is sufficient in balancing the rights of Indigenous Australians and the rights of current land owners. To determine whether legislation is sufficient and fair, an investigation into the current societal view points needs to be considered by legislators, with an evaluation into the ways in which other societies cater to the needs of Indigenous land owners should be made. This information then allows recommendations and changes to be debated, to therefore to ensure more equitable legislation on land rights within Australia.
Our Indian legislation generally rests on the principle, that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State. …the true interests of the aborigines and of the State alike require...
The Effectiveness of Native Title The debate about native title issues has tended to see issues from idealistic perspectives ignoring the practical realities that native title poses to governments, industry and indigenous people. The implementation of the Native Title is an appropriate and significant aspect of Australia’s common and statute law, which effectively strives to develop a fair outcome for all Australian citizens. The Native Title Act 1993, like the court Mabo decision in 1992, transforms the ways in, which indigenous ownership of land may be formally recognised and incorporated within Australian legal and property regimes. The process of implementation, however, raises a number of crucial issues of concern to native title claimants and to other interested parties. These issues will need to be settled in court however, despite the many disputes between opposing stakeholders, the Australian Native Title effectively reaches the best and fairest possible outcomes for all Australian citizens.
...t led to their rights being acknowledged in the Canadian law. Their rights including land claims could no longer be repelled or ignored by the federal government. The Policy of Outstanding Business was a huge breakthrough for Aboriginals as they were able to have their needs taken care of, receive full benefits in claims and became recognized in the Court of law.
The indigenous Australian culture is one of the world’s oldest living cultures. Despite the negligence and the misunderstanding from the Europeans, Aboriginals were able to keep their culture alive by passing their knowledge by arts, rituals, performances and stories from one generation to another. Each tribe has its own language and way of using certain tools; however the sharing of knowledge with other tribes helps them survive with a bit easier with the usage of efficient yet primitive tools which helps a culture stay alive. Speaking and teaching the language as well as the protection of sacred sites and objects helps the culture stay...
The gross over representation of indigenous people in the Australian criminal justice system (CJS) is so disturbingly evident that it is never the source of debate. Rather it is the starting point of discussions centring on the source and solutions to this prominent social, cultural and political issue. Discourse surrounds not only the economic and social disadvantage of indigenous communities, but also the systemic racism and continuing intergenerational trauma resulting for the unjust colonisation of a nation which has profited whites at the detriment to indigenous people throughout history. In respect to the currently CJS, trepidations are raised by indigenous communities around the lack of culturally diverse laws and punishments within the system. The overtly western system does not provide a viable space for indigenous
Land rights now referred to the continual legal exertion to reclaim ownership of the land and waters that was called home prior to British colonisation (Creative Spirits, 2011). Australian Museum (2015) and Creative Spirits (2011) acknowledge the struggle to gain legal recognition and ownership of Indigenous land is difficult and expensive. Furthermore, the history behind the struggle in earlier years often resulted in violence as Indigenous Australians were dispossessed of their land (Australian Museum, 2015). Subsequently, the struggle for land rights continued through the legal and political systems; as demonstrated in 1982 when Eddie (Koiki) Mabo and four other Meriam people decided to pursue declaration of their customary land rights in the High Court of Australia (Hill, 1995). Based on the findings of Creative Spirits (2011) Indigenous Australian land rights appeared promising in 1983 when the Hawke Government promised legislation to ensure that Aboriginal and Torres Strait Islander people’s land rights are protected throughout Australia. The legislation was said to permit Indigenous Australians to exercise the right of control over mining on Indigenous Australian land to ensure sacred sites are protected (Creative Spirits, 2011). However, in 1984 the mining companies fought back to repossess control over land. Mining and pastoral industries were considered too powerful and
This paper supports Thomas Flanagan's argument against Native sovereignty in Canada; through an evaluation of the meanings of sovereignty it is clear that Native sovereignty can not coexist with Canadian sovereignty. Flanagan outlines two main interpretations of sovereignty. Through an analysis of these ideas it is clear that Native Sovereignty in Canada can not coexist with Canadian sovereignty.
"Fundamental Principles of Tribal Sovereignty." Americanindianpolicycenter.org. American Indian Policy Center, 1 Nov. 2005. Web. 29 Mar. 2014. .