Indigenous Rights In Australia Essay

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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

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