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The definition of miscommunication is a failure to communicate adequately, this is evident

within Australia as demonstrated by Indigenous and Non Indigenous individuals/communities


(Dictionary, 2015).
Miscommunication has been the core factor that has caused the Aboriginal community
throughout Australia to experience such difficulties, stereotyping and racism during
Australias history. In this essay I will be highlighting the specific miscommunication of
Indigenous Intellectual and Cultural Property Rights. This specific topic has been worsened
by the attitude and the inconsistency of the Australian Government, recognising the important
spiritual connection that specific communities have to certain areas; however not taking a
productive step in addressing the issue. I believe that although the Mabo Decision occurred
in 1992, 23 years later how much progress has the Australian Government shown; I will be
addressing these points throughout the essay.
Intellectual and Cultural Property Rights refers to all the rights that Indigenous people have,
and want to have, to protect their traditional arts and culture. Indigenous communities believe
that Australian intellectual property system fail to provide necessary protection of their
cultural heritage (Davis. 1997). The Indigenous cannot value their intellectual and cultural
properties by monetary means, but through the connection and significance it has with their
spirituality. However, it is being utilised by Non Indigenous Australians in the trading of
Aboriginal heritage for economic benefits. Australian intellectual property laws only protect
some forms of Aboriginal intellectual and cultural property; focusing on protecting
individuals and not communities (Arts Law Centre of Australia. 2011). These economic
benefits highlight the miscommunication as these benefits are being directed to Non
Indigenous communities; for example, in Australia, Indigenous arts and crafts industry makes
almost $200 million per annum, but only $50 million dollars are being directed to Aboriginal
initiatives (Githaiga. 1998). However, with the doctrine of domain public payant Indigenous
artworks could create revenue for the Indigenous owners; again this demonstrates another
ineffective Government system to help aid in improving the recognition of Aboriginal
heritage and culture (Githaiga. 1998). Aboriginal artwork has also been used in
advertisement and other commodities; which highlights the contrasting viewpoints of
increasing tourism and complete outrage. Also another example of Australians neglecting any
respect or acknowledgement of the traditional owners is, the use of Uluru for a tourist
attraction. The most amazing thing about these actions is, that they are still occurring in 2015;
everyone is informed about the injustice and negatives of miscommunication between the two

cultures. However, can you claim this as miscommunication between the two cultures? Or
just basic ignorance from one side? This just demonstrates that conceptions of cultural
identity can be undermined because even with a system to authentic that this belongs to an
Indigenous community; there will always disruption as the division of ownership and control
is always argued (Coombe. 2004). Again the major point for all these issues are linked to the
lack of cultural sensitivity from Non Indigenous people.
Indigenous Australians are closely linked to the land and their environment linking their
cultural property. Indigenous communities possess some special features of their knowledge
and creative innovations which emphasise that their creations are oddities when compared
with normal notions by Non Indigenous intellectual property (Davis. 1997). Aboriginals
have been given rights inside their communities of their lands and intellectual property.
Allowing Aboriginals to continue teaching the next generation their cultures and values. The
value and respect of Indigenous identity is gradually improving and with this progress the
Non Indigenous communities are becoming less and less ignorant. Society is finally
recognising that by improving the care of Aboriginal intellectual rights because this is a way
to keep their culture alive and have their traditions remain. Protecting their knowledge and
skills have three benefits for preserving their culture, economic sustainability and it builds on
Australias rich history (Coombe. 2004). Aboriginal artistry is a being of expression to their
association and identity with the land and the values which must be understood and respected
by all people; not just Indigenous Australians (Golvan. 1992).
The Mabo Decision made in 1992 came to the conclusion that land can be established, native
still subsists, irrespective of any changes to Indigenous laws and customs over the years of
European settlement (Githaiga. 1998). So why cant this reasoning be applied to Indigenous
sacred object and ceremonies considering they are following the same law principles. The
process of recognising Aboriginal Heritage is difficult because of the traditions of the
Indigenous no information was written down or noted as the main form of communication
was oral. This case is not the only one that has changed the viewpoint of Aboriginal
ownership. The specific case I am mentioning is a case against a Sydney man selling
Aboriginal carpets; although carpets are not traditional artworks he had stolen pre existing
cultural clan images designed by several different Aboriginal artists (Janke. 2003). This
demonstrates that Australian law can be effective in recognising Aboriginal heritage; creating
policies and laws that exclude any implementation of time limitation, which is often

connected with Copyright Laws (Golvan. 1992). however as mentioned it is restricted and is
quite inflexible in its applications. The major is the claim by Aboriginals is that existing
intellectual property system does not provide adequate recognition protection of their cultural
products (Davis. 1997). The intellectual property system is seen by some as a threat to
Indigenous cultural maintenance. Australian law does fail in providing the necessary
protection for the following; story telling paintings, traditional languages, ceremonial
performance, music (passed down orally through generations) and methods of art which is
linked with Aboriginal heritage (Arts Law Centre of Australia. 2011). In most issues relating
to the breach of Aboriginal heritage copyright or theft; I believe you cannot label that as
miscommunication, but as ignorance and disrespect. I believe the major miscommunication
when it comes to Australian law shaping Aboriginal heritage; is that it cannot evaluate the
value these properties have on the Aboriginal community. Spiritual value cannot be touched;
it cannot be given a definition; I believe this is the main cause of miscommunication as the
European social belief is that everything has to have a definition of worth.
The ownership of Indigenous Intellectual and Cultural Property Rights is difficult to establish
to become 100% effective because of the structure of a Western legal framework as the
system does not recognise group ownership of developing knowledge and practices, which
are passed down from each generation (Simpson. 1997). This represents the Australian
Government poorly, this has been issue before Gough Whitlam was Prime Minister of
Australia; he created a progressive mindset involving Indigenous Australians, however we
still have a system that is made for the 20th century not the 21st century. I feel Australia is at
fault for not improving their attitudes to Aboriginals and all their properties; although we
have improved since the 18th century, I believe that we are still lacking in giving the
Indigenous the necessary recognition. As a nation we are always trying to place/find a
definition for something we do not understand. Whether that is a monetary or spiritual
definition, we fail to recognise that a single definition is not possible in certain circumstances.
We admire and respect what we understand about Aboriginal cultural and intellectual
property; to improve the protection of this culture we must incorporate some of their values
within our own system. This will be a continuous process of reconciliation and understanding
between the Non Indigenous and Indigenous Australia through Aboriginal heritage (Golvan.
1992).

BIBLIOGRAPHY:

1) Arts Law Centre of Australia. 2011. INDIGENOUS CULTURAL & INTELLECTUAL


PROPERTY (ICIP). [ONLINE] Available
at: http://www.artslaw.com.au/images/uploads/aitb/AITB_information_sheet__Indigenous_cultural_and_intellectual_property_ICIP_2.pdf. [Accessed 10 October
15].
2) Colin Golvan. 1992. Aboriginal Art and the Protection of Indigenous Cultural Rights.
[ONLINE] Available at: http://www.colingolvan.com/downloads/law-articlesessays/aboriginal-art-protection-of-indigenous-cultural-rights.pdf. [Accessed 10
October 15].
3) Joseph Githaiga. 1998. Intellectual Property Law and the Protection of Indigenous
Folklore and Knowledge. [ONLINE] Available
at: http://www5.austlii.edu.au/au/journals/MurUEJL/1998/13.html. [Accessed 10
October 15].
4) Michael Davis. 1997. Indigenous Peoples and Intellectual Property Rights.
[ONLINE] Available
at:http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentar
y_Library/pubs/rp/RP9697/97rp20. [Accessed 10 October 15].
5) Miscommunication (Define Miscommunication at Dictionary.com.
2015.Miscommunication) Define Miscommunication at Dictionary.com. [ONLINE]
Available at: http://dictionary.reference.com/browse/miscommunication. [Accessed 10
October 2015].
6) Rosemary Coombe. 2004. The Cultural Life of Intellectual Properties: Authorship,
Appropriation, and the Law. [ONLINE] Available
at:http://www.researchgate.net/profile/Peter_Krapp/publication/259502897_The_Cult
ural_Life_of_Intellectual_Properties_Authorship_Appropriation_and_the_Law._By_
Rosemary_Coombe_(review)/links/0deec52c5784c82b20000000.pdf. [Accessed 10
October 15].
7) Terri Janke. 2003. CASE STUDIES ON INTELLECTUAL PROPERTY AND
TRADITIONAL CULTURAL EXPRESSIONS. [ONLINE] Available
at:http://www.wipo.int/edocs/pubdocs/en/tk/781/wipo_pub_781.pdf. [Accessed 10
October 15].
8) Tony Simpson. 1997. Indigenous Heritage and Self-determination: The Cultural and
Intellectual Property Rights of Indigenous Peoples. [ONLINE] Available

at: https://books.google.com.au/books?id=g3sH9iEn0oC&dq=Indigenous+Heritage+Rights&lr=&source=gbs_navlinks_s. [Accessed 10


October 15].