Indigenous Intellectual Property

In order to look deeper into the Indigenous Intellectual Property issues, let’s start with two anecdotes from Hugh Stephen’s blog (https://hughstephensblog.net/2019/10/08/can-copyright-law-protect-indigenous-culture-if-not-what-is-the-answer/).

Great Bear Rainforest, is a pro-environment documentary film that was produced by Heiltsuk First Nation. Mr. Byron Horner holds the copyrights of the film and is legally entitled to use it. The issue raises when Heiltsuk First Nation objected to the use of footage from the film in Mr. Horner’s campaign ads claiming that it implied their endorsement of Horner’s campaign. Even though, the result was that Horner removed content related to the film from his campaign ads, it raised questions of to what extend the Canadian intellectual property (IP) laws can protect Indigenous IP rights and cultural associated with the IP. (https://www.timescolonist.com/local-news/jack-knox-49-running-for-seven-island-seats-one-candidates-rough-ride-467602)

A Vancouver liquor store used an image of a totem pole to market the store and its products. The image was taken on public display in Vancouver’s Stanley Park. The store has a legal right to use the image of the pole because it was taken in public. Indigenous artist and activist Lou-Ann Neel challenged the owner of the store, because the totem pole was carved by her grandfather. She explained to the merchant the history of the pole, and the significance of its images which included clan and family symbols. In the end, Ms. Neel persuaded the store to stop using the image. This was a win for cultural understanding reached outside the legal framework.

In some Indigenous communities, practice certain cultural is a privilege, including exclusion of other families or clans from practicing it. Those rights have been handed down through generations, sometimes for thousands of years. If someone were to take out a copyright on a song, with the thought that they were protecting their rights, they would, in reality, be making the song vulnerable to commercial exploitation. (https://www.ictinc.ca/blog/indigenous-knowledge-and-the-question-of-copyright)

So how can Indigenous peoples protect their cultural, knowledge and artistic work, and how can non-Indigenous parties know whether it is appropriate to use such work? How and from whom can non-Indigenous users secure permission to use expressions of Indigenous culture? How can Indigenous artists and cultural advocates be compensated for their work? Those questions look closely alike with an IP issue. However, the answer may not be easily found in IP law. The fundamental dichotomy between many modern IP law and indigenous culture relates to a few issues. The fact that modern IP is a right mostly asserted by individual creators/inventor, and the protection is limited to a set period of time. Indigenous traditional cultural artifacts and expressions have joint authorship and are considered collective work, which should not be capped in a time frame regarding rights of ownership. As for the term of protection against unauthorized use, protection should endure for as long as the form of expression meets the criteria of being an indigenous creation, and continue receive protection. The effort of any proposed law ought to have focuses on protecting Indigenous traditions and cultures and promote cultural development. When the Indigenous communities cease to use the form of cultural expression, or if the community no longer exists as a distinct entity, then we are losing great contributions to the plural and diverse Canadian culture. Moral rights of the Indigenous IP ought to be seen and protected to exist in perpetuity. There are several statutes and proposals from within Canada and around the world in hope of finding a solution for this issue.

The legal instruments in Canada not related to the Copyright Act that are relevant in this context is Section 35 of the Constitution Act, which recognizes and affirms “existing aboriginal and treaty rights of the aboriginal peoples of Canada”. But the interpretation of this section is broad and may need further definition. In August 2019, Canada’s new federal environmental legislation under Bill C-69 (including the Impact Assessment Act, Canadian Energy Regulator Act, and Canadian Navigable Waters Act) and Bill C-68 (amendments to the Fisheries Act and other Acts in consequence) came into force. Under these Bills, new measures have been added for the protection of Indigenous knowledge. (https://www.ictinc.ca/blog/indigenous-knowledge-and-the-question-of-copyright)

A more relevant document relating to indigenous cultural expression is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 31 of UNDRIP states: “1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.” Most recently, Canada’s Senate passed Bill C-15, the UNDRIP Act into law. The Act received Royal Assent on June 21, 2021.

Apart from UNDRIP, there is another draft document out there that could take indigenous rights a step further. This is the Treaty on Intellectual Property on Genetic Resources, Traditional Knowledge and Folklore being developed by the World Intellectual Property Organization (WIPO). The treaty will have two primary objectives. The defensive protection is to “stop people outside the community from acquiring intellectual property rights over traditional knowledge”; and positive protection is “the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation.” The United Nations Educational, Scientific and Cultural Organization (UNESCO) also seeks to encourage the identification, protection and preservation of cultural and natural heritage around the world. This is embodied in an international treaty “Convention concerning the protection of the World Cultural and Natural Heritage”. Let’s hope for great progress for the legal development in the area of Indigenous IP protection.

If you are interested, here is a wonderful list of Indigenous artists presenting their stories and their art works. http://www.authenticindigenous.com/artists/