Our textbook introduced the topic of Indigenous storytelling and how it may not meet the fixation requirement because it is an oral (unwritten) tradition. I would like to elaborate on that by sharing how the Gitxsan Nation (my Nation) understands ownership of our stories, dances, and works of art. As you may surmise, Gitxsan laws and principles regarding works of art tend to prioritize a sense of shared ownership, as opposed to the arguably “author-centric” approach of the Copyright Act; however, I would not venture so far as to describe our intellectual property as entirely communal or that our works are “public domain.”
In my Nation, much of our intellectual property is exclusively held by House Groups – these are matrilineally delineated collectives of related and/or unrelated families. The House Group owns songs that can only be sung and performed by its members. These are typically performed (shared) at community events and/or potlatches depending on the purpose of the song – it may be ok for the public or it may be ceremonial. The copyright is jointly owned in a sense. What is distinguishable is that the songs are not considered property, per se. They are not owned by any single individual, there is no reversionary interest, or term limit. The intention is that the songs are passed down to the next generation for as long as they are needed.
In the realm of trademarks, House Groups have crests (ours is a white wolf) which can be affixed to regalia or blankets and worn only by members of the House Group. These crests are somewhat translatable into the category of “collective marks” in trademark law. Collective marks are special marks that distinguish a geographical origin, material, or mode of manufacture to inform the public about features related to a product. For example, the NHL is a collective mark; however, the key difference is that there’s no commercial aspect to our crests.
Certification marks, on the other hand, have been utilized by Indigenous Nations for commercial purposes. Certification marks are used to indicate that a certain good or service meets a particular standard or has a specific characteristic. You will recall from our textbook that the Cowichan Nation was successful in acquiring a certification mark to identify products authorized by their Nations following the popularity of Cowichan sweaters and the ensuing non-Indigenous created knock offs.
Given crests are not linked to a good or service, they could be more akin to a prohibited mark (s. 9(1)). Some prohibited marks are afforded protection from use except as by certain people. For example, the Trademark Act prohibits the unauthorized use of Royal Family Crests or any badge, crest, emblem or mark of a University. To my knowledge, what constitutes a prohibited mark is prescribed by the Act. As such, this could be an area of reform whereby Indigenous legal orders may be reflected in Intellectual Property Law. Could the use of prohibited marks be available to Indigenous Nations? This would greatly advance the recognition of Indigenous self-government and legal pluralism.
To expand beyond my own distinct perspective, applying a socio-cultural and intersectionality lens to the law of intellectual property opens many dialogues for reform. Suffice it to say, many perspectives were not represented when the frameworks for much of our western legal principles were designed.
For example, historically, the formal occupations most protected by intellectual property were either dominated by or exclusively held by men, e.g. artists, engineers, writers, scientists, and musicians. As the boundaries of intellectual property were drawn, “crafts,” which we would now consider fashion, were not initially recognized. There remain echoes of this within Intellectual Property Law, as in most areas of law. For example, patents were once deemed improper for women, today we continue to have a global gender gap in both applications and holders of patents. For further reading on feminism and intellectual property law, I would recommend Professor Carys Craig the Director of Intellectual Property at Osgoode Hall Law School.
These examples illustrate a hint of the dialogues available when we apply an intersectionality lens on intellectual property law, e.g. what is and isn’t an artistic work, how artistic practices should be protected, what marks deserve protection, which do not, and whose works of art and intellect are we are encouraging.
Communications Law