Indigenous culture not protected in Canadian law, lawyers and academics say

Interesting article about intellectual property and indigenous culture, from both a domestic and international perspective:

“The problem is that Indigenous heritage is often seen as a public domain, free for the taking,” said George Nicholas, a professor at Simon Fraser University who led an eight-year international research project on cultural appropriation.

“That’s not the case. [For] many First Nations, many Inuit and other Indigenous peoples, their heritage is still vibrant…. When it is threatened, when it is used by others in ways that are inappropriate or unwelcome, this can cause a variety of harms, not just economic but spiritual.”

There are a host of barriers Indigenous groups face when trying to use intellectual-property laws to protect their cultural heritage.

Intellectual-property law began to take form in the 19th century in western Europe to protect individual ideas and creations, mainly for economic reasons.

“It wasn’t really designed for Indigenous innovation, which is marked by collective processes, collective custodianship and a very strong spiritual dimension,” said Wend Wendland, director of the Traditional Knowledge Division at the World Intellectual Property Organization in Geneva.

“Some refer to it as a square peg in a round hole.”

Ava the shaman

An illustration featured in the book Northern Voices: Inuit Writing in English depicts a traditional design similar to that used by a fashion designer in 2015. (Kieran Oudshoorn/CBC)

The main problem facing Indigenous groups looking to use intellectual-property law is that in order for something like a traditional parka design or carving style to be patented, it has to be unique or original, Wendland said.

But many Indigenous customs and designs have been passed down from generation to generation since time immemorial. They have been replicated hundreds if not thousands of times, often making them unable to be patented.

Wendland also says the current system generally requires some sort of hard copy of what the copyright or patent is supposed to protect. But many forms of Indigenous knowledge or stories are often passed down orally.

Exceptions exist, but model may be fundamentally flawed

Some Canadian Indigenous groups have had success using trademarks. The Cowichan Band Council in British Columbia registered the certification “Genuine Cowichan Approved”. It was created to help differentiate between the traditional Indigenous hand-knitted sweaters crafted by Coast Salish people and non-Indigenous designers selling counterfeits.


Dianne Hinkley shows off a genuine Cowichan Tribes sweater. ((CBC))

There is work being done to help create a broader system to protect Indigenous intellectual property. One hundred and eighty-nine states have joined a special committee within the World Intellectual Property Organization. The organization is working toward an international treaty that would expand intellectual-property laws to protect Indigenous culture. It will meet in Geneva next month to continue negotiations.

Whitehorse lawyer Claire Anderson says using the Canadian legal system is counterintuitive when protecting Indigenous culture.

“If we choose that forum, essentially we would be going to the colonial forum that has taken away Indigenous rights, and we would be asking the non-Indigenous judges to make determinations about Indigenous law,” Anderson said.

Indigenous law has its own remedies

Anderson said groups should look to their own form of Indigenous law to protect their history and knowledge.

“Listening to our First Nation elders or listening to people that understand Indigenous laws and seeking redress through those Indigenous legal forums is a very good starting point because it provides legitimacy to those Indigenous legal forums.”

Anderson says that in Tlingit culture, if someone exploits someone else’s design or steals property, they must apologize in front of the community at a public forum, like a potlatch. She says some sort of compensation is given — whether it’s monetary or the gifting of a song.

Source: Indigenous culture not protected in Canadian law, lawyers and academics say – North – CBC News


About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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