Canada’s intellectual property strategy offers limited protection for cultural expression, traditional knowledge

Innovation, Science and Economic Development Canada may be intending to create an intellectual property strategy that is more inclusive of Indigenous peoples, but right now that suite of copyright protection and ownership is falling short.

“One of the issues …goes to the nature of Indigenous rights generally. Indigenous rights are not necessarily individual rights. Many, if not most, Indigenous rights are communal rights and in our common law western tradition, individual rights to ownership are primary,” said legal counsel Yvan Guy Larocque with Miller Titerle + Co.

Larocque joined legal counsel Natalie Rizkalla-Kamel recently on a webinar hosted by the Intellectual Property Institute of Canada on Indigenous arts and culture, which focused on copyright and related issues.

The institute is the professional association of patent and trademark agents and lawyers practising in all areas of intellectual property.

Existing intellectual property rights—copyright, patent, trademark, industrial design and geographical indications—do little to protect traditional knowledge and cultural expression, said Rizkalla-Kamel of Gowling WLG.

“Unfortunately there are limits in terms of what you can do about cultural appropriation with respect to copyright,” she said.

The underlying goal of copyright protection, as it exists now, is limited because it identifies an owner; it expires after a set timeframe; it protects expression or an idea; and it must be fixed (written). All these points, said Rizkalla-Kamel, are counter to traditional knowledge and cultural expressions, which are orally passed down through generations.

“Copyright is just ill-suited to protect the Indigenous right, so there is a gap in the law,” said Larocque. “In terms of providing protection through (the) copyright regime, there’s no community ownership.”

According to the Assembly of First Nations, Indigenous people worldwide are concerned with the unlicensed use of their traditional knowledge, which has “no universally accepted definition.”

Intellectual property protections, services and resources remain widely underutilized by Indigenous businesses and entrepreneurs across Canada, states the Innovation, Science and Economic Development Canada website.

A study undertaken by the department and the Canadian Council for Aboriginal Business in 2019 makes that point clear.

The results from that study were recently released and show that 60 per cent of Indigenous businesses use traditional knowledge or cultural expressions but only 20 per cent have intellectual property protection, the most common being copyrights (10 per cent) and trademarks (nine per cent).

However, 28 per cent of traditional knowledge or cultural expression businesses engage with other non-intellectual property protections, including community and customary rules for how it is used.

Seven per cent of traditional knowledge or cultural expression users said they had experienced unauthorized use of their traditional knowledge or cultural expressions, which resulted in financial loss (34 per cent of respondents) and loss of cultural meaning (31 per cent).

Indigenous business owners who decided not to use intellectual property protections said they perceived little benefit from them and thought it too expensive to file and register.

The report states that the “collective and evolving character (of traditional knowledge or cultural expression) makes them difficult to protect under the current intellectual property system.” Moreover, traditional knowledge or cultural expressions are often viewed as sacred; thus, they are not always meant to be shared.

Still, the department has Indigenous Intellectual Property Program grants available to Indigenous businesses to fund travel, “small-scale” initiatives and projects that deal with Indigenous knowledge and Indigenous cultural expression, according to their website.

Those grants “facilitate Indigenous peoples' use of the (intellectual property) system to protect their innovations and creations,” including those based on Indigenous knowledge and Indigenous cultural expression, as well as to develop tools, guidelines or protocols with respect to the protection and use of Indigenous knowledge and Indigenous cultural expression, reads the website.

However, changes are required to align Canadian intellectual property with Indigenous property rights, says Larocque. The best tools for that are the United Nations Declaration on the Rights of Indigenous Peoples Act, recently passed into law through Bill 15 by the federal government, and British Columbia’s Declaration on the Rights of Indigenous Peoples Act passed into law in November 2019.

“Essentially the goal is to work with Indigenous peoples to take a look at Canadian laws and how they (can) be changed to ensure that Indigenous rights are protected,” said Larocque.

“(There) needs to be an expansion of that (copyright) act to include Indigenous rights or there needs to be new laws to apply to Indigenous traditional knowledge, cultural expression.”

Until then, Rizkalla-Kamel says, although the current intellectual property system isn’t suitable for protecting traditional knowledge or cultural expressions, there are some tools that can be used. If a business meets the copyright requirements, she says go ahead and file.

Public authority can also be used to give notice on official marks, such as a badge, crest or emblem, on products which prohibits anyone else from claiming them.

“Several Indigenous communities have qualified as a public authority status based on their relationship to the Indian Act. This is anther tool Indigenous communities can use to acquire perpetual legal protection for their designs of cultural significance,” said Rizkalla-Kamel.

Moral rights may also protect integrity, attribution, association of Indigenous work, traditional knowledge and cultural expressions “in the sense it can provide protection where traditional knowledge or expression is distorted or modified in a way to prejudice the honour or tradition of the author,” she said.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.