How does intellectual property work with Indigenous Peoples?

There is no simple answer to this important question. A good starting point to review is the First Nations OCAP® Principles.

The principles differentiate between who has ownership, control, access, and possession of data.

“In some Indigenous communities, certain families or clans hold the exclusive right to sing certain songs or dance certain dances, and 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.”

—Cited from Indigenous Knowledge and the Question of Copyright (ictinc.ca)

Indigenous law examples

“On the North American Northwest Coast, Indigenous customary laws limit the representation of crest designs by certain groups of individuals, families, or clans. As a result, only specific people in the community are allowed to depict certain beings and tell certain stories. Being a steward of tangible and intangible heritage is a key component of a person’s identity, and these responsibilities are passed on between generations.

“Yet it is very common for Northwest Coast images to be reproduced by companies in disregard of these rules. For instance, a company may have relied on Canadian law to determine that an image had fallen into the public domain 50 years after the passing of the person who created it. According to Northwest Coast customary laws, however, this kind of practice can be likened to both property and identity theft.”

—Cited from Think Before You Appropriate (sfu.ca) [PDF]

Governance models

The governance model of the Indigenous Peoples you are wanting to conduct research or communicate with is an important concept to take into account.

How to deal with different stakeholders in a project that includes Indigenous Peoples

“… bear in mind is that Indigenous Peoples are rightsholders, not stakeholders, in many aspects of research. Some of these rights are articulated in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), among other places. UNDRIP is one of the broadest documents that covers Indigenous groups around the world, but local groups will also have Treaties, laws, land claims, charters, and other ways of articulating rights that distinguish them from other types of stakeholders.”

Existing intellectual property laws are not enough

“Many individuals and businesses rely on copyright, trademarks, patents, trade secrets, or other aspects of intellectual property law to protect their creations against misappropriation… When it comes to [Indigenous Traditional Knowledges], however, ensuring protection tends to be more complicated. [Intellectual property] laws are designed to protect an individual’s creations for a limited time span, whereas cultural practices and expressions are developed collectively over many generations. Furthermore, intellectual property laws reflect the worldview that is dominant in society, which is rarely an Indigenous viewpoint.”

“Existing copyright law, steeped in Western concepts and values, does not adequately protect Indigenous traditional cultural expressions, nor does it sufficiently reflect or account for Indigenous cultural values.”

—Cited from Sharing Indigenous Cultural Heritage Online: An Overview of GLAM Policies – Creative Commons

“To a culture that has struggled to maintain its customs, traditions, languages, and knowledge from the force of colonization and assimilation there is sometimes an urgency to record or create a tangible record of oral histories, songs, dances, and traditional knowledge before the knowledge keepers have passed away. However, the very act of recording as a way of maintaining their culture for future generations introduces an element of vulnerability because they are now tangible and could be lost, or worse, stolen and sold for commercial gain.”

—Cited from Indigenous Knowledge and the Question of Copyright (ictinc.ca)

There are many essential considerations and protections in different Indigenous cultures that must be respected when you are working with Indigenous Traditional Knowledges. These protections for Indigenous Traditional Knowledges have not been incorporated into Canadian copyright law, so much of Indigenous Traditional Knowledges is not considered protected under current copyright laws.

Indigenous Traditional Knowledges are often vulnerable because “Neither the common law or international treaties place Indigenous Customary Law on equal footing with other sources of law” (Younging, 2018, p. 117).

Why Canadian copyright laws are not enough

Let’s look at reasons why copyright laws in Canada are not enough to protect Indigenous Traditional Knowledges.

1. Canadian copyright laws are designed from an individualistic ownership perspective. Many Indigenous cultures are communal in social structure and, thus, Indigenous Traditional Knowledges is owned “collectively”; therefore, Indigenous Traditional Knowledges under the Canadian Copyright Act are  not sufficient protected. Because the knowledge is often communally held rather than individually held, it can be considered part of the public domain.
2. In Canada, copyright expires 70 years after the death of the author. Then the work enters public domain, meaning anyone can do anything with the object without public permission. This time frame is not culturally appropriate, for Indigenous Peoples whose histories, cultures, and knowledges extend back to time immemorial. While it is difficult for expressions of Indigenous Traditional Knowledges to qualify for copyright protection, we recommend that you respect Indigenous Traditional Knowledges beyond Canadian copyright law.
3. The copyright eligibility criteria, such as originality and authorship, are often at odds with Indigenous notions of creativity and custodianship over a community’s Indigenous Traditional Knowledges. The “author” of Indigenous Traditional Knowledges is often not identifiable, and there is thus no “rights holder” in the usual sense of the term.
4. Most Indigenous Traditional Knowledges are handed down from generation to generation in an oral tradition, are owned communally, and not dated and or in a written format.

Intellectual property rights misuse in research

Data about Indigenous Peoples has been historically used as a disempowering tool to:​

• Control Indigenous communities
• Gain access to Indigenous lands
• Steal natural resources
• Control the narrative of bodies and knowledges
• Conduct research to advance careers of non-Indigenous people

Successful respect

“One recent successful case of respect for [Indigenous Traditional Knowledges] is the case of the Khoi and San Peoples in South Africa. For thousands of years, the Khoi and San Peoples have maintained the use of the popular rooibos (red grass) tea as a medicine and drink. Rooibos is a tea that is now drunk by the general population in South Africa and is commercially exported all over the world. In 2019, the National Khoi and San Council won a successful royalty negotiation for being the first peoples to explore and preserve the ancient knowledge of the uses of the rooibos plant.”

Legal protection for Indigenous intellectual property

So, how do we protect Indigenous Traditional Knowledges and Indigenous cultural expressions?

There have been various efforts made to provide some kind of legal protection for Indigenous intellectual property in colonized countries. We will introduce two of these that are relevant in a Canadian context.

1. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) includes several clauses relating specifically to the protection of intellectual property of Indigenous peoples.
2. Canada’s Constitution Act, 1982, section 35.

UNDRIP

Protection of Indigenous Traditional Knowledges and cultural expressions is included in Article 31 of UNDRIP:

“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.”

Indigenous cultural property rights are included in Article 11 of UNDRIP:

1. Indigenous Peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

One of the key principles of UNDRIP is “free, prior and informed consent.”

Constitution Act, section 35

Protection of cultural heritage rights should be done by utilizing section 35 of the Canadian Constitution Act, 1982. This would allow for the protection of property for the next few millennia.

• Aboriginal rights (commonly referred to as Indigenous rights) are collective rights of distinctive Indigenous societies flowing from their status as the original peoples of Canada. These rights are recognized and affirmed by section 35 of the Constitution Act, 1982.
• The Constitution Act, 1982, does not define Indigenous rights under section 35, but they vary from group to group depending on the customs, practices, and traditions that have formed part of their distinctive cultures, and can include:
  • Aboriginal title (ownership rights to land)
  • Rights to occupy and use lands and resources, such as hunting and fishing rights
  • Self-government rights
  • Cultural and social rights

Now that you are aware of, respecting, and following data sovereignty principles, the Canadian Copyright Act, and where a level of protection of Indigenous Traditional Knowledges and Indigenous cultural expressions can be found, let’s move to looking into how to move forward in a good way.

Summary

Indigenous intellectual and cultural property rights are not protected by Canadian copyright law. This includes Nations, individuals, families, and kinship groups who have collective rights.