The relationship between intellectual property (IP) and the protection of Indigenous knowledge and cultural expressions is complex and challenging. The following is intended to provide an overview to stimulate and inform broader policy discussions in Canada.
Indigenous Knowledge and Cultural Expressions
Although there are no universally accepted definitions of Indigenous knowledge and cultural expressions, within international IP discussions, the terms generally used are traditional knowledge (TK) and traditional cultural expressions (TCEs). TK generally refers to the know-how, skills, innovations and practices developed by Indigenous peoples related to biodiversity, agriculture, health and craftsmanship. TCEs generally refer to tangible and intangible forms in which TK and culture are expressed and may include oral stories, artwork, handicrafts, dances, fabric, songs or ceremonies. It is also recognized that TK and TCEs can be collectively held and may evolve and change over time as they are passed down from generation to generation.
Existing Intellectual Property Protections
IP generally refers to creations of the mind, including inventions, literary and artistic works, designs and symbols, and names and images used in business. IP rights, which include patents, trademarks, copyright, industrial designs, geographical indications, and trade secrets, provide rightsholders with economic and moral rights over their creations and innovations, often for a fixed period of time.
In Canada, specific laws protect IP, including the Patent Act, the Copyright Act, the Trademarks Act, the Industrial Design Act, and the Plant Breeders' Rights Act. These laws set out the different types of IP, the nature of rights, criteria for protection, scope of protection, duration, among other things. In certain circumstances, these legal tools could be leveraged to protect Indigenous knowledge and cultural expressions.
In so far as names, signs and symbols are concerned, Canadian laws protecting trademarks and relating to unfair competition may be the most relevant:
- Several Indigenous communities, organizations, and representative bodies in Canada have registered trademarks, certification marks, official marks and authenticity labels, including the Genuine Cowichan official mark and certification mark, the Igloo Tag trademark, and the trademarked Assembly of First Nations logo.
- These marks often relate to traditional symbols and names, and are used to identify a wide range of goods and services, ranging from traditional art and artwork to food products, clothing, tourist services and enterprises run by Indigenous communities.
As many cultural expressions are literary and artistic works and performances, copyright and related rights may be relevant for their protection:
- Protections available under the Copyright Act are used by Indigenous artists, performers, composers and writers for tradition-based creations such as wood masks and totem pole carvings of Pacific coast artists, jewelry, Inuit sculptures, and songs and sound recordings of Indigenous artists. There may also be scope for Indigenous communities and businesses to protect Indigenous knowledge as a trade secret pursuant to contracts and non-disclosure agreements.
Potential Gaps and Barriers
It is important to recognize that the IP associated with artistic and innovative creations has been an area of concern and challenge for Indigenous creators, innovators and communities.
Indigenous knowledge and the IP system are based on different worldviews and approaches, recognizing that neither is monolithic or all-encompassing. Mechanisms for the protection of IP are based on protecting the rights of identified individual creators and innovators over their creations and innovations that exist in physical format; this is not easily adapted to protecting collectively-owned TK or TCEs of significance to communities, dating back generations. Such differences result in potential gaps where the protections under the formal IP system do not extend to some types of Indigenous knowledge and cultural expressions. Indigenous peoples may also find that barriers hinder their use of the formal IP system. Some of these potential gaps and barriers include:
- formal IP protection often requires the identification of a known individual creator(s) or inventor(s) in order to determine the holders of the IP rights. The very concept of "ownership" in the IP-context may contrast with Indigenous notions of "ownership" of Indigenous knowledge and cultural expressions;
- Indigenous knowledge and cultural expressions may not meet IP standards of "originality" such as required under copyright law, or "novelty" under patent and industrial design law;
- the requirement that an idea needs to take on a fixed form (e.g., in a book or sound recording) to be protected under existing copyright laws, may prevent the protection of intangible Indigenous knowledge and cultural expressions that are transmitted or shared orally;
- innovations based on Indigenous knowledge may be eligible for protection under existing IP frameworks, but not the underlying knowledge itself;
- the limited term of protection for some IP, such as copyright, industrial designs and patents, would not protect Indigenous knowledge and cultural expressions indefinitely, and the limited term of protection may require certainty as to the date of its creation or first publication, which is often unknown;
- the costs and complex processes for registration, renewal and enforcement of IP rights have been identified by some as obstacles to the use of the IP system; and
- exceptions and limitations typically found in IP laws may not be considered to be suitable for Indigenous knowledge and cultural expressions, particularly if it is considered to be sacred.
Non-IP laws and programs dealing with the safeguarding and promotion of intangible heritage can also play a useful role in complementing laws dealing with IP protection. This could include, for example, the effective use of contractual arrangements and the development of local mechanisms within communities to control and protect Indigenous knowledge.
In spring 2018, the Minister of Innovation, Science and Economic Development announced an Intellectual Property Strategy as part of Canada's Innovation and Skills Plan. Complementary to the Government's commitments to reconciliation, implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the recognition of Indigenous rights, the IP Strategy seeks to further support Indigenous peoples' IP knowledge and awareness through initiatives, led by and in partnership with Indigenous peoples, focused on education, awareness-raising and capacity-building. It also seeks to provide opportunities for Indigenous peoples to advocate their interests through engagement activities, increased participation in domestic and international discussions on IP, Indigenous knowledge and cultural expressions, and to explore options to make the IP system more inclusive and accessible to Indigenous peoples.