Bill C-262 and Intellectual Property Protections for Indigenous Traditional Knowledge

De temps en temps nous partageons des travaux « IP News » exceptionnels, écrits pour la classe de Propriété intellectuelle (BUS 502). Vous trouverez celui de Rose Adams et Ying Liang  ci-dessous.  

1. The News

In June 2019, Bill C-262, an Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, was rejected by the Senate, although it had been passed in the House of Commons. [1]  This Bill aimed to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada. Particularly, article 31 of the UNDRIP calls for legal recognition and concrete protection of Indigenous traditional knowledge (ITK) by enabling Indigenous peoples to “maintain, control, protect and develop their intellectual property over [their] cultural heritage, traditional knowledge and traditional cultural expressions.” [2]  Despite Conservative resistance from the Senate, newly elected MP Leah Gazan has promised to bring back the Bill.[3] Further, on October 24th, British Columbia tabled its legislation to enshrine the UNDRIP. [4] Independent MP Jody Wilson-Raybould has also voiced her continuous support to Indigenous rights recognition in Canada, following British Columbia’s pioneering legislative action. [5]

Nonetheless, many questions remain regarding approaches to effectively reconciling the broad language of ITK under the UNDRIP with the constitutionally constrained, statute-based Canadian Intellectual Property (IP) regime. [6] A broad definition of ITK is enshrined by article 31 of the UNDRIP, which includes not only Indigenous know-how, skills and practices, the narrow definition of ITK, but also “traditional cultural expressions such as folklore, music, dances, clothing, and tools.” [7]  The World Intellectual Property Organization approaches ITK in a similar manner by addressing genetic resources and traditional cultural expressions (TCEs) under its programs on ITK, while defining ITK as “a living body of knowledge passed on from generation to generation within a community [which] forms part of a people’s cultural and spiritual identity.” [8]  This article thus discusses the protection of ITK and TCEs integrally with a primary focus on the former.

2. Conflicting Rationales

ITK has long been omitted from Canada’s statute-based IP regime. It is absent from domestic laws like the Copyright Act and the Patent Act. It is not mentioned either in treaties like the TRIPs and CETA. This causes difficulties when it comes to protecting ITK, which is largely incompatible with the theoretical underpinnings of IP law.

Ideologically, IP law reflects individualism and commodification by confining knowledge entitlement to private property and allowing solely-owned market exclusivity thereof. [9] In contrast, Indigenous conceptions of knowledge entitlement are generally communal, collective and non-commercial in nature.[10] In recent years, there has been an increasing number of Indigenous peoples or communities applying IP law to protect their individual or collective intellectual works, such as registering copyright for their paintings and sculptures, or making IP infringement claims against unauthorized piracy of their traditional music or design. This phenomenon has been viewed as a sign of the internal commercialization of the traditional communal economy in Indigenous communities, weakening the non-commercial claims to their ITK. While there is diversity of opinion amongst Indigenous scholars and communities, it is necessary not to essentialize them.[11] Many Indigenous scholars have expressed their viewpoints from the traditionalist perspective. For them, Indigenous groups seek for “ownership and control” over their ITK not for the commercial interests therefrom but “to preserve the integrity of the knowledge and to keep it safe from appropriation, destruction, deformation, and extinction.”[12] Furthermore, for Indigenous people, private property, together with its effect of excluding the rest of the world other than the owner from occupying, exploiting or disposing of tangible or intangible items,[13] is exogenous in their socio-cultural context embodying a “collective stewardship of resources” and a “communitarian, gift-based culture.”[14] ITK serves rather as public wisdom accumulated and inherited intergenerationally by the community as a whole and shared amongst community members.[15]  

Applying a purposive approach, IP is a legislative design serving as an economic incentive to promote market competition, knowledge diffusion, and ultimately, technology advancement.[16] In exchanging innovation and knowledge disclosure for time-bound market exclusivity, IP embodies the “social contract” our society makes with creators,[17] especially in the case of patents. ITK is, however, created without market impulse or bargain. It is conserved, updated and handed down from one generation to another to ensure the continuity and prosperity of a community and its people.[18] This collective goal is not driven by individuals’ attempts to yield profits from their intellectual efforts but by community members’ awareness of their shared destiny and their pursuit of the integrity and vitality of their knowledge.[19] If the underlying competition rationale (the so-called “law of the jungle”) of the IP regime, which privileges only a select few, is to be applied to ITK, it may risk further hurting the economically and culturally vulnerable Indigenous communities. That is, only a few community members who control more knowledge and means could acquire protection and privilege from the regime, and in turn, impoverish those who have relatively less by seeking consideration from them for the fruit of knowledge developed collectively by all members over time.[20] 

Technically, ITK can hardly satisfy statutory criteria to establish valid IP rights. Take copyright and patents as examples. To acquire copyright, one must prove originality and fixation in the work created.[21] Patent applicants are required to demonstrate non-obviousness, novelty and utility of the invention they created.[22] Both statutes are ill-suited to deal with works of collective nature or with inventions that have been released to the public domain.[23] ITK seems to be resistant to Western ownership principles: as “[a] product of learning through experience and oral traditions passed over centuries”[24], ITK usually has no sole creator or fixed medium.[25] Emerging from complex communal creativity, its initial creator is often untraceable while it is a live concept open to infinite revision and recreation by all descendants of a community who are both creators and users of knowledge.[26] ITK may appear in the form of stories or handcrafts whose presentation varies depending on the storyteller or the craftsman.[27] Indeed, ITK is unlikely to be “original”, “new” or “non-obvious” under Canadian laws. Instead, it may be regarded as a “prior art” on its face given that it has been shared amongst community members and that much of it has been disseminated to the settler society without authorization due to “centuries of discrimination, exploitation, dispossession and colonization.”[28] ITK’s ability to embrace nuance, fluidity and new elements, in turn, renders it unable to be described in a full, clear, exact and distinctive manner as required for patent application for instance.[29]

On these accounts, ITK is basically precluded by the Canadian IP regime, making it vulnerable to mass misuse and misappropriation.[30] A true recognition and effective protection of ITK thus requires a reform that can actively engage with Indigenous people, adequately accommodate ITK’s particularities and strike an equitable balance between competing interests.[31]

3. Proposed Solutions

Article 31 of the UNDRIP raises a key question: even if it is to be adopted by Canada, how will it be implemented to effectively protect ITK? Several mechanisms are proposed below.

One solution to this dilemma would be knowledge codification through an ITK library. It has been done in India: traditional medicinal knowledge is codified in the Traditional Knowledge Digital Library (TKDL), further leading to the establishment of the Traditional Knowledge Resource Classification System for classifying and documenting Indian TK.[32] The TKDL was created to make Indian TK accessible to patent offices internationally, thus rendering it a proof of “prior arts” to defend against future patent claims and appropriation by individuals.[33] 

Moreover, knowledge codification is essential to the preservation of ITK given that cultures constantly diffuse with each other.[34] Mi’kma’q scholar Tuma Young even contends that Indigenous elders would say that sometimes, to protect ITK, it needs to be spread as far as possible.[35] Thus, to help ITK pass on to future generations, codification is necessary and effective, as Indigenous peoples do not need economic incentives to continue practicing their cultures.[36] 

Another possible solution would be the creation of culture-specific, sui generis mechanisms. In fact, Tesh Dagne argues that culture-specific, customs-based IP devices constitute the best option to protect ITK as Indigenous customary laws already play the role of tailored protective instruments.[37] In addition, Chickasaw academic Sa’ke’j Henderson asserts that Indigenous communities wish to protect their ITK through communal control but not for commercial, capitalistic purposes.[38] He suggests moving away from Western IP regimes and creating Indigenous patent and copyright systems, and, after rights expiry, having ITK transferred to an “Indigenous domain”, which he argues already exists in Canada as an Aboriginal right, through s. 35 of the Constitution Act, 1982.[39]  Similarly, Ruth Okediji states that Indigenous peoples seek a right to exclude others and to regulate their relations with those who wish to use their ITK, instead of the economic incentives underlying Western IP law. She adds that “the public domain construct maps perfectly onto, and extends a historically prejudicial view of, the knowledge of Indigenous peoples as part of a global commons [which] has significant implications for the welfare and economic development opportunities of Indigenous groups.”[40] 

Kenya’s Traditional Knowledge and Traditional Cultural Expressions Act, adopted in 2016, also provides an interesting model of Indigenous, sui generis protection of ITK: it “[a]llow[s] [Indigenous communities] to control the use of culturally significant and economically valuable knowledge and expression by creating a new form of intellectual property rights held by the community itself.”[41]  

Geographical Indications (GI) is an interesting model for ITK protection. GIs are “a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin [and which] must identify a product as originating in a given place.”[42]  GIs are new in the Canadian landscape and have been implemented to comply with international instruments. GIs are collective marks: they benefit a group of producers – generally European producers, who agree to implement production and distribution norms set in a binding document and validated by decree. GIs are filed by the authority who is in charge to control the use of the GI.  GIs have the advantage of protecting collective interests, while creating an intermediary level of regulation originating from the producers themselves.[43] For instance, “Bordeaux” wine is granted GI protection and recognition for its distinct production technique and origin.[44] Bordeaux producers negotiated and agreed upon the norms of their “authentic” production technique and defined growing territory covered by the GI.[45] As such, GIs considerably differ from other IP mechanisms: every person respecting the conditions set in the norms of a particular GI will be authorized to use said GI. As well, the control and compliance regarding said norms is often the responsibility of the representative administration and not of private litigants. Communal governance (norms) and state-supported control and prosecution are characteristics not found in traditional trademarks and could therefore provide an interesting avenue for ITK. GIs could also serve in answering the demands of Indigenous communities in “linking certain knowledge goods with the community from which they originate”,[46] and in preparing their own norms for ITK through collective agreement.

Yet GIs in Canada are restricted to certain agricultural products, such as wines and spirits.[47] At present, they do not extend to other goods originating from ITK. Before it is made possible, certification marks may, in the meantime, protect ITK as a temporary substitute to GIs. Certification marks are privately owned collective marks that protect the distinctive characteristics of a type of product.[48] Canada has a history of protecting ITK by certification marks: the “Igloo tag” certification mark, previously held by the Department of Indian Affairs and now owned by the Inuit Art Foundation, has been used to authenticate Inuit art.[49] This can assist in preventing cultural appropriation and profit-making from the unauthorized use of Inuit TK,[50] while encouraging purchases from Inuit artists. 

 [1]Gloria Galloway, “Conservative senators move to kill bill requiring laws to be consistent with UN declaration on Indigenous rights” (28 May 2019), online: The Globe and Mail <https://www.theglobeandmail.com/politics/article-conservative-senators-move-to-kill-bill-requiring-laws-to-be/>; Justin Brake, “‘Let us rise with more energy’: Saganash responds to Senate death of C-262 as Liberals promise, again, to legislate UNDRIP” (24 June 2019), online: The National News <https://aptnnews.ca/2019/06/24/let-us-rise-with-more-energy-saganash-responds-to-senate-death-of-c-262-as-liberals-promise-again-to-legislate-undrip/>.

[2] Article 31 of the UNDRIP calls for a broad protection over the manifestations of the sciences, technologies and cultures of Indigenous people, including their “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.”‍; Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st sess, 42nd Parl, 2018 (as passed by the House of Commons 30 May 2018).

  [3] Ashley Burke, “NDP candidate wants to revive Indigenous rights bill which died with the election call” (25 September 2019), online: CBC News <https://www.cbc.ca/news/politics/ndp-revive-indigenous-rights-bill-1.5296128>.

  [4] Chantelle Bellrichard, “B.C. tables historic Indigenous rights bill in move to implement UN declaration” (24 October 2019), online: CBC News <https://www.cbc.ca/news/indigenous/bc-undrip-indigenous-rights-1.5333137>.

 [5] Ibid.

[6]  The Canadian Parliament has the constitutionally-mandated legislative power to enact some pan-Canadian IP laws to protect ITK. The ultimate implementation of such new IP laws, nonetheless, falls within the provincial or territorial jurisdiction. This inherent complexity and power dynamic of Canadian Federalism raises much uncertainty when it comes to the collaborative protection of ITK between different levels of government.

[7]  Aman K Gebru, “International Intellectual Property Law and the Protection of Traditional Knowledge: From Cultural Conservation to Knowledge Codification” (2015) 15 Asper Rev. Int’l Bus. & Trade L. 293, at 298 (WL Can).

[8] “Traditional Knowledge”, online: World Intellectual Property Organization <https://www.wipo.int/tk/en/ >.

 [9] Copyright Act, R.S.C., 1985, c. C-42, s.3 [Copyright Act]; Patent Act, R.S.C., 1985, c. P-4, s.42 [Patent Act]; David Vaver, “Intellectual Property: The State of The Art” (2001) 32 Victoria U Wellington L Rev 1, at 13-14; Paul Torremans, Intellectual Property Law, 5th ed (Oxford: Oxford University Press, 2008), at 11-12; Angela Riley, “Recovering Collectivity: Group Rights to Intellectual Property in Indigenous Communities”, (2000) 18:1 Cardozo Arts & Ent LJ 175, at 177-179, 182-184 [Recovering Collectivity].

[10]  Recovering Collectivity, supra note 10at 177-178, 216-217.

[11] For the purposes of this paper, the issue will be considered from the traditionalist perspective of customary communal and non-commercial understandings of Indigenous knowledge entitlement.

[12] Angela Riley, “Straight Stealing: Towards an Indigenous System of Cultural Property Protection”, (2005) 80 Washington L Rev 69, at 107 [Straight Stealing].

[13] Bruce Ziff, Principles of Property Law, 7th ed (Toronto: Carswell, 2018) at 2, 3, 7; Torremans, supra note 10.

[14] Angela Riley and Kristen A. Carpenter, “Owning Red: A Theory of Indian (Cultural) Appropriation” (2016) 94 Texas L Rev 859, at 920 [Owning Red]; Straight Stealing, supra note 13, at 87. 

 [15] Gebru, supra note 8, at 12. In addition, ITK regarding biodiversity, climate change, land and resource conservation is regarded as a valuable response to many common challenges facing both Indigenous communities and the global society. “Indigenous ecological knowledge”, online: Parks Canada <https://www.pc.gc.ca/en/nature/science/autochtones-indigenous>;  “Traditional knowledge – an answer to the most pressing global problems?”, online: United Nations Department of Economic and Social Affairs <https://www.un.org/development/desa/en/news/social/permanent-forum-on-indigenous-issues-2019.html> [UNDESA].

[16] Torremans, supra note 10, at 12-23.  

[17] Torremans, supra note 10, at 12-23; Vaver, supra note 10, at 2-4, 14.

[18] Gebru, supra note 8, at 11.

[19] Straight Stealing, supra note 13, at 87-89.

[20] Two major challenges of applying the current IP regime to protect ITK are – Indigenous people’s lack of awareness of the regime and their lack of means to fully participate in the regime. These challenges may render them vulnerable in the course of exploring measures to protect ITK. “First Nations, Inuit and Métis Experiences with Canada’s Intellectual Property System: Stonecircle Report Executive Summary”, online: Innovation, Science and Economic Development Canada  <http://www.ic.gc.ca/eic/site/108.nsf/eng/00006.html> [2016 Government Report].

[21]  Under the Canadian copyright regime, a clear and sole authorship in the work is necessary when proving copyright, save some exceptions, like under an employment relationship. The requirement of originality is specified as more than a mere copy and less than creative novelty, with certain skill and judgment employed in the course of creation. In the meantime, copyright protects the expression of an idea rather than the idea itself. Thus, the condition of fixation requires the expression of an idea being fixed in a material form to warrant protection. Copyright Act, supra note 10, ss. 2, 3, 5 and 13; CCH Canadian Ltd v Law Society of Upper Canada, 2004 S.C.C. 13, [2004] 1 S.C.R. 339; Théberge v Galerie D’Art de Petit Champlain, 2002 S.C.C. 34, [2002] 2 S.C.R. 336.

[22] Under the Canadian patent regime, non-obviousness requires the invention being sufficiently inventive and innovative for a person skilled in the relevant art or science on file date. Particularly, the invention must not have been disclosed more than one year before filing date by the applicant. Meanwhile, novelty requires the invention being new rather than a “prior act” already available to the public in Canada or elsewhere. Patent Act, supra note 10, ss.2, 28.2 and 28.3; Eurocopter v. Bell Helicopter Textron Canada Limitée, 2012 FC 113, aff’d 2013 FCA 219.

[23]  Copyright Act, supra note 10, ss.2.2 and 5;

Patent Act, supra note 10, ss.28.2 and 28.3.

[24]  UNDESA, supra note 16.

[25]  Straight Stealing, supra note 13, at 80.

[26]  Recovering Collectivity, supra note 10, at 186, 190-191; Straight Stealing, supra note 13, at 88-89.

[27]  Recovering Collectivity, supra note 10, at 189-190, 194.

[28] UNDESA, supra note 16.  

[29] Patent Act, supra note 10, s.27; Owning Red, supra note 15, at 920.

[30] Recovering Collectivity, supra note 10, at 178, 186.

[31] 2016 Government Report, supra note 21.  

[32] Gebru, supra note 8 at 324.

[33]  Tesh W. Dagne, “Protection of Biodiversity and Associated Traditional Knowledge (TK) in Canada: Ensuring Community Control in Access and Benefit-Sharing (ABS)” (2017) 30 J. Env. L. & Prac. 97 at 119 (WL Can).

[34]  Gebru, supra note 8 at 318.

[35]  Tuma Young and James (Sa’ke’j) Youngblood Henderson, “Intellectual Property & Indigenous Stories and Culture” (Address delivered at the 31st Annual Indigenous Bar Association Fall Conference, Ottawa, 2 November 2019), [unpublished].

[36]  Gebru, supra note 8 at 318.

[37]  Dagne, supra note 34, at 118.

[38]  Henderson, supra note 36.

[39]  Ibid;Given that, under the Indian Act, most real property on reserve is owned communally, transporting this communal ownership model to intangible property law does not appear to be such a stretch.

[40] Ruth L. Okediji, “Traditional Knowledge and the Public Domain” (June 2018), online: Centre for International Governance Innovation <https://www.cigionline.org/sites/default/files/documents/Paper%20no.176web.pdf> at 1-2.

[41] Naomi Lanoi Leleto, “Maasai Resistance to Cultural Appropriation in Tourism” (2019) 5 Indigenous Peoples’ J of L, Culture & Resistance 21 at 21-22.

[42] “Geographical Indications: What is a Geographical Indication?”, online: World Intellectual Property Organization <https://www.wipo.int/geo_indications/en/ >.

[43] Pierre-Emmanuel Moyse and Claudette Van Zyl, « Fascicule 19 : Les marques collectives » at no 7, 203, in Pierre-Emmanuel Moyse, ed, JCQ Droit des affaires – Propriété intellectuelle.

[44] Ibid, at no 203-205.

[45] “History”, online: Vin de Bordeaux <https://www.bordeaux.com/us/Our-know-how/History?fbclid=IwAR19Nhyn3UBteOwLX0d1PyWa5Iep6_jH4M1M9KED3cqBe5fcYEkN9HyPDOA>.

[46] Okediji, supra note 41 at 4.

[47] Moyse and Van Zyl, supra note 49.

[48] Ibid, at no 6-11, 123-174.       

[49] “Igloo Tag certification mark — 1971434”, online: Canadian Trademarks Database <http://www.ic.gc.ca/app/opic-cipo/trdmrks/srch/viewTrademark?id=1971434&tab=reg&lang=eng>; Daniel W Dylan, “We the North as Dispossession of Indigenous Identity and a Slogan of Canada’s Enduring Colonial Legacy” (2019) 56:3 Alta L Rev 761 at 781-782.

[50] Dylan, ibid.

This content has been updated on January 2, 2020 at 11:28.