copyright act
The Problem With Protocols: Why Traditional Knowledge Needs To Be Protected By Legislation
Tags: copyright act, indigenous publishing, intellectual property, protocols, traditional knowledge | Essays - Fall 2017, Uncategorized | Posted November 17, 2017 by sepruys
In this essay, I will examine how Indigenous Traditional Knowledge (TK) is not protected by Intellectual Property Rights (IPR) laws (specifically the Copyright Act), how Indigenous communities have begun using protocols as an interim protective measure, and why further changes to protect TK through federal legislation beyond protocols are still needed.
Through colonialism, European ideas of copyright and public domain were planted across what is now considered the Western world, while at the same time Indigenous ideas of community ownership were oppressed. Only in recent decades have steps been taken to balance worldviews, but there is still much work to do. As Gregory Younging points out in his book, Elements of Indigenous Style, "Neither common law nor international treaties place Indigenous customary law on equal footing with other sources of law. As a result, Traditional Knowledge (TK) is particularly vulnerable to continued misuse and appropriation without substantive legal protection" (Younging 2018, 158).
The problem arises in differing ideas of ownership, public domain, and time allowances. The ways in which TK is owned and shared in Indigenous communities is complex and situated in community ownership, oral storytelling, and passing knowledge down through generations (Coombe 2008, 258; Udy 2015). Meanwhile European constructs focus heavily on author's rights (which by law extend 50 years after their death and then their work enters the public domain) and on tangible expressions of creativity. Given the fundamental differences in views, it becomes very difficult to find a solution that suits and honours both cultures, yet "new systems of protection need to be developed and implemented (that could both include, and work in conjunction with, Indigenous customary law" (Younging 2018, 163).
Although European regulatory regimes are much younger than Indigenous regimes, historical realities have subjugated Indigenous knowledge beneath European constructs (Younging 2018, 149). As such, Indigenous Peoples have had to either find ways to force TK to adapt to IPR, or have developed protocols that govern the use of TK as Younging suggests. I argue that neither of these solutions goes far enough in protecting TK. More must be done, and I will look at why this is and what some possible solutions are.
Communities have begun taking matters into their own hands by returning to tradition and implementing community protocols that everyone interacting with the community should follow. But although protocols can increase awareness of appropriate and responsible behaviour at the community level, in the eyes of the law they are simply guidelines and therefore are susceptible to vulnerabilities. In many cases, as Younging explains, "They are not made up counter to legal experience but are informed by and respond to formal legal failings or inadequacies" (Younging 2017, 182). They fill a loophole that the law has yet to recognize as a problem. And so protocols, and similar private law-making forms, like agreements, consents, and contracts, are left to rely on the people's ability to self-govern (Younging 2017, 182). Research out of Australia by Indigenous lawyer Terri Janke, along with the multi-disciplinary Intellectual Property Issues in Cultural Heritage IPinCH project out of Simon Fraser University, have laid the groundwork for understanding how IPR and TK can coexist through protocols, but they are a starting place; a framework for future legislation. (Janke 1998, Christen 2015, Udy 2015, Gebru 2015, Younging 2017, 182).
In these young post-Truth and Reconciliation Commission years, Canadians are more aware of proper ethical behaviours surrounding Indigenous culture and are more responsive to community-developed protocols. In many cases, media scorn and societal pressure cause companies and individuals to rethink questionable products and service offerings that may be considered offensive. But there is always risk that Indigenous stories, medicines, and teachings put in the spotlight will next be put under the microscope, and consequently with greater awareness of Indigenous culture will come greater a potential for commercialization and appropriation. As IPinCH lawyer Vanessa Udy pointed out, "Differing circumstances (including knowledge, wealth, power and ability) render some people better able than others to exploit legal rights…There has been a marked absence of significant enforcement actions by Canadian Aboriginal groups largely due to the cost of registration and/or enforcement of intellectual property rights" (Udy 2015). Small communities already stretched for resources will be unable to fight big corporations in court, especially when the law is not on their side. Just as the Ford Motor Company completed a cost-benefit analysis and calculated that it would be cheaper to pay out injury claims than to fix Ford Pintos in 1977 (Dowie 1977), corporations' morals tend to align with economic benefits. If it is cheaper to exploit TK and later settle with the Indigenous Peoples affected, then this is likely what corporations will do, as "many areas of traditional knowledge have potentially lucrative applications" (Simeone 2004).
In the publishing industry we have seen an increased interest in publishing Indigenous stories over the past few years, which aligns with an increase in grant money (such as the new Creating, Knowing and Sharing: The Arts and Cultures of First Nations Inuit and Metis Peoples grant administered by the Canada Council for the Arts). The publishing community has exploited TK for profit in the past (just look back less than a year to the Joseph Boyden scandal), and without something more binding than protocols it is likely to happen again (Andrew-Gee 2017). Indigenous Peoples should have first priority to benefit from TK, but without legislation TK is not protected from exploitation.
There are two main legal pathways lawmakers could take to begin to remedy this problem: firstly, they could empower Indigenous Peoples to write their own legislation and give protocols legal standing; or secondly, they could revise existing IPR law to cover TK. As Aman Gebru, a IPinCH lawyer and researcher, wrote, "There is a growing body of scholarship which argues that innovation and knowledge production does take place within traditional settings and that legal protection is required to conserve this valuable body of knowledge" (Gebru 2015, 2).
While the Truth and Reconciliation Calls to Action call upon all levels of government to adopt and build an action plan based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Canadian legislation has not yet been revised in accordance with the declaration. The UNDRIP framework says, "Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions…They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions" (UNDRIP 2007). UNDRIP is seen as the most comprehensive look at Indigenous Peoples' rights, and as such there is pressure on the Canadian government to quicken the adoption of the declaration. "All they have done is talk about it and set up processes to engage in more talk about it, but they have not started the legal process of implementation," said Ryerson University professor Dr. Pam Palmater in September 2017, more than a year after Canada announced it would adopt the UNDRIP (Morin 2017). If Canada is serious about adopting the declaration, then they must take actions—and not just make statements—to give Indigenous customary law equal status in the courts. To fully recognize and give legal stature to Indigenous customary law would give it equal footing with European law, and through that would be a big step in the right direction towards protecting TK and in returning power to Indigenous Peoples. However, since copyright is under federal jurisdiction, Canada would need to revise the Constitution Act to allow Indigenous communities (or even provinces and territories) to take their own action (Constitution Act). Alternative methods, such as sui generis legislation, have been suggested by the research community, but it is still unclear what this unique legislation would look like and how it would work (Udy 2015).
The second option is to integrate Indigenous customary law into current Canadian law. Canadian copyright is influenced by English, French, and American models (Bannerman 2013, Boyle 2008), and as such, it only makes sense that Canadian law also recognizes Indigenous models that existed long before the country itself did. "Indigenous legal rights and relationships were obscured under a heavy fog of Canadian federalism" (Burrows 2001, 10), and Indigenous Peoples should not have to resort to developing protocols as a legal framework while other countries' laws are given precedence. This only further contributes to an imbalance in power and stature, giving Indigenous customary laws second-class status compared to Canadian common and statute law.
But as noted at the beginning of this paper, TK and IPR are based on fundamentally different values, and as such, it would be very complicated to merge the two (Coombe 2008, Younging 2018, Gebru 2015, Brown 2016). Extensive consultations would be required to make Canada's current Copyright Act balanced to accommodate both Western and Indigenous cultures, and at the slow speed at which major changes like this tend to move it could be decades before TK is properly protected. Merle Alexander, an Indigenous lawyer, said, "Canada hasn't been very receptive to opening up its intellectual property laws — I think they think it's a floodgate argument — that if you open it for any specific review, all the issues that exist with IP law people would want changed" (Brown 2016). Due to the difficulties in finding a way to satisfy both Western and Indigenous worldviews regarding IPR, and the Canadian government's lack of action to revise the Copyright Act, this second option is less favourable.
However Canada chooses to move forward, it is imperative that Indigenous Peoples are informed, included, and consulted throughout the decision-making process. As Janke said, "Indigenous people need to be informed about existing cultural heritage laws and how these impact on their Indigenous Cultural and Intellectual Property Rights" (Janke 1998, XXV). Legislation, whether at the federal or community level, tends to be inaccessible to the majority of the public. For example in publishing, the Indigenous community may not be familiar with intellectual property law; while the publishing community may not understand Indigenous customary law, which has lead to the appropriation of sacred stories. This urgent need to write or revise copyright law to account for TK comes with an opportunity and a responsibility to create legislation that is accessible and inclusive for all.
Protocols are a step in the right direction when it comes to protecting TK, but legislation is needed if concrete change is going to happen. Without federally legislated change, either through devolution of power to Indigenous Peoples to take ownership for their own culture as called for in the UNDRIP, or without the Canadian government revising existing IPR laws, Indigenous TK is vulnerable to exploitation and appropriation. Steps towards greater recognition of Indigenous TK is good—but only if accompanied by the proper protections.
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