ARCHIVED — Traditional Knowledge

Aboriginal Peoples and IP

The intellectual property (IP) system and traditional knowledge are areas which are receiving increasing attention within Aboriginal communities in Canada and amongst government policy-makers. Aboriginal peoples have a particular interest in these areas as they relate to the broader interests in preserving, protecting and the equitable use of Aboriginal cultural heritage.

In attempts to better understand the perspectives of Aboriginal peoples on traditional knowledge issues, officials from the Intellectual Property Policy Directorate (IPPD) and the Department of Canadian Heritage have held a series of local or regional workshops with Aboriginal representatives and communities. The purpose of these workshops has been twofold — to provide an overview of the Canadian IP regime illustrating the benefits and limitations of IP rights, and to gain a better understanding of the concerns of Canadian Aboriginal peoples with respect to Aboriginal traditional knowledge.

In October 2002, the Gitxsan First Nation invited IPPD to its territory in Hazelton, British Columbia. A one-day workshop was attended by approximately 30 members of the Gitxsan community. The workshop was very interactive as questions and concerns were raised throughout the course of the presentations. Examples of questions raised included: How can Aboriginal people protect their oral stories, songs and dances? Who owns copyright in information or stories contained in research papers? What can be done to stop the commercial use of pictures of totem poles, crests or other symbols by third parties? In Aboriginal culture, ownership of intangible cultural property is often vested in the house group, whereas IP rights are generally individual, private rights. Could the IP system allow for the extension of rights to a community?

A meeting with Atikamekw First Nation representatives was subsequently held in Montreal in November 2002. Concerns relating to the imitation of Aboriginal art work, the sharing of confidential data, and the difficulty of reaping benefits from medicinal traditional knowledge shared with third parties were discussed.

In March 2003, IPPD officials returned to British Columbia to participate in a larger-scale workshop in Vancouver. Participants included representatives of approximately 20 First Nations, and the workshop included presentations by academic and research professionals. Participants expressed interest and concerns regarding the use of inappropriate or culturally offensive trade-marks over certain Aboriginal images and names, copyright over traditional knowledge research conducted by non-Aboriginal people, the need to preserve and promote the use of Aboriginal culture and languages, and access to information issues regarding traditional knowledge held by governments. A report summarizing the presentations and concerns raised during the workshop may be consulted electronically at http://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/ip01075.html

Subsequently, the federal government co-hosted a World Intellectual Property Organization (WIPO) North American regional workshop on IP and traditional knowledge in September 2003. The workshop served as a follow-up to the WIPO North American fact-finding mission held in 1999 concerning the IP needs and expectations of traditional knowledge holders. The workshop brought together about 75 people including Aboriginal, academic and government experts on IP and traditional knowledge from across Canada, and from the United States, Australia, New Zealand and Costa Rica.

Topics considered by panelists and participants included: international initiatives at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore; the legal protection of traditional cultural expressions and traditional knowledge; practical initiatives to protect indigenous cultural heritage and traditional knowledge; the impact of documenting traditional knowledge on IP management; and the interface between customary protocols and IP. Participants generally regarded the workshop as a useful source of information and a well-chosen forum for sharing strategies and practical experiences.

The above-mentioned workshops have provided some help in clarifying the extent to which IP laws may affect the use of traditional knowledge. Three basic objectives which Aboriginal groups appear to pursue in regard to traditional knowledge and cultural heritage include:

• protection against the use of items or expressions that are "sacred" and against misappropriation and misrepresentation of Aboriginal culture by outsiders;
• repatriation of aspects of cultural heritage that have been misappropriated; and
• preservation of, and control over, existing cultural heritage.

Further work needs to be done to more clearly identify the interests and concerns of Aboriginal communities. IPPD welcomes further opportunities to meet with Aboriginal communities to discuss questions regarding IP and Aboriginal cultural heritage.