Aboriginal Intangible Property in Canada: An Ethnographic Review
6. Concluding Comments
This ethnographic analysis of Aboriginal cultures in Canada has shown conclusively that customary protocols and laws with respect to intangible property exists, and that they play important social and economic roles in Aboriginal communities. The anthropologists who have written the ethnographies upon which this review has been based have long been interested in ideas of 'property' as they are found in non Western societies. The challenge has been to understand property concepts and institutions in terms that do not impose too heavily Western categories and assumptions about the functioning of property in differently engaged economies. Stereotypes of Indigenous peoples as 'primitive' with social organizations 'too simple' to have complex legal institutions like intangible property relations have pervaded popular and scholarly discourse. Anthropological investigations and analysis grounded in detailed studies of non Western cultures strongly challenges these perspectives. Since the early 20th century, professional anthropologists have attempted to dispel popular views that Indigenous peoples were 'incapable' of having notions of property. Since the early writings of Franz Boas,161 he and his students have detailed the functioning of intangible property systems throughout North American Aboriginal communities.162
One critical problem in the anthropology of intangible property has been in how wide or narrow a definition of property may be useful to understand these systems in other cultures. Some scholars have taken a narrow view. Cappannari,163 in his study of the property systems of the Shoshone has commented that in framing "the right to tell a particular myth, perform a ceremony or to sing a song" as intangible or incorporeal property, it serves "to obliterate useful and important distinctions in the property rights of different cultures." He claimed that for areas where transactions seldom occur, where there is little commercial significance, or where they function in the realm of the prestige economy rather than the subsistence economy, that 'property' becomes too loose a term for developing a framework of comparative property law.164 This narrow view of intangible property has been challenged by scholars such as Hallowell who argued that not all property in any society is intended to be exchanged for some commodified value, and that indeed "rights in songs, in magical formulae, legends, etc." are 'owned' in the same sense as are other material objects.165 The key for these things to fall into the category of 'property' rests in the fact that they are valued, and that such values order social behaviour between people.166
Many ethnographers today continue to emphasize the critical importance of understanding the relationships between people that 'property' engages.167 To understand the centrality of property in general, and intangible property in particular in cross cultural perspective, it is critical to examine the social relationships that are established and maintained.168
Much of the anthropological debate around theorizing intangible property has been focussed at generating an understanding of the idea that makes sense in a multitude of diverse cultural settings. Particularly challenging has been the idea that intangible property can exist outside a capitalist economic system and the valuation of commodities that it implies. Anthropologists have concluded, with particular reference to intangible property systems of Aboriginal communities in North America, that intangible property may indeed have important economic values (ie: subsistence) and most certainly have value in prestige economies where social hierarchies may be maintained or reinforced. For example, where
the circulation of goods creates social relationships between the transactors rather than impersonal relationships of price between the objects transacted… [t]he production and consumption of intellectual property function in the maintenance of rank or prestige, in the formation of alliances and patronage networks. Rights in magic, in dances, in rituals, or in the designs of masks or statuary seem therefore to be treated often as intellectual prestige goods, and to form part of special high-status or ceremonial spheres of exchange. Even those forms of intellectual property that are treated, like land, as a clan's inalienable patrimony, yield for their owners essentially social rewards such as status, reputation or political influence.169
When the intangible property systems of a particular cultural group are seen in this light, we can better understand the basic principles and objectives underlying their protection within the appropriate customary cultural frameworks. While these may at times differ markedly from those of the formal intellectual property law system (ie: encouraging innovation through protecting rights to profit from the production and circulation of ideas as commodities), they are nonetheless valid and essential defining principles of the communities and cultures from where they emerge.