Aboriginal Intangible Property in Canada: An Ethnographic Review

6. Concluding Comments

6.1 Looking Forward

In their paper Intellectual Property and Aboriginal People, Brascoupé and Endermann discuss a difference in purpose between formal intellectual property laws (which exist to encourage investment and innovation) and traditional knowledge, for which they say "the primary goal of Aboriginal people is usually preservation rather than innovation".¹⁷⁰ Laws about knowledge and the knowledge itself are different classes of things. Making this distinction creates a sense of difference and irreconcilability that is difficult for policy-makers, Aboriginal people and academics to navigate. This study focusses on the nature and extent of customary protocols and laws centred in different Aboriginal cultures in Canada, highlighting the range and scope of traditional knowledge and traditional cultural expressions that these protocols and laws apply to. Thus, we try to bring out important comparative material which should provide useful in developing policy regarding Aboriginal intangible property.

We found that customary protocol and laws with respect to intangible property are widespread across the diversity of Aboriginal communities, having a different particular scope of subject matters, rights and obligations in the different areas. From a comparative sense there are some strong similarities in the kinds of property relationships expressed in these communities, particularly the importance of collective ownership of some property by certain social groups, and the frequent engagement of non-human (i.e.: spiritual) beings in the rights, responsibilities and obligations associated with these property.

Brascoupé and Endermann have identified a number of questions directed at aiding Aboriginal people in defining their concerns with this long term protection.¹⁷¹ These questions included:

• identify the scope and nature of traditional knowledge in their community
• identify what knowledge is most important in the community
• identify how the preservation of traditional knowledge and practices is at risk
• identify the obligations of individuals to their community when they use or share traditional knowledge
• identify what knowledge is sacred and what knowledge may be shared with others or used commercially

To be clear, this study does not attempt to address these questions on a broad scale for all traditional knowledge or traditional cultural expressions. Specific answers to these questions are very difficult to arrive at when framed in the broader debate over protecting cultural property.¹⁷² Such a process would be more appropriate for individual communities developing their own protocols with respect to the control, dissemination and commercialization of these kinds of knowledge. However, by examining how people practising their cultures have formulated and live by their own customary protocols and laws with respect to intangible property, we suggest that a starting point for important cross-cultural understandings can be built.