First Nations, Inuit and Métis Experiences with Canada’s Intellectual Property System: Stonecircle Report Executive Summary
April 24, 2016
This report provides a synthesis of the responses of the First Nations, Métis and Inuit (FNMI) respondents who participated in the qualitative research study regarding their knowledge of and experiences with Canada's intellectual property (IP) system.
Stonecircle used personal contacts and various ways of accessing the Canadian Intellectual Property Office (CIPO) using CIPO's searchable patent, trademark, and copyright and industrial design databases. 16 Individuals (First Nations, Métis, Inuit and non-Aboriginal) were interviewed for this research study. Respondents include individual musicians, visual artists, authors, a First Nations foundation, a First Nations Band, a university professor, the heads of various Aboriginal businesses, film and music producers, a consultant and a First Nations Education Authority. All interviews were conducted by phone in March and early April 2016. The researchers encountered a number of limitations and challenges, particularly:
- Lack of current contact information thus difficulty locating individuals
- Lack of institutional knowledge of IP and therefore unwillingness to participate
- Lack of interest/issue not a priority for respondents
- Potential respondent away or otherwise unavailable for an interview in project time parameters
Awareness and understanding of Canada's IP system
Everyone interviewed was aware of what copyrights are and 93% had a good knowledge or some knowledge of what a patent is. Trademarks also had 93% awareness but more people only had 'some knowledge'. 47% of respondents had no knowledge of industrial designs or trade secrets.
Regarding copyrights, respondents were aware that written and recorded materials were subject to copyright and that copyright automatically applied to these items in Canada. There was less awareness of items other than written and recorded materials that are subject to copyright. Regarding patents, there appears to be some confusion and lack of understanding of what a patent is. Some respondents originally said they knew what they were but then were confused when a list of patentable products was discussed. There is a lack of awareness of the difference between patents and industrial designs. A respondent was also not sure if it was appropriate to patent some items because they contained traditional community-based knowledge and 'the process is not mine to patent'. Regarding trademarks, 87% of respondents indicated that they had trademarked material though barely half of those had taken steps to register their trademarks. Most respondents said it was not clear how trademarks apply to traditional knowledge or cultural knowledge and there is little awareness of the process of registering a trademark. Regarding industrial designs, only 33% knew what they were. With prompting, five respondents thought they did have intellectual property that could be considered an industrial design though there was no indication that they were planning to register their industrial designs through Canada's IP system. Regarding trade secrets, again only 33% were aware of what they were. 5 respondents thought they had trade secrets but then were unsure when presented with definitions and examples but the 5 respondents said they took other approaches such as non-disclosure agreements or community-based approaches to protect their trade secrets.
Engagement and Use of Canada's IP system
Three respondents answered specific questions about patents. Their patents are: a detachable bed sheet and waterproof pad system; an Internet-based language archiving and education system; and various curling paraphernalia and products. In all three cases, the respondents said the process to register their patents was time-consuming and expensive. Two respondents also said they do not have the financial capacity to enforce the patent if someone were to misuse it. While one respondent is currently suing two individuals for patent infringement, he may not see it through the courts due to the high lawyer's fees.
All respondents said they had developed some form of copyright material with 31% having taken formal steps to register their copyright while others understood they had copyright but had not registered a copyright. Of the 5 respondents who had registered copyright =material, 4 out of 5 hired a third party (lawyer or consultant). Nine other individuals were invited to participate in an interview about their registered copyright material but declined an interview because it was the third party who undertook the registration on their behalf and they were not comfortable speaking about the details. The key reason for registering copyrights was to ensure no one copied their work, though the majority said they have not seen any benefit to copyrighting their works. As an example, after registering a copyright for one song, one respondent did not see any reasons to register the copyright because they were still protected. The two respondents who did not register their copyright material said it was because it was not standard practice and they did not see the benefits. All of the respondents who registered copyright material said their item was related to First Nations, Inuit or Métis (FNMI) culture and that they were more concerned about seeking permission and following traditional or community protocols and processes to ensure the work was presented appropriately.
All but one respondent had developed some form of IP that could be considered a trademark. Only 57% of those with trademarks had taken steps to register with CIPO. Of those, only 5 (31%) felt they had sufficient knowledge and were willing to respond to specific trademark questions. All respondents who registered a trademark said they did so in order to promote and brand their organization, name or work. Cost was the main reason cited for not registering a trademark and subsequent costs to protect the trademark through the legal system were viewed as prohibitive. One example is the word 'inkameep' which means head of the lake in the Okanagan language. That word was used without community consent and trademarked by the province of BC and the Osoyoos Indian Band spent a lot of time and money to regain the rights to use that traditional word. Several respondents said that Canada's IP system "was not developed to protect the traditional knowledge of FNMI peoples, which is often captured in artwork and traditional cultural expressions." One respondent registered a trademark for "Authentic Indigenous" which has become a brand for Indigenous artists to put on their works to demonstrate their artwork is authentic.
Reasons for using Canada's IP System
- Lack of Understanding. Some respondents registered their IP because they thought it was a requirement; or they misunderstood the purpose or benefits.
- Based on advice. Someone else registered on their behalf (usually a lawyer) so they were not clear on why the registration occurred.
- Economic benefits. Some respondents must register in order to obtain grants from various funding agencies (for example in film and video), others indicated it was the best way to begin selling their product in Canada and exporting it.
- Acknowledgement. Many of the respondents registered their IP because if anyone wanted to copy the IP they would get credit and proper acknowledgement would be given.
- Prevent others from making protected work. The main reason for taking formal steps to protect their IP was to prevent the unauthorized use or misappropriation of their IP.
Reasons for not using Canada's IP System
- Alternative systems. Musicians and artists seek protection for their work from associations such as the Society of Composers, Authors and Music Publishers of Canada (SOCAN) or the Canadian Artists' Representation/Le Front des artistes canadiens (CARFAC) rather than register through CIPO. Others want to follow Indigenous laws and protocols for protecting IP and do not see a need to do this within the mainstream, government system. In one case, a trademark was registered in order to have legal recourse for Indigenous artists who have cultural property that might not otherwise be protected in Canada's IP system.
- Lack of benefits to registration. While more copyright holders and patent holders did not see any benefits to registering IP than trademark holders, all respondents believed that any benefits they had derived from registration were outweighed by the prohibitive costs of registering or protecting their IP.
Respondents indicated a number of challenges to using Canada's IP System, including:
- Perception that it is 'set out to benefit the educated and elite, not FNMI people'
- FNMI lack of trust in government systems and processes
- Lack of awareness of actual benefits
- Outreach and Promotion. Develop Aboriginal-specific outreach and promotional initiatives, such as pamphlets, videos, web site, webinars, PSAs, conference presentations, web search optimization.
- Improve Indigenous IP protection. This includes support for and partnering with community-based IP initiatives, implementing enforcement mechanisms, and developing legislation to support and protect FNMI IP rights.
- Develop a consumer education program, to inform consumers about the consequences of buying misappropriated FNMI artistic works.
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