{"id":265265,"date":"2017-06-27T13:17:58","date_gmt":"2017-06-27T17:17:58","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/who-owns-indigenous-cultural-and-intellectual-property\/"},"modified":"2025-10-07T21:40:25","modified_gmt":"2025-10-08T01:40:25","slug":"who-owns-indigenous-cultural-and-intellectual-property","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2017\/06\/who-owns-indigenous-cultural-and-intellectual-property\/","title":{"rendered":"Who owns Indigenous cultural and intellectual property?"},"content":{"rendered":"

The recent, very public dispute over the appropriation of Indigenous voices<\/a> was just one manifestation of a much larger issue: the struggle for the protection of Indigenous cultural and intellectual property, which has been going on for decades. It has been addressed most prominently by the United Nations in its 2007 Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada finally endorsed in 2010 while declaring it, shockingly, to be only \u201caspirational<\/a>,\u201d not legally binding.<\/p>\n

Just over a year ago, however, Canada declared itself<\/a> to be \u201ca full supporter of the declaration, without qualification.\u201d The Minister of Indigenous Affairs stated, \u201cWe intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.\u201d \u00a0Since the Assembly of First Nations and the federal government recently announced a co-initiative<\/a> to revitalize, preserve, protect and maintain Indigenous languages, and since the Canadian Copyright Act is up for review this year, we have every reason to hope that Indigenous linguistic, cultural, and intellectual property rights will at last be protected.<\/p>\n

Article 11<\/a> of UNDRIP declares\u00a0<\/em>that Indigenous people have not only the right \u201cto practice and revitalize their cultural traditions and customs [including] the right to maintain, protect and develop the past, present and future manifestations of their cultures,\u201d but also the right to \u201credress [provided by the state] through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.\u201d<\/p>\n

Canada\u2019s laws, on the other hand, have worked not only to ignore and\/or specifically deny the rights of Indigenous peoples to practise and maintain their cultural and intellectual property but also to legalize the theft of Indigenous cultural and intellectual property through the Copyright Act<\/em>. As Greg Younging concluded in a 2010 paper<\/a> delivered to the World Intellectual Property Organization, \u201cJust as Indigenous territories were declared as Terra Nullius<\/em> [nobody\u2019s land] in the colonization process, so too has TK [traditional knowledge] been treated as Gnaritas Nullius<\/em> (Nobody\u2019s Knowledge) by the IPR [intellectual property rights] system and consequently flowed into the public domain along with Western knowledge.\u201d<\/p>\n

The Maliseet tapes<\/strong><\/p>\n

A few years ago, the Canadian Association of University Teachers (CAUT) quietly came to the aid of a group of Maliseet families in New Brunswick and helped them to begin publishing the stories of their elders, which had been collected by a university professor in the 1970s and \u201980s. This may look like a simple matter of moral and\/or financial support, but it was more than that: it was a direct challenge to Canadian copyright laws.<\/p>\n

For more than a decade the children and grandchildren of the storytellers had been working with me, when I was the chair in native studies at St. Thomas University, to edit, illustrate and publish nearly 5,000 pages of stories in the Maliseet language.<\/p>\n

In 2000, St. Thomas University and three Maliseet communities paid the collector for his set of nearly 40 large reel-to-reel tapes, on condition that copyright would be conveyed to the families. This condition was necessary since patently unjust Canadian laws invest copyright in anyone who records or transcribes a story, rather than in the teller of a story (or his or her people) as originators of the intellectual content. According to Robin Vose<\/a>, the former president of CAUT, the situation exemplifies a \u201cfundamental tension between law and justice.\u201d It also exemplifies a mind-boggling contradiction between law and common sense. Even the elders who translated the stories for the collector acquired no rights to the translations, because it was the collector who transcribed them.<\/p>\n

After the collector received his fee for the tapes in 2000, he delayed conveying copyright to the families until 2004, when he finally refused to honour his agreement. From 2004 to 2007, the lawyer for the families negotiated with the lawyer for the collector, and even though the families eventually offered to share copyright with the collector, he refused that compromise too.<\/p>\n

In the end, the families of the storytellers were unwilling to have the books published under the collector\u2019s copyright, primarily because to do so would have constituted consent to what was effectively the theft of their stories. Since they had also been advised that they could be sued if they published the stories without acknowledging the collector\u2019s claim to copyright, they decided that they could not take that risk. This meant that they would never be able to legally make copies of the tapes they had bought, not even for the children of the storytellers, nor could they allow them to be used in Maliseet language classes. The families were also legally constrained from reproducing the written texts for any purpose. Under current law this also meant that they could not do anything with the stories until 2057, when they would fall into the public domain, 50 years after the death of the collector.<\/p>\n

In the decade since negotiations with the copyright holder, the Maliseet language has dropped two categories in UNESCO\u2019s scale of language endangerment \u2014 from \u201cdefinitely endangered\u201d to \u201cseverely endangered,\u201d and now to \u201ccritically endangered.\u201d Unless something radically different is done soon, our language will drop to the next category, \u201cextinct,\u201d in the next decade. This is a result not simply of copyright laws but also of the failure of other laws to treat Indigenous linguistic rights in Canada as equal to those of the French and the English. The inequality is most obvious in the failure of the state to fund education for Indigenous children in the medium of their mother tongue. Clearly copyright laws have not only reflected that inequality but also aided and abetted it.<\/p>\n

With CAUT\u2019s generous assistance, the first book of Maliseet stories was finally published in 2015, without attributing copyright to the collector. So far, no action has been taken against CAUT, the families or me by the collector\u2019s estate, but that could still happen under Canadian law, whether or not the law is changed after the upcoming review.<\/p>\n

Righting the wrongs<\/strong><\/p>\n

Canada must\u00a0take appropriate steps to adopt and implement UNDRIP according to its commitment of a year ago. Giving effect to article 11 will require at the very least that Canada take the following actions:<\/p>\n