The recent, very public dispute over the appropriation of Indigenous voices 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 “aspirational,” not legally binding.

Just over a year ago, however, Canada declared itself to be “a full supporter of the declaration, without qualification.” The Minister of Indigenous Affairs stated, “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.” Since the Assembly of First Nations and the federal government recently announced a co-initiative 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.

Article 11 of UNDRIP declares that Indigenous people have not only the right “to 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,” but also the right to “redress [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.”

Canada’s 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. As Greg Younging concluded in a 2010 paper delivered to the World Intellectual Property Organization, “Just as Indigenous territories were declared as Terra Nullius [nobody’s land] in the colonization process, so too has TK [traditional knowledge] been treated as Gnaritas Nullius (Nobody’s Knowledge) by the IPR [intellectual property rights] system and consequently flowed into the public domain along with Western knowledge.”

The Maliseet tapes

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 ’80s. 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.

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.

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, the former president of CAUT, the situation exemplifies a “fundamental tension between law and justice.” 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.

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.

In the end, the families of the storytellers were unwilling to have the books published under the collector’s 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’s 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.

In the decade since negotiations with the copyright holder, the Maliseet language has dropped two categories in UNESCO’s scale of language endangerment — from “definitely endangered” to “severely endangered,” and now to “critically endangered.” Unless something radically different is done soon, our language will drop to the next category, “extinct,” 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.

With CAUT’s 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’s estate, but that could still happen under Canadian law, whether or not the law is changed after the upcoming review.

Righting the wrongs

Canada must take 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:

  • Abolish all copyright laws that legalize the theft of Indigenous cultural and intellectual property
  • Provide redress for damage done to Indigenous peoples, languages and cultures as a result of laws that have legalized this theft
  • Provide restitution so that all Indigenous peoples will have the means not only “to practise and revitalize their cultural traditions and customs” but also “to maintain, protect and develop the past, present and future manifestations of their cultures”

Once implemented, Article 11 could ensure equal access for Indigenous peoples to state-funded education in the medium of their mother tongue, the means to develop this form of education and the right to use as curriculum all manifestations of their cultures, including those stolen from them in the past. It could mean the difference between life and death for Indigenous languages and cultures in Canada.

This article is part of the Reviewing Canadian Copyright Policy special feature.

Photo: A woman in traditional Mi’kmaq dress takes part in a round dance with both indigenous and non-indigenous peoples during Aboriginal Day celebrations in Halifax on Wednesday, June 21, 2017. THE CANADIAN PRESS/Darren Calabrese

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