Traditional Knowledge, Intellectual Property Rights and Protection

Given the developments around consultation and accommodation since the Supreme Court of Canada’s decision in Haida Nation V. British Columbia (Minister of Forests), Indigenous communities are often asked to participate in Indigenous Knowledge Studies wherein community cultural values are mapped in order to facilitate an assessment of what asserted rights may be impacted, the potential extent of those impacts and how the impacts may be managed, mitigated or avoided altogether.

These values may be collected individually, or through group sessions and are generally focused on the knowledge of important cultural and sacred sites, environmental and ecological habitats, and historical land use. The map and/or database that is created is helpful in the engagement and negotiations process with government and industry where resource development or other decisions are proposed within the traditional territory of the Indigenous community.

When collecting or sharing knowledge, either internally or with other parties, a community should turn its mind to the protection of its traditional knowledge (TK).

The current Canadian Intellectual Property (IP) legal framework does not offer adequate protection of Traditional Knowledge (TK). Given this “sharing” of information through the engagement process, First Nations will want to identify the nature and extent of TK that should be disclosed, the mechanisms available to protect that information, how such information will be used, the limitations on such use and how the TK values map/database will be maintained. First Nations should also consider mechanisms and protocols to protect TK even where this is collected and maintained internally.

Outside of the consultation process, TK may also be shared by virtue of economic partnerships with third parties in which instance, parties will want to turn their minds to specific provisions in contracts to protect TK.

TK may also be used to add value to products that come from a certain area, are made or harvested in a certain way, have certain qualities or are created by a certain Indigenous Group. In these cases, the individual or collective may look to other tools for protection, including those protections such as copyright and trademarks available under the current Canadian IP framework

CG Law can provide advice on how best to protect your TK and, where it falls outside of the protections currently afforded under IP laws, we can help you identify risks and explore alternative mechanisms for protection.