The relationship between the current Intellectual Property (IP) legal framework and the protection it might afford Traditional Knowledge (TK) and traditional cultural expressions (TCE) is complex.
Traditional forms of IP (patents, trademarks, copyright, industrial designs, geographical indications, trade secrets), provide the rightsholders with economic and moral rights over their creations for a fixed period of time. While these traditional forms of IP protection can and should be used by Indigenous people to protect their IP rights where appropriate (for instance using the certification mark to establish the authenticity of Inuit Art; using the Copyright Act to protect the sound recordings of Indigenous artists, and performers), it is the case that the current Canadian Intellectual Property laws do not accommodate the protection of TK and TCE’s.
The current Canadian Intellectual Property (IP) legal framework does not offer adequate protection of Traditional Knowledge (TK). Given the vast amount of TK that a community may share with the Crown and third parties, CG Law can help identify what the community needs/wants to protect and how that protection may be achieved whether through traditional IP tools such as copyright and trademarks to other mechanisms such as limited scope contracts or non-disclosure agreements. It is also important for community members who are sharing certain information to understand how this information can be used and how they can be protected.
IP and Indigenous knowledge systems stem from different world views and as such, the factors that underpin and distinguish TK and TCEs (collectively held by the community, evolving as the TK passes between generations) are also the factors which present gaps in the ability to protect TK and TCE’s under the present IP legal framework. For example:
- Canadian IP laws require an idea to take on a fixed form (for example, a book). Such a requirement prevents protection of intangible TK and TCEs that are transmitted or shared orally;
- Formal IP protection also requires the identification of a known individual creator(s) or inventor(s). The very concept of “ownership” in the IP sense would likely be contrary to the perspective of Indigenous peoples, where the knowledge belongs collectively to the community.
- Under copyright, patent and industrial design laws, “originality” is required. As TK and TCEs are passed from generation to generation within a community by Knowledge Keepers, the standards of “originality” may not be met as the TK evolves and the creator or “inventor” will not be defined;
- Innovations based on TK, such as the development of a drug to treat certain medical conditions may be eligible for protection under existing IP frameworks, but not the underlying TK which for instance, might have originated with the sharing Indigenous harvesting practices;
- Copyright, Industrial Design and Patent laws provide a limited term of protection, whereas community held TK and TCEs would not have a definitive creation or end date, as the knowledge /practice will survive with the community.
Canada is a party to a number of international instruments that include specific provisions to address concerns over the development, protection and preservation of TK and TCEs. For instance, Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) outlines a number of fundamental rights for Indigenous peoples including the right to maintain, control, protect and develop their IP over their cultural heritage, TK and TCEs. The Convention on Biological Diversity (CBD) requires Parties to respect, preserve and maintain the knowledge, innovations and practices of Indigenous and local communities, promote their wider application, and encourage the equitable sharing of benefits.
While there have been discussions both domestically and globally to address (among other things) the protection of TK and TCE’s, to prevent culturally and spiritually offensive uses, and to stem the appropriation of culture, there have been no significant amendments to date to the Canadian legal framework which would operate to bridge or address some of the gaps noted above.
A more integrated approach between Canadian legal systems and Indigenous laws is clearly required which allows room for Indigenous world views and affords protection over Indigenous TKs and TCE’s .
Until that development occurs, Indigenous communities may want to consider alternatives such as TK Engagement Protocols and private contracts to protect their heritage and promote their culture.
To learn more about how your community might protect its TK from third party appropriation or to discuss how the current IP laws may afford protection, contact CG Law for a free consultation.