Canadian Copyright Review: The Case of Indigenous Culture

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As it prepares to take on the task of bringing forth amendments to Canada’s copyright legislation, the Canadian government will be digesting and assessing two recent Parliamentary reports dealing with copyright issues, Shifting Paradigms, the report of the Standing Committee on Canadian Heritage and the INDU Committee Report, the report of the Standing Committee on Industry, Science and Technology. The two reports came out within a couple of weeks of each other, and both put forward a number of recommendations, some of which were mutually inconsistent. The copyright community generally applauded Shifting Paradigms and while there were elements it supported in the INDU Committee Report, it is fair to say that it was less than enthusiastic about some of the latter’s recommendations, as I discussed in an earlier blog. However one area where both Committees shared the same wavelength was with respect to indigenous culture and the impact that copyright can have on native artists and traditional indigenous expression.

Indigenous witnesses made the point to both Committees that Western views of copyright do not necessarily align with indigenous perspectives as the concept of individual property rights conflicts with the indigenous view that cultural property is communally held. This would suggest that mechanisms other than copyright law could be considered to protect indigenous art and culture. The issue of cultural appropriation was also raised, a tricky issue that has many dimensions. One indigenous witness noted that “an individual cannot choose to share or exploit traditional arts and cultural expressions without taking into account communal norms, even less so when that individual is an outsider to that community.

The concern of both Committees to accommodate indigenous concerns is a reflection of current political priorities to address historical wrongs committed against native peoples in Canada, and to work to reconcile differences between “western” and indigenous views of society. While views were expressed that the copyright slipper might not fit the indigenous foot very well, concerns were also expressed that many indigenous artists were not getting sufficient protection from existing copyright law and there were claims that indigenous work was being subject to widespread infringement. This raises a classic dilemma when dealing with indigenous issues; there is no one size that fits all, any more than it does for the non-indigenous copyright community. Some indigenous groups believe that the western copyright system does not adequately respect the nature of indigenous culture (and by extension should not apply to it) while other indigenous artists are concerned that they are not getting their fair share of returns out of the existing system. In grappling with this dichotomy, the INDU Committee came up with the following observations and recommendations;

“The Committee recognizes that, in many cases, the Act fails to meet the expectations of Indigenous peoples with respect to the protection, preservation, and dissemination of their cultural expressions. The Committee also recognizes the need to effectively protect traditional arts and cultural expressions in a manner that empowers Indigenous communities, and to ensure that individual Indigenous creators have the same opportunities to fully participate in the Canadian economy as non-Indigenous creators.

Recommendation

That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

  • The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;
  • The participation of Indigenous groups in the development of national and international intellectual property law;
  • The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:
  • Creating an Indigenous Art Registry;
  • Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators; and
  • Granting Indigenous peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.”

Consultation is desirable but what it will lead to is an open question. Will there be two legal systems to protect creativity, one designed for “traditional arts and cultural expressions” and another for everything else? This raises the immediate question as to what constitutes “traditional arts and expressions” and whether or not indigenous groups have the sole right to use those arts. Are non-indigenous creators prevented from drawing on existing traditional art forms to create new expressions? All this raises a host of questions, a number of which have been raised before in other contexts. The World Intellectual Property Organization (WIPO) has been grappling with this issue for a number of years and is inching its way toward an international convention that would protect traditional knowledge and traditional cultural expressions.

Assuming traditional knowledge is defined in a way that achieves broad agreement, and is then “fenced off”, a question that quickly arises is, “who gets to claim it”? As I noted in a blog I wrote on this topic a couple of years ago, “Copyright, Folklore and Traditional Native Culture”, in the US there is legislation called the “Indian Arts and Crafts Act of 1990” that prohibits non-Indians from offering for sale in the US any product that falsely suggests it is Indian-produced. There is a definition as to who is recognized as an “Indian” (a term generally no longer in use in Canada, where indigenous peoples are referred to as “First Nations” or “Inuit”), but whenever anyone makes a definition of who is included, at the same time it defines who is excluded. What about individuals who identify as indigenous people, but who may not meet the legal definition? This becomes a real issue when it comes to accusations of “cultural appropriation”.

The most famous case of alleged cultural appropriation in Canada is probably that of award-winning author Joseph Boyden, a non-native who has written several acclaimed books that used natives as protagonists, and which are seen by many to represent indigenous values and world-views. The problem is that Boyden was born and grew up in Toronto where he had a typical urban upbringing, and although he claims some native ancestry, this has been greeted with scepticism by many. But does this make his work any less compelling or valuable, and does it mean that he is not allowed to immerse himself in indigenous culture and write about it? There is a delicate balancing act between protecting indigenous rights to cultural expression and exercising controls over who gets to access that culture.

The issue of who gets to exploit indigenous culture is not unique to North America. Last year in Australia, a company was fined under the consumer protection law for passing off “aboriginal” souvenirs made in Indonesia as aboriginal art, and a new copyright dispute has arisen over who is entitled to royalties for use of the “aboriginal flag”, which was designed by an aboriginal artist in the 1970s. That artist, Harold Thomas, asserted his copyright as the designer, and this was upheld in a court case in the 1990s. Thomas has now licensed the right to reproduce the flag to a non-indigenous company, which is enforcing its license, as would be expected. Not surprisingly, this has created quite a stir in Australian indigenous circles who have become accustomed to using the flag as a cultural and ethnic symbol. One suggestion is that the Australian government buy out the rights-holder. This stuff is complicated.

Another issue examined by both the Heritage and INDU Committees that potentially affects indigenous artists relates to an Artist’s Resale Right, whereby a visual artist would receive “downstream benefits”, that is a royalty each time an original work is re-sold. The idea is not new. In most EU countries a resale right, or a “droit de suite” exists, set at four or five percent of the sale price of the work, but declining in percentage terms as the price increases, with a cap on royalties. A “droit de suite” has been the practice in France for almost a century, and has more recently been adopted in the UK (2006) and Australia (2010). In the US, where there is no re-sale right, the issue has had a chequered history. In 2015 legislation known as the “ART” bill (“American Royalties Too”) died on the order paper when the second session of the 113th Congress adjourned without dealing with the bill. It had been vigorously opposed by art houses such as Sothebys and Christies. California, being California, naturally had a different take on the issue and there has been a state law since the 1970s providing a resale right to California artists, the only such law in the US. Of course, given the national and global nature of art and art sales, a clash between the California law and US federal copyright legislation was inevitable and in July of last year the Appeals Court of the US Ninth Circuit struck down the California law, ruling that it was incompatible with the US Copyright Act.

In Canada, the Heritage Committee outright recommended the establishment of an artist’s resale right while the INDU Committee was a bit more cautious, recommending that “the Government of Canada consult with provincial and territorial governments, Indigenous groups, and other stakeholders to explore the costs and benefits of implementing a national artist’s resale right, and report on the matter to the House of Commons Standing Committee on Industry, Science and Technology within three years.”

The INDU Report noted, however, that “Importantly, Indigenous peoples may strongly benefit from the ARR (Artists Resale Right) as many of them are visual artists”.

The re-sale right has become a bit of flash point for indigenous artists particularly with respect to Inuit art, which has gathered a world-wide following of aficionados, and has greatly increased in value as it has been sought after by collectors and galleries. The issue has been espoused by the Nunavut Arts and Crafts Association who point to the famous case of Kenojuaq Ashevak, the Inuit artist who created the work “Enchanted Owl” that graces this blog posting, courtesy of Canada Post. Kenojuaq, who was from Cape Dorset where the famous Arctic art co-operative was founded in the 1970s, is no longer alive. She died in 2013 at the age of 85. In November of 2018, the original of Enchanted Owl sold for $216,000, a Canadian record for such a work. It had previously sold in 2001 for $58,650. Kenojuaq sold the work in 1960 for $24, and neither she nor her estate has received a penny for this work since–although I am not sure about the reproduction rights. Of course you can argue that it made her famous and increased the value of subsequent work, but it is not uncommon for an unknown artist, much like an aspiring musician, to sell early works or rights for a pittance only to have the work greatly increase in value as the artist becomes more widely known. Reversion of music rights is one measure advocated by musicians to recover some value from their music just as a re-sale right would provide a modest share of the increased value of a work to the artist.

A re-sale right for artists will not just benefit indigenous creators of course, but it would help many struggling indigenous artists who depend on the revenues from the sale of their works to earn a living, enabling them to maintain residence in remote communities where they have strong cultural roots. Whether Canada will join the more than 80 countries that have instituted an Artists Resale Right remains to be seen. The INDU Committee’s recommendation is cautious, urging more study, which is the approach it took on a number of issues whereas the Heritage Committee report, Shifting Paradigms, was more definitive in its support for authors and artists. All the recommendations of the two committees, including the ones dealing with indigenous culture, will be considered after the October general election. Depending on who triumphs in that election and forms the next government, there could be a greater or a lesser emphasis on indigenous issues, including in the area of copyright.

Maybe concern for reconciliation with indigenous communities will be strong enough to drive some changes in the existing copyright framework. Whatever happens, it will be a delicate balancing act to provide more protection for traditional knowledge and expression while at the same time ensuring that indigenous artists, along with non-indigenous artists, get the full protection of copyright law and perhaps a greater share of the proceeds that their work has generated.

© Hugh Stephens, 2019. All Rights Reserved.

 

 

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