Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?

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This is one of the questions that arose during the recent review of Canada’s Copyright Act by two Parliamentary Committees, the Standing Committee on Canadian Heritage and the Standing Committee on Industry, Science and Technology (INDU Committee). Among the issues that Parliamentarians looked at was the issue of indigenous culture and its relationship to copyright law. The fundamental dichotomy between western notions of copyright and indigenous culture relates to a couple of issues; the fact that western copyright is a right asserted by individual creators (for the most part)—joint authorship and collective works are clearly an exception to this rule—and the fact that protection is limited to a set period of time, usually the life of the author plus a period extending from 50 years or more beyond the author’s demise. That may seem like a long period of time, but it is not very long when it comes to protection against misuse or misappropriation of traditional cultural artifacts and expressions.

Indigenous cultural expression (ICE) is normally based on collective and communal ownership rather than ownership by any one individual or small group of individuals. As such, there is no identified creator to whom the copyright can belong. Additionally, indigenous culture is deeply imbued with the concept of “stewardship”, as opposed to “ownership”. The dictionary definition of stewardship is “the conducting, supervising, or managing of something, especially the careful and responsible management of something entrusted to one’s care.” In the case of indigenous cultural expression manifested through artifacts, songs, dances, and legends, stewardship can arise from family, clan, and spiritual responsibilities or beliefs. Individuals entrusted by their community and cultural traditions to exercise these responsibilities have the obligation to protect cultural expressions from misuse. (As an example, an indigenous design holding deep spiritual significance should not be used to decorate a doormat or a dish towel, and sold for commercial gain). Indigenous artist and activist Lou-ann Neel recounts a story about how she challenged the owner of a Vancouver liquor store who had appropriated an image of a totem pole carved by her grandfather to market the store and its products. She explained to the merchant the history of the pole, and the significance of its images which included clan and family symbols. The merchant was within his legal right to use the image of the pole, which is on public display in Vancouver’s Stanley Park, but in the end was persuaded by Ms. Neel (aboriginal name Ika’wega) to redesign his promotional literature. This was a win for cultural understanding reached outside the legal framework; indeed, in most cases copyright laws will not prevent these (mis)uses.

Another example of the conflict between copyright law and indigenous cultural rights has occurred during the current Canadian election (election date, October 21). Byron Horner, a candidate for the Conservatives—a party not known for their strong support of environmental issues–used his role as the executive producer of a pro-environment documentary film, Great Bear Rainforest, in his campaign literature and on his website. This aroused the ire of the Heiltsuk First Nation. The Heiltsuk live in the area of the Great Bear Rainforest and were one of the three indigenous groups that had granted social licence to produce the film. They objected to the use of footage from the film in campaign ads claiming that it implied their endorsement of Horner’s campaign, and issued a statement saying that references to the film and use of images were being done without their consent. As a result, Horner has agreed to remove content related to the film from his campaign communications, even though he holds the copyright for the film through Spirit Bear Entertainment, of which he is president. Legally he is entitled to use the clips; from a practical perspective, including getting elected, the reality is that the use of content associated with indigenous culture may still be socially unacceptable even though permitted by law.

So how can indigenous communities protect their patrimony, and how can non-indigenous users know what kinds of uses are appropriate? How and from whom can non-indigenous users secure permission to use expressions of native culture? The answer would seem to fall outside the confines of copyright law, but in a way that doesn’t create conflicts with it.

There are some legal instruments in Canada not related to the Copyright Act that are relevant in this context. Section 35 of the Constitution Act reaffirms “existing aboriginal and treaty rights of the aboriginal peoples of Canada”, without further defining those rights. A more relevant document relating to indigenous cultural expression is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007, after years of negotiation. It was supported by 144 member states, with eleven abstentions and four states opposed. Interestingly, those four states (Australia, Canada, New Zealand and the United States) all contain significant indigenous populations that have not had the happiest of experiences with colonial governments and their successors. These four countries stated they supported the objectives of the Declaration but were opposed to some elements of the wording (e.g. language on self-determination) that conflicted with existing legislation. Subsequently all have withdrawn their objections and endorsed the Declaration, although the extent to which it applies in a domestic legal context remains to be clarified. A Bill (S-262) in the Canadian Parliament requiring that Canada’s laws be consistent with UNDRIP died in the Canadian Senate this June, when Parliament adjourned prior to the general election in October. It will likely be re-introduced after the election. (In its election platform the Liberal Party has declared that it will take action to implement UNDRIP in the first year of its new mandate, if elected).

While the four nations that initially opposed the Declaration are vulnerable to criticism (even though they have now come on board), it is worth noting that China was among the many countries supporting UNDRIP, even though China is actively establishing re-education gulags in its western province of Xinjiang incarcerating up to a million indigenous Uighur people. The UK supported the Declaration while going on the record to state that national minority groups and other ethnic groups within the territory of the United Kingdom and its overseas territories did not fall within the scope of the indigenous peoples to which the Declaration applies. In other words, UNDRIP is fine as long as it applies to someone else. This is how the UK could legally support the Declaration while having forcibly removed the indigenous population of the Chagos Islands in the 1960s in order to create the British Indian Ocean Territory, established to house a US Navy and Air Force base on Diego Garcia.

UNDRIP covers much more than culture when dealing with indigenous rights, but let’s look at what it does say about indigenous culture. There are two articles that are particularly relevant. Article 11 states;

“Indigenous people have the right to practice and revitalize their cultural traditional customs. This includes the right to maintain, protect and develop the past, present and future manifestations of these cultures, such as archeological and historical sites, artefacts (sic), designs, ceremonies, technologies and visual and performing arts and literature.

States shall provide redress 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”.

This is supplemented by Article 31, which repeats the right to maintain, control, protect and develop cultural heritage including literature, designs, visual and performing arts, and other aspects of traditional knowledge, and adds that indigenous people enjoy the same rights with respect to the intellectual property attached to this heritage. Moreover, in conjunction with indigenous peoples, states are required to take effective measures to recognize and protect these cultural rights.

There are some key takeaways here. First, the concept of “free, prior and informed consent” (PIC) is introduced with respect to cultural property. PIC is also included in the Declaration with regard to resource exploitation and is one of the reasons that the four opposing states had initial difficulty in supporting UNDRIP. Second, it talks about past, present and future manifestations of culture, and requires states to take effective measures to protect cultural rights. This would clearly include artifacts which, from a copyright perspective, would be in the public domain. Third, it specifically references intellectual property as something that indigenous people have the right to maintain, control, protect and develop.

Acceding to the Declaration does not carry treaty obligations and is not legally binding. As a result, its adoption does not mean that its terms override domestic law in any country, although if Canada were to adopt legislation that mirrored Bill S-262, its laws would have to be consistent with UNDRIP.

Apart from UNDRIP, there is another draft document out there that could take indigenous rights a step further, and if concluded would be legally binding. This is the Treaty on Intellectual Property on Genetic Resources, Traditional Knowledge and Folklore being developed by the World Intellectual Property Organization (WIPO). The treaty will have two primary objectives; defensive protection and positive protection. The point of the former is to “stop people outside the community from acquiring intellectual property rights over traditional knowledge”; the latter is “the granting of rights that empower communities to promote their traditional knowledge, control its uses and benefit from its commercial exploitation.” WIPO’s work has focussed on three main areas, one of which is traditional cultural expression such as music, art, designs, symbols and performances. The others are genetic resources and traditional knowledge such as technical know-how, practices and skills.

Parts of the draft document dealing with indigenous cultural expression (ICE) are available online (here), and demonstrate just how difficult it is to reach international consensus on the text of a treaty dealing with indigenous cultural issues, which touch on various aspects of the law in many countries. It is full of commentary, amendments, strike-outs and options proposed by various parties. It tries to grapple with the broad issues of what is to be protected and how to do it, what exceptions to apply, how a new regime would interface with existing IP laws, and what sanctions would apply in cases of contravention. Broadly speaking it proposes a registration or recordal system operated by a designated national authority in each country, with IP rights to be assigned to the relevant indigenous community. The registration of various forms of cultural expression with this authority would enable the management of rights, which would be approved by indigenous communities in a manner consistent with their traditional approval processes. The authority would also, in consultation with indigenous communities, establish equitable remuneration for use of ICEs. As for the term of protection against unauthorized copying or use, the draft text proposes that protection should endure for as long as the form of expression meets the criteria of being an indigenous creation, and continues to be registered. The ICE would have to be in current use in order to maintain its registration, much like a trademark, but there would be no predetermined term limit. When the indigenous community ceases to use the form of cultural expression, or if the community no longer exists as a distinct entity, then protection would lapse, similar to abandonment of a trademark. Moral rights would exist in perpetuity.

These all seem to be sensible proposals, and an effective way to blend protection of traditional cultural expressions with current copyright (and trademark) law. However the task of negotiating a multilateral treaty among more than 150 stakeholders is daunting and slow. The treaty has been under negotiation for a number of years and it is hard to predict when it will be sufficiently ready to proceed to a final diplomatic conference. In the meantime, there are steps that national authorities can take within their own jurisdictions, something that the committees reviewing Canada’s copyright legislation recommended for consideration.

This is all complicated by the fact that Canada is currently undergoing treaty negotiations with a number of First Nations, particularly in British Columbia where very few land-cession treaties were ever signed. One element of these treaties could be to establish a rights-management authority for traditional cultural expressions of a given First Nation (Indian tribe, in US parlance), incorporating the principle of free, prior and informed consent. Another would be to establish a new national indigenous cultural agency which would manage the registration of cultural expressions by the three aboriginal groups recognized by the Constitution Act (“Indian, Inuit and Métis peoples”, in the words of the Act). [i]

Whichever solution is followed, the international treaty route or an internal process establishing rights for indigenous cultural expression, either through empowering indigenous peoples through treaty rights or via the establishment of an indigenous cultural national authority and registration process, or both, the trend toward greater protection of indigenous cultural expression outside the confines of copyright law seems certain to proceed in Canada, and will likely have parallels elsewhere. Similar to the way in which Coats of Arms are protected by a heraldic authority, a national authority for indigenous cultural expression could provide legal protection outside the confines and limitations of copyright law, yet be consistent with it. Individual indigenous creators would still qualify for copyright on their creations, unless they themselves transgressed community cultural norms in adapting indigenous designs, in which case they, like non-aboriginals, would be required to obtain prior consent from the communal custodians of the design, song, or other form of cultural representation. A first step has been taken in Canada to establish an indigenous art registry, which could eventually become a national authority if the WIPO treaty is ever finalized.

A parallel regime to copyright to protect ICEs is likely the best solution for all parties. The careful balance inherent in copyright law could be undermined should large-scale exceptions be made to accommodate indigenous culture within the confines of copyright legislation. At the same time, copyright law inadequately protects indigenous cultural expression. The solution is to create a parallel system of registration that not only maintains the integrity of existing copyright law, but is consistent with commitments made to indigenous communities through international instruments such as UNDRIP.

© Hugh Stephens, 2019. All Rights Reserved.

[i] Metis are normally considered people of mixed racial ancestry incorporating indigenous lineage, although there are various definitions.

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