Indigenous Art Under Licence: One Solution to the Problem of Theft of Indigenous Cultural Expression and Trade in Fake Indigenous Art (And WIPO is Working on Others)

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Last fall I wrote about the ongoing problem of trade in fake Indigenous art. This applies to many genres and communities but is a particular problem in the Pacific Northwest, where I live, because of the richness of the art forms and their popularity among the public. (It also applies to the colourful works of the late Ojibwe artist, Norval Morriseau, sometimes called the “Picasso of the North”. This month police in Ontario charged eight alleged forgers with assembly-line production of thousands of forged Morrisseau paintings worth tens of millions of dollars). Online sales have made the problem of fakes more acute. (See examples here and here). Many of the products are mass produced in Asia. The biggest problem is appropriation of Indigenous artforms and designs, then “passing off” as genuine mass-produced, low-priced objects that feature designs based on Indigenous patterns. Often, if one looks carefully enough, the knock-off contains some language to the effect that it is “inspired by” native designs while avoiding a direct claim to be an Indigenous product (although you would never know this from a quick glance at the advertising promos). This enables the product to comply with the Indian Arts and Crafts Act of 1990 in the US, truth-in-advertising legislation that prohibits the sale of any art or craft product in a manner that falsely suggests it is “Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization” in the US. There is no comparable legislation in Canada.

Recently, in a local coffee shop that often sells Indigenous produced items, I noticed some new products on the shelf, knick-knacks like coffee mugs, wooden coasters, porcelain bowls, and so on, all with attractive Northwest Coast designs and at a pretty attractive price point. I assumed immediately they were knock-offs and sure enough, on the bottom was the unmistakable “Made in China” notation. But then I noticed the products also said, “Designed in Canada”. On closer examination, I noticed that the artist’s name and First Nations affiliation was also indicated on the product packaging. The company producing the products, Native Northwest, is based in Vancouver, BC. It is not clear if it is an Indigenous owned business, but it clearly has close links with the Indigenous community. Its mantra is “Native Northwest builds everyday connections to Indigenous cultures. 100% of the art featured on Native Northwest products is designed by Indigenous artists.”

Carrying this a step further, their website states that:

Native Northwest products are guided by the following principles:

100% of the art featured on Native Northwest products is designed by Indigenous artists

All artists have provided consent and contractual permission for their art to be featured on Native Northwest products

Artist names are acknowledged on all product packaging

Cultural traditions are honoured by acknowledging cultural affiliation on product packaging

Artists are paid fairly in fees and royalties

The products themselves, however, are made in China. If they weren’t, the $40 price for the porcelain bowl I admired or the $25 for the wooden coasters would, I am sure, be more than double. So in a way, this represents the best of both world (unless you happen to be a local manufacturer who would like to get the contract for producing the items). But, if the intent is to produce a mass-market product rather than a more bespoke collectors’ item, surely it is better to adopt the licensing model championed by Native Northwest in order to keep prices “affordable” than to find that products with genuine designs cannot compete with imported fakes because of the price differential. While it should not be the case, the reality is that a higher price for the genuine article opens the way for fakes and knock-offs to compete on price rather than quality, at the same time as they appropriate Indigenous designs yet pay nothing to native artists. Now, I have no way of knowing how “fairly” the artists are paid by Native Northwest, but the enterprise seems to have a pretty impressive roster of creators, so presumably they are happy with the arrangement. It seems to be a successful business model that respects Indigenous artists, carvers and weavers.

Licensing is therefore one model that Indigenous entrepreneurs can use to protect their work. There are others. WIPO, the World Intellectual Property Organization, has just produced an intellectual property/traditional knowledge resource kit for indigenous and local community entrepreneurs outlining various ways in which they can use IP laws and procedures to protect their creations and knowledge. It is available in English and in a number of Indigenous languages, including Inuktitut, Algonquin-Anishinaabe and Mishif-Cree in Canada/US native languages, as well as Maori, Fulfulde (Nigeria), Kiswahili (Kenya), Aimara (Peru) and several others. It provides a number of tips for protecting the intellectual property (IP) assets of traditional cultural knowledge and expression, covering the full range of IP tools. These include making use of copyright, but also trademark registration (registering distinctive Indigenous words, names and symbols), industrial designs, distinguishing goods and services with certification and collective marks, linking goods and services to a place with a geographical indication, protecting innovations based on traditional knowledge through patent registration, keeping traditional knowledge confidential through the application of trade secrets laws, and using unfair competition laws as a defence mechanism to combat trade in fake goods.

For Indigenous online businesses, WIPO also has a booklet with a series of suggestions. These include registration of business name, logo and domain names, using copyright or industrial design laws to protect creative content on the online business platform, and protecting online content through vigilance and monitoring of usage while taking enforcement action where possible. Enforcement action for small businesses is often problematic owing to the expense and need for specialized knowledge but WIPO’s Traditional Knowledge Division offers a referral service–although it does not provide direct legal assistance.

The resource kit is yet another initiative by WIPO to reach out to Indigenous communities globally to make them more aware of the potential of intellectual property, including copyright, as a tool to protect Indigenous cultural knowledge and expression. As WIPO acknowledges:

There is something of a “mismatch” between for traditional knowledge and traditional cultural expressions on the one hand and the intellectual property system on the other. Although traditional

knowledge and traditional cultural expressions existed long before the intellectual property system was developed, they were not considered, for the most part, as protectable subject matter, because they do not fulfill certain criteria of protection, such as for example the requirements of originality, fixation and identifiable author for copyright protection, and the requirement of novelty and inventive step for patent protection.

Although there are a number of gaps in the way intellectual property can protect traditional knowledge and traditional cultural expressions, existing intellectual property laws can be useful to protect and promote contemporary creations and innovations of indigenous peoples and local communities.

The World Intellectual Property Organization (WIPO) facilitates a normative process, which aims to develop an international legal instrument or instruments that would specifically address the protection of traditional knowledge, traditional cultural expressions and genetic resources. These negotiations take place within the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC).”

The IGC was established more than twenty years ago and negotiations toward an international treaty have been underway since 2009. Progress is slow because of the multiplicity of issues and the uneasy fit between western IP laws and Indigenous community-based knowledge and expression. Indigenous groups and communities can be accredited to participate in the work of the IGC, and there is even a fund available to assist in meeting costs of participation.

Whether it is working together through co-ops to combat trade in fake Indigenous goods, licensing copyright protected work for physical or online marketing, creating recognizable word marks and other identifiers to allow consumers to know which products are authentic, or seeking new national laws or international agreements to protect Indigenous cultural expression, Indigenous creators are fighting back and working to ensure that fair economic returns are enjoyed by Indigenous artists and traditional communities alike. From the macro-level of WIPO to more modest on-the-ground activities of enterprises like Native Northwest, Indigenous creators are using the tools at their disposal, and working to forge new ones, to protect their cultural expression and earn a fair return for their artistic creations.  

© Hugh Stephens, 2023. All Rights Reserved.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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