Copyright Law needs to recognize Customary Law

The current Canadian Copyright Act leaves much to be desired. Based on European ideas of ownership and public domain, current Intellectual Property Rights (IPR) laws make no attempt to incorporate Indigenous customary law. Gregory Younging, in his new book Elements of Indigenous Style, says, “Neither common law nor international treaties place Indigenous customary law on equal footing with other sources of law. As a result, Traditional Knowledge (TK) is particularly vulnerable to continued misuse and appropriation without substantive legal protection” (Younging 2018, 158).

In Indigenous tradition, knowledge is shared, owned, and passed on in much different ways than settlers are familiar with. No one person owns a story, but rather stories are shared by a community or a family who passes their stories down orally through generations. However current Canadian copyright law states that a story belongs to an author (who recorded their story in a tangible way) until 50 years after their death, after which time their work enters the public domain.

As Younging points out, European IPR law is generations younger than Indigenous customary law, yet through colonization European law is telos (Younging 2018, 149). As I see it, since our current law is already influenced by multiple other countries’ IPR laws there is no reason not to also incorporate the laws that were in place in Canada long before settlers arrived.

Many Indigenous Peoples have customary laws in their communities that govern how stories are shared and used. However, these protocols are recognized only as guidelines in the legal system, and attempts to use existing IPR law to protect TK does not provide the proper protections to keep TK and stories safe from exploitation and appropriation.

In an essay I wrote last semester, The Problem With Protocols: Why Traditional Knowledge Needs To Be Protected By Legislation, I researched what could be done to reconcile these two opposing ways of thinking about copyright, and I came up with two legal pathways that I will paraphrase here.

  1. Canada could empower Indigenous Peoples to pass their own legislation that would give their TK protocols equal footing with Canadian law.
  2. Canada could integrate Indigenous customary laws into the Copyright Act.

As the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states, “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions…They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions” (UNDRIP 2007). To implement UNDRIP Canada would need to revise the Constitution Act, which legislates that copyright is under federal jurisdiction, to afford Indigenous communities the power to draft their own laws to protect TK.

The second option would require opening up the Copyright Act for revisions, but this would be just as long and unlikely of a process as revisiting the Constitution. “Canada hasn’t been very receptive to opening up its intellectual property laws — I think they think it’s a floodgate argument — that if you open it for any specific review, all the issues that exist with IP law people would want changed,” explained Merle Alexander, and Indigenous lawyer.

While I believe legal protection on par with current IPR law is necessary to protect TK, I am also aware of how difficult of a process it is to open up Acts like the Constitution or the Copyright Act—and then to have lawmakers agree on a solution that is workable for both Indigenous Peoples and settlers. I’m still not sure what the best solution is, but I do know something needs to change.

As I noted semester, “However Canada chooses to move forward, it is imperative that Indigenous Peoples are informed, included, and consulted throughout the decision-making process… This urgent need to write or revise copyright law to account for TK comes with an opportunity and a responsibility to create legislation that is accessible and inclusive for all.”

Bibliography

Younging, Gregory. Elements of Indigenous Style: A Guide for Writing By and About Indigenous Peoples. Toronto: University of Toronto Press, Brush Education, 2018.

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