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Squaring the Circle – Indigenous Intellectual Property and the Canadian Trademark System

By Merle Alexander, Leah George-Wilson, Hannah Roche + James Struthers - October 9, 2019 under Business Advisory, First Nations

Indigenous peoples, from time immemorial, have been creating and developing original marks in relation to their respective cultures, social orders, economies, and legal traditions. With property ownership in many Indigenous communities usually contemplated within a shared system, possible gaps arise in Western legal intellectual property frameworks, as these are often derivatives of antiquated colonial statutes and the notion of individual ownership.

In our last blog post on this topic, we discussed the latest changes to the Trademark Act and how, in our view, these changes missed the opportunity to address protection of Indigenous knowledge. To recap, we discussed integration of understandings of Indigenous knowledge into a Canadian legal framework is a “square and circle”; conceptions of ownerships – collective and individual – often result in these legal orders speaking past one another. We also acknowledged the challenge posed by the variance within and between Indigenous communities.

This blog post is an attempt to unpack some of those complexities and explore the way in which Indigenous intellectual property and conceptions regarding its protection does not neatly fit into existing Canadian legislation – specifically the Trade-marks Act (“Act”) and its recent amendments.

Protection of Indigenous IP

In a paper presented to the World Intellectual Property Organization, one author stated:

Just as Indigenous territories were declared as Terra Nullius by the colonization process, so too has [traditional knowledge] been treated as Gnaritas Nullius (Nobody’s Knowledge) by the [intellectual property rights] system and consequently flowed into the public domain along with Western knowledge.” Indigenous scholars have described what we call “cultural appropriation” as “the continuation of the colonial process—taking from Indigenous groups for the consumption of colonizers.

This discussion raises important questions relating to the operation of Western intellectual property frameworks in the context of Indigenous intellectual property. The simple fact that intellectual property rights frameworks are built on notions of individual property ownership poses several issues to Indigenous groups looking to protect intellectual property as a collective. Here, we look to various jurisdictions to glean information on differing approaches to the protection of Indigenous intellectual property. It is also crucial to understand how various Indigenous legal orders deal with intellectual property protection, and how that might be incorporated into a vision of a bi-juridical intellectual property framework.

Relevant Policy Changes

The Canadian government acknowledges the lack of participation in Canada’s intellectual property protection schemes by Indigenous persons and communities, the barriers to participation by Indigenous persons and communities, and the need for engagement, education and awareness.

In response to some of these identified gaps, in spring 2018, the Minister of Innovation, Science and Economic Development announced the launch of an Intellectual Property Strategy (the “Strategy”) as part of Canada’s commitment to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Article 31 of UNDRIP reads:

Indigenous peoples…have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights (emphasis added).

As well, Article 11 of UNDRIP declares that Indigenous people have the right to “redress… 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.”

However, while the Strategy is in some ways encouraging, it does not represent a binding legal tool on which Indigenous entrepreneurs and communities can confidently rely. The implementation and enforcement of these articles is left up to the state. It promises discussions and a seat at the table, but does not guarantee much more than that.

A Missed Opportunity to Reform

The prohibitions against registration of certain trademarks outlined in s. 9 of the Act do not explicitly include Indigenous words, symbols, and designs that would qualify as a trademark under the existing legislation. We think that the recent legislative changes reflect a failure to recognize the distinctiveness of Indigenous culture and the way in which it has been historically – and presently – subject to appropriation and unjustified acquisition.

The new amendments posed an opportunity for reform; moving forward, Canada ought to look to example jurisdictions, Indigenous legal orders, and provisions of UNDRIP to legislate direct provisions into the Act that seek to protect Indigenous marks from illegitimate use and procurement. There may be corporate, cultural and ethical reasons as to why, as a first step towards incremental change, Indigenous individuals, communities and business ought to be unambiguously written into legislation in order to prevent unwarranted adoption of profoundly meaningful marks.

Jurisdictional Variance: Canada

Indigenous trademarks are not unprotected under the current regime, only under-protected. In fact, many Indigenous groups and individuals, businesses, and organizations use registered trademarks. However, this is done under general—and not specified—provisions, failing to account for the unique sphere in which Indigenous intellectual property operates.

COWICHAN

The Cowichan Tribes have a trademark listed on the Canadian Trademarks Database. Traditionally, the Cowichan Tribes people lived outside in harsh climates and knitted clothing for warmth. In 1995, the Cowichan Band Council filed an application with the Canadian Intellectual Property Office to register “COWICHAN” as a trademark, which was granted in 1996:

The certification mark, to be used by persons authorized by the certifier, will certify that the wares have been hand-knit in one piece in accordance with traditional tribal methods by members of the Coast Salish Nation using raw, unprocessed, undyed, hand-spun wool made and prepared in accordance with traditional tribal methods.

The distinguished COWICHAN mark now serves as an example that Canadian trademark law can be used to protect Indigenous intellectual property rights. Cowichan Tribes has also registered a number of other trademarks incorporating the word Cowichan. However, in addition to such registrations, a number of other trademark registrations using the word Cowichan have been registered by non-indigenous legal persons.

QUENEESH

Interestingly, one Indigenous group attempted to argue that it had, at common law, an Aboriginal right to the exclusive use of a word. In 1996, the Comox First Nation brought an action over the use of the trademark “Queneesh”, arguing that “Queneesh” referred to a culturally significant piece of oral history. The judge rejected the argument and denied the application of the Band to be added as a defendant to the action, finding that Aboriginal rights are outside the scope of trademark law. In fact, the Court stated that, “If there is any such proprietary and enforceable interest, it cannot, I think, arise out of the English common law.” Exclusive rights to use of language are not provided for in the Canadian intellectual property system. This example illustrates the shortcomings of the common law system to incorporate pre-contact Indigenous intellectual property rights, and the need for legislative reform to permit the judiciary to weigh in on where to strike the balance between incorporation of pre-contact First Nations rights and the prevailing intellectual property system in Canada.

ANISHINAABE

Another example that illustrates the existing gap comes from Anishinaabe understandings of intellectual property rights and protection. One author notes:

Anishinaabe gaagiikidoo gaagii-bi-izhesemaagoowin [oral history] is not protected within the Canadian intellectual property regime. Only new creations are protected within Canadian law for example, a formal fixation of Anishinaabe gaagiikidoo gaagii-bi-izhesemaagoowin in a new way… But the Anishinaabe gaagiikidoo gaagii-bi-izhesemaagoowin presented by these oral historians turned authors will only be protected for the life of theses authors plus 50 or 70 years and it requires diligent review to ensure that copyright is not infringed. Once the protection under copyright law expires the Anishinaabe gaagiikidoo gaagii-bi-izhisemaagoowin put into print will become part of the public domain where anyone can use and transform the materials.

Interestingly, and in contrast to the operational reality of the Canadian intellectual property system, with respect to the protection of Anishinaabe marks, “the further you move from the actual present the less protection is guaranteed.”

Jurisdictional Variance: USA

In the United States, the federal statute governing trademarks and unfair competition prohibits registration of marks that consist of “matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The interpretation of the statute allows for the possibility of interpretation in favour of protecting Indigenous marks. Like Canada, there is no express protection for Indigenous peoples

Jurisdictional Variance: New Zealand

In many ways, New Zealand offers the current gold-standard of legislated trademark protection for Indigenous peoples. In fact, New Zealand is one of the only jurisdictions in the world to have Indigenous-targeted provisions within their trademark legislation. In New Zealand’s Trade Marks Act (“NZ Act”), the purpose section reads:

(3) The purposes of this Act are to…

(c) address Māori concerns relating to the registration of trade marks that contain a Māori sign, including imagery and text.”

Māori are the predominant Indigenous group in New Zealand.

Section 17 of the NZ Act outlines the absolute grounds for not registering a trade mark, including a prohibition against the “registration of [a trademark] which would…be likely to offend a significant section of the community, including Māori.”

The NZ Act also provides for the establishment of the Māori Trade Marks Advisory Committee, whose function is to “advise the Commissioner whether the proposed use or registration of a trade mark…is, or is likely to be, offensive to Māori.” The NZ Act further outlines provisions in relation to the membership of the Advisory Committee: “A person must not be appointed as a member of the advisory committee unless…the person is qualified for appointment, having regard to that person’s knowledge of te ao Māori (Māori worldview) and tikanga Māori (Māori protocol and culture)”.

The purpose of the NZ Act provisions explicitly referencing the Māori is for legislated protection of mātauranga Māori, which is “the body of knowledge originating from Māori ancestors”. The intellectual property rights framework established by New Zealand is a direct attempt to recognize and respect mātauranga Māori.

ACKNOWLEDGEMENT of PRE-EXISTING INDIGENOUS IP

One notable feature of the NZ Act is that the offence test provides at least some degree of acknowledging pre-existing Indigenous intellectual property rights. Currently, in Canada, the onus is on Indigenous persons and communities to take steps to protect intellectual property rights. In the Cowichan example, if it can be established that the term Cowichan is derived from the Quw’utsun tribe’s pre-contact name, should Canada’s intellectual property regime provide for restrictions on use of the word? We think yes, and we think the Government of Canada will need to work in a Government-to-Government collaboration with Indigenous communities across Canada to determine the manner, form and degree of such restrictions. In our view, this enumerated acknowledgement and protection is an essential component of unifying Indigenous intellectual property orders and the existing trademark scheme.

The progressive state of New Zealand’s legislation is, in great part, due to the perseverance of the Māori in fighting for the protection of their own intellectual property rights. The NZ Act was drafted at the tail end of lengthy, substantial, and fought-for consultation with Māori representatives. Given the diversity in Indigenous communities, a plug and play of the NZ Act is unlikely to be sufficient to square the circle here in Canada. However, it does serve as a useful model of incremental union of Indigenous intellectual property systems within existing legislation.

HOW CAN CANADA DO BETTER?

There is a lesson for Canada within all this: the process of true reconciliation considers it far wiser to ask for permission, rather than forgiveness. As we discuss elsewhere in relation to the approval and construction of the Trans Mountain Pipeline Expansion Project, exclusion of those most affected by decisions will lend itself only to conflict and litigation.

Indigenous Legal Orders

An important notion to bear in mind in critically examining the state of trademark legislation in the context of Indigenous intellectual property is that Canadian trademark law reflects and imposes settler understandings of individual “property”, rather than the tendency towards collective understandings of ownership found in Indigenous approaches.

GITKSAN

Under Gitksan law, the “basic conceptual political, social, economic and legal unit in Gitksan society is the House”, into which each Gitksan person is born. An individual’s House membership centres their relationship to their kin. The names belonging to the house, along with the crest, songs and oral history, form the intellectual property of each House. Despite this classification as “intellectual property”, it is not possible to place aspects of Gitksan law into discrete and neatly corresponding areas of Canadian law. For example, crest laws in Gitksan legal tradition are “simultaneously about land tenure and ownership, governance, intellectual property, kinship, and citizenship”. Traditionally, if intellectual property disputes arose in Gitksan communities, a meeting of chiefs and elders would be called in which the two parties disputing the matter would provide their evidence. Using an example of a song, the process is described by Val Napoleon in the following way:

each disputant would have to describe how they came to know that the song is theirs by personally relating their direct experience (when, where, and how) and knowledge (what and why). In turn, each of the chiefs and elders would recount their knowledge and direct experience with the disputed song in Feasts and pole raisings. They might also consider precedents of other disputes and how they were decided and by whom. They would consider past relationships and future relationships of the disputants and their kinship networks. Based on these considerations, they would make a decision about the song‘s ownership. There is no appeal process and the dispute would not be raised again.

Ultimately, the Gitksan legal order, in theory, mirrors the Canadian legal system of trademark dispute resolution. As it stands right now, however, the process outlined above would only be applicable within the context of a dispute arising within a Gitksan community. Otherwise, a dispute would proceed into the Canadian court system.

ANISHINAABE

Another example looks to Anishinaabe intellectual property understandings of ownership and protection. Darren Courchene notes that the “Anishinaabe paradigm [of] intellectual property” is much more extensive than its Canadian counterpart and covers “songs, dances, written words, spoken words, rituals, bundles, prayers, designs, inventions, art, histories, [and] various story types.”  Furthermore, under Canadian law, Anishinaabe gaagiikidoo gaagii-bi-izhisemaagoowin (oral history) enjoys very limited protection. He goes on to write that,

Onaakonigewinan (laws) in the Anishinaabe worldview are not written. They are intrinsic. Onaakonigewinan are embedded in Anishinaabe languages, sacred narratives, personal reminiscences, and ceremonies. Onaakonigewinan were not prohibitive but rather instructive in nature.

In the context of oral history, Courchene importantly states that,

Anishinaabe-Ojibwe law as expressed in gaagige-onakonigewin, niizhwaasho-onashowewinan… at first glance do not relate to intellectual property. However,… “Oral tradition does not spell out everything a listener needs to know, but rather makes the listener think about ordinary experiences in new, implied ways”. Upon a closer inspection you see the laws, rules and protocols embedded in these teachings from Anishinaabe gaagiikidoo gaagii-bi-izhisemaagoowin. You find direction on how to act when accessing a public or private resource: with respect, relationships, reciprocity, kindness, caring, and sharing; in addition, you take only what you need. Both Anishinaabe intellectual property and Anishinaabe gaagiikidoo gaagii-bi-izhisemaagoowin are public and private resources and these laws apply to interaction with both. These principles are found in the, “…Indigenous legal traditions [which] continue to exist in Canada, despite a lack of recognition by the state or by the general public. Indigenous legal traditions may be deeply meaningful and have great impact on the lives of people within Indigenous communities”. Under these same legal traditions you find that there are consequences to not adhering to the laws expressed. You find that if you do not follow the protocols to access, possession, and transfer you potentially can onjine (harm yourself), your family, friends, or loved ones [emphasis added, citations omitted].

With respect to ownership and control, under Anishinaabe legal frameworks, “Anishinaabe nations could pass an Anishinaabe intellectual property and copyright law, which would provide a researcher with a licence to use Anishinaabe oral history, traditional knowledge, and traditional ecological knowledge which would be negotiated between the community and the researcher with various measures to protect against appropriation and exploitation. The researcher would provide to the Anishinaabe nations a licensing fee for its use of Anishinaabe oral histories, traditional knowledges, and traditional ecological knowledges.” In this way, Anishinaabe legal orders are applied more broadly than simply within the confines of the respective community.

IMPLEMENTING PROTECTION of INDIGENOUS IP

These are simply tip-of-the-iceberg introductions to two differing Indigenous approaches to intellectual property. Moreover, it is necessary to note the differences between Gitksan and Anishinaabe legal orders if only to avoid the pitfall of thinking Indigenous approaches to intellectual property, or such regimes, operate in the same or similar manners.

What we are missing, therefore, is a concrete mechanism for implementation that would function through and across both Canadian and Indigenous legal systems, thus allowing Indigenous entities to protect Indigenous marks and other intellectual property in (a) a manner that respects the legal orders of the community, and (b) is enforceable outside of the relevant Indigenous community.

Binding the Gap

In looking to other common law jurisdictions and Indigenous legal orders in relation to trademarks, it is evident that there is a need for innovative measures by which Indigenous intellectual property rights, specifically Indigenous marks, are adequately protected and respected. Canada must undertake something more than legally mandated consultation. As illustrated by the process of bringing about the NZ Act, Parliament must take seriously the demands by Indigenous communities for tangible and practical avenues of progression in this area of law. Integrating Indigenous legal orders into existing legal frameworks takes a substantial amount of Indigenous consultation and involvement, and any legal framework development in the absence of such deep levels of government-to-government consultation and collaboration will not meaningfully close the gap.

This does not mean simply adopting New Zealand’s legislative approach. What New Zealand, through Māori initiative, accomplished is laudable, but it is not necessarily conducive to the needs and rights of the diversity of Canada’s Indigenous peoples. It is the mindset behind the legislation – not the legislation itself – that ought to be replicated.

Protecting Indigenous intellectual property is not about bringing Indigenous trademarks into conformity with Canadian legislation. Rather, it is about granting full participation in the creation of a pluralist intellectual property scheme that recognizes a need for specific protection of unique and unconventional Indigenous trademarks and provides a guarantee of protection for all. True change requires a legal process of legitimizing (through appropriate recognition and respect) long-standing Indigenous legal orders.

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