How can Intellectual Property protect Indigenous work?
The issue on the coexistence of the indigenous rights and the law system as we know it, is regularly the subject of conferences in law schools. Recently, on the news the question focused on the appropriation of the First Nation’s works of art. The appropriation is presented as if there was loophole in the intellectual property laws or that the entire system was not suitable for the First Nation’s work.
To have a better understanding of what appropriation involve, I reproduced definition giving by Jonathan Hart, which is used by several legal scholar: « cultural appropriation occurs when a member of one culture takes a culture practice or theory of a member of another culture as if it were his or her own or as if the right of possession should not be questioned or contested ».
Historically in Canada, during the 19th and early 20th century, appropriation could be summarised as the illegitimate collection of salvage ethnography (the practice of collecting material from “disappearing tribes”). Thus, exhibitions of this material were a way to refuse to acknowledge the continuity of the Native life practices.
Nowadays, even if Indigenous Canadians have been advocating Indigenous intellectual property rights, legal reforms and lawsuits are not important tools for artists and cultural workers attempting to halt cultural appropriation. As a matter of fact, not all artists have the means and resources to take action against the infringement on their work.
For historical and political reasons, First Nations have suffered injustice and inequalities. One could affirm that communities do not seek the protection through intellectual property law. However, the problem is more complex. The main goal underlined in intellectual property law is to promote innovation and originality by awarding inventor, with a monopoly over its creation. That monopoly implies among other things individual economic and moral rights.
The ethics and spirituality for First Nations people are focused on the development and preservation of group identity and balance between all things, rather than the promotion of individual economic benefits. Within the Native communities the transmission of knowledge is really important. First because it is a responsibility toward the other members of the community and second, because knowledge carries the power to do good or ill therefore it must be transmitted cautiously. Therefore, a conflict exists between the Native spiritual values and the theory of intellectual property law, since the first promotes a community heritage and the last an individual ownership. Though co-ownership is possible, in most intellectual regimes, it is often viewed as undesirable and seeking it is synonymous with complications.
Even if the First Nations don’t use the legal system, in order to respect the ethic and conviction of their communities, it doesn’t mean that they are passive. Artists and community organizers are campaigning to inform and bring a change to cultural appropriation. The results of their action often catch the media attention when there are cases of repatriation of stolen artefacts, organization of a series of exhibitions and workshops.
The Indigenous Fashion Week in Toronto is one of many examples of activism in this area. Indeed, Ms. Paul the founder of the Indigenous Fashion Week in Toronto, wanted to create a way for the First Nation artists to express themselves through fashion, textile, and craftsmanship. Unique and avant gardiste designs are expressions that help Indigenous people to maintain their culture, the work of their ancestors, and give them the means to fight against stereotypes and appropriation. The first edition of the Indigenous Fashion Week in Toronto took place the 31th of May in 2018, and the second will be in the early summer in 2020.
“For the most part, changes did not come about through intellectual property law, but rather through hard-won changes to institutional, organizational, and artistic practice” (Murray and Robertson in Intellectual property for the 21st century). However, that doesn’t mean that copyrights, patents and trademarks aren’t sufficient to protect Indigenous work, it’s an acknowledgement that multiple conceptions of creative process and ownership of culture exist and coexist.
Doagoo, B. c., Goudreau, M., Saginur, M. and Scassa, T. (2014). Appropriation Appropriated: Ethical Artistic, and Legal Debates in Canada Intellectual property for the 21st century.
Murray, L. J., Piper, S. T., and Robertson K. (2014). Putting intellectual property in its place – rights discourses, creative labor and the everyday.
Vanessa Udy. (2014). The Appropriation of Aboriginal Cultural Heritage: Examining the Uses and Pitfalls of the Canadian Intellectual Property Regime in Cahiers de propriété intellectuelle.
Paul, S. (2016). The Indigenous Fashion Week in Toronto. https://ifwtoronto.com/