Meera Nair

Posts Tagged ‘cultural property’

Indigenous paradigms

In Posts on June 25, 2018 at 8:09 am

This post is a bit late; it is my contribution to #IndigenousPeoplesDay.

In December 2017 Ministers Navdeep Bains and Melanie Joly jointly issued instructions to Members of Parliament charged with carrying out the Review of the Copyright Act. Among many details, the Ministers invited Members “to pay special attention to the needs and interests of Indigenous peoples as part of Canada’s cross-cutting efforts at reconciliation.”

Historically, Indigenous creative effort has not fared well under the modern paradigm of intellectual property rights. From looting of artifacts to casual help-ourselves approaches to indigenous design, indigenous assets, often described as cultural property and traditional knowledge, are used in ways that violate their traditions and laws. To the extent that others commercialize such assets, rarely do gains flow back to the community.

From the first meeting on, Committee members sought input from witnesses on this topic. In oral testimony, and submitted briefs, there is consensus that this challenge needs attention; this may be the one point of unity among all stakeholders of the copyright review. That in itself is encouraging.

However, it is difficult to make progress on this front under the auspices of copyright. The Copyright Act is structurally antagonistic to the principle characteristics of indigenous cultural property and traditional knowledge, namely they lack specific authorship (which is key to claiming ownership under the Act) and may date back to antiquity (which invariably places them in what is considered the public domain*).

As we wrestle with the intricacies of this challenge, there are other ways to show support and facilitate more respectful use of Indigenous materials.

In July 2016, An Open Licensing Scheme for Traditional Knowledge was jointly put forward by the Canadian Internet Policy & Public Interest Clinic (University of Ottawa) and the Geomatics and Cartographic Research Centre (Carleton University). The scheme “aims to give Indigenous communities new tools to exert control over their traditional knowledge [and] clarify expectations of those seeking licensing rights and other downstream uses (8).”

Modeled in the fashion of Creative Commons licenses, where a visual label indicates the creator’s wishes in terms of subsequent use, the researchers revealed a slate of possible labels including: Give Back / Reciprocity; Community Consent, Use-Based / Noncommercial; Education and Research Only; etc.  They also drew attention to two other similar, active, operations with respect to labels as a means of communication: the Mukurtu Project and its sister organization Local Contexts. While communication cannot guarantee respect for the wishes of Indigenous communities, it is a starting point.

In addition, Canadians could consider that Indigenous paradigms about creative endeavor are more akin to the creative process, than modern insistence that creativity is an individual exercise and that property is strictly private. My research looks at the overlap of Indigenous paradigms with Canadian copyright law — not in terms of the specificity of legal language, but in the processes that underwrite and shape creativity itself.

To be clear, when I use the phrase Indigenous paradigms, I am not suggesting a uniformity of thought, tradition or law, across the many Indigenous communities situated within Canada. Rather, the phrase is an attempt to describe a different approach to creativity and property than that which followed in the wake of Judeo-Christian theological teachings or (for the more secular minded) the writings of John Locke. Modern conceptions of intellectual property are rooted in assumptions about property itself – chief among them, the misconception that a right of property is absolute in its control and capacity to exclude others. (Even the most treasured property – land – is subject to measures deemed essential to the public good: building codes, zoning divisions, environmental laws, etc.)

All music, art, poetry and literature are creative outcomes via time immemorial communities of musicians, artists, poets and writers. This is hardly a revelation; Northrop Frye’s words have been with us for over sixty years: “Poetry can only be made from other poems, novels from other novels. All this was much clearer, before the assimilation of literature to private enterprise concealed so many of the facts of criticism.”

Briefly, that assimilation to private enterprise was largely carried out through the introduction and expansion of copyright. Those events are intertwined with the rise of the reading public, the shaping of a book market, new technology; events that combined to alter the perspective of where art, music and literature came from. While previously art was allied to the Divine – inspired by and in service to – the Romantics were never too happy with a world in which books were articles of sale, and writers were mere producers of commodities. As authors wrestled with changing streams of income and the need to compete in a marketplace, the idea of the individual creative genius whose work is original unto himself served to shelter the esteem of an author and justify the boundary of property around a creation. Ironically though, authors themselves were never a focal point in the development of copyright law.

In concert with the universality of the process of creativity is a bond between creative artifact and the author, artist, musician etc. In intellectual property law, this has a name: moral rights. (The term is misleading; despite the somewhat pious inference, the rights reflect personal connections between the creator and the thing-created.) Among moral rights is the protection of the integrity of the work – the creative artifact has a persona,** which sits in relation to the creator.

And there might be another relationship present; Rudyard Kipling famously spoke of daemons who led the creative process, writers must “drift, wait, obey.” Contemporary writers are not shy of acknowledging this third-party, Elizabeth Gilbert and Philip Pullman come to mind. Even without this partner, writers may have the eerie feeling that their characters are writing their own story. (I welcome input from writers of fiction.)

This nexus of relationships occurs with the creative artifact situated at the centre and a community of writers engaging in relationship with it. A set of relations that is similar to the structure of Indigenous cultural property/traditional knowledge. It is the interpretation of property that differs between Indigenous and non-Indigenous paradigms; in Indigenous hands, property is far more immersive, far more relational, one belongs to the property as compared to the converse interpretation of property by non-Indigenous legal paradigms.***

As I wrote in my brief to the Standing Committee: “… recognizing indigenous traditions that we implicitly already follow, supports the objectives of the Truth and Reconciliation Commission, particularly the recurring call for better integration of indigenous law into Canadian life

Much as we acknowledge that the physical ground beneath our feet is Indigenous territory, we ought also to acknowledge those Indigenous paradigms which serve as the foundation to our daily creative effort.


* My research offers an alternative, legitimate conception of the public domain that is more flexible in its composition — I draw from the work of Jessica Litman and our Supreme Court decisions.

** Anishinaabe legal scholar Aimée Craft reminds us that some jurisdictions have granted personhood to bodies of water. That physical or cultural property could have agency, at least in legal proceedings, is, again, not a revelation.

*** Brian Noble, “Owning as Belonging/Owning as Property …” in Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law (Vancouver: UBC Press, 2008) 465.