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Pankhuri Malik is an IPilogue Writer and an LLM candidate at Osgoode Hall School of Law.

The Australian Indigenous community just scored a major win for their cause to . It was undoubtedly an ambitious attempt and one that I personally did not expect the government to support. Taking many of us by surprise, the Australian government took a giant step towards reinstating the pride and honour at the core of Indigenous sentimentality by freeing the Indigenous flag and making it available to everyone to use.

Copyright in Indigenous Works

In the fight for land, representation, and independence, intellectual property disputes concerning Indigenous peoples are often overshadowed. One such dispute had been afoot in Australia for five years. Mr. Harold Thomas, the artist and copyright holder of the Australian Indigenous Flag (“the Flag”) is an Elder of the Indigenous community. He the Flag in 1971 as a symbol of Indigenous resilience and representation. This flag has been the subject of much controversy lately. A quick timeline of the dispute is here:

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Crown Copyright in Other Jurisdictions

Provisions for copyright ownership by the Crown are a consistent feature of copyright laws in commonwealth countries. of Australia’s Copyright Act, 1968 provides for Crown copyright for works created under the “direction or control” of the Crown. Much like section 12 of Canada’s ,�� this provision was also adopted from the .

These provisions have been used to retain Crown ownership over literary, artistic, or otherwise creative expressions. In Canada, the Supreme Court interpreted section 12 in , Inc. to maintain Crown copyright in works that have been created under the direction or control of the Crown and are “government works”. That is, these are works that serve a public purpose and vesting the copyright with the government furthers this public purpose. Similarly, in the UK[1], it was held that designs for coinage prepared by the company Ironside under an order by the Royal Mint were prepared under the direction or control of the Crown. The copyright, therefore, vests with the Crown.

Crown’s Acquisition of Copyright in Australia

The “Free the Flag” movement in Australia gained momentum by 2020. Since the Flag was created in 1971 by Mr. Harold Thomas completely devoid of governmental interference, section 176 of the Copyright Act was unhelpful. Alternatively, the government considered exercising its powers under section 51(xxxi) ��of the Constitution to compulsorily acquire copyright in the Flag from Mr. Thomas. Under section 51, within its peace, order and good government powers, the Australian Constitution empowers the Crown to acquire any property with respect to which it has the power to make laws. Since copyright law-making power lies with the Crown under section 51(xviii), the government would have been within its constitutional authority to green light such an acquisition. However, given the tumultuous history of governmental relationships with the Indigenous community, such an acquisition may have been and drastic.

Finally, on January 25, the Australian government entered into an agreement with Mr. Thomas whereby it purchased rights in the Flag, paid off the licensees, and set up an annual scholarship for Indigenous students for a whopping $20 million AUD. This transaction “freed” the Flag from private control, making it available for both commercial and non-commercial use.

Interestingly, this is not the the Australian government has purchased copyright in an Indigenous work after the fact. In 1967, the Governor and the Reserve Bank paid $1000 AUD to Mr. David Malangi for using his original artwork on the Australian dollar bill circulated in 1966.

Looking Ahead

Australia’s approach to this copyright dispute may not have been unprecedented, but it is definitely distinct. Actively choosing to spend tax dollars on purchasing rights that could have been potentially acquired under the Constitution speaks not only to the sentiment of reconciliation but also honours the 50-year-long history that accompanies the Flag and everything it stands for.

Coming at the heels of Australia Day, about the possible dual intent behind this purchase. It will be interesting to see how the Flag is adopted by the government and if any steps are taken to ensure that the value of its sentiment does not diminish through non-Indigenous use.

[1] Ironside v Attorney General 1988 [RPC] 197

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(Sun) Salutations: Yoga from Which People, Again?

Though litigation around ��seems to have settled into Savasana (“corpse pose”) for the moment, certain legal issues it raised remain live as a Vajrasana-struck wire. Austen's tart (and somewhat doctored) observation aside, the notion of copyrighting a practice as historically and culturally steeped as yoga provides a timely platform from which to explore the intersection of intellectual property law and traditional knowledge, an issue particularly relevant to Canadian IP lawyers in an Aboriginal rights context.

In Bikram’s Yoga College of India v Evolation, lawyers in California sparred over doctrinal reasons to grant or withhold copyright, necessarily assuming a starting point that ignored the larger backdrop of another battle occurring in the �� yoga community, fought under the Hindu American Foundation's (HAF) banner of “”. Rather than highlighting distinctions between utilitarian and non-utilitarian works, form and expression of a system, or choreography, sports, and exercise, Take Back Yoga's entreaty for yoga practitioners to recognize its roots in Hinduism raised an arguably even more fundamental question: on what basis was a spiritual practice rooted in thousands of years of Indian culture and history being subjected to an legal ownership framework to begin with?

Just as some questioned Choudhury's right to copyright yoga, one might question American yoga practitioners' right to unilaterally that yoga “is a gift to all mankind, and thus beyond claims of ownership and copyright”. The and �� to the Take Back Yoga campaign are outside the scope of this article, but the storm among the calm brought to the forefront larger issues of , including , assisted by the territorial nature of intellectual property laws. The cases of , , and all illustrate this phenomenon. While it so happens that the Indian government agrees with keeping yoga and other cultural heirlooms “”, so to speak—hence the and �� to assist ��—this is far from a stance. Which brings us to Aboriginal traditional knowledge and cultural property, and its relationship with Canadian intellectual property law.

An IPR by Any Other Name: Aboriginal Cultural Heritage and Traditional Knowledge

As no amount of textual yoga would fit this topic adequately into a single post, the following will be limited to highlighting specific issues and potential solutions in applying intellectual property law to the protection and preservation of and in Canada. Many of the concepts presented may apply in other cultural contexts, as well.

I. Knowledge is Power...and Property

First, traditional knowledge, according to a citing (full disclosure: a professor at the University of Victoria), includes “folklore, traditional knowledge, innovations and practices; music, songs, dance for entertainment or education; graphics, designs, crafts, textiles, paintings and three dimensional arts; signs and symbols.” What is critical, however, is “the integration of these features into a cultural system”. Appropriation is not just unauthorized taking, but taking in part through the , as implied in HAF's complaint regarding yoga.

While conventional intellectual property law mechanisms may provide protection to some extent, they often fall short where practical realities clash, or where foundational rationales underlying such laws fail to align with those of Aboriginal perspectives towards what Canadian law considers property (whether intellectual, cultural, tangible, or intangible).

II. Not Seeing IP to IP

of such incommensurability as indicated above include: Canadian IP law tends to focus on individual authorship or ownership as opposed to communal or collective ownership. IP rights such as copyright, patent, and industrial design have set limitation periods, while family crests under certain Aboriginal laws or customs, for example, would necessitate perpetual copyright or trademark, at the risk of inducing severe offence and humiliation for some. There would likely require a significantly higher emphasis on strict moral rights than Canadian jurisprudence has shown. Furthermore, it would be difficult to look back in time far enough to confirm criteria such as originality (copyright), use (trademark), or prior work (patent) within hundreds of years of history, not to mention the inapplicability of premature disclosure to communal patent claims. Oral traditions would pose a challenge to the fixation requirement in copyright.

There are two overarching issues in addition to the above. The first is the fact that Canadian intellectual property law is based on an innovation-driven commercial bargain at heart, whereas much traditional knowledge and cultural property is often inherently non-commercial and not necessarily primarily innovation- or “progress of science and useful arts”-driven, involving completely different purposes and having emerged within vastly different contexts. The second is potential conflict of law matters between Canadian law and Aboriginal self-government, where the treatment of and laws surrounding cultural property and traditional knowledge is concerned. speaking, provide even less protection than domestic laws, with additional difficulties in trans-border enforcement: see for examples from Cuba, the Maori in New Zealand, and the Nisga'a in British Columbia; and for a case study in repatriation of a Nuxalk Nation mask.

III. Progress of Sui Generis and Useful Laws

The legal field has put forward a number of potential or partial solutions to some of the above issues. The , for instance, provides a comprehensive overview of cultural property protection strategies available in copyright, trademark, and patent law, as well as their limitations. Two other possibilities stand out, however, and would be worth further pursuits: sui generis legislation and legal pluralism.

Sui generis legislation recognizes the unique nature of traditional knowledge and cultural property, relative to conventional intellectual property for which Canadian IP law was made. For examples, WIPO has compiled a on traditional knowledge from around the world. Interesting theories supporting sui generis approaches to traditional knowledge are (1) the idea that terminology for an oxymoronic initiative that sterilizes rather than preserves and (2) the notion that the intangibility and fluidity of culture requires approaching traditional knowledge as an , with ecologically minded protection strategies. One remarkable example of a sui generis model in action is the collaborative in Fiji.

Legal pluralism may overlap with both sui generis laws and Aboriginal self-government, in the sense of opening up normative Canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. above discusses this approach. For a specific example, see Lucy Mary Christina Bell's study of the and her application of their ceremonial customs to intellectual property and traditional knowledge disputes.

To conclude, one might consider a suggestion by Val Napoleon (disclosure: also at the University of Victoria) as cited in : part of the problem may be the relegating of all traditional knowledge and related concepts to the category of “cultural” to begin with, making such claims “disembodied from its political, social, economic, and legal moorings within their societies [and thus causing] displacement of property from that which gives it meaning and coherence[, which] hinders efforts to protect it.” However one looks at it, it seems that today's increasingly globalized world all but ensures that even those who are not in want of intellectual property rights may nevertheless find themselves in need of them.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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