Ariel Goldberg a 1L JD candidate at Osgoode Hall Law School.

French fashion brand garments featuring Botticelli’s Birth of Venus are heading off the rack and to legal battle. (“Uffizi”), based in Florence, Italy, are pursuing legal action against Jean Paul Gaultier for “illicit” unauthorized use of Botticelli’s Birth of Venus which violates Italy’s (Code of the Cultural and Landscape Heritage )(the “Italian Code”). The Code of the Cultural and Landscape Heritage’s legal force is separate from copyright laws and remains in effect when copyright protection does not.

Jean Paul Gaultier’s “Le Musée” capsule collection uses Botticelli’s Birth of Venus on including a scarf, skirt, sleeveless top and trouser. Jean Paul Gaultier originally used Birth of Venus in its S/S 1995 Collection on a sheer mesh top. In , Uffizi sent a cease-and-desist in response to Jean Paul Gaultier’s current use of the Birth of Venus, but the fashion brand never replied and continued its unauthorized use.��

(Photo Credits: ; )

The Italian Code , which came into effect in 2004 and was updated in 2016, . The Italian Code protects which can be historical, artistic, ethno-anthropological and archaeological. , objects require authorization and a licence fee to be used commercially by third parties regardless of whether the work is in the public domain. of the images by private individuals for the purpose of creative expression, study, research and enhancing cultural heritage are excluded from these legal obligations.

The refers to works not protected by copyright, which means the works can be used without acquiring permission or paying a fee. Generally, copyright protection expires after a period following the death of the author. In Canada, under the copyright protection remains for the life of the author and 50 years following the end of the calendar year the author died in unless otherwise stated within the Act. ��

The Birth of Venus is in the public domain because it was created by Botticelli in the mid-1480s. However, Gaultier allegedly violated Italy’s Cultural Heritage Code by proceeding with commercial use of the image without authorization and paying a licence fee. Jean Paul Gaultier’s use would not likely qualify for ��creative expression exception because of its commercial nature and because Jean Paul Gaultier is a fashion brand rather than private individual. , a lawyer and comparative cultural heritage, art and fashion law scholar, states that Jean Paul Gaultier could argue that some uses are of Botticelli’s Birth of Venus which would exclude the use from the ��

Uffizi’s Director Eike Schmidt commented that such as Leonardo da Vinci, Caravaggio, Titian, Raphael and Giotto di Bondone. The prevalent use of Uffizi’s artworks despite Italian law led to to police whether artworks are used to sell products, especially on social media. This hyperfocus on social media reflects the double-edged nature of social media, providing a greater connection through increased sharing and platforms while also allowing easier access and subsequently, easier appropriation of works.

Last year, a similar conflict emerged from the use of the Birth of Venus. online guide to erotic art which used the artwork. Hopefully, the Birth of Venus does not birth more legal issues in the immediate future. ��

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Photo by Daniel Lincoln ()

Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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On Tuesday, March 8, 2022, Ukraine’s president Volodymyr Zelensky said in a video recording that the Russian army flattened a 19th-century wooden church in the village of Viazivka in the Zhytomyr region. The architectural monument was an important national cultural heritage, listed under protection number 108. Olha Rutkovska, a member of the Ukraine council for the protection of monuments, described it as “.”

UNESCO, the United Nations’ cultural agency, responded swiftly to the challenge of protecting Ukraine’s cultural heritage from the war and bolstered the protective measures. Its first move was to mark the important cultural sites and monuments with the distinctive “blue shield” emblem as protected areas under international law. It aims to avoid deliberate or accidental damage to the monuments.

The is the primary source of international humanitarian law that UNESCO relies on to protect cultural heritage. The destruction of cultural heritage during World War II served as the impetus for the Convention and the recognition of the importance of cultural heritage for all peoples of the world. All permanent members of the UN Security Council, including Russia, are bound by the Convention to refrain from violent acts against cultural properties. It also urges governments to take active moves to prevent damage and provide adequate protection in times of emergency.

Cultural heritage protection was further upgraded by the in 1999, in response to the devastating damage of cultural properties in the . The protocol established an enhanced protection regime for cultural property and narrowed the exemptions from such protection. The protocol also formulated highly advanced rules on individual criminal responsibilities for breaches of the obligations.

It is undeniable that the international community has achieved much progress in protecting cultural heritage in armed conflicts. However, the efficacy of the Convention in checking Russia’s hostile acts against Ukraine’s cultural properties remains questionable. Firstly, there is insufficient awareness among armed forces about the Convention mandates. Former US President Donald Trump to attack 52 Iranian cultural sites as retaliation against potential attacks from Iran in January 2020. He was heavily criticized immediately for his ignorance of the law and dismissive attitude about cultural heritage. Indeed, few armed forces have established their or conducted relevant training, as required by the Convention, to protect cultural property in military conflicts. It is questionable if Russia would uphold the values established in the Hague Convention, even under increasing pressure from the international community.

According to Professor Peter Probst from Tufts University, the results brought by the Convention and its listing of cultural properties is a “.”�� The grew from 12 in 1977 to 1121 in 2019. On the one hand, it raised global awareness of the value of cultural heritage. However, it also made the heritage sites prominent targets, especially in asymmetrical warfare between nations and non-state actors. The destruction of cultural sites is a powerful attack on the other side’s beliefs and values. Many believe that it is part of Putin’s strategy to “” Ukraine as an independent state.

The protection of Ukraine’s cultural heritage requires urgent attention from the international community. Only collective recognition and effort can protect cultural properties from destruction.

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Tetyana Yablonska, (1967)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On International Women’s Day in Odessa, Ukraine, soldiers friends and family flowers despite the fear of an imminent Russian attack. Soldier Dmitriy pink and yellow tulips for female soldiers, while flower vendor Alena tied a bouquet of blue and yellow tulips in honour of the Ukrainian colours. Flowers hold a special place in Ukrainian cultural heritage, which now faces of destruction.

On March 1, invading Russian forces shelled (Babyn Yar)—a Nazi killing ground where thousands of Jews, Romani people, psychiatric patients, and war prisoners were massacred. The shelling killed at five people, and injured another five. While the Babyn Yar Holocaust Memorial Center was not directly , the center had plans to expand to a nearby building that suffered damage in the bombing.

In the wake of destruction and killing at the symbolic site, President Zelenskyy , “[the Russian invaders] all have orders to erase our history, erase our country, erase us all.” It is important to understand and Ukrainian history and culture more than ever. Every day, especially during , it is also essential to understand and celebrate women’s contributions to the foundations of history and culture.

Flowers and Female Ukrainian Artists

The United Nations Educational, Scientific and Cultural Organization (UNESCO) has recognized the decorative painting as a valuable part of humanity’s intangible cultural heritage. Petrykivka is named for Petrykivka village, where the Ukrainian Zaporizhian Cossack practice of decorating living quarters and belongings with fantastic flowers and natural elements was preserved despite the brutal Soviet regime. A local non-governmental organization, Agency for Regional Development of Dnipropetrovsk Region, the Petrykivka trademark.

Believed to protect the wearer from sorrow and evil, flower ornaments in the Petrykivka style were applied by women . Tetiana Pata, Nadia Bilokin, Paraska Pavlenko, Iryna Pylypenko, and Pelaheia Hlushchenko are known as the of the transformative period of Petrykivka art where local artists integrated the style to their traditional mediums following its re-discovery. The many talented Ukrainian female artists that have emerged throughout history have carved out their unique styles. Still, many have integrated uniquely Ukrainian elements of Petrykivka into their work, whether in the form of vibrant flora or fantastical fauna.

Petrykivka can transform everyday objects into art. During summers spent with her great-grandmother in Poltava, a Ukrainian village north of Petrykivka, Victoria dishes, vases, and kettles adorned with clusters of red guelder rose berries and orange flowers. Like Petrykivka artists, Odessa-born does not restrict herself to canvass. She is known for her wall paintings and has also created reminiscent of Petrykivka—accessories like handbags and wallets adorned with lively flora. Energetic florals are also alive in , whose work also features the poignant .

, an original member of —the first artist-run, not-for-profit gallery dedicated to women and non-binary artists in the USA—is another Ukrainian artist whose work features flowers. Dorosh fabric and textile work, a traditionally female craft, to explore complex topics such as the slippage of play between childhood and adulthood. Textile work was an important feature of art.�� For example, is a fabric sample where overlapping oblong shapes of varying blues, greens, and yellows resemble a collection of flower petals.

A discussion of flowers and female Ukrainian artists would be incomplete without , the self-taught painter of floral scenes who made Picasso , “if we had an artist of this level of skill, we would make the whole world talk about her.” Bilokur’s Happiness, Storks brought the baby (1950) features sunflowers. As Ukraine’s national flower, the has quickly become a symbol of resistance. Sunflowers have inspired Ukrainian artists from to to , each in their unique way.

The magical and bright flora featured in Ukrainian female artists’ work throughout history provides a stark contrast to the images coming out of Ukraine in recent weeks. As Ukraine’s humanitarian crisis continues during Women’s History Month, the comments of European Parliament President Roberta Metsola remain on my mind. He the “incredibly brave women of Ukraine who are fighting, forced to shelter their loved ones in bunkers, giving birth in metro stations and leading on the frontline.” On my mind, too, are the Ukrainian women who have built up the intangible cultural heritage of humanity and their images of strength, hope, and peace.

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Maria Prymachenko, (1982)

Claire Wortsman is an IPilogue Senior Editor and a 2L JD Candidate at Osgoode Hall Law School.

On February 25, invading Russian forces the Ivankiv Historical and Local Museum, and the many culturally and historically significant pieces it housed, to the ground. The Museum’s collection included 25 paintings by Maria Prymachenko, the celebrated Ukrainian artist world-famous for her colourful folk art style. Prymachenko’s great-granddaughter that a local man ran into the burning building and was able to save some of the precious works. Yet many more pieces were lost, and millions of artworks and monuments at risk from Russia’s military onslaught. These those dating back to the Byzantine and Baroque periods, as well as UNESCO World Heritage sites.

Ukrainian Minister of Culture Olexandr Tkachenko has that Russia lose its UNESCO membership. The destruction of Ukrainian cultural heritage at the hands of Russia is not a novel occurrence -�� the 2014 annexation of Crimea and the conflicts in Donetsk and Luhansk to the loss of dozens of archaeological, historical, and artistic collections. James Cuno, President of the J. Paul Getty Trust, released a condemning the cultural atrocities taking place in Ukraine alongside the unfathomable human and environmental losses. Cuno identifies that cultural heritage has the power to unite us, and is critical for achieving peace, making it a common target in war; a means of destroying a society by erasing its memory. Officials preserving and protecting cultural legacies in times of conflict has the power to bind local people and foster peace, once the shooting stops.

The importance of safeguarding cultural property extends beyond the borders of Ukraine. The preamble of the recognizes that “… any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural property of all humanity, because every people contributes to the world’s culture.” Putin’s continued violation of international law is a blow to the international legal order – one that Yale Law School’s Oona Hathaway and Scott Shapiro must be met with an aggressive and resolute response.

Uncertainty and crisis in Ukraine have left many fleeing their homes, while museum employees remain behind to look out for their collections in whatever way they can – whether by standing guard, hiding art in basements, or (for those farther away from the war zones) transforming into a place of temporary respite for those who have fled. Fedir Androshchuk, the director of the National Museum of the History of Ukraine, is standing alongside two colleagues in an to safeguard the museum from attack or looting. He that “the museum is located in the middle of a rich cultural heritage area near three fine churches, but also close to some possible targets (the Ukrainian security service and border forces).” This proximity to potential military targets is significant from an international law perspective, [1], as the carves a “military necessity” exception out of its protections for cultural property. As by Captain Joshua E. Kastenberg, “Where a defender state harbors items of military value… in or near cultural property, the property loses its legal protections.”[2]

Androshchuk also , “there is no guarantee that the Ukrainian cultural heritage will not be plundered and transferred to Russian museums, especially given that Kyiv has a special place in Putin’s interpretation of Russian history and its roots.” The destruction of Ukraine’s cultural heritage serves the narrative of Vladimir Putin, who that Ukraine is a nation and that Ukrainians are a people. Perpetrators of the intentional destruction of cultural heritage seek to destroy the communities for which the heritage is perceived as an essential element of their own life, cultural identity, and distinctiveness.[3] Yet Putin’s assault has backfired – Ukraine itself, the West against Russia, and images of Prymachenko’s uniquely Ukrainian style around the world.

[1] Captain Joshua E. Kastenberg, “The Legal Regime for Protecting Cultural Property During Armed Conflict,” Air Force Law Review 42 A.F.L Rev. (1997)

[2] Ibid

[3] Federico Lenzerini, “Intentional Destruction of Cultural Heritage,” The Oxford Handbook of International Cultural Heritage Law (2020)

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Photo from Getty Images

Lauren Romero is a JD Candidate at Southwestern Law School.

“That which we call a rose by any other name would smell as sweet” … but would that which we call a brand by any other name be as hype?

Founded in 2016, Los Angeles-based streetwear brand formerly known as Chinatown Market offers everything you’d need to fit in on Fairfax Avenue. Appearing on the “” podcast, founder Mike Cherman cites the New 91��ɫ street markets that he visited as a kid as inspiration for its name. The problem? As a white man, Cherman is an outsider who is profiting off the Chinatown name.

“Cultural appropriation” usually receives little attention or punishment from courts. Although huge name brands are often called out for it , “cultural appropriation” is a difficult cause of action to present. In a rare occurrence where cultural appropriation was brought to the court’s attention, the Navajo Nation brought a trademark infringement claim against retailer Urban Outfitters (UO). The case, filed in 2012 in the U.S. District Court in New Mexico, alleged that UO infringed the NAVAJO trademark in a way that inaccurately linked the Navajo Nation with designs printed on UO garments. While cultural appropriation was not a cause of action in this case, the discussion surrounding white-owned companies’ use of designs, names, and clothing belonging to another culture arose to the forefront of fashion law. Eventually, the case was settled for an undisclosed amount and UO agreed to collaborate with the Navajo Nation on authentic Native American jewelry. Issues of cultural appropriation continue to play out in the court of public opinion.

Photo from Twenty20.com

. Hashtags like #StopAsianHate flooded social feeds to bring attention to horrific attacks and show solidarity with the AAPI community. After noticing Chinatown Market’s silence, Julian Han Bush created an for Chinatown Market to rebrand. In the petition, Bush explains that “Chinatown is not for sale” and discusses the cultural significance of Chinatowns.

Businesses and community members in New 91��ɫ’s Chinatown suffered due to the COVID-19 pandemic. Lack of foot traffic resulted in lack of customers for many family-owned businesses; racism cast its ugly shadow on the once lively streets of Chinatown as community members fought against racist attacks. As a response, two New 91��ɫers began an initiative called to help struggling small businesses. They raised over $2 million to aid businesses in keeping their doors open. While members of the community helped one another during this time, Chinatown Market posted an Instagram story and offered a single shirt, with proceeds apparently going to AAPI organizations.

Photo from Market

The brand drew waves of criticism from folks on Instagram who argued that it was coming up short. Chinatown Market released a on May 20, 2021, acknowledging the discourse surrounding their name. They announced a name change along with a decision to sell all existing merchandise and donate the proceeds to non-profit organizations supporting the AAPI community. On August 15, Chinatown revealed their rebrand and began promoting new designs emblazoned with their new name, “Market”.

While a rebrand and donations are steps in the right direction, the conversation remains open. Can designers respectfully pay homage to cultures that they don’t belong to? Should they? These questions may not have solid answers, but I would like to provide some tips on how to appreciate cultures without exploiting them or taking them as your own.

At the 2015 Met Gala, Rihanna turned heads and broke necks in Chinese designer Guo Pei’s design. The theme for that year’s Gala was “China Through the Looking Glass,” which focused on the impact of Chinese design on Western fashion. As usual, Rihanna understood the assignment with the stunning design, which featured a massive canary yellow cape with waves of embroidered florals. While many high-profile guests chose to wear American or European designers, Rihanna highlighted a Chinese designer and gave visibility and appreciation to AAPI designers.

As individuals, we can shop consciously. Various streetwear brands similar to “Market” are AAPI-owned and/or do not appropriate AAPI culture. For example, Akashi-Kama is a sustainable Japanese-American streetwear brand founded by Alec Nakashima, who draws inspiration for his designs from both Japanese culture and American streetwear.

Noragi Jacket by Akashi-Kama

By putting our wallets where our mouths are, we can ensure that AAPI businesses flourish and that we are contributing to cultural appreciation and not appropriation.

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From fast fashion to high fashion retailers, the fashion industry has been culturally appropriating the designs of Indigenous Peoples for years. Defining cultural heritage is a process. Though the United Nations Educational, Scientific and Cultural Organization (UNESCO) has as “the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity,” cultural heritage continues to be conceptually developed to reflect and encompass a more . Regardless of many companies’ knowledge of and awareness of the significance of Indigenous cultural heritage, there continues to exist a sense of ignorance regarding the impact cultural appropriation can have on a community.

In some cases, the Canadian IP rules and legislation, specifically in regards to trademarks, have benefitted and protected Indigenous Peoples from cultural appropriation. For example, the Cowichan First Nation has registered the trademark “Genuine Cowichan Approved” in order to help consumers distinguish between the authentic Coast Salish hand-knit sweaters and mass-manufactured counterfeits such as those found at and . With this said, though trademark registration can prevent counterfeits from using this “Genuine Cowichan Approved” label, trademarks cannot actually prevent the exploitative and appropriative use of Indigenous ideas, knowledge, and culture. Unfortunately, there still exists a lack of integration between Canadian IP law and the ownership of Indigenous designs in the fashion industry.

Take, for example, the case of United Kingdom-based fashion label, KTZ, and their 2015 men’s collection, which included multiple garments based on traditional Inuit designs. Specifically, was in shock after seeing her great-grandfather’s sacred garment directly copied. Unfortunately, this isn’t just a problem occurring with international retailers.

The North American brand recently went under fire for launching a Festival Shop. Several of the items from this line – although marketed to the young millennials attending various music festivals – ended up being blatant cultural appropriation of Indigenous Peoples. The reality is, it is not just the monetary value of the vast distribution of object and design that is the problem. In fact, it is more about how the images’ meanings are by such portrayal.

With this said, the protection of Indigenous cultural heritage against cultural appropriation through the use of Canadian IP law is difficult to actually implement, primarily due to the fundamental differences regarding the origins of Canadian IP law and Indigenous ethics. However, this is not to say that future reform in our IP laws could not assist this problem. Scholars argue the issue lies in the fact that the main goal of IP is to promote and protect innovation by awarding the inventor economic rights.[1]

First, the traditional knowledge of Indigenous Peoples does not normally meet the criteria of novelty and originality required by IP protection. Since traditional knowledge is it makes it difficult for this information to meet these novelty and originality requirements. Second, the fact that Indigenous ethics do not attach exclusive economic rights to cultural heritage makes it difficult to apply any IP protection.

Although designs in the fashion industry are the primary means for infringement, it is not the only way that Indigenous Peoples have lost their culture to society’s commodification. Take, for example, Toronto’s yearly and its cancellation due the cultural appropriation of various artists’ work. Although cancelling the exhibition may have temporarily solved a very narrow amount of cultural appropriation, this is not a long-term action plan. How, if at all, can our legal system better protect various Indigenous IP rights.

As stated by Rosemary Coombe, it is clear that work still needs to be done in Canada, even with various international remedies currently in place:

“New ways of recognizing and remedying such injury are being formulated internationally. Indigenous peoples’ advocacy has been central in this process, and the legitimacy of their participation in the international arenas in which these negotiations take place has achieved a high level of respectful recognition. Nonetheless, considerable work needs to be done to convince the general public that new forms of protection are necessary if Canadian governments are to be compelled to adopt the principles and objectives formulated internationally and effectively incorporate these into laws that will provide tangible benefit to First Nations.”[2]

The reality is, current IP laws will not be able to solve the issue of misappropriation or infringement for Indigenous Peoples. Rather, existing IP laws should be in order to address the needs of various Indigenous groups and their heritage. New concepts of ownership and control over cultural heritage must be implemented in Canadian law in order to deal with the tension and difficulties in protecting Indigenous traditional knowledge and cultural identity. Although the Federal Government has promised to , it is also essential to implement change at a grassroots level. Take, for example, to celebrate cultural appreciation. With initiatives as such taken at a grassroots level, there is greater opportunity to engage in discourse surrounding the issues of cultural appropriation. Ultimately, if you like Indigenous aesthetic, buy it from those who create it and live it.

Alessia Monastero is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

[1]��Mohsen Ahmed, Nicole Aylwin and Rosemary Coombe, "Indigenous Cultural Heritage Rights in International Human Rights Law",��C. Bell and R. Paterson, eds., Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (University of British Columbia Press) 311-342.

[2] Rosemary Coombe, "First Nations’ Intangible Cultural Heritage Concerns: Prospects for Protection of Traditional Knowledge and Traditional Cultural Expressions in International Law",�� C. Bell & R. Paterson, eds., Protection of First Nations’ Cultural Heritage: Laws, Policy and Reform (University of British Columbia Press) 247-277.

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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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