However, what hides behind the veneer of innovation is an inherent conflict that exists between what existed before and the advancements of today. IP, with all its touted benefits, shows a different face when it encounters culture and tradition. Instead of being a source of protection and innovation, IP can be used as a tool of cultural appropriation and exploitation instead. For groups such as the Amazonian Indigenous peoples, whose traditional use of the was patented by an American entrepreneur, IP is a source of frustration rather than protection.

The discord between IP and culture manifests in the inequitable experience that cultural groups have when trying to commercialize their Traditional Knowledge , the practices, skills, and innovations of cultural groups. The underlying principles and requirements of IP inadvertently skew the scale against cultural groups who try to commercialize TK. Partial towards a conception of inventions that sees ideas and products as being the genius of a , IP law requirements can exclude cultural groups from obtaining IP protection. Take patents, for example. When applying for a patent, the major requirements are that the idea or product has to be . For communities who are trying to patent ideas or methods that have been in their culture for generations, the requirement of being “new” just does not fit. Other requirements that need “all inventors” to be named are also an issue for communities who hold shared and inherited ownership of these ideas.

At the same time that cultural groups struggle to have their TK recognized as IP assets, there are other groups who are succeeding in commercializing the same. Pharmaceutical, cosmetics, and food companies are Indigenous bush foods and medicine as sources of new (to them) biological resources that they then try to monopolize. Through this practice known as biopiracy, these companies are often able to patent traditionally used by cultural groups and profit off of their TK. That the same TK that cultural groups struggle to gain IP protection for are patentable by other parties shows that there is a problem when it comes to IP and the assets of cultural groups.

Governments and IP organizations seem to think that the solution to this problem is increased IP for cultural groups. However, awareness and access are futile if IP regimes are still structurally incompatible with TK. If the intention is to offer access to IP protection, then there needs to be allowances made regarding the characteristics of TK that make it unique; the shared ownership and historical origins of TK should not preclude these ideas from being offered IP protection.

Written by Anabelle Tung, JD Candidate 2022, enrolled in Professor D'Agostino's Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice. 

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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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Charlene Lindsay

Q1 Do you believe that it is important to have more women involved in the IP system?

Yes, I think it is extremely important for woman to be involved with the IP world. , we know that there were approximately 24 female CEOs leading Fortune 500 companies such as Pepsi, IBM, General Motors, Avon, and Hewlett Packards, to name a few. By 2017, this number rose and quite significantly, if I might add. However, we still have a long way to go. By this, I mean, women are still underrepresented in almost every sector of the job force and this includes IP work as well. In the , woman with full time jobs were paid 20% less than their male counterparts. Although the pay gap has narrowed since the 1970s, wage disparities are still a cumbersome issue for women.

Q2 Have you noticed a gender gap in your industry? Is the situation changing?

Well my industry is multidimensional; in addition to the pursuit of my entrepreneurial endeavours with SDNR, mentoring Indigenous youths, getting my writing published, launching a clothing line, and Co-producing the Toronto Indigenous Fashion Week,  I am also extremely passionate about education. So, even though I have already earned several degrees, my overall goal is to finish my Ph.D, which I am currently pursuing.

In terms of the gender gap in academia, I would have to say there is definitely a gender gap between male professors who receive far more compensation in comparison to their female colleagues. I am proud to say, however, that 91��ɫ has recently shattered the glass ceiling with the recent announcement of our new President, Rhonda L. Lenton. In this regard, I would say the situation is changing, but I would also add that we still have more work to do if we want to close the gap completely.

From an entrepreneurial perspective, females have a harder time climbing the ladder as compared to men. For example, a recent U.S Senate Report, showed that only 4.4% of small business loans went to women-owned businesses. According to Bloomberg, woman in the U.S comprise of only 7% of founders who received approximately $20 million dollars or more in overall funding. The backlash to this argument suggested that if women were pitching high-quality business ideas, they would be rewarded accordingly. However, another conducted at Harvard Business School found that the same video pitch for a start-up was twice as likely to get funded by investors when narrated by a male voice than by a female one. Regrettably, these same gender gaps also exist in Canada as well. Though I would like to add that a recent conducted by the Canadian Council for Aboriginal Business found that the tide is slowly turning for Indigenous entrepreneurs. So, I am extremely hopeful and I look forward to nurturing and fostering this positive new growth in any way I can.

Q3 Do you think it is more difficult for female innovators and entrepreneurs to secure funding (and, therefore, be able to afford IP costs)?

I think the pursuit of entrepreneurship is a difficult road to navigae and only the strong survive. shows that more than 50% of new businesses fold within three years after launching. More often than not, it is because many new entrepreneurs are unable to secure funding or afford the costs of protecting their ideas. If I could go back and start my entrepreneurship mission over again, the one thing I would like to share with other female entrepreneurs is: "Please protect your ideas and share on a need to know basis only."

I was fortunate to have a rich network of colleagues, peers, and other professionals within 91��ɫ that I consider family. I, therefore, had a large professional network of people to turn to when I encountered difficulties with my new business, particularly where IP costs were concerned. Unfortunately, not all female entrepreneurs have this kind of support, particularly Indigenous women. For this reason, our team is in the process of creating and adding a specialized mentoring sector to our organization. Once we have this launched and underway, we plan to expand these services to those living in isolated Indigenous reserves where the costs associated with IP and other entrepreneurial endeavours are harder to access.

Even though the government of Canada has recently decided to pour more money into entrepreneurship endeavours, there are still many obstacles to overcome in terms of securing funding, and this is especially true for female innovators from every racial background.

Q4 Are there unique challenges that female inventors and entrepreneurs face?

Indeed there are many challenges that female inventors and entrepreneurs face. Despite the fact that entrepreneurship has shifted and become more inclusive of the female voice; according to a recent study conducted by the , females face unique challenges in terms of cultivating success and getting their businesses to the next level. The seven steps include, but are not necessarily limited to:

1) Defying Social Expectations,
2)Limited Access to Funding,
3)Having to navigate a male lead industry,
4) Owning Their Accomplishments,
5)Building a Support Network,
6) Balancing Business and Family Life; and
7) Coping with Fear of Failure.

Q5 How can the innovation and IP ecosystems become more inclusive for under-represented groups, such as female entrepreneurs?

Women are rising and overcoming obstacles they once faced in the employment sector, and this includes the world of IP and entrepreneurship. According to of the CPA Global IP Platform, women are also producing ground breaking inventions and taking leadership of multimillion dollar technology companies to heightened levels. For example, a recent found that 29% of the international patent applications filed in 2015 included at least one female inventor, compared with just 17% in 1995. This is exciting news because it means that women are filing more patents and building more innovative ideas than ever before. And they are going the extra mile to protect their activity.

I feel like the world of innovation and IP ecosystems can do more to be more inclusive of under-represented groups. For one, I think government bodies, stakeholders, and academia have a role to play in this regard. And by addressing the above-noted seven steps, as per the National Association of Women Business Owners, I think a lot more can be accomplished. 91��ɫ has recently taken the lead in this regard and I am extremely proud of the launching of the new platform and the which I myself am a proud graduate of. With rich networks like these based inside great academic institutions like 91��ɫ, the sky is the limit, even for female and underrepresented entrepreneurs.

Q6 What types of assistance will benefit female entrepreneurs?

As noted in the conducted by the Canadian Council for Aboriginal Business, I think there are a variety of challenges that entrepreneurs face, and this also includes Indigenous lead innovators. , founder of and Dell’s former entrepreneur-in-residence, has found that the number one reason female entrepreneurs fail is their lack of confidence and not having access to mentors. I would have to disagree with her on this one, only because I myself struggled with getting my business off the ground and it had nothing to do with my lacking of confidence or accessing mentors. The difficulties I encountered were two-fold, first I had grave difficulty accessing funding. And the second was gaining the trust of Indigenous peoples who live in remote areas, as well as overcoming difficulties associated with covetousness. One would think that Indigenous women can turn to their own for support, but the fact of the matter is, that simply is not true.

Overall, I think female entrepreneurs are more likely to succeed if they have access to a professional network of well-educated people who have their best interest at heart. In addition, I also feel that women are more likely to succeed with their business ventures if they are provided with more access to financial support systems. Even if their business is a not-for-profit.

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