“Heritage” by artist Andy Everson of the K’ómoks First Nation. The piece features the majestic Comox Glacier, which overlooks the Comox Valley. The glacier is referred to by the Comox people as “Queneesh”, or white whale, and refers to the creature which tied the early Comox people to their territory during a great flood many of thousands of years ago.

Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode, and a 2L JD Candidate at Osgoode Hall Law School.

In 1996, the against an Indigenous artist from a different tribe over the use of the trademark “Queneesh”, which had been used to describe the defendant’s art business. Comox First Nation alleged that only the band had the right to use the term “Queneesh” because of its significant cultural meaning, being the name of both a Comox legend and its development corporation. The court ultimately decided against the band because “Aboriginal rights are outside the scope of trademark law.”

Cases like this raise questions about the scope of intellectual property (IP) law in Canada. In developing tests to determine the ambit and nature of Aboriginal rights and title (in and ), the Canadian judiciary has repeatedly emphasized taking into account So, at least some elements of Indigenous culture are inherently important enough to warrant constitutional protection. As William Fisher notes in , traditional cultural expressions (TCEs) are often “central to the identities of indigenous groups,” and unauthorized use of them “corrodes those identities,” especially when the knowledge or expression in question is religious or artistic in nature.

The challenge arises in attempting to balance the protection of cultural expressions, the free exchange of these experiences, and the accessibility of the formal IP system to all. High costs and complex processes that are often associated with the registration, renewal, or enforcement of IP protection often serve as for Indigenous peoples seeking to use the formal IP system.

Many other issues stem from the fact that the formal IP system and traditional cultural systems are often based on competing worldviews. Formal IP laws in Canada tend to only recognize known individual creators or owners as holders of IP rights, which can be difficult to square with Indigenous outlooks of “ownership”. The has noted that “indigenous peoples do not view their heritage in terms of property at all…but in terms of community and individual responsibility…For indigenous peoples, heritage is a bundle of relationships, rather than a bundle of economic rights.”��

Trademark law in particular has the benefit of granting collective rights and can also provide perpetual protection. In order to receive protection under, however, , and some aspects of, for example, indigenous folklore, may not meet this definition.

A compound approach involving both Indigenous customary laws and contemporary intellectual property regimes should be implemented to protect indigenous TCEs in Canada. For instance, certain individuals or groups within an Indigenous community may be deemed as “custodians” of TCEs, authorized to . Contemporary IP systems may supplement more effective implementation or provide sustainable regimes where prior consent is given by the traditional owners of the TCE.��

As explained by Professor Erica-Irene Daes, “there is usually an individual who can best be described as a custodian or caretaker of each song, story, name, medicine, sacred place and other aspect of a people's heritage.”[1] Michael Harkin gives the example of songs and dances associated with the Kawkiutl potlatch tradition, which are “under the exclusive possession and control of particular individuals.”[2] With the existence of such individual “middle persons” in the relationship between Indigenous nations, their TCEs, and the remainder of the world, incompatibilities between contemporary IP regimes and Indigenous worldviews can potentially be reconciled through rigorous and effective consultation, as well as other means of seeking informed consent, on the part of non-members and non-authorized users.

On June 21, 2021, Bill C-15, the , received Royal Assent. Two provisions within the Declaration are particularly salient to discussions on Indigenous rights and protections:

[Article 11] Indigenous peoples have...the right to maintain, protect and develop the past, present and future manifestations of their cultures...

��[Article 31] Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures…They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Taken together, these articles call for the enhanced autonomy of Indigenous peoples to implement their own laws and traditions on matters concerning their people, as well as to “maintain, control, protect, and develop” that which belongs to them. They also serve to reaffirm a fundamental link between protection of Indigenous intellectual property rights and the revitalization of their cultural traditions and customs. Therefore, indigenous customary laws should be recognized as the best-suited mechanism for dealing with the sui generis nature of indigenous cultural property, and also the most just, as it would promote Indigenous autonomy and sovereignty over indigenous affairs.

[1] Erica-Irene Daes, “Intellectual Property and Indigenous Peoples” (2001) 95 Am Socy Intl Proc 143 at 183.

[2] Michael Harkin, Privacy, Ownership and the Repatriation of Cultural Properties: An Ethnographic Perspective from the Northwest Coast (2001) 5 at 306 (unpublished manuscript).

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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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