Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

The Australian government announced that, , the Australia Council of the Arts is renamed “Creative Australia.” The Council of the Arts is the government’s primary arts investment and advisory body. As part of this rebranding, the Australian government also announced, on January 30, 2023, its new five-year cultural policy, Revive Strategy, which focuses on establishing four new federal bodies within Creative Australia. One of these bodies will be a First Nations-led body to support Indigenous Australians in their creative endeavours. The aim is for this board July 1, 2024, and the goal of this body is to “.”

Included in the Revive Strategy, the Australian government also announced additional measures targeted at Indigenous communities, including $13.4 million for legislation protecting indigenous intellectual property (IP). This legislation will focus on blocking the sale of fake indigenous art, including art typically sold as souvenirs. Additionally, the government announced measures targeted at protecting Indigenous IP and culture, including $11 million for a First Nations Languages Policy Partnership between governments and First Nations representatives, a First Nations creative workforce strategy, and a National Aboriginal Art Gallery in Alice Springs and an Aboriginal Cultural Centre in Perth.

Inauthentic Indigenous art is Harmful

First and foremost, selling inauthentic indigenous art and souvenirs disrespects the heritage and culture of indigenous communities. A in 2022 by the Productivity Commission on Aboriginal and Torres Strait Islander visual arts and crafts confirmed that fake indigenous art harms indigenous culture. However, this is not a newfound issue. Aboriginal Elder Gawirrin Gumana (Yolngu) in 1996: “When that [white] man does that it is like cutting off our skin”, where “it” refers to the practice of selling fake indigenous art. Other indigenous artists about instances where their culture and IP have been appropriated for profit. For example, many indigenous artists have been tricked into exploitive licensing agreements where non-indigenous companies make large profits by selling indigenous art commissioned by indigenous artists for a low price. This kind of uncertainty in the law has led to many indigenous artists asking for greater legal support for IP.

Regarding fake indigenous art sold as souvenirs in Australia, the report by the Productivity Commission showed international tourists on indigenous-style artwork in 2019-2020. However, approximately 75% of indigenous-style art sold is not made by Indigenous people from tourists who are unwilling to pay the price for authentic indigenous art. Thus, selling inauthentic indigenous art and souvenirs undercuts indigenous businesses and harms indigenous livelihood. ��

Protecting Indigenous IP Rights in Australia

In the past, any national licensing or production legislation to protect Indigenous IP and culture. In response to their 2022 report, the Productivity Commission that fake indigenous art should be labelled as “inauthentic” to protect true indigenous art. However, many believe that this type of labelling would be a start to the protection of Indigenous IP. Hopefully, the new measures instituted by the First Nations-led body and the legislation introduced by the Australian federal government will be a good first step in protecting Indigenous IP rights in Australia.

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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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