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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According to Directive 96/9/EC, databases can be protected by either copyright, or the sui generis right, which essentially considers how substantial of an investment was required to build up and maintain the database in order to determine if it is worthy of protection.  Since fixture lists failed on the sui generis claim in 2004, Advocate General Mengozzi considered whether the fixture lists Football Dataco Ltd. (and others) draw up could be protected by copyright.  Otherwise, they could be used freely, as Yahoo! UK (and others), the defendants, are hoping.

In this case, Football Dataco organizes both the English and Scottish soccer leagues by creating and publishing a list of all the matches to be played in the season.  Yahoo! UK has been using the schedules for its news service as well as for the purposes of organizing betting activities.  Football Dataco wants payment from parties like Yahoo! UK who use their fixture lists in such a way, and rely particularly on Article 3(1) of Directive 96/9/EC which states that “…databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright…”

From this Article, Advocate General Mengozzi asks and answers a few important questions in giving his opinion:

“(1) what is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” and in particular:
(a) should the intellectual effort and skill of creating data be excluded?
(b) does “selection or arrangement” include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?
(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?”

Advocate General Mengozzi starts by noting that the Directive provides copyright protection for the structure of the database, not the contents, as they would be dealt with in the standard copyright law.  The sui generis right goes not to the originality of the database itself, and instead focuses on the investment of effort in the data it contains.  This is important because it shows that although the sui generis claim in 2004 failed, it does not necessarily ensure failure for a copyright claim in the same type of database.  Furthermore, it also foreshadows Advocate General Mengozzi’s ultimate conclusion, as he notes that Yahoo! have limited their use of the fixture list to the use of the data contained – the dates, teams, times – and not the structure of the list itself.

Advocate General Mengozzi essentially answered his own question 1(a) with his opening considerations of the issue, as he notes that any factor connected with the creation of data, like intellectual effort and skill, must fall outside of the scope of the Directive.

Regarding 1(b), the problem found in Football Dataco’s claim is that the data entered into the fixture lists has already been finalized before it goes into the database.  Team X versus Team Y on Date Z is already decided before the information is put on the fixture list.  Once again, this means that since any “selection or arrangement” that might be worthy of copyright protection takes place at the data creation stage, rather than as a result of the structure of the database itself, Football Dataco’s claim in this respect should fail, according to Advocate General Mengozzi.  He does note however, that while Football Dataco should fail on this point, in general, when data is put into a database such inputting could add “important significance” to the data and thus afford the database protection in that situation.

Question 1(c) concerns whether the way data is selected and arranged in a database by the author is intellectually creative enough to be afforded copyright protection.  Once again, Advocate General Mengozzi sees Football Dataco’s problem hinging on the fact that any creativity takes place before the information is put into the database.  At the input stage, he states, “it is not sufficient [for copyright protection] that the creation of the database required labour and skill.”  He recognizes that generally, the originality threshold required for copyright, in most jurisdictions is actually quite low and often met precisely when a creator applies labour, skill or effort.  However, the threshold of originality that the Directive requires is more than mere effort and focuses on creativity, since the sui generis protection is the branch of protection concerned with resources and work expended in creating and maintaining the database.

The opinion of Advocate General Mengozzi appears to skew more toward the reasoning of the United States Supreme Court in , rather than the Supreme Court of Canada’s decision in .  While both of those cases rejected the “sweat of the brow” doctrine for an original work, the United States Supreme Court required a “minimal degree of creativity” while the Supreme Court of Canada called for the “exercise of skill and judgment”.  In fact, it would seem that the Directive forces Advocate General Mengozzi to call for this slightly higher standard.

For Advocate General Mengozzi, if Football Dataco, and parties in a similar situation, want copyright protection, all is not completely lost.  He states that if the creator, in putting the database together, introduces original features, like a particular color coded or graphic based means for representing the data, it could be a very likely candidate for copyright protection.

Brent Randall is a JD candidate at the University of Ottawa.

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