“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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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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(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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In his article, “Some Realism about Indigenism”, Professor Michael Davis argues that TRIPs “is the biggest disaster faced by the Third World since the end of the territorial-based colonial era.” In the context of protecting traditional knowledge, he argues that TRIPs and Western IP regimes will not benefit the “owners” of this information because the concerns do not match what IP systems can do and they shouldn’t even try. He argues that TRIPs should be repealed although he does at least admit that is unlikely to occur. Davis makes convincing arguments that IP protections are incompatible with the goals of protecting traditional knowledge, but is it an answer to simply repeal TRIPs?

Davis begins by identifying five different goals of “indigenism,” gathered mainly from the literature. They are 1. ownership and control of cultural information; 2. ability to exploit and profit from the use by others of that information; 3. promotion and encouragement of cultural information; 4. protection and preservation of bio-cultural information, including biodiversity; and 5. protection and preservation of cultural artifacts. As an example of Davis’ critiques, with respect to the ownership and control of cultural information, Davis’ critique is that IP regimes are in place to serve as an efficient means of commercializing information. IP owners exercise ownership and control in order to make a profit, either by pay for use or licensing, but indigenism doesn’t want so much to commercialize this information as to assert ownership and control in order to protect it.

I think all of these goals can be boiled down to the single concern that the more powerful countries should not be permitted to commercialize and profit from the products of traditional knowledge. There is something morally wrong about this practice but is the situation as bleak as Davis suggests? He seems to suggest that as long as countries are forced to join TRIPs, the poverty will only increase. I would hazard to say that this view reflects a bit of a stereotype about those living in developing countries. For example, Davis says “After all, if the indigenous were advanced societies, they would have all sorts of institutional devices to preserve and protect their heritage” (at 818). Perhaps “advanced societies” is a term of art in a particular field of study – I am truly not sure - but it strikes me as rather harsh and stereotypical. Yes there is extreme poverty and copyright issues for example are not at the forefront of people’s minds. I would argue those issues are not so much at the forefront of most Canadians’ minds either. My point is that there is rich culture and great potential in addition to, and building from, traditional knowledge. They too are interested in access to new technologies and the growth of culture. Of course, TRIPs will not make developing countries rich overnight, but it seems as if it might be a partial answer.

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The Romance of the Public Domain, as Anupam Chander and Madhavi Sunder see it, is the presumption that the public domain is a landscape where everyone has equal access to reap the riches found therein.�� This ‘romance of the commons’ is the belief that because resources are open to all by the law that the resources will be equally exploited by all.�� However, ‘scholars obscure the distributional consequences of the commons,’ because in practice, differing circumstances render some able to exploit the commons better than others.�� The authors work with the definition that the public domain involves ‘resources for which legal rights to access and use for free (or for nominal sums) are held broadly,’ and moreover, the term is used interchangeably with the term ‘commons’ based on the admittedly spacious definition.

The authors write in response to the apparent divide between intellectual property and the public domain; between privatization and the second ‘enclosure movement’ which seeks to protect a commons of information against private property.�� In fact, the authors write that ‘intellectual property and the public domain are paired together in a perpetual dance,’ in which ‘innovation captured as private property depends upon the existence of a rich public domain.’ ��Here they reference Carol Rose who reminds us of the first ‘enclosure movement’ in which open roadways allowed for free unfettered trade and enlarging the potential markets that private property can exploit. ��The authors are certainly not anticommons, but they do believe that the focus of public domain literature on the easy appropriation, and the free speech and access to, information by ‘commoners’ fails to address disparities in the ability to exercise these apparent freedoms.

Intellectual property and the public domain, the authors argue, are made for each other; and the public domain often functions in service of privatization.�� The authors wish to show that as the transportation system facilitated the first ‘enclosure movement,’ the commons preserved by Trade Related Intellectual Property Rights (TRIPS) facilitates the current ‘enclosure movement.’ ��This is so, in that, TRIPS require all member states to agree to both standards of protection for intellectual property rights and the allowance of foreign access and ownership, through the treatment of foreigners as equal to the citizens of the state; a combination which severely imbalances the transfer of ownership of intellectual products from the developing to the developed world.�� TRIPS in effect have upset the balance of the global public domain.

Before TRIPS both the East and West benefited from each others' invention and expression; the West benefited in the East’s unprotected knowledge (example of the neem tree), and the East benefited in the West’s weak intellectual property laws in protecting property across borders (example of computer software and films).�� TRIPS changed this with strict mandates for minimum standards for intellectual property; which leaves the developing world under threat of loss of trade privileges for the use of firmly protected intellectual products, making them 'fair followers' instead of 'free riders.' ��The developed world however is left free to exploit the resources and efforts of the developing world where the global commons of intellectual products remains intact.�� In essence, the public domain in genetic resources and traditional knowledge remains post-TRIPS and is bound to be exploited asymmetrically.�� In response the authors offer four equality minded strategies to reorder exploitation and address the inegalitarian commons;

Inalienable Rules - suggest defeating attempts to propertize in order to avoid unequal exploitation of a commons.�� An example is Traditional Knowledge Databases (TKDs) through which countries categorize their innovation heritage, and offer the collection to patent offices worldwide, in order to improve the body of information on prior art, and thereby prevent propertization.

Property Rules - suggest declaring genetic resources and traditional knowledge the property of defined communities.�� An example is through sui generis genetic resource and traditional knowledge statutes, as seen with Costa Rica in 1991.�� In this case the government created a non profit organization to work with the pharmaceutical giant Merck which agreed on the right to sampling while paying the non profit a certain sum plus royalties.

Liability Rules - suggest permitting outsiders to utilize a communities genetic resources and traditional knowledge but only in exchange for objectively determined fees.�� A middle ground is found in that local communities would be paid for resources, contrary to the current global commons approach, but those communities could not withhold access to the resource, contrary to the property approach.

Affirmative Support Programs - suggest finding ways to supply the disempowered with the capital and skill to be able to exploit on an equal playing field with the empowered.�� An equality minded commons will be possible only when we address the developing nations underlying unequal capacity to realize opportunities in the commons.�� The authors argue that this is done through international efforts, such as through the World Bank and European Union, to fund programs that build capacity in science and technology, and notably in agriculture.

Alluded to in this final strategy is the idea that the issues of the inequitable commons may not even be the sort which can be remedied solely in the language of economic bargaining, as the above methods typically propose. ��The authors believe that this is a suggestion worthy of further exploration, leaving the thought to be pondered in the close of the article. ��The idea that the issues being examined may be deeper seeded are in the statement that��'poverty affects the ability of individuals to exploit property, intellectual property, and every other legal entitlement.�� The unequal tilt in the public domains exploitation follows naturally from the dynamics of production and commerce in a world characterized by deep inequality.’ ��This concept has been espoused by other authors, such as Michael H Davis in his article��Some Realism about Indigenism, who argues that wealth and poverty need to be examined more closely as they are central and perhaps even overriding in the debate. ��I leave then with the thought to ponder by Davis that��‘the poverty of the third world and indigenism is certainly due to many factors.�� But TRIPS and IP generally play a role in that impoverishment by ensuring that for every step forward out of poverty, economic tribute must be paid... [and] this is a futile trip up a ladder that is constantly being lowered.’

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