Innovative Collaboration for Reconciliation: Current Issues in Intellectual Property

By Bertina Lou

OTTAWA, ONTARIO
February 2024

The fifth annual Queen's Conference on Indigenous Reconciliation (QCIR) was held on February 9-10, 2024 at Queen’s University. This year’s conference focused on the theme of “Innovative Collaboration,” facilitating discussion on new and radical ways to collaborate to foster reconciliation in business and law.

Current Issues in Intellectual Property Panel Session

On February 10, Chidi Oguamanam spoke on the “Current Issues in Intellectual Property” panel session with Yvan Larocque (University of Manitoba) and Val Napoleon (University of Victoria), moderated by Hugo Choquette (Queen’s University).

Oguamanam explored how reconciliation is implicated in developments in the life sciences (including biotechnology, genetic resources, biodiversity, food and agriculture, medicine, and data governance). He shared that the Open African Innovation Research Network (Open AIR) as well as Access and Benefits Sharing Canada (ABS Canada) have been doing work in this area.

Observing that Canada initially objected to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, Oguamanam noted that the country has come full circle by making UNDRIP an Act of parliament, representing a significant step toward affirming the document’s importance and evolving Canada’s approach.

There is more to be done, however. The Canadian Parliament can, for example, squarely tackle current injustices through five-year periodic reviews pursuant to the Copyright Modernization Act, including injustices demonstrated in the Maliseet Tapes and related cases.   

The government might consider the relationship between the UNDRIP Act of 2021 and Intellectual Property (IP), including questions such as: How might we frame Indigenous Intellectual Property so that it will be taken seriously by the Canadian government? Would we chart a new order of Indigenous knowledge governance or overlay Indigenous knowledge upon the existing colonial structure of knowledge governance?

The question of recognizing Indigenous IP is an epistemic one. The Truth and Reconciliation Commission of Canada’s Calls to Action, particularly Call to Action 28, provides an opportunity for the ongoing redesign of law school curricula to center Indigenous knowledge systems and related issues of IP within the reconciliation discourse and implementation.

Question and Answer Period

Question 1: Can Canadian statutory laws on IP be reconciled with, or articulated in a complementary way that respects Indigenous legal orders? What role do international instruments (including UNDRIP) play in that process?

Oguamanam opined that UNDRIP is a United Nations instrument, unique in terms of its making, commanding legitimacy with force and power beyond a mere declaration. There is an important distinction between “control” and “protection” in relation to legal orders in Indigenous communities. UNDRIP is not frozen in time. It is not a perfect instrument, but one that needs to evolve with time. Yet, it lays the foundations of a rights-based approach that continues to inspire legislation and Indigenous quests to detail self-determinations in various contexts. Canada has an opportunity to tie these rights, especially those in the United Nations Declaration Act (UNDA) like Sections 11 and 31, to Section 35 of the Constitution Act of Canada.

On trademarks, Canadian domestic laws and jurisprudence could draw inspiration from New Zealand’s Trade Marks Act, which can refuse registration to trade mark applications considered offensive to Māori. Canada can take a proactive approach similar to New Zealand’s direct incorporation of Māori cultural sensitivities into the Trade Marks Act and other critical and relevant IP regimes.

There are two pathways to examining Indigenous Intellectual Property in Canada: one that recognizes Indigenous peoples as individual citizens that run corporations and enterprises with rights to IP, and another that recognizes Indigenous peoples as culturally situated individuals with self-determination. The multi-juridical nature of Canada must be recognized to advance discussions on IP orders because colonialism is entangled in Indigenous histories and experiences in ways that pragmatically do not make for hard-edged demarcations.  

Copyright law recognizes the individual as the owner of copyrights, neglecting the possibility for a degree of communal control and ownership in Indigenous contexts. This is incongruent with the existing reality that corporations with a patent assigned to it may have more shareholders than Indigenous communities whose legal personality is often alien to existing IP systems. Furthermore, if debates on granting copyrights to AI-generated creations are being entertained at this point time, it is baffling that the copyright system is still ambiguous over the communal creativity of Indigenous peoples, which has been integral to their existence since time immemorial.

UNDRIP and other progressive international regimes offer new opportunities for Canada to bring international ideas home, to improve domestic approaches, and to sustain international, national, and local connections in pragmatic ways.

Question 2: Would it be better to protect Indigenous IP rights through exceptions in the law or might this be a good opportunity to restructure Western IP law? What are advantages to applying Indigenous IP approaches to IP law in general?

The Truth and Reconciliation Commission discusses the existence of different Indigenous legal orders that must be respected. The Canadian, New Zealand, and Australian contexts are so unique that only the surface of available political opportunity is being scratched.

“Indigenous Intellectual Property” is a contested term; even the term “sui generis” is an attempt to benchmark value on the basis of the colonial, describing things in reference to the “real” knowledge governance framework that is currently recognized. Various Indigenous legal orders contain new insights to advance progress but are often overlooked because importing an alien concept to a particular legal order is disruptive. For example, Western IP contains the concept of the “public domain,” the idea of a contract between the state and the owner of IP that eventually returns the IP to the public domain, which is incomprehensible in many Indigenous legal traditions that do not subscribe to a legal order mediated by the state.

The concept of sui generis is defined in scope by frameworks that offer an opportunity for decolonization and rebuilding from ground zero.

Question 3: How might this be achieved?

This question is a priority that warrants attention. Canada often makes external promises to support the developing world (with education, water, etc.). Indigenous communities have experienced a high burden of issues that impact their ability to effectively govern. The government might try proactive attempts to support Indigenous capacity in governance, including building capacity to respond to new issues, have Nation-to-Nation conversations, and strategize for optimal participation.

STAY CONNECTED

The Queen's Conference on Indigenous Reconciliation was a fruitful forum for dialogue on the theme of Innovative Collaboration this year. Check the organization’s website in the upcoming months under the Past Conferences section to view the 2024 Post-Conference Report.