(Disponible uniquement en anglais)
par Kyungwon Ha
Author Biography
Won Ha is a JD candidate at Western University. She holds an MSc in Physiology, specializing in female reproductive biology, from the University of Toronto, and an HBSc in Human Biology. Prior to law school, she conducted intensive research on reproductive science across various animal models.
Won’s academic interests are centered on intellectual property law, with a particular focus on patent prosecution and protection, and the intersection of Indigenous rights with IP frameworks. She has gained practical IP experience working as a summer student at Bereskin & Parr and serving as a legal researcher and IP liaison for a reforestation start-up company, Mion Forest Inc. Additionally, she represented Western Law in the prestigious Harold G. Fox Moot, deepening her understanding of appellate advocacy in IP law.
Won aspires to build her legal career in intellectual property, advocating for robust protection mechanisms that respect and preserve innovation, heritage, and Indigenous traditional knowledge.
I. Abstract
Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs) are central to the cultural identity and traditions of Indigenous communities in Canada. Despite their value, these forms of knowledge are often unprotected under Canada’s current intellectual property laws. Built on western ideas of individual ownership and limited terms, the current system struggles to recognize and protect these assets outside their scope. The current legal framework leaves TK and TCEs vulnerable to misuse and exploitation, undermining the rights and cultural sovereignty of Indigenous peoples.
This paper examines how a sui generis system can be implemented in Canadian Intellectual Property (IP) law context to protect TK and TCEs. By incorporating lessons from Peru’s benefit-sharing system and India’s Traditional Knowledge Digital Library, and international frameworks like UNDRIP and the Nagoya Protocol, Canada can also create a more inclusive IP law framework that embraces Indigenous cultural values and heritage. Such a system would foster fair benefit-sharing and prevent cultural misappropriation while promoting reconciliation.
II. Definition
1. Traditional Knowledge
TK, or sometimes referred to as “Indigenous Knowledge”, is a collection of skills and practices that are developed and passed down through generational education, often leading to formation of communal identity.1 TK exists in various forms and contexts, including agricultural, health, technical, craftmanship, and biodiversity-related knowledge.2 In this paper, TK is exemplified as traditional medicinal knowledge, genetic resources, and cultural resources.
Mode of acquiring and passing down TK is different than in the western modern society, as TK has been created “long before the development of modern science”.3 Unlike the use of records to preserve information in modern society, TK is often orally communicated through storytelling, and is inherently communal due to its oral nature. With such characteristics, TK poses legal challenges within the modern IP framework, which is rooted in significantly different values.
2. Traditional Cultural Expressions
TCEs are “expressions of folklore”, tangible and intangible expressions that may include music, dance, art, designs, names, oral stories, and ceremonies.4 The core values and benefits of the Indigenous communities are passed down by TCEs as they embody cultural and social identities of their tradition.5 The Indigenous symbols, marks, and logos are also considered as TCEs in this paper. The perpetual nature of TCEs – intergenerational inheritance through oral stories – often contrasts with the core framework of modern IP.
3. Intellectual Property
Intellectual Property (IP) refers to creations of the mind, such as inventions, poems, designs, and symbols used in commercial context.6 IP is an intangible asset, providing economic and moral rights to the author over their creations and innovations. Economic rights can be transferred as commercial assets, while moral rights remain with the authors. Different types of IP rights are categorized as either copyright, trademark, patents, industrial designs, and confidential information.
Copyright is a legal term used to describe the rights that creators have over their literary, artistic, dramatic, musical, and compilation of works.7 Copyrighted works must be original and fixated for the works to be protected under the copyright law.8 The Copyright Act protects copyrighted material created within Canada without the need for official registration.9
Trademarks are signs or combinations of signs distinctive enough to distinguish goods and/or services from those of other businesses.10 The Trademarks Act protects registered and unregistered trademarks, that ranges from words to colours to three-dimensional shapes.11
Patents provide exclusive rights to the owner of the invention, in exchange for public disclosure of the invention.12 Unlike copyright and trademarks, patents are protected under the Patent Act upon registration as patents require novelty and non-obviousness components.13
The inherent difference in the perception of IP between the Indigenous communities and non-Indigenous communities creates a gap in protecting TK and TCEs in the western modern legal framework. The IP framework provides exclusive rights over the tangible creations, not simply ideas, focusing on the individual authorship and limited duration of protection. Copyrighted works are protected for the author’s lifespan and 70 years after the author’s death, trademark for 10 years with renewal, and patents for 20 years ineligible for renewal.14 TK and TCEs are often communally owned, intergenerationally inherited, and remain in intangible forms. Such communal ownership of TK and TCEs contrast with exclusivity provided by the current IP framework.
4. UNDRIP
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international Human Rights framework adopted by the United Nations General Assembly in 2007. UNDRIP aims to protect and promote Indigenous rights, including cultural rights, self-determination, land and resource rights, and IP rights.15 Articles 11 and 31 of UNDRIP highlight the IP concerns related to the protection of TK and TCEs.16
Article 11 discusses the right of Indigenous peoples to “practise and revitalize their cultural traditions and customs”, including the “right to maintain, protect and develop the past, present and future manifestations of their cultures”.17 This encompasses archaeological and historical sites, artifacts, designs, ceremonies, technologies, and visual and performing arts. Article 11(2) discusses the efforts States should take to provide redress through effective mechanisms, which include restitution, for “cultural, intellectual, religious and spiritual property taken without free, prior, and informed consent (FPIC)”.18
Article 31 recognizes the right of Indigenous peoples to “maintain, control, protect, and Article 31 recognizes the right of Indigenous peoples to “maintain, control, protect, and develop their cultural heritage, traditional knowledge, and traditional cultural expressions”, including manifestations of their sciences, technologies, cultures, and genetic resources.19 Article 31(2) states that “in conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights”.20
III. Challenges in Protecting TK and TCEs (through IP Law)
The current legal framework does not fully encompass the unique nature of TK and TCEs into the IP law framework, posing challenges in protecting them. Therefore, these traditional knowledge and cultural values are prone to exploitation and are not provided legal protection. Here, we address some of the challenges in protecting TK and TCEs through IP law framework.
1. Cultural Incompatibility in Ownership
The cultural incompatibility between IP law and Indigenous traditions arises from the unbridgeable gap in their views on ownership, making it difficult to reconcile the two. This also deeply links to the cultural misappropriation and exploitation of TK and TCEs in western societies.
a. Communal Ownership
TK and TCEs often reflect the communal identities of Indigenous communities as they are rooted in the communities’ core values. To Indigenous communities, knowledge is not a commodity, thus it can be shared, passed down, and collectively owned within the communities. One of the core principles of IP law is exclusive ownership, which can be assigned not only to individuals but to legal entities. However, Indigenous peoples are “not recognized as ‘legal persons’ for the purposes of many provincial statutes”, unable to claim ownership to IP rights as a single community.21 Such unresolved conflict between the two principles prevents Indigenous communities from rightfully benefitting from the existing IP law structure and places these communities in a vulnerable position for exploitation of their cultural resources.22
2. Requirements of IP Law
The inherent characteristics of TK and TCEs, including their perpetual nature and communal ownership, conflict with the current IP structure and make the TK and TCEs difficult to satisfy the requirements for legal protection as IP.
a. Copyright: Originality
In copyright law, for example, originality is a key component required for the work’s legal protection.23 It requires “at least some intellectual effort, as is necessarily involved in the exercise of skill and judgment”.24 Sharing and passing down TK and TCEs without a sufficient exercise of skill and judgment makes these resources in eligible for copyright protection despite their cultural value.
The originality requirement may harm Indigenous communities through exploitation of TK and TCEs. A non-Indigenous author may create an original work by exercising skill and judgment to alter TK and TCEs, and claim copyright in their work when TK and TCEs are not themselves legally protected under copyright law. Such cultural misappropriation is not being protected by the current IP law framework.
b. Copyright: Fixation
Although there is no explicit provision in the Copyright Act, fixation is regarded as an essential requirement for the subsistence of copyright.25 For a work to be protected under copyright law, it must be a fixed expression in a tangible form. Even dramatic works, including choreographic work or recitation, are required to be fixed in writing or other forms.26 Any unpredictable events that are not fixed cannot be protected under the copyright law.27 This requirement of copyright law challenges TK and TCEs in their legal protection under IP law, since much of TK and TCEs exist in intangible forms, shared through oral traditions and performances.28
c. Trademarks: Distinctiveness
The Trademarks Act requires distinctiveness of the sign for trademark protection.29 The “distinctiveness” largely depends on the view of an “average consumer”, which is a relatively subjective standard for legal protection. This method may work against various Indigenous marks, including Indigenous symbols, as it would be rather difficult for a non-Indigenous average consumer to distinguish the Indigenous marks.30 This can hinder TCEs from being protected under the trademark law.
d. Exclusion of Indigenous peoples from Trademark law
Although the Trademarks Act protects official marks under section 9 with minimal restrictions, it fails to protect TCEs of Indigenous people in the same manner.31 The current trademark law fails to recognize such TCEs, including Indigenous words, symbols, and designs. One example is Queneesh, where the Comox First Nation community brought an action over the use of the trademark “Queneesh”.32 The Comox First Nations argued that the word “Queneesh” held a culturally significant piece of their oral history, but the court rejected their claim and denied their trademark application, as “Aboriginal rights are outside the scope of trademark law”.33 Considering the cultural significance of the Indigenous language, this case represents the failure of IP law structure to incorporate Indigenous IP rights.
The Trademarks Act states that a trademark is not registrable for “the name in any language of any of the goods or services in connection with which it is used or proposed to be used”.34 However, “Queneesh” is not a name or language that was used to describe goods or services that the Comox First Nation community provides, or proposes to provide. Comox First Nation was not arguing that their Aboriginal rights be protected under the Trademarks Act, but their name “Queneesh”, with cultural significance, be protected.
Aboriginal names are not under protection exemption, through section 9(1) of the Trademarks Act.
As Indigenous marks are not recognized as “official marks”, they are not under exemption of section 9(1) of the Trademarks Act.35 They are also not exempt through section 12(1) which further prohibits certain registrable marks.36 Therefore, even if “Queneesh” is not protected as Aboriginal rights, the mark is still to be protected under the Trademarks Act upon registration. However, both the statute and jurisprudence refusing to protect Indigenous marks and symbols, TCEs are in a vulnerable position for cultural misappropriation.
e. Patents: Novelty
Novelty is also a key requirement for inventions under patent law.37 Section 28.2(1) of the Patent Act provides that an invention must not be known or used by others, or be in public use or on sale in Canada for more than one year prior to the filing date of the patent application.38 Most of the TK and TCEs are not novel under s 28.2(1) of the Patent Act, as TK and TCEs are communally owned and passed down within the Indigenous communities.39 It is particularly difficult to meet the patent law requirements for the Indigenous communities while maintaining their cultural values.
3. Limited Duration of Protection
The temporal limitation of IP protection is vastly separated from the concept of intergenerational inheritance of TK and TCEs in Indigenous communities.40 It is also difficult to establish the duration of protection for certain Indigenous IP, as creation dates and authors are unknown, making it impossible to know when IP protection periods expire using the conventional methods. To effectively protect TK and TCEs and prevent the misappropriation, Indigenous communities require indefinite legal protections of their cultural resources, which is irreconcilable with the current IP framework.41
4. Geographical Limitations
The modern IP framework only provides legal protection within the Canadian jurisdiction. This jurisdictional protection makes it difficult to protect TK and TCEs in other jurisdictions even if TK and TCEs were to be protected under Canadian IP law. Such limitation allows other entities to access, use, and exploit TK and TCEs beyond the Canadian borders.42
The use of geographical indications (GIs) may partly resolve this issue within the IP framework, where the GIs identify the quality and characteristics of products attributable to its geographical origin. But GIs only apply to tangible products from specific regions to protect their holistic knowledge or cultural expression, which may not be suitable to apply in the situation of TK and TCEs.
5. Unrecognized Indigenous Genetic Resources
The lack of legal recognition for Indigenous knowledge, specifically in the context of biodiversity and genetic resources, places TK and TCEs at a higher risk for exploitation and misappropriation. Many third parties continue to exploit the genetic resources of Indigenous people without obtaining FPIC.43 While FPIC is emphasized in UNDRIP, the absence of enforceable legislation and the lack of international registries to consolidate such Indigenous knowledge challenge the effective implementation of FPIC.44
Furthermore, Indigenous communities – the rightful owners of the biodiversity knowledge and genetic resources – are often excluded from policymaking discussions on genetic resources governance. Redvers highlights how the marginalization of Indigenous voices, particularly through a lack of representation, perpetuates their exclusion from environmental governance.45 This exclusion undermines the integration of Indigenous perspectives into decision-making processes related to environmental conservation and resource management.46
IV. Existing Legal Mechanisms and International Efforts
1. Existing Legal Mechanisms in IP Context
Canada’s modern legal framework was established without addressing the foundational issue of incorporating Indigenous communities and their constitutional rights. Canadian IP law is primarily derived from UK and US common law, which, as discussed earlier, fails to adequately reflect the values and beliefs of Indigenous communities or to effectively protect Indigenous IP rights.
In response to these shortcomings, there has been growing judicial recognition of Indigenous IP and cultural resources as an essential step toward mitigating this issue. These efforts aim to acknowledge and respect Indigenous contributions while bridging the gap between Canadian IP law and protection of the cultural heritage of Indigenous communities.
a. Copyright: Norval Morrisseau Scandal
The recent Norval Morrisseau47 scandal demonstrates how the court considers the cultural significance of TK and TCEs. David Voss, a non-Indigenous forger, was charged for forging the style of Norval Morrisseau, a renowned Anishinaabe artist. These forged artworks were sold without permission, not only devaluing Morrisseau’s legacy but also harming the reputation of the broader Indigenous art community. The court emphasized the broader harm caused by cultural exploitation, recognizing the importance of protecting TK and TCEs in the Indigenous communities.48
b. Trademarks: Snuneymuxw and Washington Redskins
In the realm of the trademark law, courts have recognized the vulnerable position of TK and TCEs due to their intangible nature and have sought to provide protections within the common law framework. A leading example in Canada is the official marks obtained by Snuneymuxw First Nation in British Columbia.49 Snuneymuxw First Nation has obtained official marks for images in petroglyphs to prevent commercial exploitation by third parties.50
Another example is the Washington Redskins in the United States, where the professional football team’s trademarks were challenged for using an Indigenous symbol as the team’s logo.51 Although the decision was overturned on the grounds of freedom of expression, Washington Redskins illustrates the potential for governmental bodies to intervene against offensive registrations of Indigenous symbols and prevent TK and TCEs from commercial exploitation. This decision demonstrates the possibility for Canadian trademark law to similarly address the exploitative use of TK and TCEs, offering a pathway to greater protection for Indigenous heritage in Canada.
2. International Efforts
a. Sui Generis System
Sui generis, a Latin term for “of its kind” or “unique”, refers to a legal framework designed to create “a special form of protection regime outside the known framework”.52 The fundamental differences between Indigenous IP rights and modern IP rights raise the need for a sui generis system for protecting Indigenous IP. The following examples show how countries are starting to recognize the value of Indigenous knowledge and the need for protection in ways that go beyond the limits of traditional IP law.
Some countries, like Peru and India, already adopted sui generis systems to protect TK and TCEs. Peru enacted Law No. 27811 in 2002, introducing the “Protection Regime for the Collective Knowledge of Indigenous Peoples derived from Biological Resources”.53 Some provisions in the law provide requirements for informed consent from Indigenous communities, a benefit-sharing system in commercial contexts, and a registry for collective Indigenous knowledge. Through Law No. 27811, Peru emphasized the fair benefit-sharing system in commercializing TK and Indigenous biological resources.54 In addition to Law No. 27811, Peru established the National Commission against Biopiracy in 2004, to identify, monitor, and address cases of biopiracy.55 Since its establishment, the Commission has identified over 20 cases of patent infringements involving biopiracy, primarily in cosmetic and nutritional industries.56
India’s Traditional Knowledge Digital Library (TKDL) is another example of a sui generis system. The TKDL serves as a repository of traditional medicinal knowledge, providing prior art in patent applications to international patent offices.57 Documents from TKDL provide evidence of prior art, preventing foreign entities from pirating TK through patents, and further preserve TK.58
b. World Intellectual Property Organization
As different international organizations have made efforts to address the exploitation of Indigenous IP rights and provide safeguards against it, the World Intellectual Property Organization (WIPO) is at the forefront of providing practical solutions.59 WIPO has created online databases and registries to document TK and genetic resources, aiming to provide global access to information about TK and TCEs to protect them from misuse.60
In 2000, WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IGC serves as a platform for countries to collaborate on developing international legal frameworks for TK and TCEs.61 It supports the creation of global databases and registries to prevent third-party exploitations of TK and TCEs.
Like Peru’s legislation, the IGC also focuses on fostering an equitable benefit-sharing system. Equitable benefit-sharing refers to fair allocation of benefits derived from the use of TK and TCEs, considering the cultural, economic, and social context of Indigenous communities. This recognizes the special needs, values, and circumstances of the different Indigenous communities. The equitable benefit-sharing system ensures that profits generated from the use of TK and TCEs are shared fairly with the communities that hold TK and TCEs. IGC additionally hold annual sessions, continuing to work on strengthening international IP protection of Indigenous knowledge.62
c. Nagoya Protocol
To ensure fair and equitable benefit-sharing system for profits generated from the use of genetic resources and associated TK, the Convention on Biological Diversity (CBD) formed the Nagoya Protocol.63 Protection of TK from various Indigenous communities plays a key role in achieving CBD’s objective: conservation of biodiversity.64
The Nagoya Protocol is a legally binding international agreement for countries that are parties to the CBD.65 It requires the party countries to enact legislation aligning the protocol’s principles. Key provisions include establishing Prior Informed Consent (PIC) and Manually Agreed Terms (MAT) before external parties can access TK for commercial purposes.66 The Nagoya Protocol, by being implemented in party countries, offers a relatively uniform legal framework across jurisdictions, facilitating the regulation and control of TK while promoting respect for TK and TCEs.
The protocol also reinforces benefit-sharing agreements, mandating TK users to negotiate with TK owners or providers regarding authorization and compensation.67 This includes monetary and non-monetary benefits, such as technology transfer or access to research data. The objective of fair benefit-sharing system is to prevent external parties from misappropriating or exploiting TK.
Enforcing the Nagoya Protocol empowers the Indigenous communities and gives them control over their TK. By legally recognizing their IP rights, the Nagoya Protocol aims to reduce biopiracy like Peru’s Law No. 27811. The benefit-sharing system also brings economic and social advantages to the Indigenous communities, bridging the gap between the Indigenous and the modern IP frameworks. The active use of TK and genetic resources in commercial contexts further supports the conservation of such cultural resources and contributes to broader environmental sustainability.
d. UNDRIP
The UNDRIP recognizes the importance of Indigenous cultural heritage and provides guidelines to protect TK and TCEs.68 Article 38 of UNDRIP calls for the adoption of legislative measures that align with the declaration’s objectives, including Articles 11 and 31 addressing Indigenous IP rights.69 The following is the language of Article 38:
“States in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”70
However, because UNDRIP is not an international treaty or domestic legislation, but only a declaration, its enforcement under Article 38 is limited. This lack of enforcing power is a significant issue, both within Canadian jurisdiction and globally. Since UNDRIP’s adoption in 2007, not many countries have implemented legislations that fully align with its principles, leaving its objectives largely aspirational rather than actionable.
V. Recommendations and Future Directions
1. Sui Generis System
a. Sui Generis System and Aboriginal Title
Canada has implemented a sui generis system in property law by recognizing Aboriginal Title in land rights. Aboriginal Title, protected under section 35(1) of the Constitution Act, affirms Indigenous peoples’ inherent land rights established pre-contact of European colonization and acknowledges their communal ownership of land.71
The landmark cases, Delgamuukw and Tsilhqot’in, provide in-depth analysis of the Canadian jurisprudence on Aboriginal Title.72 In Delgamuukw, the Court affirmed that Aboriginal Title is based on the collective ownership of land and includes the right to derive economic benefits from the land.73 This principle could directly apply to TK and TCEs given that the communal and intergenerational nature, which are similarly rooted in collective stewardship. Legislative reforms in IP law could acknowledge and protect the communal ownership of TK and TCEs, ensuring Indigenous communities maintain control over their cultural heritage.
The Tsilhqot’in decision underscores the necessity of consent in activities affecting Aboriginal Title, aligning with PIC in the TK and TCEs context.74 Just like Indigenous land rights require consent prior to use, TK and TCEs should also have similar requirements in the context of prior consent. The adoption of PIC would also align with other international instruments such as the Nagoya Protocol.75
Building on the recognition of Indigenous property rights within the Canadian legal framework, similar measures could be applied to IP rights. Adoption of a sui generis system in IP law through recognition of communal ownership and the perpetual nature of Indigenous IP rights would allow the preservation of TK and TCEs. Such a system could safeguard TK and TCEs from misappropriation and exploitation while fostering collective benefits for Indigenous communities.
b. Sui Generis System Models
Canada can draw valuable lessons from international models like those implemented in Peru and India. The two countries have successfully incorporated practical strategies to protect TK and TCEs and ensure equitable benefit-sharing. Establishing a national database of TK and TCEs, similar to India’s TKDL, would be a critical step toward documentation and preservation of TK and TCEs. Patent examiners and researchers could rely on this database, recognizing TK and TCEs as prior art in applications and preventing exploitative claims. The availability of this database would protect and promote ethical application of TK and TCEs.
To ensure the database aligns with Indigenous traditions and values, Indigenous-led IP registries should play a key role. These registries could recognize oral traditions as valid forms of fixation, thereby addressing one of the key limitations of the current IP system. By respecting and integrating Indigenous IP rights within the western modern legal framework, a national database and registry system would enhance protection and honour the cultural integrity of TK and TCEs.
Additionally, Canada could adopt legal obligations for PIC and a benefit-sharing system, modeled after Peru’s law. These measures would require external parties to obtain PIC from Indigenous communities before accessing their TK and TCEs, while mandating equitable compensation for their use. This requirement would align with the existing ‘duty to consult’ in section 35(1) of the Constitution Act, requiring the Crown to engage with Indigenous peoples when making decisions that may impact their constitutionally protected rights.76 This aligns with the international treaties, including the principles of the UNDRIP.77
Developing a sui generis system for Canadian IP law would also require the active participation of Indigenous communities. Canada should establish an independent Indigenous-led oversight body. This body would be responsible for monitoring agreements, resolving disputes, and promoting accountability among external parties. By empowering Indigenous communities to lead these efforts, such a framework would build trust and ensure that legislation reflects their unique cultural and legal perspectives. Recognizing communal ownership and the intergenerational nature of Indigenous IP would provide a foundation for sustainable protection and economic empowerment.
2. Amendments to IP Law
A robust sui generis system for protecting TK and TCEs in the Canadian legal framework can be achieved in two ways: 1) by amending existing IP laws, and/or 2) by enacting legislation that adopt international treaties. This discussion will focus on potential amendments to existing IP statutes and the enactment of domestic legislation.
a. Copyright
The Copyright Act requires originality and fixation as key criteria for copyright protection. These requirements could be adapted or amended to better accommodate the inherent characteristics of TK and TCEs. For example, loosening the strict originality standard could help recognize intergenerational oral inheritance as a form of exercise of sufficient skill and judgment.78 This would then allow TK and TCEs to qualify as original works.
Building on the need to loosen originality requirements, the fixation standard must also be revisited. Fixation of work mandates that a work be recorded or written to qualify for copyright protection. This could be relaxed for TK and TCEs. TK and TCEs are often expressed through oral traditions or performances that may not meet the traditional fixation standards. Expanding fixation to include live performances and verbal transmissions would make the Copyright Act more inclusive. The oral transmissions of TK and TCEs can also be fixated by sound recordings, thus satisfying the traditional requirement as well.
Exceptions could be introduced to ensure that the duration of copyright protection reflects the perpetual nature of TK and TCEs. Unlike conventional works with individual authors, TK and TCEs are typically maintained and preserved by the entire community. Amendments could allow authorship to remain with the community rather than an individual, ensuring continuous protection.
b. Trademarks
The Trademarks Act could strengthen section 9 by explicitly prohibiting the unauthorized use of Indigenous symbols, designs, and names or by interpreting the provision as encompassing such protections.79 Although this would not directly amend the Trademarks Act, it would provide an essential protection for TK and TCEs. This interpretation would prevent the commercial exploitation and cultural misappropriation of Indigenous symbols and designs, recognizing the cultural and historical significance. Such measure would align with Canada’s commitments under UNDRIP.80
Additionally, common law could adopt a more lenient standard for the registration of Indigenous symbols as official marks. Courts have already demonstrated flexibility in lowering the threshold for official mark registration in certain contexts, reflecting an evolved recognition of the importance protecting Indigenous cultural heritage.81 A more inclusive approach to official marks would enable Indigenous communities to secure legal protection for their cultural symbols more easily, preventing their misuse and ensuring their integrity.
3. Legal Adoption of International Efforts
a. Implementation of UNDRIP
Since UNDRIP was given effect in 2014, Canada has been hesitant in implementing legislative measures that align with UNDRIP’s objectives. A stronger push to incorporate UNDRIP’s principles into Canadian law is critical, particularly in the context of IP law.
The enactment of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, marks a significant step forward.82 The Bill receiving Royal Assent in 2021, responds to the Truth and Reconciliation Commission’s Calls to Action by reinforcing Canada’s commitments to protect Indigenous rights and promote reconciliation. Bill C-15 lays the groundwork for integrating international human rights standards into Canada’s legal framework, focusing on collaboration and consultation with Indigenous peoples.
The Bill “affirms the Declaration as a universal international Human Rights instrument with application in Canadian law”.83 This Bill also mandates the federal government to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”.84 Additionally, it requires the development of an action plan within three years of the Bill’s enactment, the details of the action plan listed in section 6(2) of the legislation.85
This legislation has a potential to provide greater protection for TK and TCEs in the IP law context. However, realizing these objectives requires robust implementation strategies and active collaboration with Indigenous communities.
b. Implementation of Nagoya Protocol
Legislating to implement other international treaties, such as the Nagoya Protocol, could strengthen the legal protection of Indigenous IP rights in Canada. As a party to the CBD, Canada has long been expected to implement legislative measures reflecting the principles of the Nagoya Protocol. Such measures would require PIC from the Indigenous communities before accessing and utilizing TK and TCEs.86 This would provide greater control and regulation of resources by Indigenous communities, ensuring robust utilization and protection of TK and TCEs.
An equitable benefit sharing system upon commercial use of TK and TCEs could partially reconcile the conflict between Indigenous IP framework and western modern IP framework. By integrating the concept of communal ownership and the perpetual nature of TK and TCEs in IP law, this system would promote fairness in resource management.
4. Future Directions
Canada’s jurisdictional powers are divided under the Constitution Act, 1867.87 While IP law falls within the federal jurisdiction under section 91(23), resource management and cultural heritage – core issues related to TK and TCEs – fall under provincial powers in section 92(13).88 Such overlap creates potential disputes regarding the jurisdictional authority to regulate and protect TK and TCEs. Indigenous governments lack formal authority to regulate TK and TCEs in current legal framework.
To address these challenges, Canada could introduce harmonized federal legislation that explicitly incorporates Indigenous IP protections, potentially through Bill C-15. Such legislation would allow provinces to adapt the frameworks to their specific contexts. Collaborative agreements between federal, provincial, and Indigenous governments could help resolve jurisdictional ambiguities.
Lastly, establishing an independent body, led by Indigenous governments or representatives, to oversee the protection and management of TK and TCEs would be a potential resolution to the redundant jurisdictional powers. Indigenous-led body would address the jurisdictional conflicts and create synergy in sustainable use of Indigenous resources.
VI. Conclusion
Canada requires a transformation in the existing IP framework to fully recognize and protect TK and TCEs. The current IP system, rooted in western legal traditions, fails to account for the communal and intergenerational nature of Indigenous IP. By incorporating Indigenous legal principles and modeling the international practices in Peru and India, Canada can also create a sui generis system that respects the unique values, traditions, and cultural sovereignty of Indigenous communities.
The adoption of a sui generis system would align with international frameworks, like UNDRIP and the Nagoya Protocol. By mandating PIC and an equitable benefit-sharing system, Canada can harmonize its domestic laws with international standards, fulfil its commitments under Bill C-15 and place Canada at the forefront of inclusive legal systems.
As we look into the future, the protection of TK and TCEs is more than just an inclusive legal framework. It is about respect, equity, and reconciliation. These knowledges are not just cultural assets of Indigenous communities but are an integral part of Canada’s heritage and history. Protecting them preserves the legacy for future generations and reinforces the country’s commitment to cultural diversity.
Empowering Indigenous communities to oversee the use of their own TK and TCEs is a step forward in rectifying historical injustices and recognizing their significance. Through such measures, Canada can set an example of how legal systems can evolve to include diverse interests and create equitable frameworks that respect cultural heritage.
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Constitution Act, 1867, 30 & 31 Vict, c 3 (UK).