Indigenous Knowledge and Intellectual Property Rights in Canada
The relationship between intellectual property (IP) and the protection of Indigenous knowledge and cultural expressions is complex and challenging. The information on this page is intended to provide an overview to stimulate and inform broader policy discussions in Canada.
Indigenous Knowledge and Cultural Expressions
Although there are no universally accepted definitions of Indigenous knowledge and cultural expressions, within international IP discussions, the terms generally used are traditional knowledge (TK) and traditional cultural expressions (TCEs). TK generally refers to the know-how, skills, innovations, and practices developed by Indigenous peoples related to biodiversity, agriculture, health, and craftsmanship.TCE's generally refer to tangible and intangible in which TK and culture are expressed and may include oral stories, artwork, handicrafts, dances, fabric, songs, or ceremonies. It is also recognized that TK and TCEs can be collectively held and may evolve and change over time as they are passed down from generation to generation.
Existing Intellectual Property Protections
IP generally refers to creations of the mind, including inventions, literary and artistic works, designs and symbols, and names and images used in business. IP rights, which include patents, trademarks, copyright, industrial designs, geographical indications, and trade secrets, provide rightsholders with economic and moral rights over their creations and innovations, often for a fixed period of time.
In Canada, specific laws protect IP, including the Patent Act, the Copyright Act, the Trademarks Act, the Industrial Design Act, and the Plant Breeders' Right Act. These laws set out the different types of IP, the nature of rights, criteria for protection, scope of protection, duration, among other things. In certain circumstances, these legal tools could be leveraged to protect Indigenous knowledge and cultural expressions.
In so far as names, signs, and symbols are concerned, Canadian laws protecting trademarks and to unfair competition may be the most relevant:
As many cultural expressions are literary and artistic works and performances, copyright and related rights may be relevant for their protection:
Potential Gaps and Barriers
It is important to recognize that the IP associated artistic and innovative creations has been an area of concern and challenge for Indigenous creators, innovators, and communities.
Indigenous knowledge and the IP system are based on different world views and approaches, recognizing that neither is monolithic or all-encompassing. Mechanisms for the protection of IP are based on protecting the rights of identified individual creators and innovators over their creations and innovations that exist in physical format; this is not easily adapted to protecting collectively-owned TK or TCE's of significance to communities, dating back generations. Such differences result in potential gaps where the protections under IP system do not extend to some types of Indigenous knowledge and cultural expressions. Indigenous peoples may also find that barriers hinder their use of of the formal IP system. Some of these potential gaps and barriers include:
Non-IP laws and programs dealing with the safeguarding and promotion of intangible heritage can also play a useful role in complementing law dealing with IP protection. This could include, for example, the effective use of contractual arrangements and the development of local mechanisms within communities to control and protect Indigenous knowledge.
In spring 2018, the Minister of Innovation, Science, and Economic Development announced an Intellectual Property Strategy as part of Canada's Innovation and Skills Plan. Complementary to the Government's commitments to reconciliation, implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the recognition of Indigenous rights, the IP Strategy seeks to further support Indigenous peoples' IP knowledge and awareness through initiatives, led by and in partnership with Indigenous peoples, focused on education, awareness-raising, and capacity-building. It also seeks to provide opportunities for Indigenous peoples to advocate their interests through engagement activities, increased participation in domestic and international discussions on IP, Indigenous knowledge and cultural expressions, and to explore options to make the IP system more inclusive and accessible to Indigenous peoples.
Source: Government of Canada