Indigenous Knowledge and Copyright

Traditional Knowledge (the know-how, skills, and practices transmitted generationally in a community) and Traditional Cultural Expressions (the form traditional culture is expressed in) are frequently used terms, but the word “traditional” should not be taken to denote that Indigenous Knowledge is static; rather it should be seen as dynamic and changing as they pass down through generations.  

Indigenous Knowledge transmits according to specific customary law, protocols, and procedures of the community holding that knowledge. Since this knowledge passes down through generations and is collectively held, identification of one individual or group who created a traditional cultural expression is often impossible.   

At present, the Copyright Act does not acknowledge or protect Indigenous Knowledge. The Copyright Act does not have provisions for collective ownership and limits the period for which copyright applies to works. Much Indigenous Knowledge and cultural expression fails to receive copyright protection because of differing understandings around ownership. These different understandings have historically led to the interpretation that Indigenous Knowledge is free to reproduce. However, this may conflict with customary Indigenous systems and protocols around the transmission of Indigenous Knowledge.

Duncan Mercredi, Knowledge Keeper at the University of Manitoba Libraries, shared this example:

It’s not an easy question to answer, “how does one copyright a traditional story", one never found in books but only told in the traditional way of sharing, orally, a story/ies that were shared by word of mouth, ones that were passed on from village to village. With the exception of a few stories, Nukom, (my grandmother) was known as a storyteller and would share stories she heard when visitors would stop by and always said this story does not come from here, it came from somewhere else, (she’d always name the village and who the people were that shared it with her) and to her it was important that people know she was only passing the message on that she heard. It’s important to know, that once the story/stories were shared with you, you’ve been given permission to share them, but it was very important to acknowledge the person/s that “gave” you the story/ies and where the person/s came from and to also make it known that the story/ies the storytellers told might have come from another village.

(I guess what I’m trying to say is, the village could claim the story as theirs, not the individual who carried the story and it was the village that gave permission for the story not be shared.)

In contrast with traditional sharing, provisions in the Copyright Act around ownership of recordings can grant copyright to a recorder or transcriber rather than the person being recorded. This is particularly important to be aware of in a research or academic setting where there have been examples of researchers owning the copyright in recordings of stories originating from Indigenous communities rather than the community members themselves (see for example Andrea Bear Nicholas, Who owns Indigenous cultural and intellectual property?).

Copyright law also permits the reuse of copyright protected works without the permission of the copyright owner through limited exceptions; however, using these exceptions may not appropriately account for cultural protocols around transmission of the knowledge or cultural expression.

Although the Copyright Act does not currently protect Indigenous Knowledge, Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2010. While the UNDRIP is an international declaration that is not binding on endorsing states, it does provide a framework for the implementation of the legal rights of Indigenous Peoples. UNDRIP specifically provides intellectual property protections under Article 31:

1. 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, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports, and traditional games and visual performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
2. In conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

In June 2021 the Canadian Government passed the United Nations Declaration on the Rights of Indigenous Peoples Act to provide as a framework for implementing UNDRIP. The 2023-2028 United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan includes provisions for consultation and cooperation with First Nations, Inuit, and Métis to ensure Canada’s intellectual property legislative and regulatory frameworks are in keeping with UNDRIP. To date there have not been any legislative changes to harmonize the Copyright Act with UNDRIP or implement new legislation to provide protections for Indigenous Knowledge, but the UNDRIP Act should mean changes are coming.

There are actions you can take now even while we are waiting for legislative updates. When engaging with Indigenous Knowledge and traditional cultural expressions, do so respectfully by obtaining usage permission from the originating community, according to their customary protocols or procedures, regardless of copyright status or public availability. Customs may differ between communities. Take care to avoid making assumptions about how Indigenous Knowledge or cultural expressions may be used. 

You should also be familiar with the University of Manitoba's Respectful Rematriation and Repatriation Ceremony Policy which in part is intended to "uphold the UNDRIP as an expression of the “minimum standards” necessary to protect and respect the rights of Indigenous peoples, and specifically Articles 11, 12 and 31, and to fulfill the University’s obligation and commitment to respect human rights and promote their fullest realization, including the human rights of Indigenous Peoples." The definition of "Proper Consent" from this policy is particularly important in the context of research that involves Indigenous Knowledge and cultural expressions: 

“Proper Consent” means free, informed and ongoing consent, understanding and permission, and refers to the process whereby Indigenous individuals, families, Nations, local governing authorities, and/or Descendant Communities would have given/would give the University (including through its employees and other authorized representatives) consent and permission to acquire and/or steward Indigenous Ancestors and/or their Belongings. Proper Consent also refers to and values Indigenous people’s protocols, ways of knowing and living, and their ways respecting “permission”, including ongoing accountability, collaboration, and respectful relationships within the consent process.

Some Indigenous communities may also use Traditional Knowledge Labels offered from the Local Contexts project. If you see Traditional Knowledge labels, you should read them carefully and follow the terms on the label. The Traditional Knowledge description can be customized by Indigenous communities and each description may be unique. Researchers and institutions can also apply Local Context Notices to indicate where collections and work implicate Indigenous rights and interests to encourage engagement, identification, and care in collection maintenance.  

Indigenous Knowledges - Copyright - University Library | University of Saskatchewan

•  Comprehensive resource on several issues related to Indigenous Knowledge, like research and data, curriculum, and style and citation guides.

Indigenous peoples and intellectual property

• From Innovation, Science and Economic Development Canada, this site includes educational and awareness resources like an Introduction to Intellectual Property Rights and the Protection of Indigenous Knowledge and Cultural Expressions in Canada, funding and capacity building programs, and other governmental programs and initiatives.

Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions

• While this framework applies to the Impact Assessment Act, Canadian Energy Regulator Act, the Fisheries Act and the Canadian Navigable Waters Act, the descriptions of Indigenous Knowledge and explanation of how they must be treated under the Acts may be informative for future government consultation relating to intellectual property.

Engaging Respectfully with Indigenous Knowledges 

• A paper by Callison, Ludbrook, Owen and Nayyer recommending an approach for cultural memory institutions around Indigenous Knowledge and protocols with Indigenous nations. 

Ensuring Respect for Indigenous Cultures: A Moral Rights Approach - Centre for International Governance Innovation

• This paper by Vézina forwards a moral rights approach for an international protection regime for traditional cultural expressions. 

Appropriate Use of Indigenous Content – Pulling Together: A Guide for Curriculum Developers

• A chapter on the appropriate use of Indigenous content from an Indigenization guide by Antoine, Mason, Mason, Palahicky, and Rodriguez de France, available through BCcampus.