Indigenous Knowledge and Research
Copyright law and Indigenous knowledge developed in different legal and cultural contexts. Indigenous Knowledge can be understood as a set of complex knowledge systems based on the worldviews of Indigenous peoples, reflecting their cultures, languages, values, histories, governance, and legal systems. Indigenous knowledge can be embodied in different forms such as music, art, dance, names, performances, ceremonies, narratives, and other artistic and cultural expressions. Indigenous knowledge is typically transmitted through generations, and the date of its creation may be unknown. In contrast, copyright law is a legal framework that provides economic and reputational rights to creators of specific types of works, such as literary, artistic, video, and musical expressions on specific conditions for a limited period.
Just from the general description above, you can probably see that many aspects of Indigenous knowledge and cultural expressions will not receive protection under the copyright law framework, even though there may be Indigenous legal and customary practices and protocols around the transmission of this knowledge. The Government of Canada has pledged to remedy this lack of protection for Indigenous knowledge in copyright law by enacting legislation affirming the commitment to implement intellectual property and other rights for Indigenous peoples under the United Nations Declaration on the Rights of Indigenous Peoples, but at present we do not know what form this protection will ultimately take.
Lack of control over data and information about and originating from Indigenous communities has led to the development of different models and principles around Indigenous data sovereignty. For example, the First Nations Information Governance Centre principles of OCAP® (Ownership, Control, Access and Possession), Manitoba Metis principles of OCAS (Ownership, Control, Access and Stewardship), or Inuit Qaujimajatuqangit/National Inuit Strategy on Research all provide frameworks in which Indigenous peoples control the way data is collected, accessed, interpreted, stored, disseminated, and used.
While these frameworks provide protection for data, copyright law does not generally apply in a way that restricts the use of data (like facts or historical information) contained within a copyright protected work. Copyright protection covers the ways data is expressed in its written, graphical or other recorded forms. This copyright protection is generally granted to the individual who wrote, drew, or recorded the information in a new original expressive form; this means a researcher who wrote a report using information from an Indigenous community may own copyright rather than the community from which the knowledge originated. It is important to consider a several features of copyright law before conducting research in collaboration with Indigenous communities to ensure everyone involved understands the ramifications, and to avoid any unintended results of copyright law.
Things to consider
Transcription
Ownership of the intellectual property in oral transmissions that are recorded or transcribed are often the property of the recorder/transcriber, rather than the person being recorded. This has led to situations where researchers claim rights over recordings of stories originating from Indigenous communities, rather than the community members who were recorded (see for example Andrea Bear Nicholas, Who owns Indigenous cultural and intellectual property?).
Copyright exceptions
Copyright law permits the reuse of copyright protected works without permission of the copyright owner through limited exceptions (ex. Fair Dealing). Once something is recorded in a copyright protected work like an article, the author may not be able to prevent others from reproducing the article, or portions of it, using a copyright exception because this is a right granted directly to users under the law.
Open Access
There has been a movement to make research publications openly accessible to the public using copyright tools like Creative Commons licenses. When a work is published “Open Access” or under a Creative Commons license, others may minimally copy and share the work in its original form without requiring any further permission from the author. Some Creative Commons licenses also permit the work to be modified and changed, and it is important to understand the terms of a Creative Commons license and what it will allow others to do with the work if Indigenous knowledge will be included.
Labels and Notices
Local Contexts Labels (applied by Indigenous communities) and Notices (applied by researchers or institutions that hold Indigenous collections) are other tools that can be considered to identify different protocols or care that should be taken with materials that contain Indigenous and traditional knowledge. While these tools are not legal licenses like Creative Commons, they can be used in combination with copyright and legal licensing tools to provide additional parameters around the use and sharing of knowledge in ways that commit to engagement with Indigenous communities, and community governance and protocols.
Photographs
Copyright in photographs is normally owned by the individual who took a picture, rather than the person or people appearing in the photograph. Privacy considerations and consent still apply, but it may be important to understand how the photographer’s copyright ownership impacts on what they can do with the photograph. For example, can the photographer apply a Creative Commons license to it?
Generative AI training
Generative and other Artificial Intelligence tools have been trained using copyright protected work like research articles that are available on the open internet, frequently without the consent of the article author. Whether this is legal is currently unclear. At present if a copyright protected work is electronically available there is a high likelihood that it has been, or will be, used for Artificial Intelligence training.
Generative AI information sources
Generative AI output is based on the information in the copyright protected works that it trains on. This can result in biases or informational gaps if the Generative AI tool does not train on works about Indigenous history and issues, and there may be situations in which Indigenous groups consider including certain copyright protected works in AI training sets to prevent bias or erasure of Indigenous perspectives in these tools.