Constitutionalized Rights to Indigenous Intellectual Property

Abstract:

That modern intellectual property regimes fail to protect Indigenous traditional knowledge is well known. Solutions are less forthcoming. Canada is uniquely positioned to solve this legal gap by affirming and recognizing rights to traditional knowledge under section 35 of the Constitution Act, 1982. Through a conventional, even conservative, application of the leading case law, the article establishes that protecting traditional knowledge rights would be but a modest step forward in the jurisprudence. It offers step-by-step guidance to those interested in pursuing such a claim, including considerations of sui generis intellectual property rights and self-governance. Doing so is found to accord with many best practices on reconciliation, indicating that the solution is normatively as well as pragmatically appealing.