Indigenous Knowledge and Canadian IP Law

Abstract:

This working paper aims to educate Canadian intellectual property (“IP”) practitioners about Indigenous knowledge (“IK”) and Indigenous cultural expressions (“ICEs”), with the goal of assisting them in their work with Indigenous parties. This paper also aims to assess how, and to what extent, Canadian IP law protects IK and ICEs, and to what extent it may allow Indigenous communities to use Canadian IP rights to enhance their autonomy and control their IK and ICEs.

The terms “property” and “intellectual property” have economic and transactional connotations that may not align well with how many Indigenous legal orders and community protocols frame IK. Nonetheless, this paper uses the expression “Indigenous IP” because it is useful to frame IK in a manner consistent with Canadian law, with which IP lawyers and other practitioners are familiar.

Part I of this paper situates Indigenous IP in its historical context and suggests that commonly held views about IK and ICEs are shaped by Canada’s colonial history. Part II, which forms the bulk of this paper, describes how Canada’s laws protect Indigenous IP, noting how Canadian law is often ill-suited to protect certain IK and ICEs, but also how Canadian law may be used to protect Indigenous rights.

Part III concludes with an overview of potential next steps in Canada’s journey towards reconciliation with Indigenous peoples as it relates to Indigenous IP. We suggest that Canadians should strive not only to understand and address the consequences of colonization on Indigenous peoples, but also to consider how the institutions and legal orders of Indigenous peoples may be reconciled with Canada’s IP system.