Introduction

Researchers and educators working with Indigenous cultural materials can't simply rely on copyright law to understand when and how Indigenous Knowledges (IK) can be used, copied and shared. Copyright law in Canada lacks the framework in many instances to properly allow for Indigenous peoples' "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..." (United Nations, 2007, Article 31).

"While there are similarities between Indigenous Peoples regarding Indigenous Knowledge, when doing research with and/or in a community, it's imperative that you respect and adhere to their protocols regarding knowledge sharing. Ask when unsure, and be open to being corrected as needed. There is a long history of knowledge extraction, and people may be hesitant to share without a respectful relationship in place" (Edwards, 2020).

On this page we use the term Indigenous Knowledges to describe what is often referred to as Traditional Knowledge and which includes Traditional Cultural Expressions. This term is meant to clearly include contemporary Indigenous knowledge and cultural expressions: "The term 'Traditional Knowledge' differs from the term 'Indigenous Knowledge' in that it does not include contemporary Indigenous knowledge and knowledge developed from a combination of traditional and contemporary knowledge" (Younging, 2018, pp. 111-112).

It is important to note that the University cannot provide permission for researchers to use Indigenous Knowledges, and that the information on this page should be viewed merely as guidance on best practices. Researchers should consult directly with Indigenous communities, as they may have specific protocols for how their information is to be used. It is possible that there may be some material that cannot be shared beyond the community, and that wish must be respected in order to engage ethically and respectfully.

Copyright

Copyright is a legal protection that applies to a vast range of cultural works including written works, music, artworks and audiovisual works. The three key requirements for copyright protection are:

1. The work must be fixed in material form (e.g., written, recorded, photographed) - copyright does not protect ideas or concepts or unrecorded oral material.
2. The work must have been created by a specific author or authors.
3. The work must be original and not a copy.

Copyright arises immediately and automatically when a work is created. The term of copyright for most types of works in Canada is the life of the creator plus 70 years (though there are some exceptions to this). Once copyright expires, there are no longer any restrictions on how the work can be copied or used.

Indigenous Knowledges and the conflict with copyright

Indigenous Knowledges can refer to many different types of things including stories, folklore, songs, dances, rituals, symbols, protocols, practices, artworks, legal systems, designs, traditions and illustrations (Oguamanam, 2017). These things link Indigenous peoples to their lands and cultures, and are a vital part of each community (Oguamanam, 2017).

Indigenous Knowledges are not always protected under intellectual property laws such as copyright. Reasons for this include:

• IK may have been in use for generations, so any potential copyright protection would have expired.
• IK may have been created communally, so a specific author or authors are not identifiable.
• IK may be transmitted orally or in another way that is not fixed.
• IK may be owned communally or collectively and not by a specific individual or organization.

For example, under copyright law, a researcher who records IK by transcribing oral stories may consequently own the copyright in the fixed (written) version and may have the legal right to publish and distribute that version, and to grant permission to others to copy and use it, without having to consult the Indigenous community that owns the story.

Compounding these issues, cultural materials are often contained in museum, archival and library collections. If the materials don't qualify for copyright protection or copyright has expired, their access and use are controlled by the owning institution.

National and international positions

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

UNDRIP details the rights of Indigenous peoples in international law and policy. It includes minimum standards for the recognition, protection and promotion of these rights. It also establishes a minimum standard for the survival, dignity, wellbeing and rights of the world's Indigenous peoples, addressing both their collective and individual rights. Both BC and Canada have adopted UNDRIP acts to reiterate these principles and standards in local law.

UNDRIP 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 and 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" (United Nations, 2007).

The 2018 federal review of the Copyright Act

In 2018 the federal Standing Committee on Industry, Science and Technology reviewed Canada's Copyright Act. One of their recommendations addressed IK:

"Recommendation #5:

• That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:
  • The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;
  • The participation of Indigenous groups in the development of national and international intellectual property law;
  • The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions..." (Standing Committee on Industry, Science and Technology, 2019).

Cultural appropriation

There is a long history in Canada and internationally of Indigenous cultural heritage being copied, claimed, misused and misappropriated by non-Indigenous people for their own commercial purposes (La Salle, 2014). Appropriation is the act of taking an idea or object from its originating context and applying it to another for your own gain (La Salle, 2014). For example, this would include a fashion company using an Indigenous design or pattern on clothing, without consent and without understanding or considering the meaning or purpose of that design. When IP protection such as copyright does not apply, it is difficult to prevent this type of appropriation. The act of appropriation is often deemed inappropriate and offensive, contrary to Indigenous customary laws, and it can be quite harmful (La Salle, 2014). It is for this reason that clear guidelines for the use of IK are vital.

Local Contexts TK Labels

Traditional Knowledge (TK) Labels created by the organization Local Contexts are a way for Indigenous communities to indicate when cultural heritage has specific usage conditions or restrictions attached to it. Local Contexts also provides Notices which can be applied by an institution to indicate when there may be protocols attached to their collections of cultural heritage materials. Check out Beyond copyright: traditional knowledge and biocultural labels about Local Contexts labels on the Radical Access blog, and visit the Local Contexts website for more information.

References

Additional resources and links

SFU resources

See Citing Indigenous Elders & Knowledge Keepers: APA (7th ed.) citation guide for guidance on citation practices for Indigenous Knowledges.

The Indigenous Curriculum Resource Centre also provides resources on respectful research, including writing and citing.

You may also be interested in this resource on Indigenous data sovereignty.

The SFU Copyright Office has FAQs and resources, and can answer any questions about copyright.

Readings