Intellectual Property and Aboriginal People: A Working Paper

This paper outlines current Canadian intellectual property (IP) legislation as it relates to Aboriginal people in Canada, and provides a general review of the Implications and limitations of this legislation for protecting the traditional knowledge of Aboriginal people. A full review of these issues, which outside the scope of this paper, would include an account of the activities currently underway in Aboriginal communities to protect traditional knowledge. Aboriginal reviewers of this paper have confirmed the existence of traditional practices or protocols in Aboriginal communities, designed to protect traditional knowledge and symbols. The Research and Analysis Directorate of the Department of Indian Affairs and Northern Development (DIAND) has commissioned a second study that will focus on the preservation and protection of traditional knowledge from the perspective of Aboriginal communities. The material in this paper is presented as a guide for Aboriginal people and communities, and as a basis for discussion of issues relating to intellectual property, traditional knowledge and Aboriginal people. Anyone wishing to use the techniques and tools the paper outlines should seek the advice of a lawyer or IP expert.This paper uses the words “Indigenous” and “Aboriginal” interchangeably. The term Aboriginal” is used in Canada to include Indians, Metis and Inuit according to the Constitution Act of 1982. The term “Indigenous” is used in international treaties, such as the United Nations Convention on Biological Diversity, in the context of “Indigenous and local communities” world-wide. We wish to thank the contractors, Simon Brascoupe and Karin Endemann, who provided the first draft of this working paper to the Research and Analysis directorate and the International relations Directorate of DIAND. We also wish to thank Howard Mann and Gordon Christie, peer reviewers; the many Aboriginal experts who provided comments and suggestions; and the federal governments officials in DIAND, the federal departments of Industry, Justice, Canadian Heritage, Foreign Affairs and International Trade, the Canadian Intellectual Property Office and the Canadian Food Inspection Agency for their valued contributions. As editors, our role has been to revise this document based on comments received from many sources. We hope that this paper will encourage a fuller discussion among Aboriginal people and in government on the protection of traditional knowledge, by increasing the understanding of IP rights in relation to Aboriginal concerns. Readers should be aware that the issues are rapidly evolving, and are now receiving attention on an International level. This paper should be viewed as the best effort possible at the time of publishing. Since this is an initial review of IP issues relating to Aboriginal people in Canada, suggestions for improvements are welcome. The Aboriginal perspectives in this paper are based on written comments, published documents, and conversations with Aboriginal people. We hope that they are fair reflection of what we have read and heard. The opinions expressed in the paper are those of the editors and contractors and do not necessarily reflect those of the federal government. We are, of course, responsible for any errors or omissions.