Chateau de Bossey

Greg Younging

Feb 23, 2007

The U.S. Indian Arts and Crafts Act

1. The Indian Arts and Crafts Board was established in 1935. It operates as an agency within the Department of the Interior and administers the Indian Arts and Crafts Act (IACA).

2. The Database of Official Insignia of Native American Tribes is maintained by the United States Trademark and Patent Office (USPTO). USPTO Database of Official Insignia of Native American Tribes was established as a result of the Trademark Law Treaty Implementation Act (1998).

Indigenous/National Initiatives• New Zealand:

- Crown Policy Affecting Moari Klnowledge Systems and Cultural Practices (Waitangi Tribunal 2001)- toi iho Trademark 2001- WAI

• Australia: - Our Culture, Our Future: Report on Indigenous Cultural and Intellectual Property Rights (1998)- The Australia Council/Aboriginal and Torres Strait Islander Arts Board Protocol Guidelines (2002) -Numerous Indigenous Trademarks- Senete Inquiriry- Arts Law Centre - Artists in the Black Program

- Communal Moral Rights Initioative

Canada ?

The Indigenous Artist’s Research Project in Canada

• Creator’s Right Alliance in 2004 funded by Industry Canada IPPD to conduct three regional symposia dealing with TK related issues with Indigenous Artists, and a national conference in Montreal in June 2005.

Traditions: National Gatherings on Indigenous

Knowledge (NGIK) • May-June 2005, Gatherings on Indigenous knowledge were

held in eight communities across Canada: Rankin Inlet, Edmonton, Penticton, Wanuskewin, Yellowknife, Wendake, Eskasoni and Six Nations. They brought together over 400 representatives of Indigenous communities with DCH representatives.

• Indigenous Knowledge and Languages and Cultures• Indigenous Knowledge and Intellectual and Cultural Property

• Indigenous Knowledge and Artistic Expression

Canada not expressed any policy on TK

• a) Igloo Mark in 1960s now fallen out of usage; • b) certain government agencies and departments funding

certain research projects related to TK; • c) the DCH NGIK 2004-2005 (Report of thus far unpublished

and awaiting approval at the Prime Minister’s Office);• d) establishment of inter-department committee

Ineffective/inactive measures not sufficient to address the complex issues & problems that that need to be addressed.

The Carpets Case

In 1993 Marika argued that the image was under the communal ownership of the Rirratjingu Clan. The traditional Rirratjingu custodians had granted her permission to paint the image and reproduce it in the portfolio for the purposes of educating people on Aboriginal culture, but not for any commercial use. Therefore, the carpets constituted an “Unauthorized Reproduction under Customary Law.”

“cultural harm”copyright

Inukshuk Test Case

The Legacy of Bill Reid

Charles Gladstone

(grandfather)

Charles Edenshaw

(uncle)Bill & Charles Gladstone

(Grandfather)

Indigenous National Artistic License• Reid paid homage to the Haida traditions and began his work in accordance with to Haida Customary Law - which he also paid homage to throughout his career, while at the same time breaking new ground.

•These aspects of Reid’s work afforded him a type of “license” from the Haida Nation to transform their artistic traditions in a respectful manner.

• This concept of “license” is a type of “permission to innovate TK” which characterizes part of the relationship between the Indigenous artist and the Indigenous Nation to which they belong, and could be termed “Indigenous National Artistic License.”

•

Key Concepts for TK Regulation in the Arts

1. Indigenous Nations have a collective ownership over their TK, which could be expressed as a form of “Collective Copyright.” Indigenous Nations’ TK has a natural form of Moral Rights, which could be expressed as “Collective Moral Rights.”.

2. Certain aspects of TK should not enter the public domain (as deemed under Customary Law) and should remain protected as such into perpetuity, which could be expressed as a form of “Indigenous private domain.”

3. Indigenous artists have Indigenous National Artistic License that grants them permission to adapt their particular Indigenous Nations’ TK in their work.

4. Non-Indigenous people do not have Indigenous National Artistic License that grants them permission to adapt their particular Indigenous Nations’ TK in their work.

Rebecca Belmore 1988“My people will sleep for 100 years. When they awaken, it will be the artists who lead them.”

~ Louis Riel at his hanging.

In Canada, Indigenous jurisprudence, knowledge and heritage is uniquely constitutionally protected as an Aboriginal and/or treaty right in Section 35 of the Constitution Act, 1982 and Section 25 in the Charter of Rights. The Charter also recognizes the constitutional and legal rights to Aboriginal heritage, (s. 27)

Section 35:

“The existing Aboriginal and Treaty Rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.”

In Canada, Indigenous jurisprudence, knowledge and heritage is uniquely constitutionally protected as an Aboriginal and/or treaty right in Section 35 of the Constitution Act, 1982 and Section 25 in the Charter of Rights. The Charter also recognizes

the constitutional and legal rights to Aboriginal heritage, (s. 27)

Cote vs. The Queen

• The Supreme Court of Canada has affirmed this as follows:

• “to ensure the continuity of Aboriginal practices, customs and traditions, a substantive Aboriginal right will include an incidental right to teach such a practice, custom and tradition to a younger generation” (Cote vs. The Queen-1998).

• The SCC has also affirmed the Aboriginal legal perspective that Aboriginal rights, by their very nature, are collective rights held by members of the particular Aboriginal nation as follows:

• “Aboriginal and treaty rights cannot be defined in a manner which would accord with common law concepts… Rather, they are the right of Aboriginal people in common with other Aboriginal people to participate in certain practices traditionally engaged in by particular Aboriginal nations in particular territories”(Cote vs. The Queen-1998).

Principles to Guide the Way Forward

1.A) Indigenous Nations have a collective ownership over their TK, which could be expressed as a form of “Collective Copyright.” B) In the development of a “Collective Copyright” system, a “Collective Royalty” system could also be considered. Another consideration could be that royalty payments for the use of TK could go into established Indigenous Nations Collection Agencies and/or scholarships and/or an established National Indigenous Arts Fund and/or scholarship.

2. Indigenous Nations’ TK have a Natural Law form of Moral Rights, which could be expressed as “Collective Moral Rights.”

3. New regimes of protection for TK should be based on and/or incorporate Customary Law.

4. In cases of conflict between legal systems over TK, Customary Law should prevail over IPRs.

• 5. Certain aspects of TK should not enter the public domain (as deemed under Customary Law) and should remain protected as such into perpetuity, which could be expressed as a form of “Indigenous private domain.”

• 6. Indigenous artists have “Indigenous National Artistic License” that grants them permission to adapt their particular Indigenous Nations’ TK in their work.

• 7. Non-Indigenous people and Indigenous peoples from other Indigenous nations do not have Indigenous National Artistic License that grants them permission to adapt their particular Indigenous Nations’ TK in their work.

• 8. Non-Indigenous people and Indigenous peoples from other Indigenous nations should attain Prior Informed Consent in use of a particular Indigenous Nations TK in art (and other tangible commercial objects).

• 9. A) Enforcement of infringements of TK regulation should incorporate the concept of “Cultural Harm” and damages should reflect the severity of the harm.

• B) Reimbursement payments for profits made from unauthorized use of TK could also be considered. These payments could be made to the same established funds suggested in 1) B).