IP as a cultural shield? Protecting traditional knowledge and expression

Among First Nations peoples, cultural appropriation is a massive problem, and very often Western intellectual property laws, frankly, just fall short. Hello, I’m Lisa Leong, and in this episode of From Idea to Intellectual Property, we head over to Canada to hear about the innovative work being done in this space. Meika Ellis is a lawyer at Smart & Biggar in Canada.

Meika specialises in collaborating with Indigenous peoples, businesses and organisations to create protections for Indigenous knowledge and cultural expression. So Meika, how exactly does one go from studying robotics and nanotechnology to becoming an IP lawyer? So I guess I just had professors who curated my curiosity and intrigue in intellectual property. I started at the University of Ottawa and had professors all feed me with very intriguing projects that looked at access to knowledge in Africa, and then I just brought that curiosity into Canadian work, and it leads really well with intellectual property.

Now, you’re based in Ottawa. Can you set the scene and tell me what it’s like there? It’s absolutely gorgeous here. We’re getting some red and yellow colours.

I bike often, and so it’s cool weather and perfect for getting outside. So much like Australia and New Zealand, Ottawa does have a rich Indigenous history. Can you tell me about that? The nation of Canada formed very similar to the way that Australia formed.

We had colonialists enter the land, and prior to colonial settlement, there were large numbers of First Nation and Inuit communities. So yeah, in Canada, there are well over 630 First Nation communities with over 50 nations. So the Indigenous landscape in Canada is incredibly diverse and incredibly intriguing to work in.

I, myself, am Indigenous. So I’m from the Gwich’in Fort McPherson Band, which is the northernmost First Nation community in the Northwest Territories, and the only more northern community are the Inuit. But I, myself, was born and raised off-reserve and in the colonial school system, and I was born and raised in Alberta.

So there’s a huge tradition of culture and knowledge amongst First Nations people. Can you speak more about that? First Nations approach knowledge and expression thereof in a very different way than, let’s say, colonial settlers would approach knowledge. So knowledge is shared differently.

Often you acquire permissions in different ways, like through a ceremony you can acquire knowledge, through permissions from elders you acquire knowledge, through your teachers. Some people are born into a role where they know that when they grow up, they’ll become a very specific role in a community. And knowledge is seen less as, I’d say, an ownership and more as it depends, of course, on nations and communities.

I should say that just because a group is Indigenous, there are incredibly different ways that communities do work. So we’re talking very vaguely right now, but when you enter, say, the Cree Nation or the Mi’kmaq or the Gwich’in or the Inuit, they’re all going to have their different protocols and practices, but things that are common among them are that you approach knowledge and expressions thereof with honor, with integrity, with respect. I can say for many First Nations, I don’t know as much about Métis and Inuit, but I think they’re similar as well, but there often isn’t a word for ownership or property.

So you don’t own something, you are a steward of something. So you are the steward of the land, it’s yours to protect. You are the knowledge, it’s yours to protect, which is very different than the Western approach to intellectual property.

So where is that intersection then between this Western intellectual property system and protections and ownership and what you’ve been talking about? You know, everyone enters this modern world and we have Indigenous businesses and Indigenous entrepreneurs and creators who obviously want to protect their work in a modern world, but they still want to protect it in a way that is respectful and in keeping with their own community. So sometimes to bridge that gap between how the two different systems work, creators and businesses will try to find ways that IP can apply while ensuring, you know, like I said, the respect to their own community or paying homage to their own community. So, for example, we have Indigenous businesses who trademark their brand, right? Because that business owns the brand.

Or we have innovators in the oil and gas company who do patent their innovations. We have artists who, even though there is a difference in how Indigenous communities might approach artwork, some of them artwork, for example, might be communally owned, there are artists who obviously they take ownership over their artwork individually and can have access to the copyright system within the Western system. Where that communal ownership is required, then obviously it’s harder to bridge that gap.

And where do you think traditional Western IP laws fall short? Western IP laws fall short in acknowledging the differences, for sure, in how Indigenous communities approach ownership. Ownership often isn’t even a word that exists in the language, in various languages of First Nation communities or other Indigenous communities. But the Canadian government can have a role in amending the legislation as, you know, like the New Zealand government has done, where it can say we acknowledge that our legislation doesn’t fit the way in which Indigenous communities practice, and so we will make a carve out in here that protects Indigenous knowledge and cultural expressions differently.

So, for example, in the Trademarks Act, people right now are able to trademark Indigenous words and terms without having any connection to the community where that term, word, or symbol may come from. And so the Trademarks Act could reflect this by saying you cannot trademark a term that is Indigenous unless you have the appropriate permissions. And I know New Zealand does something that’s amazing, and we could use that as a playbook to amend our legislation, and similar to patents and copyright.

And I do know in patent law, the World Intellectual Property Organization came out with a new treaty that discusses genetic resources and associated traditional knowledge. So this could be very exciting, because right now in patent law, a gap that isn’t filled is that traditional knowledge isn’t seen as prior art. So we have large colonial corporations making use of traditional knowledge and then monetizing it, and that monetization isn’t getting felt by the Indigenous communities that are actually the true holders of that knowledge.

So this new treaty, what it does is that if there are genetic resources or associated traditional knowledge in a patent, then the patent applicants have to disclose the origin of the source and also have to seek permissions, among other, you know, nuances that you’d have to read in the treaty itself. And Meika, have there been in your experience any particularly grievous examples of cultural appropriation that you’ve been working with? I can’t talk to explicit things that I’m working with on clients that are undisclosed. I’m just going to use one industry as an example.

We see a lot in the pharmaceutical industry. So Big Pharma will go after knowledge that’s been around for centuries and that’s been held and used and applied by Indigenous communities, and they take that knowledge and now get to patent and make money off of that knowledge on some kind of drug that was known to Indigenous people long before Big Pharma ever came along. And then the nuances in patent law enable Big Pharma to do this, right? So, I mean, it is, they can come and they can take, for example, the drugs from the Yew tree and synthesize it.

And because it’s in synthetic form, they’re able to patent that. And because, you know, they didn’t take the synthetic form from the Indigenous communities themselves, they simply, with asterisks around simply, got the knowledge. Some knowledge in some First Nations isn’t a commodity.

So, you know, First Nations often may not see a specific form of knowledge or a specific expression that can be commodified. But Western IP approaches most things as a commodity, right? So if I can commodify it, I should protect it and then I can own it. And so there’s another really big distinction between how Indigenous people and how the Western system works.

And it can also be really painful for Indigenous nations to see knowledge that shouldn’t be commodified dealt with in that manner. You mentioned about a gap to bridge. How have you used what you have to come up with a solution which can help both parties? So where possible, we try to make use of the Western IP system.

Where it’s not possible, my biggest tool is an agreement. So a lot of times when I’m working between two parties, whether it be a First Nation and a contractor, or say an Indigenous creator and a museum, we’ll create a specific agreement that works for my Indigenous client, but can also cover all the things that the non-Indigenous party needs covered. And these agreements look a little different.

We usually start the agreements off with a statement of understanding. And that’s usually that both parties will approach this agreement with respect, with integrity, both parties have an understanding that the following definitions will apply. And where a party requires further understanding or amendment, then the parties will work amicably together.

It’s different than how I approach a Western contract, which often can be 15, 20, 25 pages long. These contracts are four to five pages long, less legalese, a little more simpler to digest, but they do assert where the knowledge can be held and kept and how it can be used. For example, data sovereignty or data ownership.

In the agreement, we’ll say this data is held by this First Nation. And if the contractor is to make use of this data, here’s how this contractor can make use of this data. And it’s, I think it’s been quite successful.

Yeah. What does it mean like to, I guess, negotiate is a pretty strong term, but to bring the parties together to collaborate on something like this type of agreement? Usually both parties are very willing to work in this manner. I mean, writing a shorter agreement usually means it’s less expensive.

So parties are willing to get on board with that. I mean, I represent the one party and the party will say, here’s who the person who’s going to be a part of this agreement is going to be. And oftentimes I will have an opportunity to also converse with them.

Usually they’re on the same page of wanting to approach this in a respectful manner. We’re in an era of, in Canada, where a lot of people really do want to succeed in reconciliation and people are just trying to navigate and understand how they can do that properly. And so that’s why usually both sides of the agreement, including the non-Indigenous party in the agreement is open and willing to try these new ways of protection.

So we’ve talked about these agreements, but obviously it’s quite cumbersome to have to do this individually each time. And you’ve mentioned a few things that have changed in terms of the context in which you’re operating. What would you like to say heading into the future in terms of this area, Meika? What’s possible? Oh, well, I think, you know, great things are possible if everybody’s willing to work for it.

In the near future, we need to make space and IP companies need to make space for Indigenous clients and understanding that how they work with Indigenous clients is going to look different than how they work with non-Indigenous clients. And once they have that understanding, in a lot of our clients, we find space for them and where there isn’t space, we create a novel approach. And I have one client that, you know, if you talk to me in a year from now, I can maybe talk to you about what we’re doing, but I am so excited because we are approaching this client and protection of their stuff in a way that I haven’t ever seen done in Canada.

And I’m putting that as a cliffhanger, so call me up in a year. But when we make that space and when we make space in our brain to know that we have to, you know, listen to our Indigenous communities and see that there’s so much potential for what they have to bring, not only to how IP works, but how, you know, globally, if we look on this, like how we can build community, how we can approach health care, how we can protect the environment. Indigenous clients are so important to how our future can flourish.

And without giving ideas on how things like legislation can change, because that’s a common answer, legislation should change. We just have to make space and we have to be willing to be open to learn and understand. Thank you so much, Meika.

Thank you so much, Lisa. This has been super fun. That was Meika Ellis, a lawyer specializing in trademark and copyright prosecution and litigation at Smart & Biggar in Canada.

Thanks to our producer Cara Jensen-McKinnon. This podcast is brought to you by IPH, helping you turn your big ideas into big business. I’m your host, Lisa Leong.

Bye for now.