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  • Writer's pictureFroese Law

Canada Looks to Bolster Protection of Traditional Knowledge

Updated: Jan 15

Every artist has their muse, and sometimes that muse is a foreign culture. But what happens when that inspiration is considered cultural theft? Growing concerns around cultural appropriation have many artists asking: “where is the line between inspiration and theft?”

For some cultural groups, the issue is not being acknowledged or properly compensated for use of their traditional knowledge or art. Traditional knowledge is defined as skills or knowledge that is passed down through generations. While there is no accepted definition at the international level, traditional knowledge is believed to embrace the content of traditional cultural expression, including signs and symbols. It can also include agricultural, technical, creative designs and medicinal knowledge.

Globally, the conversation on protecting traditional knowledge has resulted in the development of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This code, if ratified by individual nations, would require countries to readdress intellectual property laws to ensure that traditional knowledge could also be protected under existing intellectual property laws.

In Canada, the laws that govern intellectual property can extend to traditional knowledge, but there are challenges. There are some fundamental incongruencies between our intellectual property law regime and traditional knowledge. Generally, the existing tools used to protect a person’s intellectual property are based on individual ownership, where as traditional knowledge is based on collective ownership. Further, there are limited terms of protection for some intellectual property, such as copyright and patents, that would not protect traditional knowledge indefinitely.

However, if Canada ratified UNDRIP, the government would be required to take sufficient measures to ensure that traditional knowledge was protected under existing intellectual property laws. The Liberal government did attempt to ratify UNDRIP through Bill C-262 this year, however the bill did not pass the Senate.

But Canada is still taking steps to protect traditional knowledge under intellectual property laws. The Liberal government has stated that preserving and protecting traditional knowledge is an important part of reconciliation. As a result, the government has launched an Indigenous Intellectual Property program, that educates on how the law could potentially be used to protect traditional knowledge. It also provides funding opportunities for business owners.

Although it is not clear if intellectual property laws will change to protect all traditional knowledge in Canada, it is clear that it is a conversation that is happening at all levels of government.

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