World Intellectual Property Day: Will the Government’s New IP Strategy Adequately Address Indigenous Traditional Knowledge?

This piece was jointly written by Chidi Oguamanam and Joel Morales. 

World Intellectual Property Day was April 26. The day aims to promote innovation and creativity for intellectual property (IP) as well as recognize achievements made across the globe by inventors and creators. As part of the Canada’s celebration, Navdeep Bains, Minister of Innovation, Science and Economic Development, launched Canada’s first IP Strategy. The project will spend $85.3 million over five years to help entrepreneurs understand how to protect their IP and use existing IP to grow their business and take risks, while protecting this innovation from foreign predators. The strategy will make changes to Canada’s current IP regime in several ways. 

 

Legislation:

The new strategy aims to update current Canadian IP law (such as the Copyright, Trade-marks and Patent Acts) to better suit the modern digital age and close loopholes that stifle innovation. This includes the act of patent trolling, when foreign companies go after Canadian firms claiming their products infringe on its patents. There will also be patent and trademark agents that will ensure ethical standards are followed. 

 

Awareness, Education & Advice

A challenge for many innovators is understanding how the law works and what procedures to follow to ensure that their IP is adequately protected. To overcome this challenge, the strategy will launch programs aimed at improving Canadians’ literacy of IP. The Federal government will train its employees dealing with IP governance to help bridge this gap. Notably, there are new funds dedicated to Indigenous people and domestic and international actors for both research and capacity building. 

 

Tools for Growth:

The strategy will bring firms together to facilitate better results for the IP market.  Additionally, expedited IP dispute resolution will aim to reduce the time and financial costs firms pay for litigation. The strategy will also see the development of an IP marketplace, where innovators can identify existing IP and access research that can be licensed. 

 

In a Markets Insider article, Dr. Richard Gold, a law professor at McGill University said of the new IP Strategy, “I am delighted to see that the federal government is providing support to Indigenous communities to help shape Canadian and international rules around not only the protection of their culture and genetic resources, but in increasing their involvement in the innovation economy in a way that is respectful and protective of their values and culture." 

 

While the strategy is promising, it highlights some issues for Indigenous peoples regarding accessing the law to protect their IP. In an article for the Globe and Mail, Windsor Law Professor Myra Tawfik writes that the strategy proposes to survey why certain groups (such as women and Indigenous entrepreneurs) are less likely to use IP. She notes that the consultation part of the government’s new strategy needs to listen to these groups and understand that they are “likely to face greater limitations or restrictions.” This touches on a topic we at ABS Canada have written about previously, namely that IP laws are set up in ways that do not allow for the protection of Indigenous IP while being complicit its exploitation. Tawfik hits on this when she writes that the idea behind this new strategy is still to have Indigenous people conform to an IP system that denies their full participation. 

 

This concern is not mitigated when one looks at the detailed breakdown of the budget for the new strategy. Of the total $86.3 million budgeted, $30 million is allocated to the patent collective, $21.5 million to legal costs for companies, $33.8 million to developing an IP marketplace, $2 million for awareness and $1 million for developing inclusion programs for Indigenous people. While the budgeted funds show promise to improve Indigenous peoples’ access to IP protection and benefits, the limited resources offered for such a diverse group of people may present a challenge to effect the government’s intended change. Hopefully the program is able to move the conversation regarding Indigenous TK in a direction that will promote further innovation, which is crucial for Canada as it moves ever further into the ever technological age. 

 

An important issue of interest for us at ABS Canada relates to the participation of Indigenous peoples in international policy making fora on IP and relevant subjects. Such fora tend to shape and influence domestic policy. For example, since 2000, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore has been saddled with the task of negotiating texted-based instruments for the protection of genetic resources, traditional knowledge and traditional cultural expression. This forum deals with a lot of cross-cutting issues relevant to Indigenous peoples and their knowledge systems. 

 

Coming on the heels of the Nagoya Protocol on Access and Benefit Sharing and also complementary of the WIPO Committee process and WIPO Development Agenda, the IGC is an important site for exploring complex issues at the intersection of Indigenous knowledge/creativity and the intellectual property system. It also has potential for exploring and understanding Indigenous creativity and worldviews around knowledge outside the highly discriminatory and exclusive western or orthodox intellectual property system.

 

One major threat to the IGC process and part of its legitimate deficit relates to the lack of Indigenous participation in the forum, a subject that we have discussed in a previous blog. Although there is accommodation for a voluntary funding to support Indigenous peoples’ participation in the IGC, as the named implies, contribution to the fund is at the discretion of the member states. Historically, WIPO member states have not been generous with contributing to the voluntary fund; it remains in constant state of depletion. Nothing underscores the reluctance of the members states to accommodate Indigenous peoples as rightful partners in the IGC process than their failure to integrate the funding for Indigenous participation into the WIPO budgetary process. The United States championed the idea of keeping the funding outside the WIPO budgetary process. Not to mention the procedural constraints under which Indigenous participate in the WIPO IGC, the fund’s voluntary status represents a fundamental fault line in the IGC process.

 

Canada’s participation at the IGC process is currently driven by Innovation, Science, and Economic Development Canada. The lead role of this department is symbolic of Canada’s overall focus on economic development and commercialization of IP; we have yet to see Canada demonstrate an understanding of the cross-sectoral and multidisciplinary nature of genetic resources, traditional knowledge and traditional cultural expression. Despite its low budgetary attention to the Indigenous file, the IP Strategy’s recognition that Indigenous peoples are stakeholders in intellectual property is a welcome (if overdue) development. The WIPO IGC is an ideal place to dedicate funding to support for Indigenous people for international participation with ramification for domestic resourcefulness and for both research and capacity building on ABS, genetic resource, intellectual property and their intersection with Indigenous issues.

 

ABS Canada welcomes the initiative and hopes that Canada’s tone at the IGC will begin to reflect greater sensitivity and inclusiveness to Indigenous issues in accordance with the broader reconciliation agenda of the federal government.     

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