Vincent de Grandpré, lawyer and trademark agent at Bennett Jones and member of IPIC’s Committee for Indigenous IP explains the intersection between intellectual property law and the protection of Indigenous knowledge and cultural expressions.
Vincent de Grandpré, lawyer and trademark agent at Bennett Jones and member of IPIC’s Committee for Indigenous IP explains the intersection between intellectual property law and the protection of Indigenous knowledge and cultural expressions.
Explore online:
Lisa Desjardins (Lisa): Before the episode begins, I want to acknowledge that the land on which I am situated is part of the traditional unceded territory of the Algonquin Anishinabek people. I thank all generations of people who have taken care of this land; and I recognize and deeply appreciate their historical connection to this place.
You’re listening to Canadian I.P. Voices, a podcast where we talk intellectual property with a range of professionals and stakeholders across Canada and abroad. Whether you are an entrepreneur, artist, inventor or just curious, you will learn about some of the real problems and get real solutions for how trademarks, patents, copyrights, industrial designs and trade secrets work in real life. I’m Lisa Desjardins, and I’m your host. The views and opinions expressed in this podcast are those of the individual podcasters and do not necessarily reflect the official policy or position of the Canadian Intellectual Property Office.
When we talk about intellectual property, what usually comes to mind is patents, trademarks, industrial designs and copyright, the kind of formal rights that gives the owner the right to exclude others from using their I.P. without permission, for a limited time. But there are many other forms of intellectual and cultural property that has been created, safeguarded and managed by Indigenous communities for much longer than the country we know as Canada, has existed. These 2 systems of safeguarding knowledge are very different and in honour of the National Indigenous History Month in June, we’re taking the opportunity to learn more about the intersection between the worlds of formal I.P. rights and the world of knowledge, creations and inventions of Indigenous peoples. With us today is Vincent de Grandpré, a seasoned professional with over 20 years of experience in intellectual property law and litigation, Vincent is also a member of the Indigenous I.P. Committee at the Intellectual Property Institute of Canada, a committee that plays a crucial role in addressing the intersection between intellectual property law and the protection of Indigenous knowledge and cultural expressions. I’m so excited to have this conversation with you today, Vincent. Welcome to the podcast.
Vincent de Grandpré (Vincent): Thank you for having me, it’s a pleasure to be here.
Lisa: Before we start diving into this topic, tell me a little bit about yourself and the kind of work you do.
Vincent: I hail from Montreal and I’m a lawyer. I have practiced for over 25 years now. I trained at McGill in both the civil law tradition and the common law tradition and ultimately became a lawyer in Quebec and in Ontario, and also after going to the Faculty of Law at McGill, I thought that I would become a law professor, so I actually looked around to try to find a program to do graduate work and ended up at Columbia University in New York and ultimately decided the academic life was not going to be for me.
Although I really enjoyed the intellectual challenge and the comparative aspects of law, which later became relevant to me. I decided to practice, so I’m also a New York lawyer and I’ve practiced there for a number of years and ultimately moved to Toronto about 20 years ago. I practice intellectual property broadly in patents and trademarks more than other areas, and I do mostly litigation, although not only litigation.
About 10 years ago, perhaps, maybe a little less, the Intellectual Property Institute of Canada, which is the leading organization of I.P. professionals in the country, decided to create a committee to look at I.P. issues as it affected Indigenous peoples and Indigenous interests and populations, and this community was created.
I raised my hand at the time because, like others, I think, like many others, had come to learn a little bit more about the history of Indigenous people and how they were treated in this country. Topics that we didn’t learn very much when I was in school, so raise my hand to learn more and I’ve been involved in the committee since, was the chair until last year, and Meika Ellis, a young Indigenous lawyer now leading the committee with all the might that she has.
So, I’m not Indigenous, so I can’t speak about this intersection between Indigenous knowledge and I.P. from an Indigenous perspective. I come to it as a lawyer, as a lawyer well versed in our Canadian statutes, which is colonial law, I suppose, from the perspective of Indigenous people. And as part of my sort of journey of reconciliation as well to think about how I.P. is affecting Indigenous people, whether it is serving Indigenous people, and how it is that the laws can be adapted and enhanced to benefit everybody.
Lisa: I’m so glad that you’re here to sort of share the knowledge that you’ve accumulated over these years working with these issues. When most people talk about intellectual property, what comes to mind is patents, trademarks, copyright, the kind of stuff that that CIPO does all of the time, but in the context of Indigenous peoples and the kind of work that you do in this space, what is I.P.?
Vincent: So, I.P. is probably the wrong term to designate what is better called Indigenous knowledge, right? Just the concept of intellectual property has a particular meaning. We see property as being something that is exclusive. That is over which a single person or entity has rights that is transferable, that is economic, and that is generally not how Indigenous peoples think about their knowledge.
And first of all, knowledge is brought, it includes know-how and skills and practices developed over time. Oftentimes, that’s embedded in the land or in modes of living, or in communities, and something that is transmitted in a community over time, that’s the type of definition that, for example, the World Intellectual Property Organization uses to talk about what is sometimes referred to as traditional knowledge, which we really call now Indigenous knowledge, because we don’t see it only as being backward looking or historical. And then there’s another term in another type of knowledge that’s a little bit more precise that is often called traditional cultural expressions, also sometimes referred to, I think we now use various terms.
That’s the one traditional cultural expressions is the one that it used by the World Intellectual Property Organization and it sort of designates artistic expressions and culture and music and dance and designs and names and symbols, and etcetera. And there’s a third area of Indigenous knowledge that is often referred to as genetic resources and associated Indigenous knowledge, which relates more specifically to Indigenous knowledge about natural resources and their use and their stewardship, etcetera. And that’s a topic that is very current.
There’s actually an international meeting, diplomatic conference, taking place right now in Geneva because countries around the world are trying to sign on a treaty to create a framework for managing how I.P. systems deal with that knowledge. So, we usually talk about these 3 categories. Indigenous knowledge is sort of the overriding term, and otherwise traditional cultural expressions, and Indigenous science or genetic resources and their associated knowledge.
Lisa: You mentioned the meeting that’s going on in Geneva, but there has been relatively recently, other legal events here, and around the world, actually. And so, in Canada, on June 21, in 2021, the United Nations Declarations of Rights of Indigenous Peoples Act received Royal assent and, as such, it comes into force in Canada. So, I wanted to know what is the U.N. declaration and what is the link with I.P.?
Vincent: So, I think it was in 2007 that there was a U.N. declaration was agreed to by the number of countries, including Canada, and it’s an overarching document that recognized the rights of Indigenous peoples. In one of the parts of the rights that are recognized in this declaration relates to Indigenous knowledge and culture and languages, and so on.
Canada had signed, was a supporter, but took a very long time to domesticate and to create implementing legislation. It only did that, as you pointed out, I think in 2021.
In that statute, the United Nations Declarations on the Rights of Indigenous Peoples Act said that within 2 years the government had to table into Parliament an action plan, and that was done in June 2023. And it’s a very long document and the result of extensive consultation. It’s available online, it’s periodically updated on their annual reports, and it identifies measures for implementing the Declarations Act.
In measure 101, it is directed to intellectual property and I’ll just take a moment to read it.
It says, “Work and consultation and cooperation with First Nations, Inuit and Métis to ensure appropriate measures are in place for Indigenous peoples to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, including working in partnership with responsible government departments to ensure that Canada’s intellectual property, legislative and regulatory frameworks, for example the Copyright Act, the Trademarks Act, the Patent Act are consistent with the U.N. Declaration.”
So, worded very broadly, and since then consultations have started, like all consultative processes, it’s a lengthy and deliberate process. But the hope and the view is that specific recommendations emerge from this process to advance reconciliation and matters of I.P. and adapt our I.P. framework to recognize, promote, value, Indigenous knowledge.
Lisa: So, if we talk about the action point 101 more specifically, what do you think are the possible changes in the law, following the consultations, that relate to this measure and the action plan?
Vincent: Right. So, I think there’s 2 ways to think about I.P. laws and Indigenous knowledge. One way is to look at how is it that Canada’s I.P. statute somehow falls short, or difficult to use by Indigenous peoples, businesses, communities to protect their rights, to enhance their rights, to facilitate what they want to do with it. That type of process, that kind of approach leads to a bit of a gap analysis, and then we ask ourselves, how is it that Canada’s laws have gaps?
So let me give you examples, the Trademarks Act includes provisions about the registration of trademarks and what can and cannot be registered, for example. What about words and marks in Indigenous language, what about marks that would be seen as derogatory to Indigenous groups? Those interests currently are not recognized, or not expressly recognized in the statute, and one question is, could a regime be put in place to address those concerns? Other jurisdictions have done that.
Everybody looks to New Zealand as an example where an institution has adapted to give a voice to Indigenous people in New Zealand, the Māori, in the review of certain types of trademark applications, for example. So that is an example.
Another example: the Patent Act. As many will know a patent is an exclusive right to practice an invention and it is a quid pro quo, it’s an exchange, somebody goes to the Patent Office and discloses an invention in exchange for an exclusive right to practice the invention for 20 years from the date of filing. In order for patents to be valid, they have to relate to something that is novel, that is inventive and that is adequately described in a patent application.
This raises questions of disclosure. It raises questions about how do we, and do we take into account? For example, Indigenous knowledge and identifying what is new in a patent application. Could there be a requirement in our law, for a patent applicant to disclose whether an invention relates to traditional knowledge, a genetic resource that has been exploited or that was known in Indigenous communities and so on.
So, adapting the Patent Act to Indigenous knowledge could lead, for example, to some specific provisions in the Patent Act relating to disclosure. That is one topic that is being discussed in Geneva at the moment that this diplomatic conference on a treaty relating to this.
So, one way of looking at how I.P. laws and Indigenous knowledge can, or framework can be adapted to Indigenous knowledge is to kind of do this type of gap analysis. But there’s another way also to look at it, which is to say that in many ways Indigenous knowledge and I, you know, again I’m not Indigenous, my understanding is that most Indigenous communities see their knowledge differently, in the sense that they see it as being collective rights. They don’t see it as being time limited. They see it as something that is passed on and that they want to perpetuate by definition and by design or I.P. statutes are focused on something a bit different, which is time limited protection of rights in an exclusive way.
And that’s where we look at the possibility that there should be some recognition of this in a different statute in a different framework, so that Indigenous communities can benefit from their contribution. And the mission of I.P. has always been to recognize what is the value of intellectual creations. So, this is exactly the type of challenge that, as I.P. lawyers have signed up for, recognize value and intellectual creations, and think about how to enhance them, how to protect and how to use them to promote the autonomy and the welfare of our communities.
Lisa: Yeah, and obviously creating new laws is something that takes time. It takes more consultations between a lot of different people and institutions at the same time we had today Indigenous peoples and we have their valuable knowledge. So, if you were standing in front of 200 people that wanted to learn about intellectual property and Indigenous people’s traditional knowledge and the Indigenous cultural expressions, what would you tell them today?
Vincent: Lisa, I would be so happy to be sitting in front of 200 people interested in I.P. and Indigenous knowledge. That would be extraordinary.
To answer your question, I think Indigenous peoples see this issue in 2 ways, and in one way is to say, look, this is a tool Canada’s laws and I.P. laws can be used to you know, it may be the proverbial square peg in the round hole, but there are things we can do here to protect what we do and let it serve our goals.
So, to those people, to Indigenous entrepreneurs, businesses, communities, I would say there is room today to think about ways to protect your knowledge. Some groups have had success in doing this for example, it would be possible to a Band Council, for example, and its related entities to apply for an official mark to protect, to make sure that a particular term is used exclusively by them to describe the source of goods and services, to make sure that the benefits of particular goods and services that they may be interested in promoting come to them, to the extent that Indigenous knowledge relates to the exploitation.
I mean, exploitation in the broadest way relate to the exploitation of natural resources, to harvesting particular mushrooms, fruit, etcetera, we have a regime in Canada directed to geographical indications. And the goal here, which is the practice, and then the regime ultimately comes from Europe, where Europeans have always thought that there was, you know, this notion of “terroir”, this link between land and a product or produce.
And that is a regime which is not very much used in Canada, which could be very much used by Indigenous stakeholders to say, we should educate consumers and we should have rights to protect the sourcing of things that are that are linked to our land. And that is something that needs to be looked at and should be looked at very carefully.
So, we’ve talked about official marks, geographical indication. It’s also possible to use the certification mark again under the Trademarks Act to identify goods that originate from a particular, or comply with a particular set of practices. Now, these regimes are imperfect, they are administratively cumbersome for Indigenous people, but it is possible within the current regime. So, to the extent that these 200 people interested in Indigenous knowledge and I.P. want to know how to use the I.P. statutes, I would point in that direction.
Lisa: So, let’s say out of these 200 people, now you step down from the stage and there are a handful of people that have decided to pursue a career in law, for example, to help become mentors and become enablers to having them protect what is theirs, are there any particular networks for Indigenous peoples who are looking for a lawyer, trying to get more help in understanding on how to use these rights?
Vincent: It’s difficult to answer that sort of coast to coast. The truth is that in every community there are Indigenous lawyers, remarkable Indigenous lawyers and law firms and organizations that focus on serving the Indigenous communities. There is an Indigenous Bar Association in Canada, which would be a good first stab for somebody who wants to connect.
And again, there are some very well-known Indigenous lawyers throughout the country who make it a practice of sharing their time to mentor young Indigenous people interested in the law, and I was mentioning the activities of IPIC and of this Committee, the Committee is always delighted to hear from students and we’ve made presentations to Indigenous Students’ Association to interest them in what we do in I.P., which again is really a fantastic area of the law, focused on recognizing, promoting and protecting the value of our culture, of our innovation, and we can’t have enough of that.
Lisa: Thank you so much, Vincent. It’s such an important area and I’ve learned a lot from this conversation. Thanks for coming to the podcast to talk about this.
Vincent: Thank you for having me.
Lisa: You’ve listened to Canadian I.P. voices where we talk intellectual property. In this episode, we’ve met with Vincent de Grandpré, who is a lawyer and member of the Indigenous I.P. Committee at the Intellectual Property Institute of Canada.
Vincent talked about the different systems, definitions and protection mechanisms used to safeguard intellectual property and Indigenous knowledge and how some of these may lead to interplay more closely as the United Nations Declaration on the Rights of Indigenous Peoples Act is implemented.
If you’re curious to learn more about Indigenous knowledge, creations and some of the programming in place to deepen the understanding of these, open the description to this episode where you will find links to see CIPO’s page on the topic in honour of Indigenous History Month. As well as the Indigenous Bar Association, the U.N. Declaration on the Rights of Indigenous Peoples Act, as well as some of the work of the Indigenous I.P. Committee at the Intellectual Property Institute of Canada.