Traditional Knowledge and Traditional Cultural Expressions are an important part of Indigenous cultures, identities and innovation. In this episode, we explore how they fit within current intellectual property (IP) frameworks, the challenges Indigenous creators and communities may encounter and the practical tools available to help protect and promote them. Meika Ellis, a trademark agent and IP lawyer, discusses how Indigenous entrepreneurs and communities can use existing IP tools, including trademarks, copyright and contracts, while broader conversations about protecting Traditional Knowledge and Cultural Expressions continue to evolve.
Traditional Knowledge and Traditional Cultural Expressions are an important part of Indigenous cultures, identities and innovation. In this episode, we explore how they fit within current intellectual property (IP) frameworks, the challenges Indigenous creators and communities may encounter and the practical tools available to help protect and promote them.
Meika Ellis, a trademark agent and IP lawyer, discusses how Indigenous entrepreneurs and communities can use existing IP tools, including trademarks, copyright and contracts, while broader conversations about protecting Traditional Knowledge and Cultural Expressions continue to evolve.
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Lisa Desjardins (Lisa): Before this episode begins, I want to acknowledge that the land on which I am situated is part of the traditional unceded territory of the Algonquin Anishinaabe people, and I thank all generations of people who have taken care of this land, and I recognize and deeply appreciate their historical connection with this place.
You're listening to Canadian IP 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.
The legal principles of Western intellectual property rights involve providing a form of protective shield for creations and inventions. The idea is that once protected, IP rights holders can use their right to prevent unauthorized use of their intellectual property. But these time-bound exclusive rights mostly protect what is fixated and will eventually funnel the IP into the public domain. And therefore, do little to help the respectful preservation and perpetual and communal ownership of traditional knowledge, cultural expressions that has existed in communities for centuries and are often at the heart of the identity of Indigenous peoples. Today we have the opportunity to speak with Meika Ellis, member of Gwich'in Fort McPherson Band, a lawyer and registered trademark agent in Ottawa. Meika brings both expertise and a deep understanding of these challenges. While acknowledging that she's fixing the system to better serve Indigenous entrepreneurs will be a long-term endeavour, Meika will share how, in the meantime, the existing Western IP laws such as copyright, trademarks, and contracts can be strategically used to safeguard Indigenous creations and innovations. Meika, I'm so happy to have you here to talk about these very interesting challenges that we have in the IP system. Welcome to the podcast.
Meika Ellis (Meika): Thank you so much, Lisa. I'm super excited.
Lisa: So actually, before we start, would you mind telling me a little bit about yourself and how you started working with IP?
Meika: Yeah, for sure. So it kind of just landed on me. I was a law student at the University of Ottawa. And two professors at the time, Professor Ian Kerr and Professor Jeremy de Beer, strongly encouraged me to join the Technology and Innovation first-year internship. And from there, I started working with other professors, including Professor Chidi Oguamanam and several professors throughout Africa, the continent of Africa, on a project called OpenAIR, Open--what is it, African Innovation Research and Training. And we were looking at Indigenous knowledge and access to knowledge and public domain and looking at the tensions between IP and all of these areas in Africa. And then the research slowly started to merge to also looking at traditional knowledge in Canada and how it is protected or how making use of it would be for the benefit of advancing technology and knowledge in general throughout Canada. So, my resume kind of wrote itself and then I started working at an intellectual property law firm and yeah, I just melded the two interests together. They work naturally. I think you really have to understand both sides to really know how you can help one side evolve, so that's how I got to where I am today.
Lisa: Super interesting. And let's talk about these two sides now. So, can you discuss the current shortcomings of what we probably call as Western IP laws when it comes to protecting traditional knowledge, cultural expressions, and Indigenous innovations? Like, what are some of the critical gaps that you see in the system?
Meika: Right. So, Western intellectual property can be quite narrow. We can use it as an example if we're looking at trademarks, copyright, and patents, and I'll pull an example from each of them. So, trademarks, for example, must be used in the normal course of a trade with a commercial transaction. If a symbol is not used in the normal course of a trade, you can't acquire common law or statutory rights in that mark. Copyright recognizes an individual or a joint authorship of specifically named authors and only protects works in a fixed form. And patents, for example, only protect inventions that have not been disclosed to the general public within a year prior to filing, and patents have quite short life. They only have 20 years of protection. So, why this narrowness presents a gap for traditional knowledge and cultural expressions and protections of them is that symbols or images may not move through the normal course of trade, for example, and therefore cannot acquire trademark rights. Or works of art, works of, you know, whether it's beaded or painted or dance, they may be owned by a community. And indeed, many communities, there is no “ownership”, rather there's a stewardship. So nobody owns the right to the work, but they have the duty to protect the work, which isn't recognized in trademark, copyright, or patents. And the knowledge may be generations old, so it may not be able to be claimed as a patented invention, or as a novel copyright.
Lisa: Quite some challenges there. Now, we're not the only country with Indigenous communities and peoples, and of course, you have studied them. So Indigenous communities around the world are advocating for changes to the IP systems to better help them protect their heritage and innovations. And in Canada, these efforts are ongoing and they're probably going to take years to fully implement, but what are the steps that some other countries have taken to address some of these gaps?
Meika: For sure. So, a lot of people who are engaging with advancing protection in Canada on traditional knowledge and cultural expressions, a lot of them look to New Zealand. New Zealand is the poster child right now. In New Zealand, they have the Māori people, and one of the amazing things that they've been able to do is they've created specific legislation that specifically protect Māori invention, Māori culture, Māori language. So, for example, the patents and trademark laws include specific provisions for the protection of Māori. So these provisions help prevent the registration of trademarks or the granting of patents that would be considered offensive by Māori or contrary to Māori values. I know Kenya also has some very strict legislation that does some similar things to what the New Zealand legislation does. And there's a lot of work going on in South America, in Brazil. Australia is probably lagging in the same way that Canada is lagging, but there's some work there to protect the Aborigines. And Canada can look to and work with, and I think does work with Australia and New Zealand in framing how we should protect here in Canada. But another super exciting thing is that most recently, the WIPO IGC, so WIPO is the World Intellectual Property Organization, and the IGC is the governing committee. The member states adopted a historic new treaty on intellectual property, genetic resources, and associated traditional knowledge. So, where a claimed invention in a patent application is based on genetic resources, or is based on associated traditional knowledge, then applicants are required to disclose the presence of genetic resources and may be required to disclose the Indigenous peoples or the local community from where the genetic resource came from, and may have to seek permissions to use it, or may not be able to use it because maybe it'll be considered prior art. So, for the countries that are lagging behind, this could be really exciting. But of course, we don't know when it'll be adopted, for example, in Canada or in Australia or elsewhere around the world, but it is a first step, a really big step to advancing protections once countries start to sign on.
Lisa: But given the limitations of the current system as it is today, how can Indigenous entrepreneurs leverage some of the existing Western IP tools like copyright and trademarks and contracts to protect their creations? Are there any examples that you know are effective?
Meika: For sure. So, one that's been interesting and effective in some manner is the use of a certification mark. So, for example--well, a certification mark, I'll just quickly explain. It's a kind of trademark, but what it does is it certifies that whatever good and service you are buying is authentic and meets a very specific criteria. So, a lot of people are familiar with the Fairtrade certification mark. What that means is that, you know, everything meets a very specific standard and therefore you can use that fair trade certification mark. So, on the Indigenous side of things, we've seen, for example, the Cowichan Band Council has at least one, might be a couple, certification marks. One certification mark is a word mark for the term Cowichan, and I think there's also a design mark. And basically, what that does is the mark can only be used by persons authorized by the certifier, and it certifies that the goods have been hand knit in one piece in accordance with traditional tribal methods by members of the Coast Salish Nation using raw, unprocessed, undyed, hand spun wool made and prepared in accordance with traditional tribal methods. So, the Cowichan are known for these gorgeous garments that they make. And I think we might be familiar with the 2010 dispute where a company was making these sweaters and passing them off as Cowichan. And Cowichan are able to come forward and say, you don't have a right to use this certification mark and to claim that these are Cowichan because you don't fall within the specific criteria that has to be met in order to claim a garment as Cowichan. So, it can be a really powerful tool. We also see there's certification by the Inuit, and I'm not sure who the registrant is. They certainly have a trademark that they can assert to ensure that any art or products that people try to pass off using the specific certification marks that they own, they can prevent people from using them to pass off inauthentic goods. So, that's been one really powerful tool. I wouldn't say I personally have experience with patents being incredibly powerful, but I know that any new knowledge, there have been successful patents, but patents obviously, they haven't been protecting old knowledge. And the other tool is copyright that I've seen a lot of my personal clients make use of that's been helpful in assisting them to assert their rights. So, one thing I stress to my Indigenous clients, is, well, and all clients, is to include disclaimers where possible that any such works where there is an individual author and ownership, so where my client is the owner of, to assert and say that this is copyrighted and this cannot be used without permission. And we have seen success from clients who are able to make use of disclaimers and notifying the public that you can't use this without permission. And finally, I always stress contracts and agreements can be very useful to assert IP if drafted in a good way.
Lisa: That's great. And we're going to talk about contracts next, but just for those who are listening and don't know a lot about copyrights, would you mind just quickly wrapping up how do you protect things with copyright?
Meika: Right. So copyright, it inures automatically. So as soon as a work is completed, you hold copyright in it. So if I write a poem and my poem is completed, that poem has--holds copyright. You can register your copyright after the work has been published. And copyright is granted to--usually to an individual author or joint authorship immediately. And then the authors, if they so decide, can transfer their copyrights. There's a second right that goes along with copyright called moral rights. And this is in the integrity of the artwork. So you have the right to integrity of the artwork, you have a right to be associated or not associated. And the moral rights can't be transferred, they always stay with the author unless the author waives them. So we see in a lot of contracts, and especially when I'm working with Indigenous clients, I advise them, don't waive your moral rights. You want to ensure that you have control over the integrity of your work and how it's used. But feel free to license your copyright or to transfer your copyright to whomever you feel fit on whichever circumstances you think are appropriate. If that answers your question.
Lisa: Absolutely. I just thought as opposed to trademarks and patents, which can cost thousands and years to obtain, it's kind of good to know that copyright doesn't take more than, I think, it's $50 or $60 to register, and you don't actually need to register, so.
Meika: Yeah, for sure, registering is a defence and we--it's strategic if you want to register, but otherwise you can assert your rights, for sure. And copyright, I should say that, it's in all kinds of forms of expression of ideas. So it doesn't protect the idea, but it will protect the expression, right. So you can be copyrighted in a painting, in a book, in a song, as long as the song is recorded, in a recording of a dance, in movies. There's a broad range of where copyright can protect and can be incredibly useful.
Lisa: Now, I did say we're going to talk about contracts, which are often an underutilized tool in IP protection. So how do you think Indigenous creators can use contracts to safeguard their work and make sure that their IP is respected and properly managed?
Meika: Right, so that's a great question. I love contracts right now. It is one of my main avenues of protecting the rights of my Indigenous clients simply because they often aren't fitting into the niche boxes of the various IP rights. And so in an agreement, my clients get to decide who owns what rights. So we can set out in the agreement the types of rights that are implicated and how the rights can be used, what permissions need to be acquired. We can define specifically what traditional knowledge is being brought in, and of course, the ownership or stewardship of any of that information. So, one thing to keep in mind is that a contract is only applicable to signed parties. But it still can be a very helpful way to ensure that IP or traditional knowledge or expressions thereof that belong to the Indigenous business or the creator, entrepreneur, or community stay with the business creator, entrepreneur, et cetera. So, for example, if we have a First Nations community that wants to make sure that their data is protected and that their data stays with them, I've created contracts to make sure that there's a proper movement of that data protection and that whoever they are contracting with, that data doesn't then flow or accidentally move to that contracting party. And a lot of times in these contracts, I make them different than we would make your traditional Western contracts. So there's usually like a statement of understanding at the front of the contract that sets out the core values of whichever Indigenous community or client that I'm working with. And those include things like maintaining honour, maintaining respect, working with integrity. And so, that means that we avoid a lot of the legalese and paragraphs that you might see in a Western contract, where it's kind of implied that, when you are approaching working with me, I expect respect and integrity in your work. And so there's this understanding of where my traditional knowledge and IP is going to be held, and that you will respect that regardless of how tightly bound this agreement might be.
Lisa: You've already mentioned some examples and some of the positive outcomes. But if we look to the future, and the communities that are out there maybe listening to this thinking, "Oh, I need to get started on this IP thing," and they may not know how to get started. They are in a system where, you know, they may be able to tap into some of these Western IP laws. How can your examples serve as a model for others in the community if they want to get started on protecting their IP?
Meika: Yeah, for sure. So, for people who are wanting to make use of the current systems, you know, when I mentioned certification marks, that is a great tool for communities as a whole to look into and see if they can employ. The great thing about a certification mark is that it doesn't need to be novel. And if it's been around for 50 years or 100 years, that's okay. You still have access to protection. That's one model that I have emphasized to some clients who are larger clients and organizations to look into how a certification mark might be able to ensure that specific protocol is followed when people are engaging with specific goods and services. And we are seeing more and more Indigenous companies come forward with patenting recent inventions. There is a place for patents in the world of Indigenous work. Another one that I failed to mention is plant breeders' rights. And both patents and plant breeders' rights can be used either as like a defence to ensure that your work is considered prior art. And patents also can assert your position in the economy, and so your competitors are aware, and you make it harder for them to work with, you know, if they're working with, wanting to make use of your ideas or your knowledge, because they're going to have to come up with a novel and innovative approach if we're seeing people assert their rights in the form of patents. So I think there's some really great opportunities for Indigenous businesses and entrepreneurs to find ways to assert their rights in various means of Western IP.
Lisa: At the same time, we do have the two systems or approaches to how we can protect some of the knowledge and creation. So what advice would you offer to Indigenous entrepreneurs who are either feeling overwhelmed or maybe uncertain about Western IP system? How can they approach these challenges while also advocating for the broader systemic changes that I think we need?
Meika: Yeah, for sure. So this is a tough question and one that we reflect on. And by "we," I mean, on the various committees or groups or colleagues that I talk to and work with that we often reflect on. The Western IP system can be incredibly overwhelming. I mean, it can be overwhelming for an IP professional, let alone someone who's unfamiliar with IP. I'd say if one is interested in seeing how the Western IP system can be used today to protect rights, there are lots of resources that people can make use of that are free. So I know CIPO, for example, the Canadian Intellectual Property Office, has some great resources to help navigate the various intellectual properties and how they can be employed. The Canadian Council for Indigenous Businesses has some amazing resources. I've also been involved in webinars where we go and speak with Indigenous entrepreneurs, and it's a bit of a give and take. So we'll help present Western IP and help these Indigenous entrepreneurs navigate the Western IP, but we equally will be there to listen and understand where the gaps are continuing and what the entrepreneurs who are in the room with us or the businesses who are in the room with us, what they wish to see. And we bring that back to try and either find solutions for them that are currently working or find a way to include that information, advocating for broader systemic changes. I also highly encourage all Indigenous entrepreneurs to continue to advocate, to say, "I understand that today I will make use of a trademark,” or “Today I will try to make use of a patent,” but the systemic changes need to occur if we want to ensure for broader protection of traditional knowledge as a whole, which honestly would be for the benefit of not only all of Canadians, but globally, because Indigenous people have this incredible care and connection with the environment, right. So when you want to advocate for broader systemic changes, we start to pull ourselves out of these niche boxes and we get to see how everything works together. And I work on a committee, which is the IPIC Indigenous IP Advisory Committee, and we have lots of resources. So people are free to reach out to anyone in any one of these organizations, including myself, and we're all happy to help navigate this system.
Lisa: Thank you so much. Thank you for having such a respectful and positive conversation about this topic. It is a difficult topic. I really sincerely appreciate the time that you've spent on this and to help educate me and others on how these things work and how they might work in the future. Thank you.
Meika: Yeah, thank you so much for inviting me, Lisa. I always love talking about this, and it's amazing that we get to see a lot of organizations, including CIPO, that are starting to have these conversations, which are much needed. So thank you.
Lisa: You've listened to Canadian IP Voices, where we talk about intellectual property. In this episode, Meika Ellis shared some of the challenges and developments happening in Western IP systems around the world to better offer protection for Indigenous peoples' arts, expression, knowledge, and traditions. Meika is a lawyer and registered trademark agent in Ottawa and is also a member of the Gwich'in Fort McPherson Band. She explained some of the ways the current IP laws can protect creations and inventions, and how she has also helped Indigenous communities, entrepreneurs bridge some of the gaps in our current system to still be able to protect creations and inventions with the help of contracts. Open the description to get more links to CIPO's, IPIC's, and WIPO's pages where you can learn more about support, funding, training, and more information related to Indigenous peoples and intellectual property.