LAWS 3202 – INTELLECTUAL PROPERTY

CONTESTING WESTERN IP LOGICS AND

ISSUES IN TRADITIONAL KNOWLEDGE
WINTER 2024
CRITIQUES FROM WITHIN

1. Critiques of the philosophical justifications, including

flaws in practice
2. IP going “too far”?
TODAY:

 Continuing to denaturalize IP
 Connecting IP systems to power relations
 Western IP systems, Indigenous creation, Traditional
Knowledge
CHRISTOPHER MAY (2015, P. 16)

Crucially, property is constructed and reproduced by state legislation to

protect not something previously existing, already recognized as property,
but rather to protect certain current interests and in doing so codify their
protection as ‘property.’
CHALLENGING TWO MYTHS

 The Romantic Author

 The Romance of the Public Domain

THE ROMANTIC AUTHOR

 Philosophical construct from 18C

 Idealized figure who creates
original works of art
 Internal rather than external
inspiration
 Individual creative genius
 unique
CONSEQUENCES OF THE ROMANTIC
AUTHOR MYTH IN IP

 Downplaying external context of creation; focuses

in on one individual to exclusion of other factors
and individuals; no serial collaboration
 Sympathetic figure
 Sutures the idea and the expression together
ROMANTIC
INVENTOR
ROMANCE OF THE PUBLIC DOMAIN
 - Chidi Oguamanam –
- Left-overs
- Utopian space
- Repository
“Resources for which legal rights to access and use for free (or
DEFINING THE for nominal sums) are held broadly” -- Chander and Sunder
- A robust public domain is tied to which justification for IP?
PUBLIC DOMAIN
- Utilitarian
A DIALECTICAL RELATIONSHIP

“intellectual property thrives in the presence of a robust public domain from which it
freely borrows, and the public domain grows as information passes, over time, out of
intellectual property” -- Chander and Sunder

Sounds like?
THE ROMANCE OF THE PUBLIC DOMAIN

The belief that because a resource is open to all by force of law, it (can be) will indeed
be equally exploited by all – Chander and Sunder
THE MALISEET
FIRST NATION
AND THEIR
STORIES
THE PARADOX

Oguamanam points out:

The very same concept can be a progressive tool to curb the excesses of IP in the West
while also functioning as the prime justification for the West’s appropriation of non-
Western knowledge and culture.
WIPO VIDEO ON IP AND TK

WIPO Video "The Adventures of the Yakuanoi”

UNPACKING THE VIDEO

 How is the knowledge of Yakuanoi represented?

How is the cosmetic company’s knowledge
represented?
 How is intellectual property represented?
 How is the relationship between the company
and the Indigenous community represented?
 Does the video consider any alternative ways to
deal with the situation outside of IP?
 Are there any ethical issues discussed?
WHEN INDIGENOUS CREATION MEETS THE
ROMANCE OF THE PUBLIC DOMAIN …

Gregory Younging:

Indigenous knowledge becomes gnaritas nullius

Not all knowledge should be universally

accessible (limited access)
FISHER READING

 Three issues when Western IP and TK meet

 Critiques?
 Three reasons for augmenting IP rights for TK
 Any concerns?
 Why is IP not always the right way?
WHAT WOULD OGUMANAM SAY TO FISHER’S ARGUMENTS?




BARRIERS FACING INDIGENOUS CREATION IN CANADA’S
IP REGIME

 Individual, known creator/ownership

 “originality” and “novelty”
 Prior art
 Fixation/orality
 Underlying knowledge v. innovation
 Limited term/temporal certainty
 Costs and process
 Exceptions – sacred expressions
NEGATIVE CONSEQUENCES OF THE ROMANCE OF THE
PUBLIC DOMAIN

 Mutually exclusive, binary terms precluding other solutions

 Denies exploitation history of the public domain
 Often conflates Indigenous persons and their knowledge
 Indigenous group and communities are denied autonomous authorship identity
 Legitimates the current distribution of IP rights
THINKING OF SOLUTIONS

 Inalienability
 Property rules
 Liability rules
 Affirmative support
 Recognition of customary laws; conflict of laws;
comparative jurisprudence
UN DECLARATION ON
THE RIGHT OF
INDIGENOUS PEOPLES

 Canada ratified in 2016

 No force of law
 Absence of recognition of
Indigenous creation or
issues in any IP legislation
in Canada
DIFFERENT LOGICS
OF INTERVENTION

Indigenous Arts Protocols (Ontario

Arts Council)
QUESTIONS

 What are the differences in tone between the two videos?

 Does the differences in type of IP matter, and if so, in what ways?
 What does each video assume about the nature of intellectual property?
 How are the two videos understanding culture?
 How do they define ‘the problem’? The ‘solution’?
 What would your readings have to say about the two videos?
HAVE A GREAT
WEEK!