Well, since it is the last day of March, the day before April Fool’s Day, I thought I would write an article.
Something I have been thinking about for some time actually.
I read, in some journal or other, about efforts in Canada and elsewhere, to attempt to protect aboriginal “intellectual property” given the current lack of a formalized structure. Now, some may groan at the notion (owing only to the current and ongoing "debate" over the protection of music and the revision of copyright laws in Canada and elsewhere), but I think it has considerable merit and should be afforded critical analysis.
The reality is that much of certain aboriginal cultures is oral in nature or physical (in the form of some tangible object) and is not easily dealt with in the western system of ownership – wherein a person creates or owns some property right, and has the ability to prevent or grant the exercise of rights by others.
How does one protect oral history in such an environment? Is it worth considering in the context of a western style intellectual property rights regime given the notion of common ownership within the particular community?
Again, I believe it is worth the effort. I am not sure how such a regime might spring into existence but perhaps it would be in the form of a separate and parallel registry to the one that currently exists in most States. A repository for oral, written, physical and other histories that may serve two functions – one to help preserve the histories for their own sake and the second to allow the aboriginal communities to control, if they choose, how those histories are used.
In a similar manner, we are seeing a growing recognition by States, particularly India, that indigenous scientific knowledge is valuable and ought to be protected. India is adopting a strategy to document its traditional medical heritage. In a recent article published in the Lawyers Weekly, Dr. Chidi Oguamanam (of Dalhousie Law School) noted that the approach by the Indian government “…[W]ill make it impossible for second comers to patent around India’s medicinal heritage”.
My own thoughts were more along the lines of what we would generally call copyright, but I think there is considerable merit to watching the development of the system in India with a view to determining whether we in Canada should adopt a similar framework. Having said that, I am always conscious of the problems associated with a pull approach to the development of anything, and certainly if the aboriginal community in Canada (if one can speak so broadly) is not interested in such an examination, so be it.
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