Museums, IP rights and Indigenous Cultural Property

Museums all over the world are moving towards the creation of online representations of their collections. For those museums already online prior to COVID-19, it’s been a  great way to maintain community engagement beyond the physical boundaries of the institution. And for those who hadn’t reached that point prior to lock-down, they now have an even stronger desire to enhance their online reach.

Clearing Rights for Digitization

If I were advising a museum on legal considerations relating to “digitizing” all or part of their collection, my answer would inevitably focus on IP rights. Drawing from my experience in TV production,  I would advise the museum to be sure it had some kind of written confirmation of its right to create a digital representation of the material (artifact, printed work, map, painting, etc.) prior to posting it online. I would explain that without that certainty, the museum may be exposing itself to allegations of infringement of copyright, trade mark or other intellectual property rights.

To me, this example is a standard application of the principles to intellectual property law, as outlined in Canada’s legislation and interpreted in case law. But I am discovering that the rules might be different for indigenous cultural creations. I have learned that recent changes in the legal landscape in Canada raise questions about how IP law will apply to indigenous cultural creations.

What Rights do Museums Hold?

In recent times, the representation of indigenous cultures in museums has come under greater scrutiny. The fundamental question is this: what, if any, legal rights do museums have to the indigenous cultural artifacts they store and display?  And what’s interesting to me is that the answer to this question seems to be pointing in a direction which is beyond the scope of traditional intellectual property law.

The case for indigenous rights beyond IP law has been developing for over 20 years, beginning with the provisions in the UN Declaration on the Rights of Indigenous Peoples in 2007. The provisions relating to IP rights are re-stated below:

Art 11 Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 

Art 31(1) Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. (emphasis added)

(see United Nations Declaration on the Rights of Indigenous Peoples)

The Impact of UN Declaration

This pronouncement in 2007 challenged conventional assumptions about ownership of indigenous cultural property and resulting IP rights. For example, with these provisions, can a museum ever say that it “owns” indigenous cultural property,  and if not what IP rights does it have, if any?

While UN Declarations don’t have the effect of law in member states unless adopted under national law, the drive to codify some of these concepts into the law of intellectual property has been taken up by the World Intellectual Property Organization (“WIPO”), as a UN agency. Beginning in 2007, WIPO started drafting guidelines to formally recognize “traditional cultural expressions” (TCEs) as intellectual property. This has been evolving over a number of years without reaching a conclusion, and the most current draft was released in 2019. see The Protection of Traditional Cultural Expressions: Draft Articles - Rev.

The WIPO proposal is highly controversial because it requires member states to endorse a new type of intellectual property governed by separate rules. While it has yet to be adopted by WIPO members, it shines a spotlight on the question of whether museums will increasingly be required to re-establish their “right” to hold, display, use and interpret any indigenous cultural artifacts.

Current Copyright Law May Not Fit

There is no question that many of the traditional rules of intellectual property law don’t seem to fit indigenous cultural property. Consider the issue of copyright. Copyright law is based on the concept of an original author or creator of a fixed work. The rights subsist only for the lifetime of the creator plus a certain number of years thereafter, according to rules fixed in legislation. After that, the work falls into the public domain, meaning it is no longer possible for anyone to claim ownership of the work. 

But these copyright concepts don’t easily carry over to many expressions of indigenous culture. For example, with traditions of oral storytelling passed on through generations, it is often difficult to identify a specific author or authors. As a result, it is not clear under copyright law who controls the rights. And if a single creator or group creators cannot be identified, then it becomes impossible to determine when those rights expire when the work becomes part of the public domain.

If a museum was planning to digitize indigenous cultural work, how would it be possible to get appropriate permissions if it is not possible to identify an original creator under copyright law, and inquiries reveal that the work is a representation of a creative expression that has existed for centuries in indigenous culture? 

The traditional legal advice to be offered to a museum in that context would have been to consider invoking provisions in copyright legislation governing circumstances where owners cannot be created – or “orphan works”. An “orphan work” is one where, after diligent inquiries, it is impossible to identify or locate the owner of a work. An application can be made to the Copyright Board for a non-exclusive license to use that work without further permissions.( see section 77, Copyright Act, Canada)

But recent changes in Canadian law raise a question about whether the “orphan works” option and other traditional IP management practices will continue to be applicable to indigenous cultural creations. 

Canadian Law is Changing

In June 2021, Canada passed a new law titled the United Nations Declaration on the Rights of Indigenous Peoples Act. (see United Nations Declaration on the Rights of Indigenous Peoples Act) 

The new legislation states that its purpose is to “affirm the Declaration as a universal international human rights instrument with application in Canadian law…” [s. 4(a)] and provide a framework for implementation by the Government of Canada. The substance of the Act requires Canada to appoint a Minister responsible for creating a set of recommendations within two years of the date the legislation came into force.

I don’t know if the implementation of the Act will result in the complete adoption of the IP provisions in the Declaration, and lead to changes in the Copyright Act (including the “orphan rights” option) but it’s become clear to me that the legal landscape is shifting, and there is growing recognition that museums will need to evaluate any assumptions they hold regarding their IP rights in indigenous cultural artifacts. 

An Interim Approach

For a museum moving ahead with a digitization initiative in this environment, I think the safest approach to digitizing indigenous cultural property may be to seek out indigenous leaders with authority to speak for their people, explaining how the materials will be used and seeking their consent. While that consent may be informal, it may still be the best way to ascertain rights in this uncertain environment. 

While this approach does not provide the kind of certainty usually sought in the traditional practice of IP law – with documented chain of title and written license license agreements – this might be best we can expect until the WIPO Guidelines are formalized or some direction is received under the new United Nations Declaration on the Rights of Indigenous Peoples Act.

The Promise of Reconciliation

There is no question that traditional concepts in IP law need to adapt to the unique character of indigenous cultural property, and that making these changes is necessary to reflect the promise of reconciliation in Canada. What’s challenging for me, and others in the legal community, is the uncertainty that arises as we embark on this shift, and the current difficulty in providing solid advice to clients as we navigate this new landscape.

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Acknowledgement: "Intellectual Property and the Safeguarding of Tradition Cultures" WIPO Guide by Molly Torsen and Jane Anderson (2010)