Native Art and Copyright

I love Northwest Coast Native art. I am also an information professional. Intellectual property laws in Canada are often really difficult to apply to First Nations artwork and cultural creations, and these difficulties prompted me to explore this disconnect in detail. The following is pretty academic, but should be of some interest to Native art fans and/or information managers!

Protecting the Immaterial

Works such as Susan Point’s monumental ‘People Amongst the People’ portals in Stanley Park and Connie Watts’ jaw-dropping ‘Hetux Thunderbird’ installation at Vancouver International Airport are representations of cultural values and oral histories that connect the First Nations of today with their ancestors from the distant past. Indigenous conceptions of ownership and intellectual property, from the Maori in New Zealand to the Yup’ik in Alaska, often conflict with the copyright acts created by colonial governments. 

Connie Watts' Hetux Thunderbird at YVR

While Bill Reid’s ‘Jade Canoe’ is celebrated as an artistic masterwork and has been placed on Canada’s twenty dollar bill as a symbol of Northwest Coast aesthetics and individual creativity, it was originally created as a visual guide to the Haida Nation’s family crest symbols and the culture’s unique creation myths. The Canadian government values this work for reasons that are quite different from the ways in which the Haida people value it. While the Canadian Copyright Act indicates that this work belonged to Bill Reid, the artist viewed it as a visual representation of ‘The Spirit of Haida Gwaii’ (which was also the alternate name of the sculpture) and a work created on behalf of his culture.

Central to the subjects of information policy and copyright when considering the concept of property within indigenous cultures are issues of collective authorship, the ownership of immaterial works (such as songs and dances), and the value of originality. This entry will explore these three issues.

Collective Authorship

When history and folklore are communicated within cultures where the written word is not the primary mode of recordkeeping, communal knowledge and storytelling become invaluable. Important myths involving lineage and creation, such as the legend of Raven Stealing the Light on the West Coast, become known by everyone in the community and often transform into a ubiquitous artistic motif. Even though individuals may create objects depicting Raven Stealing the Light, for example, this is a communal myth that every clan and community member has connections to. A conflict arises when this notion of communal ownership must adapt to the Western principles of “absolute individual ownership and freedom of alienability of property” (Dambiec, 2005). Due to the fact that the majority of symbols used in Aboriginal art - along the Northwest Coast and around the world - are tied to heritage and the communal responsibility of knowledge dissemination, indigenous artists do not claim cultural designs (such as Raven Stealing the Light in BC, or the Hei Matau in New Zealand, or Djang'Kawu in Australia) as their own, legally-protected intellectual property. Having said this, the ownership of cultural symbolism does become an issue relating to intellectual property when third parties attempt to profit from unprotected indigenous works.

A recent demonstration of the Canadian Copyright Act’s limitations emerged during the 2010 Winter Olympics, here in Vancouver. VANOC purchased specific designs created by Northwest Coast Native artists, altered and licensed these designs, had factories in China produce items using these designs, and then sold the items as "authentic Aboriginal products". This case validates the need for the legal definition of authorship to be expanded within Canadian, and international, intellectual property law. There should be a legal mechanism to reinforce the bonds between indigenous cultures and their visual heritage. 

Ownership of the Immaterial

How can Copyright and Intellectual Property Law protect a creation if it is not produced in a tangible form? While most Aboriginal communities wish to protect their intangible cultural knowledge for preservation purposes rather than financial gain, there should still be legal implements available to these communities that allow them to prevent their heritage from being exploited. What if songs are not transferred to compact disc, and dance choreographies aren’t recorded, and legends are not published in book form? Even though specific songs and dances from the Kwakwaka’wakw people of Vancouver Island, for instance, have been passed down within certain families from one generation to the next - for centuries - the Canadian legal system simply does not acknowledge this form of inheritance and ownership. Case law involving the Canadian Copyright Act has made it necessary for a work to be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance” in order for it to be protected by the Act (Canadian Admiral Corp v. Rediffusion). Brascoupe and Endemann point out a further complication regarding immaterial property by explaining that if Aboriginal cultures within North America decide upon disclosure as a means of protecting their immaterial property (e.g. allowing an institution to record traditional songs) this property enters the public domain and cannot be covered by Intellectual Property law either (10).

Most companies and enterprises are not determined to pilfer the cultural heritage of Canada’s First Nations communities, but there have been cases where outsiders have profited from First Nations largely unprotected immaterial culture. One example can be found in the photographs of Edward S. Curtis, and in the 1914 film that he made titled In the Land of the Head Hunters. Curtis attained money and fame from capturing and manipulating images of significant cultural ceremonies and objects belonging to the Kwakwaka’wakw people. Federal legislation must be amended to help protect immaterial creative output. Some copyright legislation does not require fixation. Switzerland and Germany, for example, allow individuals to try and obtain copyright coverage without fixation, though they must make a case for their works and provide necessary documentation (Crews, 2000). 

The Value of Originality

Capitalism and European-based conceptions of ownership dictate that individuals should acquire objects and value them for both the status they infer and their unique qualities. An emphasis is placed on innovation, and rewarding those who both develop and financially support these innovations. Radios with superheterodyne receivers were deemed more valuable than single-band receivers in the 1920s, and you might as well not even have a cell phone if isn’t going to be the iPhone 5. With this ingrained outlook on individual property rights and ownership, one can imagine how Spanish, British, and Russian settlers to the West Coast reacted when they first witnessed First Nations families giving away, and in some cases destroying (AHRG, 2001), most of their belongings during potlatch ceremonies (Jonaitis, 1991). Many Aboriginal cultures throughout North America did not (and still do not, in specific circumstances) value objects in and of themselves, and this is one of the reasons why the repetition of designs, the intricate ornamentation of mundane items, and the ritual destruction of valuables was commonplace. As a result of the gift economy system, and the belief that lineage and cultural rights mean more than material goods, it is easy to understand why issues such as copyright and individual ownership of objects were not a concern in the past. However, through colonial activity and the propagation of capitalism, these issues have become a concern to Aboriginal peoples around the world.

The “identifiable creator” and the “originality” requirements to protect works under Canadian copyright law are often difficult to meet within the context of Aboriginal cultural property. The difficulty with these requirements can be identified when considering the example of mass-produced model totem poles (Spratley, 2007). Most tourist shops in Vancouver carry small totem poles created from black resin and stone powder that are intended to resemble the miniature totem poles that were carved from Haida Gwaii argillite beginning in the mid-1800s. In fact, all of these replicas are based on original argillite sculptures that originate from Haida Gwaii and are now in museum collections throughout North America. Some of these poles carry artist attributions, but many do not. Companies such as North Vancouver’s Panabo Sales take advantage of the fact that most of these sculptures were never signed by artists (no identifiable creator) and that most poles depict near-identical crest figures (similarities that can be deemed unoriginal).

It may be true that First Nations’ conceptions of originality and ownership differ from prevailing views on these topics, but it is also true that third parties should not be profiting due to the Copyright Act’s inability to protect the cultural property of Aboriginal cultures. 

Solutions

Recent research on the subject of cultural property and the protection of immaterial works within North America’s First Nations communities has demonstrated a disconnect between Aboriginal values and Occidental legislature. While anthropologists, lawyers, art historians, politicians, and First Nations representatives possess differing viewpoints on this subject, several common (and essentially short-term) solutions continue to emerge. 

First, it is recommended that Aboriginal communities meet to identify what is most important to protect and preserve. Family crest figures are traditionally inherited and sacred, but with the popularity of the First Nations art/jewellery market, and the widespread production and consumption of these crest figures, this is not likely an aspect of First Nations cultural property that is a priority to protect. Another consideration for First Nations groups to consider is sacred knowledge. While it is ideal to record and legally protect immaterial creations, some knowledge and works are likely sacred and should never be accessible to those outside of the community. These are issues that must be fleshed-out by individual communities and cultures before any contracts or legal documents are considered. 

Second, there are contracts that can limit access to cultural works. These documents can provide some protection when copyright laws cannot. Prior Informed Consent agreements are one type of document that can aid First Nations communities in controlling how outsiders interact with their culture. For example, PCIs can outline allowable research activities for academics and scientists, and can limit the types of materials that are studied, and even viewed (Carino, 2005). 

Third, protection can be found through various forms of Intellectual Property law, outside of copyright. Copyright is a specific form of Intellectual Property law, but legislation exists that can be applied to broad aesthetic aspects of Aboriginal works. This is especially true here on the west coast of North America, where the Aboriginal aesthetic systems are incredibly rigid and well established (i.e. forms such as the ovoid, tri-neg, and split-u can be found in most Northwest Coast artworks). One form of Intellectual Property law that is an alternative to copyright is the Industrial Design Act. This piece of legislature protects creators against the unlawful imitation if distinctive designs. Similar to much Intellectual Property law, the Industrial Design Act is not a long-term solution, for it is only active for ten years at a time (Brascoupe and Endemann, 1999). However, this type of protection can be useful in certain circumstances, such as protecting the symbolism of the Inuit Inukshuk during the mass of manufacturing that occurred in preparation for the 2010 Winter Olympics. 

References

Applied History Research Group. ‘Canada’s First Nations – Native Civilisations: Haidian’ from the University of Calgary’s Applied History Research Group website. Calgary, AB: University of Calgary, 2001. Accessed 21 February 2012: http://www.ucalgary.ca/applied_history/tutor/firstnations/haidian.html

 

Brascoupe, Simon and Endemann, Karin. Intellectual Property and Aboriginal People: A Working Paper. Ottawa, ON: Department of Indian Affairs and Northern Development, 1999. Accessed 11 February 2012: http://www.collectionscanada.gc.ca/webarchives/20071126004942/http://www.ainc-inac.gc.ca/pr/ra/intpro/intpro_e.pdf

 

Brown, Michael. ‘Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property’ from International Journal of Cultural Property. Cambridge, UK: Cambridge University Press, 2005. 12(01): 40-61. 

Canadian Admiral Corp v. Rediffusion Inc., [1954] 20 C.P.R. 75, para 28. 

Carino, Joji. ‘Indigenous Peoples Right to Free, Prior, Informed Consent: Reflections of Concepts and Practice’ from Arizona Journal of International and Comparative Law. Tucson, AZ: University of Arizona, 2005. 22(01): 19-39. 

Carpenter, Megan. ‘Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community’ from Yale Human Rights & Development Journal. New Haven, CT: Yale Law, 2004. 7(51): 51-79. 

Crews, Kenneth. ‘International Copyright Summaries’ appendix to Copyright Law and Graduate Research Manual. Ann Arbor, MI: ProQuest, 2000. Accessed 27 February 2012: http://www.proquest.com/en-US/products/dissertations/copyright/Summary.html

 

Dambiec, Dieter. ‘Indigenous Peoples’ Folklore and Copyright Law’ from Media Monitors Network website. Brea, CA: MMN, 27 September 2005. Accesed 21 January 2012: http://usa.mediamonitors.net/content/view/full/20295

 

Fisher, Robin. Contact and Conflict: Indian-European Relations in British Columbia - 1774–1890. Vancouver, BC: University of British Columbia Press, 1977. 

Jonaitis, Aldona. Chiefly Feasts: The Enduring Kwakiutl Potlatch. Seattle, WA: University of Washington Press, 1991. 

Sprately, David. 'Copyright Law Offers Poor Protection for Aboriginal Cultural Property' from The Lawyers Weekly website. Ottawa, ON: LexisNexis, 23 November 2007. Accessed 21 February 2012: http://www.lawyersweekly.ca/index.php?section=article&articleid=578