Copyright Law Offers Poor Protection for Aboriginal Cultural Property
By David Spratley
November 23 2007
The city of Duncan, a small town in the Cowichan Valley on Vancouver Island, is often referred to as the “City of Totems” because of its many totem poles. In the summer of 2007, Duncan’s city council created a totem copyright policy which purports to govern the use of images of the city’s totem poles.This policy is most likely unenforceable from a copyright perspective, but it highlights the disconnect between Canadian copyright law and aboriginal culture.
The totem copyright policy is based on the premise that Duncan holds copyright in the city’s totem poles, and therefore that the city is able to control use of images of the totem poles.
Several issues are immediately apparent. First, on what basis does Duncan claim to own copyright in the various totem poles located in or around the city? Generally, copyright subsists in the individual who creates the work, and its term is based on the life of that individual. Unless the totem poles were all created by city employees, or unless the individual artists who carved the totem poles all assigned copyright to the city, Duncan’s claim to copyright ownership is suspect.
Second, copyright in older totem poles may have expired (the current general copyright term in Canada is the life of the author plus 50 years). If copyright has expired, a work is in the public domain.
Third, it is not infringement for any person to reproduce “a sculpture or work of artistic craftsmanship” that is permanently situated in a public place or building (see s. 32.2(b)(ii) of the Copyright Act). Therefore, even if Duncan did own copyright in a particular totem pole, the city could not prevent people from taking pictures of that totem pole, either for personal or commercial use.
Finally, the totem copyright policy raises the broader issue of how copyright law should apply to aboriginal culture. Current copyright law is not well suited to protecting aboriginal cultural property. Copyright protects creative expression (i.e., literary, artistic, musical and dramatic works). For copyright to exist the work must be “original” (it is not copied from another work and is the product of the author’s exercise of skill and judgment); the work must be expressed in material form capable of identification and having a more or less permanent character (the “fixation” requirement); and the author or authors of a work must be identifiable.
Cultural property is a general catch-all phrase for aboriginal people’s traditional legends, stories, histories, music, songs, art, handicrafts, tools, buildings, geographic names, knowledge and methods.
Many forms of aboriginal cultural property are obviously creative expression. Yet many pieces of cultural property do not have the necessary characteristics to trigger copyright protection.
Consider the “originality” requirement. Many aboriginal cultural works are based on traditional themes or designs. Specific works may still be “original,” but copyright law makes it difficult to protect traditional expressions which depend on unchanging characteristics. And some aboriginal cultures require that certain cultural expressions not be varied or altered in any way. If a traditional work is not “original,” it cannot be protected by copyright.
The identifiable creator requirement causes another problem. It may not always be possible to identify the creator or creators of traditional cultural property. Even if the creator is known, the idea that that individual “owns” copyright in the work to the exclusion of all others does not necessarily fit into the framework of aboriginal culture. Cultural property generally belongs to the aboriginal culture as a whole, not to individual members, and should be accessible and usable by all members.
The fixation requirement is also problematic, particularly with respect to oral traditions. Stories, legends and histories are passed on orally, rather than in writing, from generation to generation, such that there may be no fixed work to satisfy the fixation requirement.
Even if an oral story is reduced to writing, who will own the copyright? Aboriginal histories and stories are often gathered through interviews with tribal elders. Under Canadian copyright law, the person who makes notes or a report of another person’s speech, interview or conversation owns copyright in that report (except when the writer is essentially taking dictation).
In some situations, therefore, the person who creates the written work (whether aboriginal or not) will hold copyright in that work.
This scenario has caused controversy when non-aboriginal researchers have ended up owning copyright in written stories and histories by and about aboriginal peoples resulting from their research. This sort of situation can be avoided by simple private legal arrangements, but this is not always contemplated before the fact.
Another pertinent question is whether there is much benefit to acquiring copyright protection at all. Copyright obviously helps prevent persons other than the copyright holder from copying a work, but aboriginal cultures may prefer to focus on community rather than individual ownership — it can be important for an entire culture to be able to access and use the stories, art, music, etc., which help define that culture.
As well, copyright protection only lasts for a specific period of time, which is not very useful for protecting historical cultural works.
Copyright law can certainly protect some aboriginal cultural property in some ways. For example, Australian courts have used copyright law to prevent the unauthorized reproduction of aborigine art (see Milpurrurru v. Indofurn Pty Ltd. (1994), 54 F.C.R. 240 (Fed. Ct of Australia)). That decision, though, clearly states that existing copyright law is not ideal for protecting aboriginal cultural property. There are no simple answers to the question of how protection of aboriginal cultural property and existing copyright laws can be reconciled.
Duncan’s totem copyright policy serves as the most recent reminder of this problem.
David Spratley is a member of Davis LLP’s intellectual property, technology and video game practice groups in Vancouver. He has written and presented papers and advised clients about the relationship between intellectual property and aboriginal cultural property.