“It is a truth universally acknowledged that a single culture in possession of good traditional knowledge must be in want of intellectual property rights.”

(Sun) Salutations: Yoga from Which People, Again?

Though litigation around Bikram Yoga, Evolation, and Yoga to the People seems to have settled into Savasana (“corpse pose”) for the moment, certain legal issues it raised remain live as a Vajrasana-struck wire. Austen's tart (and somewhat doctored) observation aside, the notion of copyrighting a practice as historically and culturally steeped as yoga provides a timely platform from which to explore the intersection of intellectual property law and traditional knowledge, an issue particularly relevant to Canadian IP lawyers in an Aboriginal rights context.

In Bikram’s Yoga College of India v Evolation, lawyers in California sparred over doctrinal reasons to grant or withhold copyright, necessarily assuming a starting point that ignored the larger backdrop of another battle occurring in the increasingly commercialized yoga community, fought under the Hindu American Foundation's (HAF) banner of “Take Back Yoga”. Rather than highlighting distinctions between utilitarian and non-utilitarian works, form and expression of a system, or choreography, sports, and exercise, Take Back Yoga's entreaty for yoga practitioners to recognize its roots in Hinduism raised an arguably even more fundamental question: on what basis was a spiritual practice rooted in thousands of years of Indian culture and history being subjected to an American legal ownership framework to begin with?

Just as some questioned Choudhury's right to copyright yoga, one might question American yoga practitioners' right to maintain unilaterally that yoga “is a gift to all mankind, and thus beyond claims of ownership and copyright”. The preface and widespread response to the Take Back Yoga campaign are outside the scope of this article, but the storm among the calm brought to the forefront larger issues of cultural appropriation, including biopiracy, assisted by the territorial nature of intellectual property laws. The cases of Ayurvedic medicine, turmeric, and basmati all illustrate this phenomenon. While it so happens that the Indian government agrees with keeping yoga and other cultural heirlooms “open source”, so to speak—hence the lauded and critiqued Traditional Knowledge Digital Library to assist prior works discovery—this is far from a universal stance. Which brings us to Aboriginal traditional knowledge and cultural property, and its relationship with Canadian intellectual property law.

An IPR by Any Other Name: Aboriginal Cultural Heritage and Traditional Knowledge

As no amount of textual yoga would fit this topic adequately into a single post, the following will be limited to highlighting specific issues and potential solutions in applying intellectual property law to the protection and preservation of Aboriginal cultural property and traditional knowledge in Canada. Many of the concepts presented may apply in other cultural contexts, as well.

I. Knowledge is Power...and Property

First, traditional knowledge, according to a Davis LLP paper citing Robert Howell (full disclosure: a professor at the University of Victoria), includes “folklore, traditional knowledge, innovations and practices; music, songs, dance for entertainment or education; graphics, designs, crafts, textiles, paintings and three dimensional arts; signs and symbols.” What is critical, however, is “the integration of these features into a cultural system”. Appropriation is not just unauthorized taking, but taking in part through the stripping of cultural context, as implied in HAF's complaint regarding yoga.

While conventional intellectual property law mechanisms may provide protection to some extent, they often fall short where practical realities clash, or where foundational rationales underlying such laws fail to align with those of Aboriginal perspectives towards what Canadian law considers property (whether intellectual, cultural, tangible, or intangible).

II. Not Seeing IP to IP

Examples of such incommensurability as indicated above include: Canadian IP law tends to focus on individual authorship or ownership as opposed to communal or collective ownership. IP rights such as copyright, patent, and industrial design have set limitation periods, while family crests under certain Aboriginal laws or customs, for example, would necessitate perpetual copyright or trademark, at the risk of inducing severe offence and humiliation for some. There would likely require a significantly higher emphasis on strict moral rights than Canadian jurisprudence has shown. Furthermore, it would be difficult to look back in time far enough to confirm criteria such as originality (copyright), use (trademark), or prior work (patent) within hundreds of years of history, not to mention the inapplicability of premature disclosure to communal patent claims. Oral traditions would pose a challenge to the fixation requirement in copyright.

There are two overarching issues in addition to the above. The first is the fact that Canadian intellectual property law is based on an innovation-driven commercial bargain at heart, whereas much traditional knowledge and cultural property is often inherently non-commercial and not necessarily primarily innovation- or “progress of science and useful arts”-driven, involving completely different purposes and having emerged within vastly different contexts. The second is potential conflict of law matters between Canadian law and Aboriginal self-government, where the treatment of and laws surrounding cultural property and traditional knowledge is concerned. Globally speaking, international agreements provide even less protection than domestic laws, with additional difficulties in trans-border enforcement: see Howell's paper for examples from Cuba, the Maori in New Zealand, and the Nisga'a in British Columbia; and Catherine Bell's paper for a case study in repatriation of a Nuxalk Nation mask.

III. Progress of Sui Generis and Useful Laws

The legal field has put forward a number of potential or partial solutions to some of the above issues. The Davis paper, for instance, provides a comprehensive overview of cultural property protection strategies available in copyright, trademark, and patent law, as well as their limitations. Two other possibilities stand out, however, and would be worth further pursuits: sui generis legislation and legal pluralism.

Sui generis legislation recognizes the unique nature of traditional knowledge and cultural property, relative to conventional intellectual property for which Canadian IP law was made. For examples, WIPO has compiled a list of sui generis laws on traditional knowledge from around the world. Interesting theories supporting sui generis approaches to traditional knowledge are (1) the idea that “cultural property” is paradoxical terminology for an oxymoronic initiative that sterilizes rather than preserves culture and (2) the notion that the intangibility and fluidity of culture requires approaching traditional knowledge as an information ecology, with ecologically minded protection strategies. One remarkable example of a sui generis model in action is the collaborative Sawau Project in Fiji.

Legal pluralism may overlap with both sui generis laws and Aboriginal self-government, in the sense of opening up normative Canadian intellectual property law to accommodate forms of law that are more suitable to serving the needs of cultures that wish to protect their respective traditional knowledge and cultural property. Catherine Bell's paper above discusses this approach. For a specific example, see Lucy Mary Christina Bell's study of the Kwakwaka'wakw and her application of their ceremonial customs to intellectual property and traditional knowledge disputes.

To conclude, one might consider a suggestion by Val Napoleon (disclosure: also at the University of Victoria) as cited in Luke McNamara's book review: part of the problem may be the relegating of all traditional knowledge and related concepts to the category of “cultural” to begin with, making such claims “disembodied from its political, social, economic, and legal moorings within their societies [and thus causing] displacement of property from that which gives it meaning and coherence[, which] hinders efforts to protect it.” However one looks at it, it seems that today's increasingly globalized world all but ensures that even those who are not in want of intellectual property rights may nevertheless find themselves in need of them.

Cynthia Khoo is a JD Candidate at the University of Victoria.