Aboriginal artistic practices, cultural heritage and cultural appropriation: some thoughts on the subject

The Montreal Artists’ Legal Clinic recognizes that it approaches this subject from a Western legal perspective rooted in a post-colonial system that has negatively affected First Nations and their rights.

by Marie-Ève Frédéric

Cultural heritage as defined by UNESCO exists beyond the individual or a material object. The term designates a body of knowledge and traditions in various forms as well as a whole range of creations representing a way of life transmitted from generation to generation. In the case of communities evolving on the margins of the “dominant” culture, because of the still pervasive colonial legacy, the protection of cultural heritage is even more important.

What is cultural appropriation?

In the face of numerous recent allegations of cultural appropriation, particularly in the world of fashion and the arts, it is clear that Indigenous communities are among those most affected by this phenomenon, while at the same time experiencing the most difficulty in having their voices heard in order to correct the situation. Cultural appropriation is a harmful practice whereby a person from a dominant culture appropriates and modifies a traditional cultural expression from another community without their consent and for their own benefit.

Although the phenomenon of cultural appropriation has been in the media for a number of years, it is far from being a recent phenomenon. In fact, according to a study conducted by the Pauktuutit Inuit Women’s Association in 1997, 81% of Indigenous artisans surveyed stated that they had observed some form of cultural appropriation, often through the inappropriate use of traditional designs. For many Indigenous artists, the unauthorized borrowing of their artistic expressions represents a real attack on their creations and their economic self-sufficiency. Indeed, the appropriation of the works of Indigenous artists through the sale of products falsely presented as authentic directly and negatively affects the economic viability of First Nations in a potential Indigenous cultural and/or craft market that the communities may wish to develop.

Legislative barriers to protection

There are legal means in Canadian law to protect artistic creations and intellectual property in general. Among these are the Copyright Act, the Trade-marks Act, the Patent Act or even the United Nations Declaration on the Rights of Indigenous Peoples (art. 31). The notion of intellectual property refers to copyright, trademarks, patents and appellations (appellations contrôlées). Although few protections are really applicable to the specific context of cultural appropriation, these laws could provide for some control by indigenous peoples over some of the creations that constitute their cultural heritage: music and musical instruments, songs, drawings, weavings, etc.

In reality, these laws hit several walls. Canadian law was in fact conceived in a very different paradigm that the ones of the First Nations. With the primary objective of granting an author (artist) exclusive economic rights over his or her creation, Canadian copyright law is not at all in line with a fundamental idea of First Nations’ ethics, which values the development of collective identity over individual economic gain. 

The greatest obstacle is in the very purpose of copyright protection. Copyright is not applicable to ideas, but rather to tangible expressions of them. In general, indigenous intellectual and spiritual life is transmitted through rituals and traditional knowledge (artistic practices, myths and legends) which often do not take an identifiable tangible form (e.g. oral transmission).

Moreover, there are several gaps that hinder the use of these laws by the First Nations and that show a dissonance between Canadian law and Indigenous reality: 

  • Copyright is a property that belongs to an individual or a limited group of identifiable individuals (authors). However, the traditional Indigenous paradigm is more in the perspective of a collective knowledge specific to the community from which it emerges. 
  • Copyright is limited in time, i.e. to a period of 50 years after the death of the author (or the last of its co-authors in the case of a collaborative work), after which it falls into the public domain. Indigenous traditional knowledge is part of a continuum of time.

So, to conclude, we will leave you with four main principles of the World Intellectual Property Organization (WIPO) to prevent artistic expression that might constitute cultural appropriation: 

  • Try to understand and respect the holders of traditional cultural expressions.
  • In cases where an individual would like to transform a cultural expression, always do so in a respectful manner knowing that it is a traditional cultural expression (often with a symbolic history)
  • Whenever possible, always acknowledge the sources to show recognition to the holders of these cultural expressions. 
  • Work with the holders of these cultural expressions to obtain their permission to use their cultural expressions.