Appendix Three: Indigenous Knowledge and Considerations for Inclusion in OER

This Code has focused on the copyright considerations, specifically the application of fair dealing, for the inclusion of third-party copyright-protected material in the creation and adaptation of OER. It has emphasized the critical importance of selecting materials for pedagogical purposes and illustrated how the fair dealing factors should be assessed in four typical use cases. However, it is important to note that the inclusion of Indigenous knowledge and cultural expressions can generate non-copyright related considerations.⁴¹

In Indigenous communities it is usually a group or society, rather than an individual, who holds the knowledge or expressions. These groups monitor or control the use of these expressions to pass on important knowledge, cultural values, and belief systems to later generations. The groups have authority to determine whether the knowledge, expressions, stories, and images may be used, who may create them and the terms of reproduction. Before the copyright law was developed in the Canadian common law and statutory law, the various confederations, nations, tribes, clans, and societies created, preserved, and nourished this knowledge and these expressions.⁴²

Indigenous Knowledges may include skills, innovations, know-how and practices developed by Indigenous peoples related to biodiversity, agriculture, health, and craftsmanship. As a further definition: “Indigenous knowledge and cultural expression include but are not limited to tangible and intangible expressions including oral traditions, songs, dance, storytelling, anecdotes, place names, and hereditary names.”⁴³ As well it is important to note that Indigenous knowledge is not static and does not only relate to traditional knowledge as further stated in the CFLA-FCAB Position Statement Indigenous Knowledge In Canada’s Copyright Act: “Indigenous knowledge is dynamic and has been sustained and transformed. Indigenous people continue to produce new knowledge in new media including music, theatre and dance, photographs, film, poetry, literary expression, language applications, blogs, social media, digital collections, etc.”⁴⁴

In the Canadian context Indigenous refers to First Nations, Métis, and Inuit peoples of Canada.

The relationship between Indigenous Knowledges and Canadian copyright law is complex with copyright law creating gaps and barriers in which Indigenous communities are not able to remain the rightful owners of their Knowledges and cultural practices. This has led to Indigenous Knowledges not only being co-opted, but has allowed for the legalized theft of these Knowledges. The current Canadian Copyright Act, and Western adopted intellectual property regimes more generally, do not adequately recognize or protect Indigenous Knowledges and cultural expressions. A key failing of the current Canadian legislation is that it generally does not accommodate or reflect, among other things, Indigenous concepts of ownership and knowledge transfer, or an understanding of community ownership and its duration.

In the context of OER and Indigenous Knowledges, OER, when developed in a culturally responsive manner can support the sharing of Indigenous Knowledges, language revitalization, and cultural resurgence. And while there are benefits to OER for both Indigenous and Settler communities there are special considerations that need to be taken to ensure that Indigenous protocols are being followed. Best practices need to be established to ensure that Indigenous Knowledges are not being co-opted and are being disseminated in a way that reflects community understandings of those Knowledges and ensures that certain Indigenous Knowledges remain owned and protected by the communities that they originate from.⁴⁵

In the 2018 Intellectual Property Strategy, the Canadian Government committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).⁴⁶ Article 31 of UNDRIP specifically addresses Indigenous knowledge and cultural expressions:

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.
2. In conjunction with Indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.⁴⁷

On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act received Royal Assent and came into force.⁴⁸ This legislation seeks to aid in the implementation of UNDRIP as an obligation of the Federal Government. As Canada works towards adopting UNDRIP and understanding and ensuring the appropriate means in which to recognize and protect Indigenous knowledge and cultural expressions, creators, and adapters of OER should consult with Indigenous communities prior to using any Indigenous content, regardless of the outcome of a fair dealing or public domain assessment. This will aid in establishing ethical and respectful use of Indigenous knowledge and cultural expressions.