CRTC: Indigenous peoples underrepresented on Commission

CRTC Chairman Jean-Pierre Blais this week launched a set of hearings regarding applications to operate radio stations serving Indigenous Canadians in five major Canadian cities.  However, the panel for the hearing, Blais noted, "does not include Indigenous members."  Governments past and present, Blais noted, have failed to appoint CRTC Commissioners "for almost 20 years."

After calling on Elder Monique Renaud, Métis of Algonquin and Huron-Wendat descent, to open the hearings, Blais noted, referring to the findings of the Truth and Reconciliation Commission:

The Canadian broadcasting system plays an important role in the reconciliation of Indigenous peoples with Canadian society. The Commission also raised the immediate need to serve the Indigenous community as a whole since vital questions of importance to Indigenous Canadians are not completely covered, or not covered at all, by non-Indigenous media.

The National Post noted, earlier this week:

This isn't the first time Blais has criticized the lack of diversity.  He previously chastised telecoms for not including a representative number of women at the public hearings. 

Currently, only seven of a possible 13 commissioner spots are occupied. Two are women.Two more seats will be vacant by June, leaving five commissioners unless the government speeds up its hiring process.

 In 2015, the CRTC had revoked the licences of Aboriginal Voices Radio in Toronto, Vancouver, Calgary, Edmonton and Ottawa for licence non-compliance and called for new applications, of which twelve have been received.

Along with the current set of licencing hearings, the CRTC has promised a review of its policies on Indigenous Radio. A conference in Ottawa is planned to set stage for this review, to take place June 15-17 2017.

The review of the Canadian Broadcasting Act, promised in the Liberal's 2017 Budget, should work to  correct the inadequacy with which the Act addresses Aboriginal media.  The Government should also address the inadequacy of representation of indigenous peoples among the CRTC's Commissioners.

WIPO indigenous peoples' representation still lacking

Nelson Kantule, from the Kuna Peoples in Panama (Kunas unidos por la madre tierra), and Preston Hardison, policy analyst for the Tulalip Tribes in the United States, were interviewed recently by IP-Watch about the current ongoing negotiations about intellectual property and traditional knowledge at the World Intellectual Property Organization (WIPO).

WIPO traditional knowledge negotiations have long failed to include sufficient representation by indigenous peoples, and have been ongoing for many years with few, if any, results.  Chapter 9, "The role and inclusion of indigenous peoples in international copyright", of my book International Copyright and Access to Knowledge,  recounts this history of failure and places it in the context of indigenous peoples' representation in the United Nations more broadly.  

I note that in 2007,  the Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly.  Article 18 of that declaration provides that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.”

WIPO’s efforts to implement Article 18 have been deemed inadequate by some indigenous peoples, and WIPO has been called on by the United Nations Permanent Forum on Indigenous Issues to improve its implementation of the declaration.

Indigenous peoples' representation at WIPO has been so bad that in February 2012 most indigenous observer delegates to the IGC stood and walked out of IGC negotiations in protest of “the continuing reduction in the quantity and level of their participation.”

In May 2012, the United Nations Permanent Forum on Indigenous Issues chastised WIPO, issuing a number of recommendations to WIPO aimed at addressing some of the problems that had been identified.  It called on states “to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee” (p. 9-10).

As of my last check, the Forum's recommendations had not yet been addressed by WIPO, and Kantule and Hardison's account seems to confirm that WIPO's response has been inadequate.

New Book: International Copyright and Access to Knowledge

My new book, International Copyright and Access to Knowledge,  is now available from Cambridge University Press.

The principle of Access to Knowledge (A2K) has become a common reference point for a diverse set of agendas that all hope to realize technological and human potential by making knowledge more accessible. This book is a history of international copyright focused on principles of A2K and their proponents. Whilst debate and discussion so far has covered the perspectives of major western countries, the author's fresh approach to the topic considers emerging countries and NGOs, who have fought for the principles of A2K that are now fundamental to the system. Written in a clear and accessible style, the book connects copyright history to current problems, issues and events.

"Sara Bannerman's thoughtful and compelling book is a must-read for all of those interested in the challenges of increasing access to knowledge. She offers historical perspective on the narrowing of the knowledge commons and identifies opportunities for positive change going forward."
-Susan K. Sell, George Washington University

 International Copyright and Access to Knowledge is available through CUP, Amazon, on Wordery. An excerpt is available here.  Purchases through CUP can make use of 20% discount code Bannerman2015.

WIPO meets on Genetic Resources; Participation of Indigenous Peoples at issue

The Intergovernmental Committee on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources (IGC) meets this week at WIPO.  The Committee is working on negotiating a new treaty or soft law instrument on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources.  This week's work will focus on genetic resources, with future meetings this year on traditional knowledge, and traditional cultural expressions.

The meeting begins today with a half day panel of indigenous and local communities - the IGC's traditional way of beginning each meeting - in an effort to include indigenous and local communities in their work.  At the meeting today James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples, gives the keynote.

The IGC's efforts to include indigenous peoples in their work has been subject to both criticism and commendation by the United Nations Permanent Forum on Indigenous Issues.  In February 2012 indigenous delegates walked out of WIPO in frustration at their inability to adequately participate in the negotiations.  Indigenous delegates at WIPO meetings have no power to submit text proposals on  the texts under discussion, and must do so through state delegations.  Concerns have been raised that, under the draft texts, states - rather than indigenous peoples - could grant themselves control over the traditional knowledge, cultural expressions, and genetic resources of indigenous peoples. Many delegates to the Permanent Forum argued that the processes underway at WIPO "only barely masked States’ desires to appropriate indigenous resources." Such views stem, in part, from the fact that the current draft texts use the term "beneficiaries", without specifying that "beneficiaries" must be indigenous peoples, thus leaving the door open to states defining the state itself as the beneficiary of protection. 

The Permanent Forum on Indigenous Issues has, as a result of these controversies, issued a set of recommendations to WIPO, following a consultation:

46. The Permanent Forum recommends that WIPO seek the participation of experts on international human rights law specifically concerning indigenous peoples so that they provide input into the substantive consultation process, in particular with reference to the language in the draft text where indigenous peoples are “beneficiaries” and other language that refers to indigenous peoples as “communities”, as well as the general alignment of the draft text of the Intergovernmental Committee with international human rights norms and principles.

47. The Permanent Forum demands that WIPO recognize and respect the applicability and relevance of the Declaration as a significant international human rights instrument that must inform the Intergovernmental Committee process and the overall work of WIPO. The minimum standards reflected in the Declaration must either be exceeded or directly incorporated into any and all WIPO instruments that directly or indirectly impact the human rights of indigenous peoples.

48. The Permanent Forum appoints Mr. Paul Kanyinke Sena, a member of the Forum, to undertake a study to examine challenges in the African region to protecting traditional knowledge, genetic resources and folklore, and to report thereon to the Forum in 2014.

49. The Permanent Forum welcomes the decision of the Intergovernmental Committee to organize, in cooperation with the Forum, expert preparatory meetings on the Intergovernmental Committee process for indigenous peoples representing the seven geopolitical regions recognized by the Forum.

50. The Permanent Forum requests that WIPO commission a technical review, to be conducted by an indigenous expert, focusing on the draft texts concerning traditional knowledge, genetic resources and traditional cultural expressions, and to provide comments thereon to the Intergovernmental Committee through the Forum. The review should be undertaken within the framework of indigenous human rights.

51. The Permanent Forum calls upon States to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee.

52. Consistent with article 18 of the Declaration, the Permanent Forum requests Member States to explore and establish modalities to ensure the equal, full and direct participation of indigenous peoples in all negotiations of the Intergovernmental Committee.

53. As highlighted in article 31 of the Declaration, the Permanent Forum requests that both WIPO and States take effective measures and establish mechanisms to recognize the right of indigenous peoples to protect their intellectual property, including 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.

54. The Permanent Forum calls upon WIPO to strengthen its efforts to reach out to indigenous peoples and to continue to provide practical assistance and capacity strengthening for and in cooperation with indigenous peoples.

55. The Permanent Forum calls upon the Intergovernmental Committee to appoint representatives of indigenous peoples as members of any Friends of the Chair groups and as co-chairs of any working groups and drafting groups that may be established by the Committee. It also calls upon the Committee to appoint an indigenous person as a co-chair of the Committee as a whole.

 The IGC held a consultation on the participation of observers and has issued this related document, outlining various options for further indigenous participation.  This discussion will continue this week.

Intellectual Property Issues in ICT4D

My report, Intellectual Property Issues in ICT4D, is now available online. Prepared for Canada's International Development Research Centre, this report reviews intellectual property issues in the area of information and communication technologies for development (ICT4D). Issues covered include open access, Creative Commons, free and open source software, copyright limitations and exceptions, traditional knowledge, collective management organizations, competition policy, the WIPO development agenda, and the draft Access to Knowledge Treaty as they relate to intellectual property and developing countries.

Canada Objects to IP Clauses of UN Declaration on the Rights of Indigenous Peoples

Canada has expressed its intent to vote against the UN Declaration on the Rights of Indigenous Peoples, in part because of objections to clauses it includes on intellectual property. In a press release, Canada said, "We have stated publicly that we have significant concerns with the wording of provisions of the Declaration such as those on: [...] intellectual property[...]."

The intellectual property-related clauses in the treaty include:

Article 11
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 31
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.