Canadian Lawyer

40 J U N E 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m were made to the IP regime in that country that served to empower the Maori to be the protector of their cultural heritage, and pro- hibit offensive incidents from occurring." When cultural heritage is in the news, it's usually when someone is using an aboriginal symbol in an offensive way, notes Alexander. "The ability to trade- mark a culturally offensive name is an area that needs to be reformed in Canada. In New Zealand, it was. They amended their trademark legislation so a trade- mark could not be registered if potentially offensive to Maori." New Zealand now has an expert body for review of matters or issues that could be considered offensive. "Canada hasn't been very receptive to opening up its intellectual property laws — I think they think it's a floodgate argu- ment — that if you open it for any specific review, all the issues that exist with IP law people would want changed." Meanwhile, cultural heritage continues to be endangered by the lack of legal pro- tection, says Alexander. "In every single area of IP law, there is an area it could be reformed — on the copyright front, it is intended to mostly recognize natural or legal persons and is limited to their natu- ral life. With aboriginal cultural heritage, the difference is most aboriginal cultural heritage is passed from one generation to the next with no specific owner." Aman Gebru is researching traditional knowledge and is also part of the IPinCH project and a SJD candidate at the Uni- versity of Toronto's Faculty of Law. Last fall, he wrote a paper called "Intellectual Property Law and the Protection of Tra- ditional Knowledge: From Cultural Con- servation to Knowledge Codification." His paper states the legal protection of traditional knowledge — the knowhow, skills, and practices of indigenous and local communities — has become a focus on the national and international stage. He argues it's a growing area of concern in the world of IP and says he can see potential for legal challenges to emerge in the future. "There are two different ways people are looking at this — in the literature it's called defensive protection and positive protection," he says. The defensive protection is less con- troversial, where advocates of traditional knowledge protection are trying to stop people from acquiring IP rights over traditional knowledge — for example, if a pharmaceutical company goes into an indigenous community, learns about the use of a certain plant for treatment of disease, does a little more research, and then patents the knowledge. "The defence protection is less controversial and it is where advocates are trying to stop people from acquiring intellectual property rights over traditional knowl- edge. The defensive protection would say it's not innovative enough so getting private rights over this knowledge is not useful to society at large," he says. The flipside to that, which is more con- troversial, is positive protection, which is about granting rights to these communi- ties — empowering them to promote their knowledge and control use by outsiders and benefit from the resulting innovation. "So a pharmaceutical company would develop a drug and a share of the profits would have to go to the communities," he says. "In the past, the sharing of benefits has not happened. My research is saying that, in addition to the fairness arguments, there is an economic efficiency argument — it's economically rational to protect this knowledge because there's huge value to come out of it." Gebru is focused on the medicinal aspect of traditional knowledge, which can include bioprospecting. Instead of blindly searching for plants with viable characteristics, researchers go to commu- nities and ask what they use and what is an interesting plant and are guided by this traditional knowledge. The idea is to combat incidents of biopiracy. "If you look at biopiracy cases, communities have been very shy, as a result of those bad experiences, to say, 'OK, we're not going to share our knowl- edge because our knowledge is used against our will, and sometimes no rec- ognition is given.' So the attribution is important to say they got the knowledge from this community, which may be suf- ficient because it's not only about money." When companies make millions and the community doesn't get anything out of it, the community becomes more restric- tive in giving access. "I look at that and say the win-win solution is to go ahead and encourage communities to document their knowledge and then disclose to out- siders, but the intellectual property law rule is to say your knowledge is protected even if outside the community." Gebru's research also looks at free trade agreements like the Trans-Pacific Partnership that mentions traditional knowledge. "In the next five to 10 years, trade agreements will be the more inter- esting area of IP," he says. "This is going to be the side story that could take over — if you look at the dynamics that call for traditional knowledge to be protected as IP in response to this pressure from conventional IP advocates to say we need more intellectual property protections. Communities are going to say if you need stronger protections maybe we should require protection for our type of knowl- edge — it's a clash between world views taking place internationally." David Schwartz, past president of the Intellectual Property Institute of Canada and a partner at Smart & Biggar/Fether- stonhaugh in Ottawa, says the appropriate Latin term for this may be sui generis — in a class or group of its own. "It's all rath- er amorphous right now," says Schwartz. "Biopiracy suggests to me that someone in a dominant position — whether it be resources or sophistication like a drug company — would go and obtain from a weaker party — such as an indigenous population — materials or information that are then utilized to make a proprietary and profitable drug product. By and large, you could not patent traditional knowledge because it is already in the public domain," says Schwartz. "If people are treating them- selves using leaves of a particular plant to treat a headache, you couldn't patent that. " However, he notes, there are treaties that address this kind of thing. The Con- vention on Biological Diversity and, as

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