1

Ms. prepared for Dynamic Fair Dealing: Creating Canadian Culture Online,

edited by R. J. Coombe and D. Wershler. (Not Final Version)

Indigenous Cultural Heritage in the Age of Technological Reproducibility:

Towards a Postcolonial Ethic of the Public Domain

George Nicholas

Simon Fraser University

In The Past is a Foreign Country, David Lowenthal (1985) explored the degree of which objects,

architectural motifs, and other manifestations of the past permeate the present. The result is that

contemporary Western society—from clothing styles to architecture to art and literature—is

largely composed of elements derived from other times and places. Our access to cultures, both

foreign and ancient, is the culmination of centuries of archaeological and historical inquiry, now

facilitated by the ease of worldwide travel and electronic communication. At once exotic and

familiar, we may find Egyptian motifs showcased in Harrods department store in London, or a

version of Stonehenge re-created of upright cars in Nebraska. While such cultural “borrowings”

are certainly not limited to the present day1, never before has there been such ease of access to

world cultural heritage.

The idea that what we are today is the product of everything and everyone that has come before

us fuels the notion that society does (and indeed should) benefit from shared2 ideas and

information, a position promoted by the Open Access and A2K movements, and by individual

scholars (e.g., Boyle 1996; Lessig 2001; Young 2008). Cultural borrowing has inspired

creativity, such as perpetuating ancient stories through new media (e.g., the retelling of Homer’s

Iliad in “Oh Brother, Where Art Though?” [2000]), or the development of new music genres

(e.g., David Byrne and Brian Eno’s use of sampled world voices in “My Life in the Bush of

Ghosts” [1981]). Such creativity is fuelled or enhanced by new technologies3—the ease of

obtaining, manipulating, reproducing, and re-creating stories, images, and music is

unprecedented.

1 For example, the Art Deco movement of the 1930s, was derivative of the Neo-classical movement of the 18

th

century that was fuelled by antiquarian enterprises in the Mediterranean. The Primitivism art movement of the early

20th

century was likewise fuelled by a fascination with “the primitive,” was evident in the work of Picasso, Matisse,

and others. 2 Implicit in the idea of sharing is that is mutual.

3 This includes the manipulation of images for scholarly or artistic purposes (see image and discussion of the “Marx

Venus” in Nicholas and Bannister 2004: 316).

2

The benefits to society of such creativity are tempered by the need to reward the efforts of those

whose research or creative efforts have produced new products. In Western law, protection of

intellectual property is based on property values and “rights”; it is concerned largely with things;

ownership is based on individual rights; and infringement results in economic loss. Protection is

available through such means as copyrights, patents, trademarks, and trade secrecy law. Each

protects very specific types of intellectual property. Generally, the legal protection these afford

to the products of creativity is limited to a set number of years, subject to renewal, after which

the work becomes part of the public domain, where it is available for anyone to use, thus—thus

prompting new opportunities for creativity. The result is a set of laws and social norms4 that

serve to protect the best interests of society.

The situation changes appreciably within a cross-cultural context. Western society has for

centuries turned to the cultural heritage of Indigenous peoples worldwide as a source for

inspiration for stories, art, architecture, and such. This is certainly evident across North America

where traces of the first peoples of the land can be found in tribal names for sports teams, rock

art designs on clothing, and use of sweat lodges in New Age religious practices, to name but

three examples.5 Often these borrowings are often justified as an appreciation of the great

“vanished race,” or that such things are “of the past” and therefore fall within the public domain.

For First Nations peoples, however, these constitute appropriations of their heritage; that is,

unauthorized use of items and expressions that are still important within their culture.

In this essay I challenge the notion of indigenous heritage as being de facto public domain;

identify some of the harms or costs that inappropriate use of their heritage has on First Nations

and other Indigenous peoples, and then discuss the need for developing a postcolonial research

ethic that will facilitate or encourage fair dealing in digital realms and more broadly. I illustrate

the latter through a Canadian-based international research efforts, the Intellectual Property Issues

in Cultural Heritage (IPinCH) Project.

Why Indigenous Heritage is Not Public Domain

In Canada and the United States, it takes very little effort to find things Aboriginal. Images, place

names, traditional designs and art, words and phrases, music, religious practices, traditional

knowledge, and other elements of indigenous cultural traditions are found virtually everywhere.

Western society has become a voracious consumer of First Nations culture: images of

4 However, certain breaches, such as illegal music copying, are generally tolerated; in fact, casual music sharing is

almost a norm (“Here’s a compilation of my favorite music I’ve burned for you”). 5 For a more comprehensive list, see Brown (2003), and companion website (http://www.williams.edu/go/native/).

3

supernatural beings have been transformed into posters, tea towels, and refrigerator magnets; the

inukshuk (standing stone figures) of the Arctic has become the logo of the 2010 Olympics; and

baskets, blankets, masks, and other items fetch astounding prices at auction6.

Representations of Native Americans themselves7—from actual to fictional—and other vestiges

of their culture have been ubiquitous in North America for a very long time. By the 17th

century,

Europeans were becoming familiar with the peoples of eastern North America through the

drawings of John White and others. By the early 19th

century, the focus had shifted to the Plains8,

and the paintings by Karl Bodmer (Rudd 2004) gave way to the photographs, such as those of

Edward Curtis (whose work also included the Northwest Coast and Southwest). In Canada, the

paintings of Emily Carr popularized the totem poles, masks, and other elements of the

Kwakwaka'wakw (Kwakiutl) culture.9 Soon after motion pictures became popular, Curtis’ film

of the Kwakiutl, In the Land of the Head Hunters10

(1914), and Robert Flaherty’s Nanook of the

North (1922), both set in Canada, turned film viewers into surrogate ethnographers11

. However,

it was Hollywood films, perhaps more than any other medium, that solidified the image of

Native Americans in the public’s mind.

Both the audience for, and influence of, these images has increased with each technological

advance in information exchange. Whether newspaper accounts, sketches, paintings,

photographs, sound recordings, and film, television, and now the internet, access to images and

information about Native Americans has risen exponentially in the last 500 years, to the point,

where it is so embedded in Western culture as to be treated as public domain. Furthermore, this

interest focuses on Native American cultures and lifeways largely as they were (or at least

imagined to be) in the past, further separating contemporary First Nations from their culture.

Viewing cultural heritage as primarily something “of the past” is problematic for several reasons.

First, it diminishes respect for and values of heritage often to the level of “quaintness,” curiosity,

6 See American Indian Art magazine.

7 I use this term to refer to the Indigenous peoples of the Americas, north and south.

8 Interest in this region took a different trajectory in Germany; western North America figured prominently in the

writing of the 19th

-century German writer Karl May, whose many novels featuring Native Americans contributed to

the romantic image of Native Americans still strong in Germany, and even influenced Hitler’s battlefield tactics

(Wood 1992). There are many Indian hobby clubs, along with the annual Karl May festival, in which traditional

Native American lifeways is replicated and celebrated (see Andreas Robbins and Max Becher’s photographs of

“German Indians” at the Karl May Festival [robbecher.www4.50megs.com/TonkonowGI.html]). 9 Carr was influenced by Picasso, Matisse, and others involved in the Primitivism movement in European art.

10 This was re-titled In the Land of the War Canoes in 1974 when it was re-edited and a sound track added.

11 In both cases, these were not ethnographic films in a modern, anthropological sense, but the filmmakers’ vision of

those societies, which attempted to restore these societies to their “pristine” (i.e., pre-contact) state.

4

or academic interest. And second, considering cultural heritage as part of the land, not of a

people separates living descendant communities from their past, which, in turn, becomes national

patrimony. Thus, the inukshuk becomes a symbol of all of Canada in the 2010 Winter Olympics,

rather that of the Inuit (Figure 1). The failure of Canada to recognize heritage as “living culture”

is a topic Nicole Aylwin also explores in this volume. Such characterization of heritage has,

arguably, contributed to the idea that Indigenous heritage is part of a Canadian public domain.

What protection do Indigenous peoples have for their cultural and intellectual property when it

falls outside of the scope of Western law? At what point does someone’s cultural heritage

become viewed primarily as legacy of humankind rather than foremost a particular people’s

history and identity? These questions are expressions of a larger discourse on cultural and

culture-based rights (e.g., Brown 2005; Cowan et al. 2007), human rights (e.g., al Attar 2008;

Langfield et al. 2010), cultural sovereignty (e.g., Asch 2000; Chartrand 2009), knowledge

economy (Laird 2006), and other related topics, constitute significant concerns for many First

Nations people in Canada (Bell and Napoleon 2008; Bell and Paterson 2009).

What’s the Harm?

Without question, cultural borrowings may enrich people’s lives in other places and times. They

are generally educational, illuminating the diversity of human lifeways; they are sometimes

creative and playful, such as the use of ethnographic film clips in the B-52s music video

“Roam”; and, occasionally, they are very creative, as in Aboriginal artist Brian Jungen’s

transformation of Nike basketball shoes into Northwest Coast masks12

(Jungen 2005). So why

then are Indigenous peoples and other descendant groups concerned about how their cultural

heritage is used by others?

Cultural heritage consists of both tangible and intangible elements, of ideas and their material

expressions. In Western society these are considered separately; in fact, Western society is filled

with many such dichotomies that neatly categorize the world and everything in it: we discern

male/female, nature/culture, natural/supernatural, good/evil, and so on. In addition, the passage

of time is viewed as linear. However, in many Indigenous societies, however, familiar features

may be absent. There may be more than two genders; time may be viewed as cyclical; and there

may be no perceived distinction between the tangible and intangible elements of cultural

12

These constitute his series “Prototype for New Understanding” (1998-1999). Although Jungen is himself

of Dune-za (Beaver) ancestry of northern British Columbia, the Northwest Coast culture area masks he recreates

belong to other First Nations, and thus may be considered an appropriation, although I have not found any objection

to this by Northwest Coast groups. He also converted eight black leather couches into a Plains-style tepee in

“Furniture Sculpture (2006)”.

5

heritage. Thus, to many indigenous peoples, their world is one in which ancestral spirits are part

of this existence, not some other realm, and material objects are more than just things.

The implications of this are profound, and go far to explaining the depth and intensity of

concerns that First Nations peoples have when seemingly trivial elements of their culture is

appropriated and commodified. Thus, archaeological sites, for example, may not only be places

where traces (e.g., artifacts) of ancient activities are found, but where ancestral beings still

reside.13

Likewise, pictographs (paintings on rock surfaces) are not simply historical

“documents” to be studied or appreciated for their anthropological or artistic values but

reflections of a possibly still active and powerful worldview and spiritual interactions. Indeed,

First Nations peoples often express concern for the health and well being of archaeologists

working in both contexts because they may be encountering formidable, sometimes dangerous

powers. To then have the images of rock art or stone figurines and such used in advertisements,

wine bottle labels, t-shirt designs, and many other contexts may be troublesome.

With this in mind, it is evident fundamental cultural differences between Western and Indigenous

societies persist, even after centuries of colonial impact. These are manifest in notions of

property14

. As already noted, within First Nations societies there may be no distinction between

cultural property (that is, things) and intellectual property (that is, ideas). Protection of

indigenous property is situated in customary law and culture, and is based on social relations and

responsibilities: ownership of information or objects may be communal. Infringement of

property rights may result in cultural, spiritual and economic loss (Table 1).

13

The same holds true for the carved stone bowls and figurines found in archaeological contexts in British

Columbia, which are treated as actual beings, not representations, in the worldview of First Nations communities.

For this reason, at the 1994 BC Archaeology Forum, a First Nations person expressed his outrage that the image of

one such bowl was used on the cover of the conference program. In 2006, the repatriation of the Stone T'xwelatse, a

carved figure that holds the soul of the first male ancestor, was a cause for great celebration in the Sto:lo

community. 14

This is also illustrated in some of the recent literature of Indigenous resistance to the public domain as well as

some of the newer legal literature on public domain and commons. See, for examples of these efforts, Belder 2007,

Bowrey and Anderson 2010, Graham and McJohn 2005, and Hardison 2006.

6

Table 1. Appropriation of Indigneous Intellectual Property: The Costs to Descendant

Communities

• Loss of access to ancestral knowledge and property

• Loss of control over proper care of heritage

• Diminished respect for the sacred

• Cultural distinction becomes commercialized

• Loss of respect

• Danger of symbols to the uninitiated

• Improper uses of special or sacred symbols

• Loss of confidentiality

• Reproductions replace original tribally produced work

• Loss of artistic control

• Threats to authenticity

• Loss of livelihood

(Nicholas and Hollowell 2006)

Increasingly, Indigenous peoples and members of other descendant communities may be

challenged with discerning what the benefits and potential harms are of new approaches to (their)

cultural heritage. Two examples of increasingly importance are (a) bioarchaeology and genetics,

and (b) cultural tourism. Recent advances in bioarchaeology and genetic research make it

possible to recover ancient DNA, which can be used to track the movement of populations with

unprecedented detail. This has enabled the Champagne-Aishihik First Nation in the Yukon to

identify 17 living descendants of Kwäday Dän Ts’inchi (“Long Ago Person Found), a 550-year-

old individual found in an ice patch, and thus determine that he belonged to the Wolf Clan

(Nicholas and Wylie 2008: 35-36). At the same time, such data may jeopardize land claims or

otherwise challenge individual or group identity. For its part, cultural tourism is another area that

has yielded considerable benefits to Indigenous peoples, but also can threaten cultural integrity

or economic stability, especially if the community has little say in the enterprise15

15

For useful sources for each of these topics, see Nicholas et al. 2009; also Hollowell and Nicholas, eds. 2009.

7

Technological Reproducibility

New technologies may further increase threats to traditional knowledge and intellectual property,

especially by providing access to images and information from places never visited. Rock art is

one example. Images painted of ochre or pecked into the rock surface are expressions of belief

systems or other aspects of ancient cultural systems and knowledge. Originally they could be

viewed in only one place, often a location endowed with special qualities, and frequently

geographically isolated or inaccessible to the uninitiated. With the advent of photography,

however, abetted by archaeological or other endeavors, the images are not only removed from

their original geographic and cultural contexts16

but made available to the general public.17

In his seminal essay, “The Work of Art in the Age of its Technological Reproducibility,” Walter

Benjamin (1935) explored the transformation of art by photography. In this work he anticipated

some of the challenges we today face as it becomes increasingly easier, through new

technologies, not only to access and share information, images, and music, but then to

manipulate or reconfigure them. New technologies create artistic freedom while also creating

new challenges to the meaning and indeed ownership of things.18

For example, it is now possible

to scan an object and then use that information then used to create an exact, 3-dimensional

replica using a 3-D printer. In the context of cultural heritage, there are many reasons to replicate

artifacts and human skeletal remains, whether for museum exhibits or research purposes.19

On the other hand, the ability to reproduce objects that Indigenous peoples (or members of other

descendant communities) consider still their property or otherwise important to them increases

significantly opportunities for cultural appropriation and commodification. As I’ve sketched out

here, there is much more at stake for Indigenous peoples concerning the inappropriate or

16

John Berger (1972: 19) notes that “The uniqueness of every painting was once part of the uniqueness of the place

where it resided. Sometimes the painting was transportable. But it could never be seen in two places at the same

time. When the camera reproduces a painting, it destroys the uniqueness of its image. As a result its meaning

changes. Or, more exactly, its meaning multiplies and fragments into many meanings.” 17

It is not just concerns about publishing photographs of artifacts and other vestiges of their cultural heritage that

Indigenous people have, but of people as well. This issue was raised in a regional archaeological publication several

years ago when a member of the Grand Ronde Tribe of Washington state objected to an article that contained

several photographs of tribal members, apparently without their permission. A summary and assessment of the

situation and of responses to two follow-up articles is available in Hollowell and Nicholas (2008). 18

This may be most familiar in the arts: Andy Warhol’s transformation of a Campbell’s soup can into high art; the

recombination of existing music into an entirely new form. 19

The Canadian Conservation Institute used an AICT 3D printer to produce replicas of fragile artifacts from the

17th

-century Ferryland Cross settlement in Newfoundland (http://www.ualberta.ca/AICT/3DPRINTER/ferrylandCross.article.html); Canadian researchers have also produced

replicas of ancient Egyptian skeletal remains for mummies being studied (Gardner et al. 2004).

8

unauthorized use of cultural objects or knowledge than for Western society. So much of what

matters the most to these communities is not protected by patents, copyrights, and similar means

because of its nature or age. How then can Indigenous peoples protect those aspects of their

heritage that are essential to their cultural identity and well-being?

The appropriation, commodification, or otherwise unwelcomed and inappropriate use of

Indigenous cultural heritage is widespread, involving both intellectual and material property

(Brown 2003, 2005; Nicholas and Bannister 2004). At the same time, we need to be cautious

about making assumptions of what constitutes appropriate use. For example, some First Nations

groups may see certain uses of elements of their cultural heritage as appropriate in commercial

ventures, as two cases from British Columbia reveal. The Kamloops Indian Bands has

incorporated a series of rock art designs in the marquee of a gas station on their reserve (Figure

2), while the logo and wine bottle labels of the Nk’mip Winery consists of a projectile point and

a rock art image design.20

In another example, one concerning the Saginaw Chippewa Tribe of

Michigan, and use of an image from a culturally significant petroglyph panel:

In February 2008, a tribal member opened a sporting goods store and enquired with the

Ziibiwing [Cultural] Center about using the archer as a logo. They were refused, not only

on grounds that the image should not be used commercially, but also because the archer’s

teachings have nothing to do with hunting; instead, he is shooting ancestral knowledge into

the future, so that it will be available to the people (Hollowell and Nicholas 2009: 152).

What these examples and the earlier discussion reveal is that Indigenous expressions of cultural

heritage may be used in different ways in different contexts that reflect can reflect cultural pride,

political sovereignty, and national identity, as well as commercial initiatives. Furthermore, there

are significant differences in how many Indigenous peoples view and care for their cultural

heritage, not only compared to Western society, but to other Indigenous groups. A key point is

that, in each case, this is their heritage and each group has the right to venerate, care for, or use it

as they see fit, whether or not it agrees with Western conceptions and expectations concerning

heritage. Historically, however, Indigenous peoples have often had little, if any, control over

many aspects of their heritage due to the imposition of colonial regimes. It is for this reason that

a postcolonial ethic of the public domain is required regarding the heritage of descendant

communities.

Adding to the challenges is the fact that even after IP issues are sorted out in one realm (e.g.,

photocopying, music downloads), they emerge elsewhere as a result of new technologies and

20

http://www.nkmipcellars.com/

9

previously unanticipated uses (e.g., iBooks, podcasts).21

This has resulted in a considerable lag

between concerns raised and solutions enacted, as previously alluded to. What’s more, new

technologies generally tend to facilitate both the duplication of media and the reconfigurization

of the information or images they contain. Notably, while these are issues faced by everyone,

Indigenous peoples generally have fewer means of recourse when it is their cultural heritage

being appropriated and commodified, aided by new technologies (see Riley 2004). While not

alleviating these problems, many Indigenous peoples also see the internet and related

technologies as a great equalizer or, at least, a suite of new tools and opportunities (e.g., Burri

2010; Dyson et al. 2007; Landselius 2006; also the Long Road project22

and the Digital

Songlines project23

).

Indigenous peoples and other descendant communities have responded to the lack or loss of

access to control over their cultural heritage in two basic ways: restrictive and inclusive

responses (Nicholas and Wylie 2008): “restrictive responses, which make use of various (legal,

social, political) mechanisms for controlling or restricting access to archaeological materials and

information; and a range of more inclusive responses, which include various forms and degrees

of consultation, reciprocation, and collaborative practice (Nicholas and Wylie 2008: 30).

Restrictive responses generally have little applicability due to the limits of legal protection

relative to cultural heritage, plus the results of litigation are expensive, time-consuming, and

often unsatisfying in the end. Inclusive responses, on the other hand, may be much more

effective and satisfying as they address the underlying sources of conflict. I focus the final

section of this essay on that approach.

The Need For A New Research Ethic

In the Americas, Australia, Africa, and other settler countries, Indigenous peoples initial have

endured the loss of sovereignty, expropriation of land, and other often unimaginable impositions

intended to remove them from the lands entirely or incorporate them into a new social order.

While such events are largely a thing of the past, indigenous peoples worldwide continue to

confront the legacy of scientific colonialism, which is the extraction of knowledge from a source

community and its use to create products that benefit others (Nicholas and Hollowell 2007:

pages). In addition, as gatekeepers of knowledge about the past, archaeologists have positioned

themselves (or been positioned by others) to become the experts on other people’s heritage. This

has often come at their expense as Native scholar and activist Vine Deloria, Jr., noted:

21

For examples of some of these new challenges, see Graber and Burri-Nenova 2008; Grosseries et al. 2008; Luong

2007. 22

http://www.kimberlychristen.com/ 23

http://songlines.interactiondesign.com.au/index.php?option=com_content&task=view&id=49&Itemid=104 Page

10

Over the years anthropologists have succeeded in burying Indian communities so

completely beneath the mass of irrelevant information that the total impact of the scholarly

community on Indian people has become one of simply authority. Many Indians have

come to parrot the ideas of anthropologists because it appears that the anthropologists

know everything about Indian communities. Thus many ideas that pass for Indian thinking

are in reality theories originally advanced by anthropologists and echoed by Indian people

in an attempt to communicate the real situation (1971: 82).

Beginning in the 1970s, but especially in recent years, a growing number of anthropologists and

archaeologists have been working to improve their relationships with Indigenous peoples. One

avenue has been efforts to involve members of descendant communities in all aspects of

archaeological and cultural heritage protection and management. This has generally become

known as Indigenous archaeology, which is “an expression of archaeological theory and practice

in which the discipline intersects with Indigenous values, knowledge, practices, ethics, and

sensibilities, and through collaborative and community-originated or -directed projects, and

related critical perspectives” (Nicholas 2008:1660). The result is greater representation of

indigenous peoples in archaeology, a broadening of archaeological method and theory, and

capacity building within indigenous communities (Colwell-Chanthaphonh and Ferguson 2008;

Silliman 2008).

A second, not unrelated approach concerns efforts to decolonize the disciplines that have

traditionally been involved in the study of Indigenous peoples—archaeology, anthropology, and

related enterprises. As Maori scholar Linda Tuhiwai Smith (1999) has stated:

Indigenous peoples have other stories to tell, and would like the history of Western

research told from the perspective of the colonized (pg. 2); and that

The process of decolonization is more than a deconstruction of Western scholarship, than it

is an attempt to offer ways of doing indigenous research that contribute primarily to the

need for survival of indigenous communities and individuals, enhanced through “the

past, our stories, local and global, the present, our communities, cultures, languages and

social practices (p. ).

However, decolonization is not just shifting the frame of reference, as Smith notes above, but

changing the structure of the decision-making process, which, in this case, is one that

archaeologists (or more broadly scholars and scientists) have long controlled regarding heritage

11

matters.24

This unequal power relation has long been a central issue that Indigenous peoples have

regarding the collection, study, and marketing of their culture. Not only have they been removed

from the process, but generally have received no benefits25

This is also the complaint many have

today regarding the dual threat of having their culture not only essentialized but treated as though

it was public domain.

Challenging the existing power structure will help Indigenous peoples by helping to restore at

least some degree of control over their culture. Does this mean that researchers will be unable to

do First Nations-oriented research? No, but it does require that those researchers engage in a

different type of relationship with members of descendant communities. What is needed are

research methods such as Participatory Based Research (PAR) and the derivative community-

based participatory research (CBPR) that promote collaborative, reciprocal relations (see

Hollowell and Nicholas 2009 for review; also Denzin et al. 2008). Such approaches constitute a

type of postcolonial research ethics that can lead us beyond the spectre of scientific colonialism,

as well as promote fair and equitable exchange of cultural and intellectual property. This is

illustrated by an ongoing, Canadian-based initiative.

The Intelllectual Property Issues in Cultural Heritage (IPinCH) project is an international

collaboration of over 50 archaeologists, lawyers, anthropologists, museum specialists, ethicists,

and other specialists, and 25 partnering organizations, is working to explore and facilitate fair

and equitable exchanges of knowledge relating to archaeology.26

The seven-year project is

funded by the Social Sciences and Humanities Research Council (SSHRC) of Canada (Major

Collaborative Research Initiative program). IPinCH provides a foundation of research,

knowledge and resources to assist scholars, academic institutions, descendant communities,

policy makers, and many other stakeholders in negotiating more equitable and successful terms

of research and policies through an agenda of community-based research and topical exploration

of IP issues. To accomplish this, team members will work together to:

• document the diversity of principles, interpretations, and actions arising in response to IP

issues in cultural heritage worldwide;

24

For reviews of, and insights into, efforts to decolonize the discipline, and of archaeology as a postcolonial

practice, notably Liebmann and Rizvi 2008; Nicholas and Hollowell 2007; Rizvi and Lydon, forthcoming. Also see

Denzin et al. 2008. 25

Elsewhere I’ve suggested that the relationship between archaeologists and Indigenous peoples can be likened,

respectively, to the Marx’s bourgeoisie, who are defined by their monopolization of the means of production and

subsistence, and the proletariat, defined by their lack of access to the means of production. 26

The project website offers information on all aspects of the project: http://www.sfu.ca/ipinch

12

• analyze the many implications of these situations;

• generate more robust theoretical understandings, as well as norms of best practices; and

• make these findings available to stakeholders—from Aboriginal communities to

professional organizations to government agencies—to develop and refine their own

theories, principles, policies and practices.

A key component of the project is the development of 15 case studies that will explore emerging,

on-the-ground intellectual property-related issues in archaeological or cultural heritage contexts;

the means by which they are being addressed or resolved; and the broader implications of these

issues and concerns. Each project is developed by community partners with the assistance of

IPinCH team members, and employs a CBPR methodology. The communities or organizations

involved in these projects identify issues, co-develop case studies, review results before

dissemination. The result is that although the results do contribute to IPinCH’s research agenda,

the results of these studies primarily addresses the community’s needs, not the researcher’s:

The ethnographic methods used by each case study will be defined by the participants

themselves, but these are likely to include interviews, discussion circles, focus groups, oral

histories, site visits, and participant observation, often combined with archival research.

Raw data (e.g., interview tapes and transcripts) generated during the research will be compiled

for the community to curate. Completed case study reports will be available to the project’s

working groups as they continue to explore the implications of intellectual property issues

emerging in the realm of cultural heritage. Final reports will go through a process of

community review and approval before they can be disseminated to the public (Hollowell

and Nicholas 2009: 148).

Significant in this methodology are these features:

a) the partner community decides they are interested in developing a case study, and

identifies the issues of concern;

b) the community members work with IPinCH team members to co-develops the research

proposal; and

c) once the project is complete, the community vets research products and data to

determine what information can be released to IPinCH team; the community

retains/controls the raw information collected and ensures no sensitive or secret/sacred

information is released.

In addition, ethics approval for each project must be obtained from Simon Fraser University’s

institutional review board, from any other participating university, and from the host community.

13

This methodology promotes a research ethic that addresses the concerns of the descendant

communities and the needs of the research community. Not surprisingly, the requisite

institutional procedures needed for ethics review and grant transfer agreement approval for such

cross-cultural and often international projects can be daunting, as well as frustratingly slow at

times. In addition, although there is growing recognition of the importance of collaborative and

CBPR research by such organizations as SSHRC, the current Tri-Council Policy (TCP)

statement is a poor fit.27

As a result of such factors, the amount of work entailed in starting these

projects has been more than anticipated, yet this has also provided an important learning

experience for all involved—from the project director to the case study developers and

community to the university ethics review boards—about the realities of collaborative research

One example of the an IPinCH study underway is one co-developed by the Inuvialuit community

of the Northwest Territories. It concerns the ownership, access, and sharing of information

relating to a 19th

-century collection of objects from Northwest Territories, Canada, now housed

in the National Museum of Natural History in Washington, DC. For close to 150 years, the

Inuvialuit have had little contact with hundreds of artifacts made and used by their ancestors. The

550 items, purchased by a Hudson’s Bay Company trader, became one of the founding

collections of the Smithsonian Institution in Washington, D.C. Working with the community to

reconnect elders and youth with those cultural items are Simon Fraser University researcher Dr.

Natasha Lyons and partners, including the Inuvialuit Cultural Resource Centre, Parks Canada,

the Smithsonian Institution’s Arctic Studies Center, and the Prince of Wales Northern Heritage

Centre. Community elders and others travelled to the Smithsonian to study and record their

knowledge of the items, including clothing, pipes, and tools (Loring et al. 2010).

Other IPinCH Community-Based Initiatives include the creation of a database to record Moriori

elder knowledge, sustainable land-use practices and heritage landscapes in Rehoku (the Chatham

Islands), Aeotearoa (New Zealand), and the development of policies and protocols for culturally

sensitive intellectual property by the Penobscot Nation, Maine, particularly to guide relations

with researchers and external entities. Such IPinCH initiatives are demonstrating that

collaborative research projects such as these address community needs and also contribute to the

development of new knowledge of value to society.

The methodology developed by IPinCH is similar to the fair dealing methods being built into

ArtMob, “a multisectoral initiative designed to build large, accessible online archives of

27

The second edition of the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans is

anticipated to replace the first edition in late June 2010. A draft version is available at:

http://pre.ethics.gc.ca/eng/policy-politique/tcps-eptc/readtcps-lireeptc/

14

publically licensed Canadian art, and to foreground the issues that this process raises for

Canadian copyright and intellectual property laws.”28

The intent here is to create dialogue with

copyright holders. Both projects promote the notion of fair-dealing as based on multiple practices

that work to ensure negotation and dialogue; it does not always mean “open for public

consumption.”

Conclusions

We have entered into age where it is becoming possible to acquire, digitize, disseminate, and

store virtually all information in existence. The expectation is that everyone benefits from

increased access to information, whether in the sciences, the arts, or entertainment. There are,

however, limitations on accessing certain types of information. In the business world, for

example, some types of information are proprietary, and justifiably so, since their loss can

financially jeopardize the company’s success. But what about protecting information or

restricting its dissemination and use when it is vital to cultural identity, as is the case with First

Nations in Canada and Indigenous peoples elsewhere?

Indigenous peoples seek to protect their cultural and intellectual property, to control the flow of

information and materials emanating from their cultural heritage, and to restrict or stop

unauthorized and inappropriate use of that heritage. Failing to do so has real costs, social,

economic, and other, to the community. Given that there is limited legal protection for the

tangible elements of their heritage, and even less for the intangible ones, the challenge of

achieving adequate control and protection is substantial, especially when that heritage is viewed

as public domain.

Technology promotes and facilitates the flow of information. Too often, however, that flow has

been away from source communities, with the transformation of cultural capital into social and

economic capital (Hollowell and Nicholas 2007). However, engaging in respectful dialog and

collaborative initiatives contributes to an enhanced ethics of decolonization and establish new

notions of fair use. A growing number of anthropologists and archaeologists working with

indigenous heritage (tangible and intangible) have been engaging with digital forms of fair

dealing that practices this “postcolonial research ethic.” Kimberly Christen’s project “Mukurtu:

An Indigenous Archive and Publishing Tool,” is one example—“a digital, standards-based,

adaptable archiving tool that emphasizes cultural protocols and provides a means for indigenous

knowledge to inform public and private collections.” Another is Eric Kansa’s OpenContext

project29

, which is an on-line, open-access research data publication venue.

28

http://www.artmob.ca/about 29

www.opencontext.org

15

Recognizing that inequities exist in archaeological practice, and that few benefits from that

practice have returned to source communities, go far in revealing why Indigenous peoples have

long been wary of archaeologists. But far more extensive, and damaging, has been what

Indigenous peoples have endured not only as a result of colonialism, but with the widespread

view that North American cultural heritage is part of the cultural landscape, and thus essentially

is public domain. Addressing the concerns on Indigenous peoples requires recognizing their

special—and continuing—relationship with their heritage. Does this mean the end of

archaeological research or use of Indigenous motifs and materials? Certainly not. But it does

mean we need to develop new practices. As Kansa et al. (2005: 285) suggest, “the Creative

Commons concept of some rights reserved…can be extended into areas where scientific

disciplines intersect with traditional knowledge. This model can help build a voluntary

framework for negotiating more equitable and open communication between field researchers

and diverse stakeholding communities.”

The notions of equity, negotiation, collaboration, and fair and appropriate use are central to

achieving resolution of outstanding grievances that Indigenous peoples face, many of which have

been exacerbated. But it is also important to realize that the new models of practice noted in this

chapter are not restricted to the realm of cultural heritage but have wide currency wherever there

are competing interests in or claims to cultural heritage by any members of any society today.

Acknowledgements. I thank Rosemary Coombe for the invitation to prepare this chapter, and

for useful comments on a previous draft. Many of the ideas included in this chapter have

benefited from discussions with members of the Intellectual Property Issues in Cultural Heritage

(IPinCH) project, which is funded by the Social Sciences and Humanities Research Council.

Additional support has been provided by Simon Fraser University.

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Figure 1

Rock art images used on the marquee of a service station on the Kamloops Indian Reserve

(Photo: George Nicholas)

22

Figure 2

Robert Peterson cartoon, Vancouver Sun 2007 (permission being sought)