Introduction

With the rise in unique technology and processes that drive competitive advantage for businesses, the importance of protecting those technologies and processes has become an increasingly critical aspect of business operations. In fact, many of the largest companies today exist and flourish due to their unique technology or processes. Without some level of protection, these companies could lose their competitive advantage very quickly. This is the point to ‘Intellectual Property’ law (often referred to as ‘IP’).

The Business Development Bank of Canada (BDC) defines IP in the following way: “Intellectual property (IP) is anything created by human minds: Inventions, literary and artistic works, designs, symbols, names and images used in business, and more. As it can sometimes have even more value than tangible assets, it needs to be properly protected.” (https://www.bdc.ca/en/articles-tools/entrepreneur-toolkit/templates-business-guides/glossary/intellectual-property)

The laws developed regarding IP were designed to protect inventors so that they can have time to develop their business without the worry of having other organizations copy their inventions. IP law helps to encourage innovation and entrepreneurship, a cornerstone to a thriving economy.

Companies invest tremendous resources in developing innovative new products and services. Intellectual property law prevents competitors from immediately profiting from another’s invention and provides incentives for continued innovation.

In fact, over the last decade there has been a steady increase in the number of patents filed, resulting in a multiyear delay in processing applications. An increase in the number of business method patents contributed to this dramatic increase in patent applications. A business method patent seeks to monopolize a new way of conducting a business process. For example, “Patent Filing for One-Click Web Ordering” describes a method of e-commerce by which a customer can order an item and pay for it immediately with just one click of a button. This one-click patent was granted to Amazon.com. Amazon licensed the patent to Apple so that it could feature one-click on its website. This in turn allowed Amazon to recover some of its development costs from Apple, which also wanted to use the technology.

Intellectual propery law is distinct from ‘Real Property’ in that IP law is specific to ‘intangible assets’ (a non-physical creation or resource). IP can be in either an abstract or concrete form. For example, a composer may have IP interests to both the abstract sound of the music he or she composed, as well as the concrete sheet music that instructs musicians how to play the musical composition.

Protection of IP rights generally fall into one of three major categories: patents, copyrights, and trademarks. There are other IP categories which include industrial design and trade secrets.

• Patent – Protects unique inventions and or business methods
• Copyright – Tangible expression of an idea; but not the idea itself
• Trademark – Words and symbols used to identify products or services
• Trade Secret – Valuable secrets that give a business a competitive advantage
• Industrial Designs – In Canada it is covered by the Industrial Designs Act and protect specific designs, shapes etc. for example, integrated circuit designs.

Different types of IP may attach to aspects of the same product or service. For example, Coca-Cola has trademarks for its name and logo, a patent for the shape of its original glass bottle, a copyright for its commercial jingle, and a trade secret for its cola recipe.

It is important to understand that the generally accepted ideas, descriptions, and expectations relating to intellectual property may not be in alignment with the perspectives of indigenous artists, creators and innovators. The concept of ownership and rights related to individual, tangible, intangible, and collective creative expressions may be perceived differently within Indigenous communities and by indigenous authors, artists, and creators. Traditional knowledge and traditional cultural expressions are fluid, transgenerational, and may (and often do) take various forms (music, dance, stories, fabrics, art, ceremonies, along with other expresssions).

Defining indigenous expressions, activities, and artifacts through the lens of existing intellectual property regulations is challenging and can be problematic: “exceptions and limitations typically found in IP laws may not be considered to be suitable for Indigenous knowledge and cultural expressions, particularly if it is considered to be sacred.” (https://ised-isde.canada.ca/site/intellectual-property-strategy/en/introduction-intellectual-property-rights-and-protection-indigenous-knowledge-and-cultural). For these reasons, Canadian businesses, organizations, and entrepreneurs should become aware of indigenous perspectives on intellectual property and the ways in which indigenous views provide a different way of thinking about and applying intellectual property mechanisms.