Appropriation and Misappropriation

Appropriation is the action of taking something for one’s own use, typically without the owner’s permission. Misappropriation is misusing something in one’s care or trust. Indigenous artworks, also known at the United Nations level as ‘traditional cultural expressions’, are among the most appropriated and misappropriated artworks in Canada and around the world. One can find examples of appropriation and misappropriation in tourist shops, gift boutiques, clothing stores and retail outlets locally, regionally, nationally, internationally, and through online shops. While there are some examples of legitimate licensing agreements between artists and producers, these are frequently exceeded by blatant examples of appropriation, misappropriation and unfair business practices.

Indigenous artworks are often mistakenly understood by the general public to be ‘in the public realm’ – and must therefore be available to use free of charge or free of permissions. This is an incorrect understanding of the actual laws in Canada, and likely stems from the colonial-era narrative of the ‘dead or dying cultures of Indian people’ resulting in Indigenous artworks being largely regarded as ‘artifact’ or ‘object’ or ‘curios’ versus fine art, and therefore not protected in the same way (if at all). In North America, traditional cultural expressions, or Indigenous artworks, only began to be referred to as ‘fine art’ in the 1950s, but this was often limited to artworks sought by collectors, galleries and museums. Artworks created for the expanding tourist and gift markets were referred to as ‘craft’ or ‘folk-art’, which also tend to be understood by the general public as being in the public realm.

Some of the earliest known examples of appropriation took place in the early 1800s along the routes of the railways that were being built and through the process of colonization and settlement. Over time, curio dealers began mass-producing products such as miniature plastic totem poles and assorted ‘tribal-inspired’ keepsakes or trinkets for a growing tourist market.

Indigenous designs, symbols and histories – traditional cultural expressions – were routinely taken and used without permission from the artists or the Indigenous Nations from which the artwork originated. There was typically no acknowledgement of the Indigenous Nation or artist, and no royalties were ever paid. 

It is important for the general public to know that traditional cultural expressions – Indigenous artworks – are based in each respective Indigenous Nation’s laws, customs, traditions, protocols, systems, and processes; artists inherit important artist roles, responsibilities, obligations and duties, as part of exercising their rights, privileges, prerogatives, and benefits. This is why Indigenous artists have stated time and again that not only is their copyright as an individual artist being infringed upon, their inherent or inherited rights, and collective or shared rights, are also being violated. 

The lack of understanding around the interconnectedness of these rights from Indigenous practice perpetuates uninformed ideas around the copyright and intellectual property rights of Indigenous peoples, and maintains systemic barriers that fail to offer proper protections for traditional cultural expressions. ¹ World Intellectual Property Office (WIPO) https://www.wipo.int/tk/en/folklore/

The World Intellectual Property Office (WIPO) describes “Traditional Cultural Expressions” as: 

Traditional cultural expressions (TCEs), also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions. 

Traditional cultural expressions: 

• may be considered as the forms in which traditional culture is expressed; 
• form part of the identity and heritage of a traditional or Indigenous community; 
• are passed down from generation to generation. 

TCEs are integral to the cultural and social identities of Indigenous and local communities, embody know-how and skills, and transmit core values and beliefs. Their protection is related to the promotion of creativity, enhanced cultural diversity and the preservation of cultural heritage.

While the Copyright Act, Status of the Artist Act, and other federal and provincial legislation provide an initial context for the rights of Canadian artists, the scope is limited to individual rights, and therefore do not provide the necessary protections for the unique inherent, collective and shared rights of Indigenous peoples.

Numerous reports, essays, articles, journals and news stories have explored the topic of Indigenous arts and cultural appropriation and misappropriation; and those that offer potential solutions still require the restoration of Indigenous Nations’ historic systems of laws, customs and traditions in order to begin to consider how to address the legislative, regulatory, policy, program and service gaps and shortfalls in the existing regime.

Currently, there are no regional or national Indigenous arts organizations with a mandate to represent the collective voices and the inherent, collective and shared rights of Indigenous artists in Canada – as a result, processes such as legislative reviews, the development of policies and programs, and the creation of services in the arts, culture, tourism and business sectors are not inclusive of Indigenous peoples. Indigenous artists continue to be absent from discussions and decisions that impact them. 

Further, in May 2016, Canada adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), but six years later, has yet to establish or announce a formal approach – legislative or otherwise – to address the appropriation and misappropriation of Indigenous artworks. The section of UNDRIP that relates most directly to the work to be carried out by government is Article 31, which states:

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. ²UN Declaration on the Rights of Indigenous Peoples https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html

Because each Indigenous Nation has laws, customs and traditions unique to their Nation, it is the people of each Nation that must affirm their respective laws, customs and traditions and determine how these will continue to apply and work in current and future contexts.

To exercise these rights, Indigenous Nations require the appropriate support to develop organizational entities that directly address the unique collective and shared rights of their respective Nations. 

This includes addressing the matter of misappropriation and misuse of Indigenous cultural expressions. For example, there is much work to be done with public collections in museums, archives, government departments, post-secondary institutions, and galleries around the proper care of Indigenous artworks, recordings, still and moving images, and all related documentation.

Updates to policies, processes and practices are already underway in many institutions, but Indigenous communities are without the staffing resources to respond to most requests for collaborations, partnerships or participation in working committees.

Further, as publicly funded organizations continue to digitize collections to make available and more readily accessible through various online sources, Indigenous Peoples must be directly involved in providing direction on that which is secret or sacred and not to be shared, and that which can be shared. This requires organizational capacity.

Appropriate support for organizational capacity in Indigenous communities means a commitment on the part of each level of government to support Indigenous Nations in creating the organizational entities necessary to enable proper consultation, development and implementation of renewed legislation, policies, processes, programs, and services.