Indigenous Art Registry

In December 2018, a “Collaborative Working Group Meeting” took place in Toronto to consider the idea of developing an Indigenous art registry using blockchain technology. Thirty-two Indigenous artists, curators, academics, and associated professionals attended the meeting, which was facilitated by Ontario College of Art and Design and which was funded by the Department of Canadian Heritage and the Canada Council for the Arts.

The idea for the registry was proposed by G52, a consulting company based in Toronto. I was asked by the company to coordinate a meeting of Indigenous artists to gage their interest in developing such a registry. A small ad hoc collective of artists was pulled together to plan and coordinate the meeting.

Why an Indigenous Art Registry?

Indigenous art in all of its forms is an integral component of First Nations, Métis and Inuit history, our present and our future.Indigenous painting, drawing, carving, music, dance, craft, literature, film and oral exchange of traditional knowledge are all highly valued. Unfortunately, they are also among the most misappropriated art forms in Canada and in jurisdictions around the world. Indigenous art has and continues to be disproportionately vulnerable to fraud, theft and misappropriation.

The creation of art is an economic and social pillar of Indigenous communities, and the value to Indigenous people extends far beyond the simple means of generating income. Indigenous culture endures because of its art and artists.

Yet, many challenges are faced by Indigenous artists, some of whom are isolated in very remote areas without reliable means of communication technology and transportation. Others remain in poverty with limited means to collaborate, promote their work or reach markets.

What Would be the Purpose of an Indigenous Art Registry?

The main goals of a registry would be to:

• promote Indigenous art and artists;
• protect artists and the art market by ensuring authenticity;
• verify the provenance/history of art and artists;
• reduce and eliminate fraud and theft;
• ensure artists are compensated for their work;
• provide a means to sell, trade and collaborate on art; and,
• establish a legacy of Indigenous art and artists.

Key Questions for an Indigenous Art Registry

• Is there a desire from the Indigenous arts community for an Indigenous art registry?
• If so, what should be the key functions of the registry?
• How might the artist verification/registration process work, what would the criteria be and who would be responsible for determining artists and works included?
• How can we best develop and administer the registry, and ensure that it is Indigenous-owned and has Indigenous oversight?
• What are the possible next steps for this project idea?

Identification of Primary Challenges Facing an
Indigenous Art Registry

The terminology and definitions of First Nations, Métis, and Inuit do not capture all Indigenous people; they are colonial terms. There is a major challenge in defining who is Indigenous. Self-identification can be effective but there is also a role that the community plays in identification.

Original art vs. art products: Is there a place for both in a registry? How would we deal with fakes and forgeries committed by members of Indigenous communities? How would the registry respect protocols, the integration of traditions, laws and ethics?

Would the Indigenous art registry be inclusive of various Indigenous groups to ensure their respective legal systems are respected and integrated into the registry? How would it ensure it was inclusive of urban and other Indigenous persons who do not affiliate with a specific community?

Existing borders were also imposed on Indigenous communities and they should not define or limit us. Traditional concepts of ownership and value are not always compatible with a market driven and commodity approach to art. There is a need to determine what the governing organization would look like.

What Should the Project Framework Look Like?

The Indigenous art registry should be designed in a way that will provide access to a registry and protect even the most vulnerable artists; i.e. those in remote areas, with limited access to the internet, those with no formal education and a low income.

Incentivizing artists and other user participation is also key to ensuring the Indigenous art registry is successful. Embedding resale rights into a website interface should also be further researched and discussed.

Creating a database of art is another aspect of the registry that would prove valuable to researchers as well as museums, galleries, academia and public education.

Section(s) of a website could also be used for arts advocacy and policy development such as:

• legislation needed to protect artists (change existing or create new laws);
• address stolen or misappropriated art; and,
• general art news.
• The registry would need a user-friendly interface and the opportunity for artists and communities to set up their own web pages.

Indigenous Art Registry Goals and Objectives

The key goal of the project is to create an Indigenous-owned and controlled, centralized database of Indigenous artists and their works, with the following objectives:

• Create an access point for buyers, curators, and researchers to find consolidated information about Indigenous artists and their work;
• Begin tracking Indigenous artworks, their sales histories, and their market values;
• Foster increased sales, distribution and exhibition of Indigenous art works nationally and internationally;
• Ensure that art identified as “Indigenous” is in fact created by FNIM artists;
• Encourage the payment of royalties on the re-sale of Indigenous artworks by creating a system with the potential for tracking sales;
• Support the protection of copyright and intellectual property by providing access to information about historical and contemporary artworks and the provenance of culturally specific motifs;
• Facilitate exhibition loans; and,
• Protect against fraud and copyright infringement (particularly timely if Artist Resale Right is written into an updated Canadian Copyright Act).

Discussion on Blockchain

Blockchain is a technological way to keep records and certify accuracy and authenticity. Once an item is registered, an impregnable certificate of identification is produced for the artist or owner. Blockchain is now regularly used for money transfer, administering and securing government records, and for commercial enterprises. Reebok shoes, which are often counterfeited, now use blockchain to prevent/identify fraudulent copies.

Reasons for Indigenous art registry to use blockchain are: authentication and proof of provenance, record of sale, and royalties returned to creators. While it is important to consider blockchain as an integral aspect of the registry, the primary initial focus is on who would own it, who decides and what are its benefits. Providing an understanding of the basics of blockchain to the Indigenous community and in particular to Indigenous artists is important.

Where Do We Go From Here?

There was broad consensus of the meeting that an Indigenous art registry should be pursued. A steering committee needs to be established to move forward. Consultation with Indigenous artists and communities must take place before plans and an appropriate organization can be developed to implement and manage the project. The Indigenous art registry was presented to the House of Commons Report of the Standing Committee on Science, Industry and Technology on the Statutory Review of the Copyright Act. Its observations and recommendations are encouraging.

COMMITTEE OBSERVATIONS AND RECOMMENDATIONS

The standing committee on industry, science and technology recognizes that, in many cases, the Act fails to meet the expectations of Indigenous Peoples with respect to the protection, preservation, and dissemination of their cultural expressions. The Committee also recognizes the need to effectively protect traditional arts and cultural expressions in a manner that empowers Indigenous communities, and to ensure that individual Indigenous creators have the same opportunities to fully participate in the Canadian economy as non-Indigenous creators.

Achieving these objectives will require that policymakers approach the matter in creative ways. They could, for example, draw inspiration outside of copyright and intellectual property law and carefully consider how different legal traditions, including Indigenous legal traditions, interact with each other. Such work requires a more focused and extensive consultation process than this statutory review. However, the Committee cannot stress enough the importance of moving forward collaboratively with Indigenous groups and other stakeholders on the matter, and that potential solutions proposed by Indigenous witnesses in this review should serve as a starting point.

The Committee therefore recommends:

Recommendation 5

That the Government of Canada consult with Indigenous groups, experts, and other stakeholders on the protection of traditional arts and cultural expressions in the context of Reconciliation, and that this consultation address the following matters, among others:

• The recognition and effective protection of traditional arts and cultural expressions in Canadian law, within and beyond copyright legislation;
• The participation of Indigenous groups in the development of national and international intellectual property law;
• The development of institutional, regulatory, and technological means to protect traditional arts and cultural expressions, including but not limited to:
• Creating an Indigenous Art Registry;
• Establishing an organization dedicated to protecting and advocating for the interests of Indigenous creators; and
• Granting Indigenous Peoples the authority to manage traditional arts and cultural expressions, notably through the insertion of a non-derogation clause in the Copyright Act.

Recommendation 9

That the Government of Canada consult with provincial and territorial governments, Indigenous groups, and other stakeholders to explore the costs and benefits of Implementing a national artist’s resale right, and report on the matter to the House of Commons Standing Committee on Industry, Science and Technology within three years.