The following statement is not a controversial one because it is evident to anyone who has paid attention to First Nations, Inuit and Metis history in Canada. While intellectual property rights were created to protect creative works from being copied and exploited, Canada’s laws have, and continue to be, used to legalize the theft of Indigenous cultural and intellectual property. Examples of this span a wide range of creative disciplines, including fashion design, art, traditional medicine and healing techniques. As a publishing company, the team at Medicine Wheel Education is most concerned with copyright law and the contracts that we sign with our clients. We will circle back to this subject at the end of the post, but let’s begin with a recent story that illustrates the heartbreaking damage that can be done to a community through the use of copyright law.
From the early 1970s to the 1980’s, Elders of the Maliseet Nation, in New Brunswick, recounted their stories to Laszlo Szabo, a local university professor. Because Lazlo recorded these stories he was legally granted the ownership rights to them in accordance with the Canadian Copyright Act. A few years after the recordings, the Maliseet Elders who wanted this work to be published, ended up entering into a tedious legal struggle that lasted for decades. In 2002, the Maliseet bought the audio tapes from the professor and yet he refused to give them the copyright. This meant that the Maliseet could not make copies of the tapes, use them in language classes or reproduce the transcripts in any way. Understandably, the Maliseet were not interested in publishing any books under Lazlo’s copyright, as he had essentially stolen their oral history. Despite the potential of being sued by Lazlo’s estate, the community pushed through and finally, in 2016, published the first book of Maliseet stories, without the professors copyright. By this time, the Elders who had originally told those stories, and their children, had passed on, never having seen their words in print.
The injustice in the case of the Maliseet tapes is obvious, as are the colonial attitudes and power structures at play. That community should never have had to fight for their Elder’s stories. That oral history clearly belongs to the community and to the families of the Elders, and yet they didn’t have the legal grounds they needed to take ownership in the Western courts. So what do we need to do to ensure that events like this one never happen again? One suggestion that has been loudly voiced is that the copyright laws need to be updated to offer greater and more relevant protection to Indigenous peoples; for example, many Indigenous nations do not see ownership as an individual right, but rather a communal responsibility. Another suggestion is that Indigenous laws that already exist around copying and unfairly exploiting others be implemented and enforced.
At Medicine Wheel Education we support such legal changes but recognize that the greatest influence we have is in the contracts that we sign with our authors. This is why we rewrote the traditional publishers contract to allow the authors to retain the ownership rights to their stories. This means that although we have the rights to print the materials that have been approved of the authors, we cannot develop these stories into movies or other media. It is the authors that maintain the rights to tell their stories and develop them as they see fit. Moreover, the necessity of the author’s approval is embedded into our contract and we collaborate with storytellers and illustrators every step of the way. For us at Medicine Wheel Education, publishing is about creating culturally authentic, responsible and meaningful resources and relationships. We urge that any Indigenous author or creator stand in their power and insist upon a contract that protects their story and their culture, so that what happened to the Maliseet people doesn’t happen again. Medicine Wheel Education is happy to answer questions about our contract or to provide advice to Indigenous writers about protecting intellectual property, even if you are not publishing with us.