Teresa Scassa - Blog

A & E Canadian Classroom is running a student essay competition titled 2015 Lives that Make a Difference. The contest offers cash prizes to schools and to children who submit original essays that identify and discuss a person who has had a significant impact on Canadian society. The contest is no doubt laudable for encouraging children to write, and on a worthwhile theme. Schools from across the country are probably encouraging students from grades 5 to 12 to submit their work to this contest.

While the contest may be laudable, the way in which it deals with student intellectual property rights in their work is not. The home page for the contest features a fillable form through which a student’s 300 word essay can be submitted. At the bottom of the form is a check box with the words: “I agree to allow my child (named above) to participate in the A&E Network® Canadian Lives That Make a Difference Essay Contest. I am in accordance with the terms outlined in the rules.” There is no hyperlink from either of the words “terms” or “rules” that would take a parent to the rules to which they are agreeing. This on its own is a poor practice. A parent interested in the rules has to search elsewhere on the page for the tab labelled “official rules”. On the issue of intellectual property, these rules provide:

“All essays become the property of A&E Television Networks and will not be acknowledged or returned. Entrants acknowledge and agree that they waive all rights of any kind whatsoever to their entries and that their entries become the property of A&E Television Networks, which thereby has the right to edit, adapt, modify, reproduce, publish, promote and otherwise use entries in any way they see fit without further compensation, except where prohibited by law.”

Contest winners will not receive their prizes unless they execute an “assignment of rights within 10 days of notification attempt”.

Clearly, if A & E is to publish winning entries on their website or feature them in other media they will need permission to do so. A & E may also be mining the contest to get a sense of which public figures are inspiring kids across the country. To this end, they probably also want to insulate themselves from potential lawsuits if they later produce content about some of the individuals featured in student essays. It is therefore entirely reasonable for A & E to address IP issues in the contest rules. What is less reasonable is to require students to surrender all IP rights in their essays as a condition of participation. The quid pro quo for this wholesale surrender of IP rights by potentially thousands of kids across the country is the chance to win one of only 4 student prizes.

It is possible for A & E to hold the contest, to insulate itself from legal risk, and to get kids excited about writing without pillaging their intellectual property rights. The perpetual, non-exclusive, worldwide, royalty-free license is a device that is much used and well known. It allows the licensee to make full and free use of a work while still leaving the copyright with its author. This means that the author of the work would be free to use it in other contexts and for other purposes (which might include, for example, sharing it with friends of family through social media). It is not as if any of these essays are likely to have a market value – after submission, most will quickly be forgotten by their authors. But there is an issue here of respect.

We have all experienced the inundation of copyright notices in relation to films, music, and other content. We are told that we have to respect authors and creators, that copyright infringement is analogous to theft or piracy. What we hear much less about is the exploitation of unequal bargaining power as well as unequal knowledge and resources by corporations that arrogate to themselves more rights in the intellectual property of others than is necessary. There is something fundamentally problematic about bludgeoning kids with dire warnings about respecting the IP rights of others while at the same time showing total disregard for their own rights as creators.

And lest this all be about A & E (the terms and conditions of other similar contests and publishing “opportunities” offered to students bear examination), there should also be some onus on school boards to consider the terms and conditions under which students are encouraged to apply to these sorts of contests. It would be helpful if they used their power as conduits for student participants to insist that terms and conditions are fair and respectful of the students’ rights as creators.

The recent story of the wholesale copying of an Inuit shaman’s robe by a UK designer raises interesting issues regarding the legal protection (or lack thereof) for indigenous cultural heritage in Canada as well as the cultural dissonance that can arise in disputes over the right to use certain motifs, designs and images.

In this case, the great-granddaughter of an Inuit shaman has expressed dismay over the use of the design of a shaman’s jacket. The design for the original jacket was one that came to her great-grandfather in a dream. The jacket had been photographed and the photograph appeared in a book titled Northern Voices: Inuit Writing in English by Penny Petrone, published in 1988. According to the CBC story, a replica of the same shaman’s jacket was used in a 2006 film titled The Journals of Knud Rasmussen.

Seen through a Western IP lens, the shaman who created the design might well be its author, and the design might be capable of copyright protection, but the term of copyright protection would have expired by now. As a result, the design is in the “public domain” and anyone is free to copy it. Yet from the great-granddaughter’s perspective, the design is sacred, and its reproduction or use should be subject to consent. Who is entitled to give this consent and under what terms may be complex questions, yet they are questions that ethics, at least, if not law, require to be asked.

The issue of the appropriation of indigenous imagery or designs in fashion and in other contexts is a recurring one. In Canada, for example, a dispute arose over the decision of HBC to outsource the creation of imitation Cowichan sweaters for sale during the Vancouver Olympics. Other fashion designers have been taken to task for their appropriation of indigenous cultural imagery and design. There have also been concerns raised about the appropriation of indigenous tattoo designs, as well as the incorporation of other indigenous designs or symbols into fashion and home décor items. There have been many instances as well of the use of indigenous pictographs on t-shirts. In March 2015, the CBC also reported on the use of First Nations design elements in the fashion line of Dsquared2, although in this case the concerns were not simply over cultural appropriation but also over the use of offensive terminology. These are only a very few examples.

Arguments about the right to restrict and control the use of sacred imagery, or the right to control the production and reproduction of indigenous designs are frequently treated as normative ones. In other words, they turn on what “should” be done, rather than what “must” be done. Laws, including intellectual property laws, provide legal tools to exercise control over works, but the reality is that these laws are focussed on identifying and defining property rights in creative output and in facilitating the economic exploitation of this output. While intellectual property laws can also be used to restrict the commercial exploitation of works, their focus on individual authors and the limited term of protection are not well-adapted to protecting material that is sacred to a people. The concept of the “public domain” – those things which are not protected or no longer protected by IP laws and are therefore free to all to use – can be particularly problematic when it comes to the disconnect between IP laws and indigenous cultural property. While many First Nations in Canada have found ways to use existing intellectual property laws to give them some ability to prevent or control the commercial exploitation of traditional images or designs (certification marks and official marks, for example, have been used in some cases), the effectiveness of these tools will vary according to the circumstances, and in some cases they may simply not be suitable.

Normative arguments are easy to dismiss and ignore, in part because the legal machinery of the state is not there to recognize and enforce them. As Canada enters a new era of reconciliation, law and policy makers should turn their attention to addressing the gaps between what it is right to protect and what the law will actually protect.