Intellectual property rights provide debate

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Music Biz 101

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Powwow music is considered an extremely small niche in the music business. Regardless, the increasing popularity of drum groups in this niche market can be attributed to the availability of powwow music in secondary markets through craft shops, powwow vendors, and the distribution of CDs and tapes by the powwow drum groups themselves.

The issue of copyright and intellectual property rights as they relate specifically to traditional and powwow music is noteworthy.

In Canada, copyright protection is subject to the Copyright Act. Copyright exists solely in original works of artistic expression of an individual.

It protects the creative works of an individual but not the idea. An original work cannot be copied without express permission. The copyright owner has the exclusive right to produce the work or to licence another person or body to reproduce such work and receive payment for performance or royalties for each reproduction that is sold.

The term of copyright protection exists for the life of the songwriter(s) plus 50 years. (While under copyright protection, the more people sing your songs, the more royalties you receive.) If you have a song that was composed by two or more individuals, the song will not enter the public domain until 50 years following the death of the last remaining songwriter. Once in the public domain, anyone can use the song without permission, and royalty payments to the deceased songwriters' estates terminate.

Existing copyright law is limiting in scope because the concept of intellectual property is a fairly modern one that originated with patent protection in 1623. Intellectual property rights-in Western thinking-imply protection of individual, exclusive rights, as an economic incentive to produce more works. However, the concept of intellectual property in the Aboriginal view is vastly different, because it is based on Indigenous customary claims recognizing non-exclusive communal rights that everyone shares and benefits from.

Under copyright law, fixation of a work in a permanent form is contradictory with the collective consciousness concept. The transmission of culture and collective consciousness is maintained for communal interests and benefit.

In the Aboriginal view, it is the cultural, social and aesthetic elements of a song that determine its cultural and historical value and significance as it relates to its appropriate use and enjoyment. In this view, the cultural and spiritual meaning of songs are not to be commercialized for mass consumption. Cultural integrity is of paramount concern to ensure that compositions are not trivialized or misrepresented.

Some may take the view that Aboriginal culture is to be shared unconditionally, but if it becomes a commodity to be trivialized and misrepresented, cultural appropriation is the end result. In copyright law, although moral rights protect the composer by ensuring that the integrity of his work is not diminished, it protects solely the individual.

Given this disparity between copyright law and the Aboriginal view, how can powwow drum groups protect traditional songs from entering the public domain? Many powwow drum groups sing traditional songs that have been passed on through generations, and they compose new songs considered contemporary powwow songs. The transmission of traditional songs has specific norms and protocol within the nation, community and family. The reality exists today for traditional songs, once recorded by drum groups, to enter the public domain. In the public domain, such songs can be altered to the desires of the user and can be used in an unfavorable context.

In regard to traditional songs and contemporary songs, performed in public or recorded by drum groups, there is growing concern about safeguarding traditional knowledge and the intellectual property rights of Aboriginal people. Copyright law does not protect the works of a collective nor recognize the communalright of intellectual property. In existing copyright law, if the song is not publicly performed, recorded or published, traditional knowledge can be safeguarded from intellectual property right infringement.

As powwow season is upon us, the intent of this article is to provoke thought and dialogue on the importance of protecting traditional knowledge and intellectual property rights vis-a-vis recording traditional or ceremonial songs for mass distribution.

This column is for reference and education only and is not intended to be a substitute for legal advice. The author assumes no responsibility or liability arising from any outdated information, errors, omissions, claims, demands, damages, actions, or causes of actions from the use of any of the above.