Recognizing Indigenous Legal Values in Modern Copyright Law

Canada was founded on three legal traditions: common law, civil law, and Indigenous law. Despite this multijuridical founding, Indigenous legal traditions (ILTs) have been largely ignored in many areas of Canadian law. This lack of inclusion is harmful to Canadian society in several ways. Notably, it ignores Canada’s treaty obligations, disregards the social integration of contemporary Canadian society, and wastes an excellent opportunity to aid in the reconciliation of Canada’s colonial past. It is not as though Canada is without opportunities to integrate ILTs into its legal systems. For example, in the recent Supreme Court of Canada decision, CCH v LSUC, the Court outlined a shift in Canadian copyright law, moving toward a model of “fair use” and “social good” in the copyright space. In so doing, the Court did not rely on any Indigenous legal or cultural justifications for its decision; however, copyright law is an ideal space for the inclusion of ILTs. Not only are many of the new elements outlined by the Supreme Court similar to many Indigenous nations’ views on property, but Canadian copyright law also has a history of integration, having already merged the British and Francophone traditions. This paper argues that such an inclusion would be beneficial for all Canadians and would represent a positive step in Canada’s relations with its Indigenous nations. A broad view of ILTs is taken in this paper so as to allow the argument to stand without distracting criticism of the substance of any nation’s distinct tradition. Indeed, the paper takes an overarching view on a broad topic and asks the salient questions about whether integration is possible and whether it can be achieved. The answer, to both, is in the affirmative