What's in a Song?

Let's assume that a visitor to a Canadian Indigenous territory discovers a fondness for a ceremonial song she hears during her visit. She doesn't know the words, since she's never heard it and doesn't speak the language, but she likes it all the same. As luck would have it, our visitor brought a recording device along. She decides to record the song without mentioning it to anyone before or after doing so. When she arrives home, she samples the recording and loops part of it into a track her band is working on.

When the song surprises everyone by becoming a hit on the Internet airwaves, it is also heard by members of the Indigenous group that originally hosted our visitor. The family responsible for observing and honouring the ceremonial song elects, with tribal permission, to bring a copyright infringement case against their former visitor. The Indigenous group cites cultural harm due to the careless theft and misuse of powerful ceremonial knowledge. The visitor claims that since the song has been used for centuries in traditional rites, it is not an original work, and she should be able to sample it at will.


Different Vocabularies

This situation mirrors real problems faced by Aboriginal people. Making sense of copyright's main stipulations puts them in an awkward position, since the wording and definitions in copyright law do not readily apply to the creation and use of their cultural knowledge (Battiste & Youngblood Henderson, 2000; Mackay, 2007, p. 11). In several fundamental ways, Canadian copyright is incommensurate with Indigenous knowledge:

• Copyright protects "original" works (Department of Justice, 2008, s. 5(1)). Originality is conceptually tied to the idea of identifiable contributors, and can be hard to prove in a context where traditional use of knowledge spans many years and many practicioners (Mackay, 2007, p. 11).
• Copyright depends on the existence of a "fixed" object (Canadian Intellectual Property Office, 2008). Ceremonial songs do not immediately meet this requirement, as they are often held only in the minds of their practicioners (Battiste & Youngblood Henderson, 2000, p. 48). According to the Copyright Act, the visitor in this scenario may be more likely to hold copyright, since she was the first maker of the recording (Department of Justice, 2008, s. 18(1)).
• Copyright also stipulates a limited duration before a work becomes part of the public domain. When the work's last living contributor dies, copyright generally only lasts 50 years thereafter (Department of Justice, 2008, s. 6).