Yesterday, I finally had a chance to read the CFLA Position Statement on Indigenous Knowledge and the Copyright Act. What I took away from the Statement - and subsequently tweeted about - was that CFLA promoted the protection of Indigenous Knowledge within the existing regime of Copyright Law and (European) concepts of private property, including intellectual property. This reading could be challenged - the Statement does argue the difference between Indigenous and Canadian notions of property ownership (“Who holds ‘legal’ copyright to [Indigenous] knowledge or cultural expression under Canada’s current Copyright Act is often contrary to Indigenous notions of copyright ownership”), but to my mind the framing of this issue as in relation to the Copyright Act situates the Statement within existing property relations that the Copyright Act is intended to uphold.
This is especially clear, from my perspective, in the opening sentence of the Statement, which begins: “Canada’s Copyright Act does not protect Indigenous knowledge…” This, to me, takes for granted that the Copyright Act is intended to protect knowledge, which it isn’t. It’s intended to protect (private) property rights in a particular category of property (intellectual property). The property rights it is intended to protect are rights that constitute the institution of bourgeois (that is, capitalist) private property. By positioning the Copyright Act as an instrument for the protection of knowledge, the CFLA Copyright Committee is able to argue that Indigenous knowledge - in all its particularity of expression - can and should be protected by the Copyright Act. But once we recognize that the Copyright Act is not intended to protect knowledge, but to protect a single kind of property relationship (bourgeois private property), then the protection of Indigenous property and property relationships (in all their particularity) becomes impossible. By tacitly placing Indigenous knowledge protection under the aegis of an instrument for the protection of bourgeois private property, the CFLA Statement leaves the door open for the recuperation, exploitation, and eventual erasure of Indigenous property and ownership relations by the single, overarching institution of capitalist property.
Why do I think this will happen? Because it’s precisely what happened in Europe with the development of capitalism. As capitalism spread, it either coopted or destroyed alternative property relationships (including, but not limited to, communal property), destroying the sovereignty of communities, and allowing only the outward manifestations of culture to survive, as long as these did not challenge the fundamental private property relations of capitalist Europe. To my mind, the only hope of maintaining and protecting Indigenous knowledge, culture, and ownership relations is by combating the dominance of capitalist relations. If not, if First Nations, Métis, and Inuit peoples adopt - as the Canadian government would love them to - “Indigeneity plus commodity production”, this will quickly turn into “capitalism with Indigenous characteristics”. Only the outward manifestations of culture and society that do not challenge the economic basis will be allowed by the State. In this sense, then, I believe that there is a fundamental coincidence between Indigenous sovereignty and anti-capitalism.
To make this argument a little more concrete, let’s talk about land, which is recognized as one of, if not the most significant aspect of Indigenous sovereignty claims. From the perspective I’ve laid out above, land sovereignty - in addition to its social and cultural importance - is a requirement for the maintenance of all the different kinds of Indigenous economic relationships. As such, it provides a direct challenge to the dominance of capitalism promoted and protected by the Federal government. This is why government or private control over the land has been such an important aspect of Federal policy for so long. First, it gained control over sovereign territories through treaties (which, to my mind, it never had any intention to honour), then it cleared much of the land of making way for European and immigrant settlement as well as future development. And finally, when push really comes to shove, the government has not been above using its monopoly of the use of force to protect capitalist private property rights - when I was a kid, the most important event in this category was the Oka ‘crisis’ of 1990. More recently, we have seen Indigenous sovereignty claims ignored in the case of the Trans-Mountain pipeline. The government has been careful (so far) in not being seen to use force against Indigenous activists protesting the pipeline, but when it comes down to a choice between Kinder-Morgan and an Indigenous economic challenge, the government will bring out its goons. We saw this at Standing Rock and other NODAPL protests last year.
Anyway, all this to say that my critique of the CFLA statement was not intended to minimize the importance of Indigenous knowledge protection or conceptions of ownership, simply that by tacitly presuming the validity of bourgeois property rights (which the Copyright Act represents), the door is left open for the re-colonization of that knowledge and those conceptions by capitalist social, economic, and political relations. If we want our society to really change - and change in this case must include a meaningful reconciliation - then we must fundamentally transform the property and production relationships forced upon us all by capitalism. Otherwise we will always be stuck beneath the exploitation and domination of capitalism, which will always be worse for Indigenous peoples than for Settlers.
To conclude, I want to answer one of the questions I was (tacitly) asked on Twitter: what solutions would I propose? In the first place, I don’t think that any solutions are possible within a capitalist context. Reconciliation and sovereignty are impossible under capitalist conditions of production. So we have to challenge those conditions. In the meantime, however, I’ve come around to left-wing strategies that came to the fore in Italian workerism, and especially its feminist wing. As Italian workers began to recognize that capitalist domination did not only exist within the factory, but in society at large, they expanded their notion of factory sabotage to the broader society. Factory sabotage, sometimes as subtly as slowing down an assembly line, was a way to challenge capitalist domination and cut into capitalist profits. Outside the factory, the self-reduction of prices (bus fares, for example, or the amount paid for an item in a chain grocery store) and other forms of small-scale challenge to bourgeois private property, became widespread. We can and should be doing this with respect to Copyright. And before people get upset at the idea that I’m advocating breaking the law, I will just say this: we are already doing it. Librarians, faced with an article their institution doesn’t have a license for, will often ask someone at another institution for a copy. This is small potatoes but it violates capitalist property relations. We should keep doing it. And we should do more things like it (like the quiet waiving of fines, for example). Yes, there are legal options like Interlibrary Loan, and there are options which appear to be illegal on a mass scale (like SciHub). But if we want eventually to challenge capitalism on a larger scale, we need to get comfortably challenging, subverting, and violating it on a smaller scale first.