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The next section of the paper will, in a brief span, describe the evolution of intellectual property law. The historical focus is on the emergence of intellectual property as part of the positive legal order of states. All societies have had to devise norms for regulating the ownership and use of different kinds of information. Historically, this has been especially true of religious information. One can thus identify customary equivalents of intellectual property. But the western intellectual property tradition is rooted in the idea that intellectual property rights are positive rights created by the state for the benefit of the commonwealth. Within Thomist political theory the validity of positive law was itself to be judged by the axioms of natural law. The norms of positive law had to converge with the divine design which natural law communicated to men. The rules of positive law then met the test of validity, not by being a mirror reflection of some metaphysical counterpart, but rather by whether or not they contributed to the overall divine plan. Conceptually speaking, this allowed someone working within the natural law tradition to recognize the right of a state to modify property rights through the enactment of positive law.

The protection of intellectual property at an international level can roughly be divided into three periods. The first period, the territorial period, is essentially characterized by an absence of international protection. The second, the international period, begins in Europe towards the end of the 19th century with some countries agreeing to the formation of the Paris Convention for the Protection of Industrial Property, 1883 (the Paris Convention) and a similar group agreeing to the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the Berne Convention). The third period, the global period, has its origins in the linkage that the United States of America (the U.S.A) made between trade and intellectual property in the 1980s, a linkage which emerged at a multilateral level in the form of the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (the TRIPS Agreement). The dates of the various conventions do not represent a sharp epochal divide. They do mark a significant change in the evolutionary direction of intellectual property protection.

Each of these chapters challenges the stereotype that Indigenous societies `live in the past' and are unable to shape their culture to adjust to new challenges and situations. Indigenous societies before Contact were both dynamic and flexible, possessing a creative strand that both then and now `repeatedly generates new variants of cultural practices and ...transforms the cultural structure itself' (Layton, page 66; see also Chapters 5 and 7). This raises another core issue underlying much of the discussion in this book: the notion of authenticity. As many others have pointed out, authenticity does not reside in a past that is unchanging, lacking any internal dynamic (Edwards 1997: 63). By proliferating and perpetuating stereotypes of Indigenous peoples as pristine and unchanging, globalisation may become a tool for disempowering Indigenous peoples on the ground that the practices of a contemporary present may not be the same as those of an idealised (and unrealistic) past. The creation of influential images of what constitutes `authentic' Indigeneity can constrain Indigenous peoples in real and material ways, limiting their social, economic, and political capacities. That process is made manifest in the statement by Jimmie Durham (cited by Gough in Chapter 5) that 'none of us feel that we are real Indians ...for the most part we feel guilty, and try to measure up to the white man's definition of ourselves'. On the other hand, authentic representation can also become an important aspect of Indigenous empowerment. In particular, as both Morphy and Layton demonstrate in Chapters 7 and 3 for the northern Australian Yolngu and Alawa people respectively, and as Dransart makes clear in Chapter 8 for the Aymara people of Chile, the notion of authenticity is central to the production of Indigenous art, the negotiation of Indigenous identity through art, and the explicit assertion of rights that can flow from this.

The second thing that must be done is to secure the land for settlers. This can be accomplished by imposing a modernist property regime that transforms land and resources (sometimes including people) into “things” that can be owned. This regime consists of such elements as mapping and marking boundaries to delimit an object that is to be owned, a system for recording ownership, and legal rules for ownership and sale of objects defined as property. Indigenous people generally understand the land and their relationship to it very differently, viewing themselves as being provided for by the land and in turn as living in harmony with the land and having a sense of responsibility for its welfare. Settler society does not recognize indigenous conceptions and from their own perspective of land as property, views indigenes as failing to make productive use of it.

THE LOGIC AND PRACTICES OF U.S. SETTLER COLONIALISM

Over the last forty years, the self-determination efforts and objectives of Indigenous peoples in Canada have increasingly been cast in the language of “recognition.”1 Consider, for example, the formative declaration issued by my people in 1975:

We the Dene of the NWT [Northwest Territories] insist on the right to be regarded by ourselves and the world as a nation.

Instead, we begin our analysis by looking at the broader global system in which knowledge and information operate: a settler-colonial system that extracts wealth, knowledge, and culture from economically marginalised communities and inequitably redistributes their economic fruits to the wealthiest and most powerful. This approach is in line with critiques that activists and critical scholars have long made of open-access movements: that the central focus on liberty values ignores concerns about equality; that a romantic notion of the ‘public domain’ as a neutral landscape where every person can reap its riches ignores its real role in exploiting the labour and bodies of people of colour, women, people from the Global South, and the impoverished. We now know that the ‘public domaining’ of Indigenous knowledge about local flora and fauna, traditional medicines, folklore, or traditional cultural expressions has enabled Big Pharma to take Indigenous knowledge, transform it into IP, and become the exclusive owner of that knowledge: a phenomenon known as biopiracy.

Abolitionist creativity also disagrees with an ideological belief that runs through some prominent segments of the open-access movements, namely that the system once worked well, but that ‘unfortunately, our IP regimes have strayed far from their original purposes’. For the colonised, for Indigenous Peoples whose collective knowledge has been ransacked, for communities forced into oppressive trade agreements (e.g. TRIPS), for the rising number of modern slaves working in global supply chains powered by intangibles, it is hard to see how the IP system ever worked for them – or what decades of reformist attempts inside IP law in the US have accomplished. For abolitionists, the system is not broken and in need of reform, tweaking, and tinkering. It is working as it was designed to work, as a settler-colonial legal and economic structure. And we are running out of time and of magical thinking waiting for public policy to somehow turn favourable in a corporate-dominated oligarchy.

In writing this book I set out to problematize the increasingly commonplace assumption that the colonial relationship between Indigenous peoples and the Canadian state can be reconciled via a liberal “politics of recognition.” I characterized the “politics of recognition” as a recognition-based approach to reconciling Indigenous peoples’ assertions of nationhood with settler-state sovereignty via the accommodation of Indigenous identity-related claims through the negotiation of settlements over issues such as land, economic development, and self-government. I argued that this orientation to the reconciliation of Indigenous nationhood with state sovereignty is still colonial insofar as it remains structurally committed to the dispossession of Indigenous peoples of our lands and self-determining authority.

My conceptualization of settler-colonialism as a structure of domination predicated on the dispossession of Indigenous peoples’ lands and political authority drew significantly from two theoretical resources: Karl Marx’s writings on the “primitive accumulation” of capital and Frantz Fanon’s anticolonial critique of Hegel’s master/slave parable when applied to colonial situations. With respect to Marx, I argued that three issues must be addressed within his work to make his writings on colonialism relevant for analyzing the relationship between Indigenous peoples and liberal settler polities like Canada. First, I argued that Marx’s thesis on primitive accumulation must be stripped of its rigidly temporal character; that is, rather than positing primitive accumulation as some historically situated, inaugural set of events that set the stage for the development of the capitalist mode of production through colonial expansion, we should see it as an ongoing practice of dispossession that never ceases to structure capitalist and colonial social relations in the present. Settler- colonialism is territorially acquisitive in perpetuity. Second, I argued that Marx’s theory of primitive accumulation must be stripped of its early normative developmentalist character. While it is correct to view primitive accumulation as the condition of possibility for the development and ongoing reproduction of the capitalist mode of production, it is incorrect to view it as a necessary condition for developing the forms of critical consciousness and associated modes of life that ought to inform the construction of alternatives to capitalism in settler- colonial contexts. I also suggested that Marx himself came to acknowledge the problematic character of this early formulation of his thesis and worked to correct it in the last decade of his life. And finally, I argued that the forms of colonial power associated with primitive accumulation need not be understood as strictly coercive, repressive, or explicitly violent in nature; rather, the practices of dispossession central to the maintenance of settler-colonialism in liberal democratic contexts like Canada rely as much on the productive character of colonial power as it does on the coercive authority of the settler state. Seen from this angle, settler-colonialism should not be seen as deriving its reproductive force solely from its strictly repressive or violent features, but rather from its ability to produce forms of life that make settler-colonialism’s constitutive hierarchies seem natural.

In Canada, the Indigenous domain continues to be part of the supreme law of the land. 41 Canada’s constitution recognizes and affirms Aboriginal and treaty rights. 42 The SCC has affirmed that Aboriginal peoples’ constitutional rights are collective, communal, or group rights. 43 The constitutional rights generate the Indigenous domain, a metaphor for a holistic source of these rights. The Indigenous domain reveals the interrelated manifestations of the spiritual realm that generates diverse Indigenous lifeworlds. 44 These spiritual forces of nature have inspired and guided Indigenous peoples’ knowledge. 45 The Indigenous domain’s creativity and expressive modes have generated Aboriginal sovereignty, inherent powers, rooted constitutionalism, persuasive laws, and consensual treaties. 46 The Indigenous domain, which in Latin is called ex proprio vigore or sui generis, was vested in the Indigenous nations by the law of nations at the critical date when the British sovereign asserted jurisdiction over Indigenous territories. 47

The Indigenous domain has always been grounded in the ecologies that operate as the Indigenous peoples’ education system, just as nature is the Eurocentric public domain’s source. Their experiences with biotic and abiotic forces shaped their knowledge systems. The Indigenous domains have many Indigenous keepers and generators of knowledge, so that families continually generate distinctive heritages, identities, and landscapes. 48 The oral traditions and symbolic literacy of Indigenous peoples reveal the continent’s embodied and teaching ecologies, investing their ancestors’ knowledge, imagination, and experiences. This enduring spiritual process of generating knowledge, stories, and artistic media that makes people live right has never ceased; they have been a method of “survivance.” 49 It has survived the linguistic violence of colonialism and forced assimilation.

Instead, we begin our analysis by looking at the broader global system in which knowledge and information operate: a settler-colonial system that extracts wealth, knowledge, and culture from economically marginalised communities and inequitably redistributes their economic fruits to the wealthiest and most powerful. This approach is in line with critiques that activists and critical scholars have long made of open-access movements: that the central focus on liberty values ignores concerns about equality; that a romantic notion of the ‘public domain’ as a neutral landscape where every person can reap its riches ignores its real role in exploiting the labour and bodies of people of colour, women, people from the Global South, and the impoverished. We now know that the ‘public domaining’ of Indigenous knowledge about local flora and fauna, traditional medicines, folklore, or traditional cultural expressions has enabled Big Pharma to take Indigenous knowledge, transform it into IP, and become the exclusive owner of that knowledge: a phenomenon known as biopiracy.

Abolitionist creativity also disagrees with an ideological belief that runs through some prominent segments of the open-access movements, namely that the system once worked well, but that ‘unfortunately, our IP regimes have strayed far from their original purposes’. For the colonised, for Indigenous Peoples whose collective knowledge has been ransacked, for communities forced into oppressive trade agreements (e.g. TRIPS), for the rising number of modern slaves working in global supply chains powered by intangibles, it is hard to see how the IP system ever worked for them – or what decades of reformist attempts inside IP law in the US have accomplished. For abolitionists, the system is not broken and in need of reform, tweaking, and tinkering. It is working as it was designed to work, as a settler-colonial legal and economic structure. And we are running out of time and of magical thinking waiting for public policy to somehow turn favourable in a corporate-dominated oligarchy.

In writing this book I set out to problematize the increasingly commonplace assumption that the colonial relationship between Indigenous peoples and the Canadian state can be reconciled via a liberal “politics of recognition.” I characterized the “politics of recognition” as a recognition-based approach to reconciling Indigenous peoples’ assertions of nationhood with settler-state sovereignty via the accommodation of Indigenous identity-related claims through the negotiation of settlements over issues such as land, economic development, and self-government. I argued that this orientation to the reconciliation of Indigenous nationhood with state sovereignty is still colonial insofar as it remains structurally committed to the dispossession of Indigenous peoples of our lands and self-determining authority.

My conceptualization of settler-colonialism as a structure of domination predicated on the dispossession of Indigenous peoples’ lands and political authority drew significantly from two theoretical resources: Karl Marx’s writings on the “primitive accumulation” of capital and Frantz Fanon’s anticolonial critique of Hegel’s master/slave parable when applied to colonial situations. With respect to Marx, I argued that three issues must be addressed within his work to make his writings on colonialism relevant for analyzing the relationship between Indigenous peoples and liberal settler polities like Canada. First, I argued that Marx’s thesis on primitive accumulation must be stripped of its rigidly temporal character; that is, rather than positing primitive accumulation as some historically situated, inaugural set of events that set the stage for the development of the capitalist mode of production through colonial expansion, we should see it as an ongoing practice of dispossession that never ceases to structure capitalist and colonial social relations in the present. Settler- colonialism is territorially acquisitive in perpetuity. Second, I argued that Marx’s theory of primitive accumulation must be stripped of its early normative developmentalist character. While it is correct to view primitive accumulation as the condition of possibility for the development and ongoing reproduction of the capitalist mode of production, it is incorrect to view it as a necessary condition for developing the forms of critical consciousness and associated modes of life that ought to inform the construction of alternatives to capitalism in settler- colonial contexts. I also suggested that Marx himself came to acknowledge the problematic character of this early formulation of his thesis and worked to correct it in the last decade of his life. And finally, I argued that the forms of colonial power associated with primitive accumulation need not be understood as strictly coercive, repressive, or explicitly violent in nature; rather, the practices of dispossession central to the maintenance of settler-colonialism in liberal democratic contexts like Canada rely as much on the productive character of colonial power as it does on the coercive authority of the settler state. Seen from this angle, settler-colonialism should not be seen as deriving its reproductive force solely from its strictly repressive or violent features, but rather from its ability to produce forms of life that make settler-colonialism’s constitutive hierarchies seem natural.

The term “domestic policy” refers to the plans and actions taken by a national government to deal with issues and needs present within the country itself. Domestic policy is generally developed by the federal government, often in consultation with state and local governments. The process of dealing with U.S. relations and issues with other nations is known as "foreign policy." In the United States, domestic policy can be divided into several different categories, each concentrated on a different aspect of life in the U.S. Regulatory Policy: Focuses on maintaining social order by outlawing behaviors and actions that endanger the public. This is typically accomplished by enacting laws and policies banning individuals, companies, and other parties from taking actions that might endanger social order. Such regulatory laws and policies might range from mundane issues like local traffic laws to laws protecting the right to vote, preventing racial and gender discrimination, stopping human trafficking and fighting illegal drug trade and use. Other important regulatory policy laws protect the public from abusive business and financial practices, protect the environment, and ensure safety in the workplace. Distributive Policy: Focuses on ensuring the fair provisions of taxpayer-supported government benefits, goods, and services to all individuals, groups, and corporations. Such goods and services funded by citizens’ taxes include items like public education, public safety, roads and bridges, and welfare programs. Tax-supported government benefits include programs such as farm subsidies and tax write-offs to promote home ownership, energy savings, and economic development. Redistributive Policy: Focuses on one of the most difficult and controversial aspects of domestic policy: the equitable sharing of the nation’s wealth. The goal of the redistributive policy is to fairly transfer funds raised through taxation from one group or program to another. The aim of such redistribution of wealth is often to end or alleviate social problems like poverty or homelessness. However, since the discretionary expenditure of tax dollars is controlled by Congress, lawmakers sometimes abuse this power by diverting funds from programs that address social problems to programs that do not. Constituent Policy: Focuses on creating government agencies to help provide services to the public. Over the years, for example, new agencies and departments have been created to deal with taxes, to administer programs like Social Security and Medicare, to protect consumers, and to ensure clean air and water, just to name a few.

Intellectual property (IP) law is a complex and ever-evolving field, with different rules and regulations governing different countries. It is essential to comprehend the distinction between domestic and international IP law to guarantee that your IP rights are secured. Domestic IP law is the set of laws that control intellectual property inside a particular nation. These laws are typically set up by the legislature of that nation and are intended to secure the privileges of people and organizations to their intellectual property.

This incorporates patents, trademarks, copyrights, trade secrets, and other forms of IP. Domestic IP law is usually enforced by the courts of that country, although some countries may have international agreements in place that allow for enforcement of IP rights in other countries as well. International IP law, then again, is a set of laws that control intellectual property across multiple countries. These laws are typically established through international treaties or agreements between countries.

WASHINGTON – The cannabis industry is dramatically scaling back its presence in Washington.

Curaleaf, one the largest cannabis companies in the world, spent nearly 40% less on lobbying in the first half of 2023 than it did at its peak in 2019. Others like Columbia Care and Pax Labs got rid of their entire lobbying teams. Of the four major cannabis industry coalitions that have been pushing for federal legalization of marijuana the longest, one has seen its revenue cut in half; two others appear to have folded completely. Together, their spending on advocacy has dipped by more than 50% since 2019, back when federal weed lobbying was at its height.

Fighting weed legalization on Capitol Hill can feel like a lonely struggle these days.

Marijuana is just as popular as ever. More than half of Americans now live in states where adults can legally possess the drug, and just over two-thirds support federal legalization. In Congress, more and more lawmakers — on both sides of the aisle — express some form of support for legal cannabis in the states.

Republican support for marijuana legalization might be at a record high nationally—but despite majorities of voters in both parties now backing the reform, a partisan divide has widened over the past two decades as Democrats have been even quicker to embrace the issue, according to new analysis of survey data from Gallup.

We can debate the pros and cons of marijuana legalization another day, but let’s first dispense with the asinine argument that hemp and marijuana are the same.

Now Noem finds herself in a direct showdown with the Legislature. Her only hope is to kill the bill in the Senate. If she can't, she faces the prospect of vetoing the bill and having the Legislature override her veto.

Most Americans support legalizing marijuana, according to Gallup, but that hasn't influenced President Joe Biden to take steps toward his campaign promise to decriminalize marijuana use at the federal level.

"Unfortunately, we have not seen any steps or even the indication of serious consideration for a step in the right direction when it comes to marijuana policy reform and the Biden administration," said Justin Strekal, political director of the National Organization for the Reform of Marijuana Laws, which supports decriminalization.

Morgan Fox, political director of the National Organization for the Reform of Marijuana Laws, said the dissonance between voters and elected officials reflected an unwillingness to prioritise what some politicians still considered a peripheral issue.

“Unless lawmakers actually hear from their constituents . . . they’re not going to spend the political capital,” Fox said, “because it still has a little bit of that taste of a fringe issue.”

Kim Rivers, CEO of Florida-based Trulieve, now believes that federal legalization will be “incremental” and will take years. She contends that the SAFE Banking Act, which would make it easier for cannabis companies to access the financial system, is the most likely reform to be passed at the federal level during Biden’s remaining term. Rivers, like many other CEOs, does not believe there is enough political capital to usher in de-scheduling or federal legalization right now. “We’re still stuck on first base,” she says.

The same buzzkill mentality is pervasive among investors. Jason Wild, a former pharmacist who launched cannabis hedge fund JW Asset Management ($600 million AUM) and is currently the chair of Canada-based cannabis operator TerrAscend, which has 35 dispensaries across California, Canada, Maryland, Michigan, New Jersey and Pennsylvania, laughs when asked if he incorporates federal reform in his business strategy. “We certainly do not model for federal legalization,” says Wild. “And, for that matter, we don’t model for incremental change. It’s a dangerous strategy. From a balance sheet perspective, you need to act like it’s not going to happen.”

In trademark law, the first use of a mark within a particular territory usually establishes trademark ownership in that territory. As such, a cannabis company may own a trademark in a given state that (a) is identical to the mark used by a different company in a different state; (b) would be in direct conflict with the other company’s rights if the different states became subject to a uniform system; and (c) is nonetheless a valid mark within the company’s home state. These issues are particularly significant for cannabis companies that desire to expand into new states, because their expansion plans may be limited or thwarted by a competing claim for trademark ownership in a different territory. For example, established brands with valid marks operating in legal states like California may not be able to claim priority in newly legal states where other entities may seek to use the same marks.

Federal decriminalization or legalization of cannabis would presumably bring an end to this system, but it is unclear what the resulting system would look like or how priority disputes might be resolved. This uncertainty will be especially problematic for large and popular brands whose products are already widely counterfeited and sold by black market players in states where cannabis is still illegal. Given the territorial nature of trademark law, it may even be that counterfeiters in illegal states have a head start as to priority, as compared with the original companies that created the marks but operated strictly in accordance with state law.

Further, the reclassification does not resolve the lack of availability of federal trademark registrations for state cannabis companies. Currently, federal trademark registrations are not available for state-cannabis companies due to the illegal status of cannabis at the federal level. As the rescheduling of cannabis from Schedule I to Schedule III has no impact on the federal legality of cannabis, state-cannabis companies still remain without access to federal trademark protection. However, this reclassification raises the stakes of potential trademark infringement in the future. Indeed, as cannabis becomes more prominent and regulation efforts on the local, state, and federal level head towards varying levels of legalization, history shows that trademark infringement lawsuits will grow increasingly common.

Prohibition provides the prime example. Once alcohol was de-prohibited, alcohol companies were able to register for nationwide trademark rights. This led to an influx of trademark litigation based on pre-existing trademarked, non-alcohol companies that alleged they had priority to the trademarked name. For example, in James Burrough Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266 (7th Cir. 1976), Burrough was the owner of three trademark registrations for gin, each alleging first use on November 9, 1909. The registrations were for the term “Beefeater.” A restaurant operation in Detroit, Michigan commenced its operation with the notation “Sign of the Beefeater” for their restaurant. The Seventh Circuit concluded that the federal mark for “Beefeater,” had priority based on its first use in 1909. While cannabis still remains illegal at the federal level, the reclassification signals a growing recognition of cannabis companies and the future potential of increased trademark litigation.