Sui generis protection is key for indigenous IP protections – other countries prove it works

Intellectual property law is traditionally a combination of copyrights, patents, and trademarks that delineates rights of property ownership and allows for protection against unfair competition.17 Definitions within intellectual property statutes are a source of contention between individual nations and international organizations.18 Each statute can have its own definitions for what is covered under the specific statute, not one of them completely aligning with another.19 Definitions in statutes are typically variable by nation as a result of diverse traditional, philosophical, and legal ideas.20 Despite differences in exact definitions, establishing intellectual property rights primarily creates a property right allowing the owner to exclude others from use.21 Sui generis is a Latin term simply meaning "of its own kind."22 Similarly, in the legal community sui generis "is used in intellectual property law to describe a regime designed to protect rights that fall outside the traditional patent, trademark, copyright, and trade-secret doctrines."23 Under sui generis law, when intellectual property laws do not generally protect an object, a statute can be enacted specifically for the purpose of using intellectual property law to protect untraditional subject matter. Sui generis protection stems from a belief that a new form of invention needs legal protection, but does not conform to the current intellectual property protections available.24 Theoretically, "a sui generis system could be created individually and enacted differently from one country to another."25 Scholars believe the purpose and need for sui generis protection evolved as a way to stem creativity for new inventions; authors were afraid to create when their work would not be rewarded with protection.26 In the United States and the European Union, sui generis protection has regularly been employed over the years to develop new protections for biotechnology, design patents, and databases.27 It is strongly argued that without this novel protection many of these inventions would not have been developed.28 Previously, there was no guarantee on return of investment, but sui generis protection guards against pirating and infringement that would severely harm profits.29 For example, the sui generis form may be adopted to support access and benefit sharing though newly formed legal rights that acknowledge traditional knowledge.30 Costa Rica adopted this method of sui generis protection admitting "intellectual rights, the knowledge, practices and innovations of indigenous peoples and communities related to the use of components of biodiversity and associated knowledge" whether the traditional knowledge is officially documented or not.31 Similarly, Canada adopted sui generis protections and created Aboriginal Title, a new form of property ownership for real property.32 In 1982, the Constitution Act annulled common law precedent, which did not allow for Aboriginal Title, by creating specific clauses that referenced and called for application of this new form of property protection.33 To move into the modern realm, sui generis protection must be extended to intangible property such as intellectual property. Dr. Harry Chartrand argues First Nations peoples have the opportunity to create brand names (among other intangible properties) in the global community.34 Chartrand also argues that restrictions on the right to interact in these markets impinge the First Nations peoples' competitiveness in global markets.35 One avenue Canada may pursue is adopting international conventions that protect cultural heritage via intellectual property law, like the 2003 UNESCO Convention on Intangible Cultural Heritage.36 Canada has recently taken steps to become involved in cultural protections through intellectual property law. Canada is currently one member of the WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources (IGC) and takes part in the discussions regarding drafting international Indigenous intellectual property law protections.37 Departing from common law, which does not always allow for precedent, and incorporating intellectual property through statutory measures is the answer for incorporating cultural heritage into intellectual property and allowing Indigenous people to interact with the modern global economy.38