The inclusion of copyright means an Indigenous system is seen as a “leftover” IP protection – can’t solve the net benefit.
James [Sa’ke’j] Youngblood Henderson 21, Research Fellow, Indigenous Law Centre, College of Law, University of Saskatchewan. Tribal citizen of Chickasaw Nation, 12-18-2021, "The Indigenous Domain and Intellectual Property Rights", Lakehead Law Journal, https://www.canlii.org/en/commentary/doc/2021CanLIIDocs13032#!fragment/zoupio-_Tocpdf_bk_1/BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoAvbRABwEtsBaAfX2zhoBMAzZgI1TMAjAEoANMmylCEAIqJCuAJ7QA5KrERCYXAnmKV6zdt0gAynlIAhFQCUAogBl7ANQCCAOQDC9saTB80KTsIiJAA //MRK
Behind the statutory intellectual property laws, these distinct but interrelated residual domains illuminate the multifaceted character and modes of the immanent metaphor. Canadian jurisprudence does not have a positive account of either the Indigenous or public domains. Under the influence of parliamentary supremacy, law professor Teresa Scassa articulated that Canada’s public domains are conceived of as the “leftovers” of statutory intellectual property rights—the melancholic and fragile crumbs that remain once its statutory appetite is satisfied. Its scope is elastic and indeterminate; it can be expanded or shrunk by either legislative enactment or judicial interpretation. 31
Canadian jurisprudence on intellectual property rights has focused on statutory laws. Judicial references to the public domain have been rare and insipid. The courts have recently affirmed the view of the public domain as a pre-existing source of Canadian intellectual property laws, which are constructed from the Eurocentric traditions 32 and appropriated Indigenous traditions. 33