The alt is the public domain - a modern terra nullius where epistemicide appropriates and coopts Indigenous knowledge.

The development of the Indigenous renaissance in Canada and beyond has produced complicated quandaries of Indigenous peoples’ knowledge systems intersecting with Eurocentric knowledge systems. As Justice Abella of the Supreme Court of Canada (SCC) insightfully noted: “As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous people, inequities are increasing revealed and remedies urgently sought.” 2 As the cognitive curtains have been opened surrounding the holistic Indigenous peoples’ knowledge systems, they reveal the injustices of the Eurocentric concepts of intellectual property law, which includes ownership and commercial privileges. These systemic injustices arise from the long, dark chronicle of the Eurocentric fictions of terra nullius (no one’s territory), 3 gnaritas nullius (no one’s knowledge), 4 and lex nullius (no laws) and the demesne (public domain) being applied to Indigenous peoples. The Eurocentric knowledge systems and laws generated these fictional concepts to explain the unknown continent and peoples not mentioned in the Bible. 5 They were used to justified unauthorized access, taking, using, and uncompensated appropriation by Europeans of existing Indigenous territories and knowledge systems. They operated to deny any legal protection to the Indigenous inhabitants’ knowledge. 6

These systemic and cognitive injustices toward Indigenous knowledge systems were crafted by the tendentious constructs of Eurocentric diffusionism, 7 colonialism, 8 racism, 9 and cognitive imperialism. 10 Together they formed the core of Eurocentrism 11 and its intellectual property regime. 12 Eurocentrism is a constructed knowledge system created in Europe to establish its invidious universality and superiority of European thought. Its universalism assumed and validated cultural and cognitive imperialism and incorporated the belief in the inequality of race and the subordination of non-European knowledge systems, languages, and cultures. Eurocentrism’s hegemonic universalism excludes rather than includes. It was designed to replace and acquire other knowledge systems through a process of epistemicide, 13 which generated the concept of the vast public domain.

Under the horrific legacy of the European epistemicide, Europeans and European settlers have historically constructed Indigenous peoples as less than human—as “primitives,” “savages,” “backward,” and “non-persons.” 14 Later they became objects of curiosity for study, collection, and research in order to affirm the superiority of Eurocentric knowledge. The Eurocentric constructed hierarchical typologies classified these inhabitants alongside flora and fauna. 15 When Eurocentrism acknowledged Indigenous inhabitants’ knowledge, it was considered a deficient knowledge system. It labelled the Indigenous inhabitants’ knowledge as folklore, folk ecology, women knowledge, ethnoecology, traditional environmental or ecological knowledge, customary law, traditional knowledge, traditional cultural expression, or genetic resources, or by using the enigmatic initials GRTKF (genetic resources, traditional knowledge, and folklore). These Eurocentric categories are a poor fit that destroy legal meanings.

These classifications establish the framework for Eurocentric colonialism and racism as well as their appropriation, control, and domination. These appropriations are endemic to Eurocentrism. This systemic injustice demands critical examination and reforms.

The Europeans assumed that whatever intergenerational Indigenous knowledges and intellectual property laws and rituals they “discovered” were not legally protected and were part of the audacious metaphor of “public domain” (publici juris) and could be freely accessed, used, or taken. 16 The Eurocentric public domain determined that these Indigenous peoples’ knowledge and folklore were not new, original, or individual. Instead, the public domain characterized these knowledges as ancient natural traditions. The irony of this rejection of protecting these ancient knowledges is the source of the Eurocentric idea of the public domain, and intellectual property laws are based on nature. 17 Only what the Europeans extract from nature is legally protected—the Indigenous peoples’ extraction from nature is not legally protected. Their knowledges are assigned to the public domain, which is open to exploitation and appropriation by anyone. 18

These Eurocentric fictions in Canada and beyond have become obstacles to the legal protection of Indigenous peoples’ knowledge and creative manifestations. In intellectual property laws, these fictions continue to serve as an implicit assumption in the Eurocentric metaphor of the public domain 19 or the common heritage of humanity. 20 Intellectual property law seeks to protect the selected products of original thought and the physical manifestations or expressions of Eurocentric knowledge and ideas by assigning and enforcing them as legal rights. These Eurocentric concepts and categories continue to raise difficult questions about protecting Indigenous knowledge at the intersection with European innovation policy and knowledge governance.