Common-law countries such as England, Canada and the United States of America identify intellectual property as having an economic dimension (Barone & Hagner, 2001) In this economic context there is the troubling question of whether the creators of work actually own the copyright to it, and if so, do they actually own the work? The all-important sub-question is, which person or persons (or which organization) may subsequently obtain pecuniary or other benefit from it? Another, perhaps equally important sub-question is, who has the right to make changes to content or to put the material to uses other than originally intended or stated, without consulting the creators of the material?

The Eurocentric (Mainstream) communities in Canada adhere to Common-law constructs. However, Aboriginal perceptions of what may be owned by individuals do not extend to work based on religion, language and traditions which are communal and which have developed over millennia (Battiste & Little Bear et al., 1998)?

This article identifies the bases for the development of current educational institutional policy and court ruling in Canada as they apply to intellectual property ownership, and associated problematic differences between Mainstream and Aboriginal cultures.

In 1797 the Law Society of Upper Canada established that English Common-law should prevail in Canada. It provided an integrative, pattern-maintenance function to bring order to a more or less unfettered society. This worked well for the European members of society but set up a permanent division between Mainstream and Aboriginal peoples as Common-law focuses on individuals and Aboriginal traditions focus on communities. This has created an impact in the Courts which try to reconcile constitutional and legislative matters with aspects of Aboriginal interests.

Copyright laws, too, did not spring up overnight. They have been established since the 16th century and originated to protect writers and producers of entertainment. By the mid-20th century they had been adapted to mainly serve large commercial interests to cover investment costs of print materials, music and performance (Bates, 2000. p.108). It is within this context that many educational institutional issues are viewed as they provide the media, materials and venue whereby much current academic creativity takes place.

There is a difference between intellectual property ownership and ownership of the copyright to it (Ibid, p.108). The law states that the creator of original material automatically owns the right to that material, and it does not have to be registered for that right to be established. However, that right must be justified by something tangible such as a book, an article or some other piece of hard evidence. An idea or thought does not have copyright protection because it is difficult in law to prove its origins. Nonetheless, many aggrieved individuals lay claim that someone has taken their ideas and made money out of them to their detriment. The real problem is that the originators, if such they be, failed to take their ideas to the next logical step of tangibility.

In terms of institutional matters, when an employee makes an agreement to develop, for example, a course specifically identified as part of a larger program, the institution owns the rights to the material created, but the individual is free to take his/her own ideas and use them in other forms, such as a book or published article. This said, another set of laws, around conflict of interest, prevents an academic paid a regular salary by the institution from developing similar material without the institution’s permission. What has made this more important in recent times is the increasing need for institutions to provide costly equipment and other resources for the development of on-line courses as part of the regular process of teaching. Institutions are therefore producers of copyrighted materials. The problem of intellectual property ownership has become sharply focussed because of the major increase in teaching programs which are aimed at teaching post-secondary teachers to teach, and because institutions are rated in terms of their quality of faculty education programs (Bates, p.99). There are also problems in the move to e-learning, and policies regarding this are unclear (Advisory Committee for On-Line Learning, p.66).

Underlying everything is the issue of fairness. It is only fair that the institution gets something back for its investment, even if it is only recognition or cost-recovery. It is only reasonable, too, that the originators of the material are given recognition (which can be useful in promotion, tenure or similar circumstances) and control of what might happen to their created work.

In terms of Aboriginal perspectives, Battiste, Little Bear et al. (1998) identify the very complex situation in which Aboriginal peoples of North America find themselves with respect to property. They are affected by indigenous knowledge and culture and by Mainstream culture and legal systems. The two cultures and systems are, frequently, incompatible. Currently intellectual property related to indigenous knowledge depends on the Mainstream laws of the states or provinces in which they live, or in which their lands are located. There are further problems in trying to distinguish Canadian indigenous knowledge from indigenous knowledge worldwide. In Canada, categories are interrelated and do not easily fragment into nationalist boundaries. In Aboriginal culture, the lines which separate intellectual, spiritual and cultural rights are unclear. Few definitions of Aboriginal culture do not overlap at some point. By way of contrast, Mainstream intellectual property law centers on who has the right to exploit creations of the mind. It focuses on the individual and relates to protection of new ideas, expressions, inventions, trade secrets, trade marks and economic torts, to be shared only when some gain can accrue to the originator. Aboriginal culture is focussed on community, and regards know-how and experience as matters to be shared in the development of the community well-being. To subject Aboriginal peoples to mainstream legal measures which provide protection of limited duration and which are designed to promote dissemination and use of ideas through licensing or sale would affect their identities in the same way that Mainstream individualization has had on their territories. That is, fragmentation into pieces and the sale of the pieces until nothing remains.

There is much confusion arising from the use of third-party copyrighted material. This is particularly an issue in education where there is a widespread use of material created by someone else into otherwise original material (such as this article), but may also apply to illustrations (those overhead cartoons from newspapers and magazines used to illustrate points) and also sound and video clips used for the same purpose. Normally a small portion of a work may be used – usually a quote of forty or less words from a prose work or a couple of lines from a poem is generally deemed "fair use" for educational purposes. In Canada a lecturer may be allowed to reproduce a small proportion of illustrations from a book for lecture purposes and students may be able to make one copy of an article for personal use (Bates, p.113). Third party agencies such as Can-Copy assist in creating procedure for copyright clearance. Digital material is much more of a problem as it involves the creativity of professors, instructional designers, interface designers, graphic artists, computer programmers, camera crews, producers, directors, production assistants and talent for videos and CDs to bring the ideas to function.

The whole matter of ownership of copyright and materials is still a potential minefield. In Canada, as with other countries with large Aboriginal populations and an emerging awareness of the non-homogeneity of cultures, traditions and laws, much is unclear. What remains is that all of us must be acutely aware of events related to ownership and copyright, changes in the law, and increased sensitivity to Aboriginal culture. It might also be a good idea to develop a personal dossier on national and international case law related to copyright and ownership of materials produced as a result of scholarly endeavour. Individually, we have responsibilities to ourselves and to academic communities to ensure policy making and on-going policy revisions in our home institutions are a part and parcel of administrative process. This will most certainly assist in reducing ambiguity, and may even prevent costly and acrimonious litigation.

W. Richard Bond, Ph.D. is the Director of the Centre for Adult Studies and Distance Learning Brock University and teaches in both undergraduate and graduate students in the Faculty of Education at Brock University. He can be reached at (905) 688-5550 or rbond@ed.brocku.ca