Indigenous IP Rights in the Age of AI
Shaping a More Equitable Digital Future
Artificial intelligence can both safeguard and threaten Indigenous IP. Ralph Cunningham previews a session discussing brand responses and policy reactions to these challenges.
“Effective governance ensures that AI benefits communities rather than exposing them to misappropriation. It is therefore essential that Indigenous communities actively participate in shaping the future of AI.”
So says Lorraine Takaendesa, Partner at Honey & Blanckenberg (Zimbabwe), who is moderating the session Code & Culture: Indigenous IP Rights in the Age of Artificial Intelligence (AI) on Saturday, May 2, 10:00 am to 11:00 am.
Ms. Takaendesa will be joined by Marion Heathcote, Principal at Davies Collison Cave (Australia), Stephane Caron, Partner at Gowling WLG (Canada), Manish Mishra, Partner at Inttl Advocare (India), and Shoshanna Paul, Partner at Thompson Dorfman Sweatman LLP (Canada) to discuss whether artificial intelligence (AI) is a threat or a tool for Indigenous intellectual property (IP).
They will also explore what the policy responses should be, the risks of cultural misappropriation as AI extracts language, art, and rituals without consent, and the legal, ethical, and reputational challenges faced by brands accused of misappropriation.
"Effective governance ensures that AI benefits communities rather than exposing them to misappropriation."
-Lorraine Takaendesa | Honey & Blanckenberg (Zimbabwe)
Divergence
Opinions differ widely—and wildly—about AI systems. They are either the greatest inventions in history, helping to enhance knowledge and develop skills, or they are weapons that steal human ingenuity. A third point of view is somewhere in the middle, with undeniable positives and negatives.
When AI, with its voracious appetite for data and information, comes up against Indigenous IP, tension is unavoidable.
Indigenous IP not only covers more conventional rights, such as patents, trademarks, copyright, and designs, it also encompasses spoken or oral histories, ceremonial designs, and agricultural methods and techniques—unique sets of knowledge that have been developed and passed down over centuries.
Protection for Indigenous IP is enshrined in Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). It recognizes the right of Indigenous peoples to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and cultural expressions, including the IP relating to their sciences, technologies, human/genetic resources, seeds, medicines, flora/fauna knowledge, oral traditions, and arts.
However, the UNDRIP was passed in September 2007, long before AI became a tool in everyday use. Other global standards or agreements include the World Intellectual Property Organization (WIPO) Traditional Knowledge Guidelines and the Organisation for Economic Co‑operation and Development (OECD) AI Principles.
“We are at an interesting intersection in time—the trajectory of the oldest continuing living people on Earth, and our creation of the newest technology designed to replicate people,” says Ms. Heathcote. “The potential harm is real in that it enables cultural appropriation, homogenizes, and digitally excludes.”
“In my mind, one of the key developments around the definition of Indigenous IP has been the recognition that traditional cultural expression is dynamic and evolving and is not only strictly limited to past expression from previous generations,” says Mr. Caron.
He highlights the mismatch between the “more Western” views of IP being an individual’s original work and the notion that traditional cultural expression comes from the society, or collective, in which people live and is for the community’s benefit.
"We are at an interesting intersection in time—the trajectory of the oldest continuing living people on Earth, and our creation of the newest technology designed to replicate people."
-Marion Heathcote Davies | Collison Cave (Australia)
How AI Helps
Ayoyemi Arowolo, Professor of Law at Babcock University (Nigeria), points out that while AI has made the misappropriation and collection of Indigenous IP easier because it can be done without having to be physically present to take it, it is also helping Indigenous peoples establish their rights.
“It has also created an avenue for holders of Indigenous intellectual properties to show the world who the actual owners are, curbing to an extent misappropriation or the taking of their intellectual properties without acknowledgment,” Ms. Arowolo says.
For example, kama.ai is an Indigenous-owned AI company started by Chapleau Cree First Nation in Ontario, Canada, which focuses on organizing, indexing, and accessing the culture and linguistic knowledge of Chapleau Cree communities.
": [AI] has also created an avenue for holders of Indigenous intellectual properties to show the world who the actual owners are."
-Ayoyemi Arowolo | Babcock University (Nigeria)
Brands, AI, and Indigenous IP
There are ways of making sure brands do not take unnecessary legal, ethical, and reputational risks in how they use Indigenous IP.
These include auditing the data that AI systems are trained on, ensuring that consent is obtained and implemented properly, and, once the systems are using the Indigenous IP, monitoring its use to avoid or mitigate risks.
“Lawmakers and policymakers should recognize the value of IP to all societies and the role of Indigenous communities in creativity and innovation,” Ms. Arowolo says.
In Ms. Takaendesa’s view, existing laws and regulations sometimes do not go far enough.
“Current legal and regulatory systems often lack adequate protection for Indigenous IP in the AI era,” she explains.
“Policymakers need to develop culturally informed frameworks that safeguard consent, attribution, and data sovereignty, ensuring ethical and equitable AI use,” she adds.
