by Heidi Bergstrom
re-post from NorthernWomen.org

I wanted to contribute a blog to the Northern Women’s Art Collaborative (NWAC) about the Cowichan Tribe’s struggle with the Hudson’s Bay Company in 2010 over their intellectual property rights and the cultural appropriation of First Nations cultural expressions. I am from the west coast of British Columbia in Canada and these issues are discussed regularly in our community. This brief blog will outline the story and provide links to further information and academic sources at the end. It is intended as a starting point only. I am interested in continuing with some further analysis as it relates to my political science thesis on Cultural Policy in Canada and relationship to international law instruments through UNESCO. I also believe that for the purposes of the NWAC, this story and the ongoing struggle of the Cowichan to continue developing their traditional practices, there are some poignant lessons here for other groups and societies. Please feel free to comment on this piece at the end.

Cowichan-Knitter — Photo: Cowichan Tribes via ounodesign.com

The late Amelia Charlie, prominent designer and promoter of the Cowichan sweater

A flurry of media reports concerning the Cowichan Tribe’s claim that their famous sweater designs were being used illegally by the Hudson’s Bay Company for the 2010 Olympics held in Vancouver, BC Canada raised important issues around intellectual property and cultural appropriation. The outcome of the issue highlights the limits of legal, artistic and economic protection for creators of cultural products in this age of globalization. How can cultures at risk protect their cultural expressions from exploitation and ensure that their cultural outputs are fairly compensated?

The Hudson’s Bay Company is not the only one who should be implicated in this situation however, as their actions were supported by the Provincial Government’s representative at the time. Mary McNeil, Minister of State for the Olympics was quoted in an early report by CBC News, saying “It was a matter of finding a quantity of knitwear in a time frame, and apparently it was a fair and open process”. Ironically, HBC as a private company has no obligation to outsource their suppliers through public procurement processes. Private companies can make their own arrangements so any reference to ‘fair and open’ processes by McNeil can only refer to public tenders i.e. official government procurements that undergo a high degree of public scrutiny and require equally high levels of transparency. This would have been a huge oversight on the part of government representatives who have a duty to consult with First Nations in situations like this in order to determine if there are impacts to any groups involved in government sponsored initiatives. In making a public statement like this McNeil is shielding a private company and distorting a process that a private company had no part in. If HBC had a fair and open process in the first place they would have consulted the Cowichan who are clearly key stakeholders in the sweater design and marketing.

For the Cowichan knitters much more was and continues to be at stake, especially since they hold a registered trademark on the sweater design and name. Their bid to produce the sweaters was rejected by HBC who claimed that the Cowichan could not produce the quantity (700+ sweaters) or quality they were seeking in the timeframe they needed to be produced in. In a second media report, HBC stated that the design of their sweaters was definitely NOT Cowichan, but no matter how the company tried to spin the story and claim that their design was unique because of the addition of HBC logos, different patterns etc. it was evident to all that this was a rip-off of the original Cowichan sweater design (Olympic sweater not a Cowichan, Hudson’s Bay Company says by Bruce Constantineau, Vancouver Sun, October 8, 2009). Four months later HBC was forced to compromise and deal with a PR issue with the potential to spiral out of control: “Faced with the prospect of a silent “sweater protest” during the Olympic torch’s run through Duncan on Oct. 31 and stung by the negative publicity, Bay officials agreed to work out a way of including genuine Cowichan sweaters in its Olympic plans” (Globe and Mail January 25, 2010).

The deal was not satisfactory to the Cowichan – they neither received the size of order or price they hoped for (only 50-100 sweaters at $195 each). HBC retailed the sweaters for $350 each and continued to retail their knock-off line. No royalties or other intellectual property or licensing fees were reported by the media.

This issue came to light during a major international event which is fortunate as it helped to raise local awareness and encouraged some academic attention on the subject (Udy 2015). However, cultural appropriation is taking place in many other forms and venues on a regular basis that are neither acknowledge nor decried. The internet and global communications has enabled the proliferation and distribution of information and ideas on an unprecedented scale. As knowledge and exposure to other cultures’ expressions are distributed globally, we see exciting new collaborations and creations -for example in music. These new forms mostly include the actual musicians bringing their musical expression to the group or band and thereby legitimizing the fusion of musical forms. This is not what happened in the HBC/Cowichan case and a search of the internet will now turn up several instances of other intellectual property incursions. For example, Pinterest has a post showing a Cowichan Pattern available for $2.50 (https://www.pinterest.com/pin/557742735073339347/).

In an attempt to balance these inherent conflicts and provide some protection for cultures at risk from the negative impacts of globalization, the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the majority of member states have ratified and put into force (including Canada) the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (the convention), which explicitly outlines, defines and set forth in the Articles, measures and expectations of nation states to help protect cultural groups and especially women and indigenous people:

Both the subnational government of British Columbia along with the federal government are both bound by this convention and must make every effort to ensure that the articles are upheld. In this instance they have not. The subnational government of British Columbia, as the official state sponsors of the Olympics and national representatives of Canada needed to take assertive steps to protect and promote the Cowichan in this situation. Their failure is a failure for everyone. This case is an example of lack of accountability as well as a lack of will to do what is right by others and to uphold our commitments made through international law.

key words: Cowichan; Canada; intellectual property; cultural appropriation; First Nations; cultural heritage; UNESCO