Earlier this spring imagineNATIVE launched On-Screen Protocols and Pathways: A Media Production Guide to Working with First Nations, Métis and Inuit Communities, Cultures, Concepts and Stories (the “Guide”). The Guide “is for use by screen-story tellers and production companies wishing to feature First Nations, Métis or Inuit people, content or concepts (traditional or contemporary cultures, knowledge or intellectual property) in their films, television programs and digital media content”. I was looking forward to reading it from a Diversity and Inclusion perspective but at a recent Ontario Creates Discussion Series to promote the Guide, I had an eye-opening realization that the Guide was also an essential tool for entertainment lawyers, funders, broadcasters and distributors.
However, there is a lot more to the Guide than a discussion of rights and permissions and I strongly encourage everyone to read it. At the Ontario Creates discussion it was recommended that organizations break down the fairly large document amongst staff, each one reads a section and then come together in a sharing circle to discuss what they have read. Or if you have no co-workers, like myself, you read it all and blog about an aspect where you think that you might have something to contribute.
Four key principles of the protocols are Respect, Responsibility, Reciprocity and Consent. I’m going to focus on Consent because that relates directly to chain of title. Full disclosure – I used to be a film, tv and digital media entertainment lawyer. I am pretty familiar with the various rights that are needed to show chain of title for a film or television or interactive digital media production. Under traditional ‘western’ ideas of chain of title, the producer must show that they have contracts that demonstrate ownership of the underlying rights or a licence to use the underlying rights and licences or permissions to use any and all copyright works that are contained in the final production (i.e. music rights, image rights, personality rights etc.). This is an essential step for funders, broadcasters and distributors before they advance any money or make any distribution deals.
While there are many Indigenous peoples, nations and communities within Canada, they share an approach to stories that is very different from western legal tradition. Stories are often communal and based on oral traditions. Some stories are sacred and have greater meaning than just as story. In western legal tradition a communal story would be considered public domain under copyright (they are more than 75 years old) and therefore available to anyone to tell in any form. However, an Indigenous communal story is ‘owned’ by the community. “Knowledge is created and owned collectively, and responsibility for its use and transfer is guided by traditional laws and customs.”
Here is an example from Duane Gastan Aucoin, Filmmaker:
“We need to make sure that the rightful owners give the permission. For example, I used the Raven stealing sun story. I met with a Raven clan leader and he wanted to hear the story; and after I told him the story, as I know it, he gave his blessings because the telling of the stories was the same he heard as a child. I had to get permission from the Raven clan, who approved both the story and the final product. The Teslen have a traditional knowledge policy for stories, medicines or teachings, so I also met with heritage department who to ensure all the conditions are met.” 
As the copyright laws of Canada and global intellectual property laws are unlikely to change any time soon to take into consideration Indigenous concepts of intellectual property creation and ownership, a producer (or other participant in the project) may wish to add additional permissions to their standard checklist for Indigenous projects. The Guide suggests that a producer may want to consider co-creation or co-authorship with members of the community but it may also be as simple as permission from the community and any other bodies who the community feels are relevant. However, co-authorship will confirm rights of collaboration and approval which the Guide recommends in other parts of the document.
In the case of a life experience, western legal practice is to obtain the rights to tell the story from those who were central to the story. The guide advises that there are events where the individual is not the sole ‘owner’ of the story as it happened to the community as much as to the individual. Dr. Jenny Kay Dupuis, author of ‘I Am Not A Number’, a book about the author’s grandmother’s experiences at residential school, shared at the Ontario Creates Discussion that she had to obtain the consent of the community to tell the story as well as family members. This again flows from the concept that rights are communal rather than personal.
The Guide also offered a different perspective on archival footage. Legal practice is to gain rights to the footage from the owner of the footage (e.g. NFB or CBC) however the Guide points out that there were situations where the appropriate permissions were not obtained in the first place when the footage was shot so any licensee would have to go to the community in question (even if the original individuals are no longer available) for permission as well as the owner. Situations also existed where filming should not have taken place (e.g. sacred ceremonies) so the community should have the final say on whether the footage can even be licensed. The NFB is currently undertaking a research project on global best practices on Indigenous archival footage so it is expected that the protocols in this area will be further developed shortly but in the meantime producers should ensure at a minimum that the necessary permissions were originally obtained and that the community in question consents to the reuse of the material.
There is a lot of advice in the Guide on rewriting releases to be easier to understand as well as culturally appropriate. One suggestion is to create audio or video releases to account for differences in language or writing skills. But a fundamental cultural difference is to consider that a producer is making a commitment to the individual rather than the individual is granting rights to the producer:
‘It was amazing to shift my idea around release form and look at it as a commitment that I am making to the person versus the other way around. It is vital to discuss the vision for project and then make that commitment to them. I do not own what they have done in perpetuity; the family owns it and it will go to children and grandchildren so it is important to spend time with that family getting permissions based on vision and determine how they would like to have influence.’ Helen Haig-Brown (Filmmaker)
One of the principles of the UN’s Declaration on the Rights of Indigenous Peoples is the right to Free, Prior and Informed Consent. That means taking the time to discuss releases, understanding that there are many factors that must be considered before giving consent and many parties involved. The process of obtaining releases will necessarily be more time-consuming than in a traditional film or television program.
It will be helpful if in time the industry could share examples of these new forms of releases, particularly as they need to balance the needs or expectations of funders and distributors regarding rights and chain of title.
As an intellectual exercise this community-based way of considering rights is fascinating to me but I recognize that it is more than that. Understanding the Indigenous concepts of intellectual property rights is an important step in reconciliation. The bottom line is that if you are a Producer, Funder, Broadcaster or Distributor looking at a film, television or digital media project with Indigenous elements such as story or location, even if only ‘inspired by’, do not rely on your tried and true checklists for rights but dig deeper, using the Guide, to ensure that you have the necessary rights not just in accordance with the laws of Canada but in also accordance with the On-Screen Protocols.
On-Screen Protocols and Pathways: A Media Production Guide to Working with First Nations, Métis and Inuit Communities, Cultures, Concepts and Stories, pg. 57
ibid, pg. 25
Ibid, pg. 41