Trying to provide effective, balanced and adequate protection of traditional cultural expressions and recognizing the intellectual property rights that local communities and indigenous peoples hold with regard to those expressions pose a real challenge in legal terms.
It is common knowledge that using a trademark, a patent or a design of another business may cause an infringement of intellectual property or industrial property rights, or even an act of unfair competition. Although things are not so clear where it is cultural expressions of indigenous peoples that are being used, a trend that has been seen across all fashion houses, from great luxury to fast fashion, all looking for inspiration in traditional arts and crafts of other cultures to create new westernized collections.
Our clothes and our accessories are tied to our own history and heritage. In India women wear saris on special occasions, in Japan, kimonos, in religious contexts Muslim women wear hijabs, whereas catholic nuns wear habits, and all those items of clothing have a meaning in their cultures which goes beyond a simple dress.
Although for many communities and indigenous peoples, cultural creations are the way they present themselves to the world, and have a high economic and social value for them, the control those communities have over their own creations is very limited. This is because cultural products do not have specific protection through intellectual and industrial property laws, which creates a legal loophole prompting abuse. For this reason, the next steps in dealing with intellectual and industrial property issues should focus not just on our own future, in matters such as artificial intelligence, the metaverse or big data, it should also be considered whether there is a need to protect cultural products passed down from generation to generation, together with whether or not they need to be provided with the necessary legal protection and, if so, how this should be done.
The lawmakers’ task is not straightforward, however, because the nature of this type of products is not so either. Because they are created through the involvement of people in the community, no individual author of the cultural product can be identified, or the individual products themselves, which makes them very difficult to protect.
In today’s fashion industry, it is common for large firms and independent designers to turn to traditional crafts in their search for inspiration and creativity. There are a host of examples of this type of technique, including U.S. brand Urban Outfitters, which was accused by the Navajo Nation Native American reservation of infringement of the “Navajo” trademark and of cultural appropriation by launching on the market a clothing and accessories collection with Navajo patterns on products such as flasks, when alcohol is prohibited in the Navajo culture, or underwear, when it is a very conservative culture. The case ended well, however, and the parties sealed an agreement which has been kept confidential, although they announced the commencement of a joint project.
The questions that need to be asked are: when can action for cultural appropriation be taken?, who is entitled to take this type of action? and what can be claimed?
Before any legal action, it is important for the originating community to recognize the authorship and authenticity of its products. From that point it will have to take an active role in its protection and defense, preferably through a leader or representative who will be entitled to take legal action against third parties.
A viability study is needed of registering as a trademark or design a few of the most characteristic elements of the culture, as the Navajo did, because this will always work very much in their favor in any action or negotiations relating to infringements of industrial property rights. However, an analysis of the current situation of cultural appropriation in the fashion industry shows that cases of appropriation are becoming increasingly common. An examination of the current legislation on industrial and intellectual property is therefore needed to be able to give an answer to and protect the owners of these cultural expressions with respect to the use that designers make of their culture.
The WIPO document The Protection of Traditional Cultural Expressions: Updated Draft Gap Analysis explains existing deficiencies in relation to intellectual and industrial property and, particularly, in relation to copyright, to be able to take effective action against the appropriation of cultural expressions. Along these lines, the WIPO Intergovernmental Committee is negotiating an international legal instrument that is intended to provide effective and balanced protection through intellectual and industrial property for traditional cultural expressions. From the various documents produced by the parties sitting on the committee, we noticed that one of the areas where indigenous communities and peoples are placing the greatest emphasis is on protecting traditional cultural elements such as through copyright, with right holders having moral rights in those works, and being able to take action in the ordinary courts for infringement, as a result of inappropriate use being made of them.
At its fortieth session held between June 17 through June 21 2019, the WIPO Intergovernmental Committee prepared a document entitled The Protection of Traditional Cultural Expressions: Draft Articles, which recognizes in its Preamble “the rights of indigenous [peoples] and the interests of local communities] to maintain, control, protect and develop their intellectual property over their cultural heritage, including their traditional cultural expressions”. This document is a first step towards reforming the legislation on intellectual property and industrial property and trying to provide effective, balanced and adequate protection and recognizing the intellectual property rights that local communities and indigenous peoples have with regard to those expression.