As is well known, in recent years the fashion industry, which includes great designers and famous brands, has been highly judged by the alleged attribution or appropriation of certain cultural expressions within their designs. This has raised concern about the lack of legal provisions that give due protection to different cultures and indigenous communities on their knowledge and traditional cultural expressions.
For better understanding, we must establish that traditional knowledge is not named that way because of something that is old. Traditional knowledge is the accumulation and development of living knowledge, same that it is maintained and transmitted from generation to generation within the same community, which in most cases becomes part of your cultural and sometimes spiritual identity.
Thus, it is important to note that cultural appropriation is the use of cultural elements typical of one ethnic group used by others, stripping it of all its meaning and totally ignoring its primary use. Put more briefly, it is what happens when a cultural element is usurped with purposes that have nothing to do with those attributed to it.
With the above established, let’s remember the famous case of the designer Isabel Marant and the company Antik Batik where they sold typical blouses embodied with typical ornaments from Santa María Tlahuitoltepec, Oaxaca. And also, where the French government issued a document addressed to the local community’s government to prevent the sale of these indigenous designs without the corresponding payment of royalties to the designer. However, the peer pressure for the designer was so great that she recognized that her designs came from that community and she did not intend to take over it.
Based on these problems, during the last years, several indigenous peoples, local communities, and the governments of several developing countries, have requested urgently the highest authorities (mainly the World Intellectual Property Organization [WIPO]) some type of protection for traditional knowledge. Since, as it is known, the current intellectual property system is not enough to protect such knowledge, especially because such protection is limited and temporary.
However, even when protection through intellectual property could become limited, there are two positive aspects that protect traditional knowledge. The first called “preventive protection” which is the one that has the purpose of preventing people outside the communities from acquiring intellectual property rights over their traditional knowledge. And on the other hand, the second aspect called “positive protection” which consists of granting communities the intellectual property rights and the appropriate means for them to exploit and promote their traditional knowledge, and at the same time the communities themselves control their use and can obtain an economic benefit through its commercial exploitation.
With the above, certain questions have been asked about this crucial topic. Can cultural appropriation represent a real obstacle to the inspiration of designers? What are the limits and how should all this be approached from a legal perspective?
The WIPO has been quite active over the years in trying to adequately address the problems related to the so-called traditional knowledge, being that traditional knowledge does not enjoy strong protection within the intellectual property rights system, as there is no specific international instrument that grants legal protection to traditional knowledge. Even when certain countries have developed some rules for the protection of their cultural heritage, they do not represent a pillar or any basis for the field of protection of traditional knowledge.
To address this situation, the WIPO has established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which has been actively working in order to develop a legal instrument to find solutions that ensures, among other things, the adequate protection for traditional knowledge, genetic resources and cultural expressions. Therefore, this committee has scheduled its 39th session, which took place this past March 18, 2019, in order to start negotiations with the aim of finding an agreement on the viable legal instruments that will be adopted for the protection of traditional knowledge.
As we wait for the results of the WIPO’s initiative, the possibility of extending the existing legal instruments to the protection of traditional knowledge can be expected. With this in mind, copyright and geographical indications appear to be the most appropriate.
THE CURRENT LEGAL INSTRUMENTS
Within the copyright realm, it is intended that any human community, whether united by their religious beliefs, artistic values or common ethnic groups, can, in principle, claim a traditional knowledge that is unique and creative by the mere fact of being the direct expression of their traditions and beliefs. In addition, the mere fixation of the work of art in a tangible medium of expression would be sufficient to give rise to copyright, without the need for registration, and so facilitate access to the protection of the human communities concerned.
Therefore, even expressions of traditional knowledge that have the lowest degree of externalization, the latter being verbally expressed, written or even incorporated in some type of religious or sacred artifact, could find refuge in the copyright legal systems. With this, local communities could really avoid the misappropriation of their cultural heritage, at the same time that they raise it from a more materialistic perspective, considering whether or not they take advantage of the economic advantages of popularity and the recognition of their traditions.
However, legal concerns include the fact that in a community of people from which traditional knowledge comes, it is not possible to identify a single owner of the moral right over the work of art, which is required to give rise to the protection of the copyright, even if an author can be detected, this protection would last for a limited period of time. Or, on the other hand, even if the communities wanted to control each and every one of the uses of their expressions and traditional knowledge, the copyright law allows the creation of derivative works from other people’s works, as long as there is enough originality in new creations. The text of a legal instrument would have to draw the line between a legitimate loan and an unauthorized appropriation.
Now, with respect to geographical indications, which have an unlimited duration of protection and the possibility of being a collective property, they have been used to preserve traditional products, such as liqueurs, sauces and teas, against misappropriation. Above all, it should be noted that geographical indications can be particularly useful when it comes to artisanal products whose characteristics are linked to their particular geographical origin or local heritage and customs.
However, the protection of traditional knowledge under the provisions of geographical indications is not entirely free of inconsistencies from a legal perspective. As, for example, geographical indications only allow the registered indication to be exploited, while knowledge itself and specialized techniques to reach that geographical indication are beyond the scope of protection.
In summary, there is a degree of confusion about how traditional knowledge is protected and the only sure thing is that designers are increasingly aware of the importance of cultural heritage. Although, fine-tuning the details will be a complex task since there are divergent opinions about the best way forward, among other things, about whether it is appropriate to use rights similar to those of intellectual property to protect traditional forms of innovation and creativity or to develop a new legal system focused on traditional knowledge issues.
At this point, we will only have to wait and see if the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of WIPO will place the cornerstone of the protection of traditional knowledge and thus fill the gaps that today, both the fashion industry and similar industries pursue, as well as all the communities full of traditional knowledge.
JAVIER UHTHOFF ROJO