MISAPPROPRIATION OF TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS

Image Credit: “Puxamento do Cipó” by Joanderson Gomes de Almeida

Esther Aburto Olague
Attorney, OZM Legal & Business Consulting Services, S.C., Mexico City, Mexico

Traditional Knowledge and Traditional Cultural Expressions are part of the identity of Indigenous Peoples as they represent their traditions, culture and even, in some cases, their worldview. They are commonly shared from generation to generation within the same community, in addition to being part of a single integrated heritage.

¿What is Traditional Knowledge (TK)?

There is no accepted international definition of TK, but it is the living body of knowledge that is developed, sustained, and passed on through generations within a community. TKs can be in the form of know-how, skills, innovation, and practices passed on in a traditional context; through the intellectual and intangible cultural heritage, and through generational practices and knowledge.

¿What are Traditional Cultural Expressions (TCEs)?

There is also no international definition, yet there are many definitions in national and regional laws and in some international instruments.  TCEs are the creative form of expression in which traditional culture and knowledge is embodied or expressed. It can be tangible or intangible or a combination of the two, and can include music, stories, art, handicrafts, musical instruments, words, names, performances, textile, carpet, jewelry, embroidery designs, architecture, etc.

Because they lack characteristics that make them difficult to be effectively protected through the current intellectual property legal figures, they are commonly violated. Namely they have been a target for appropriation by third parties which have acquired IP rights over TCEs and TK, without the prior consent of the true owners of these rights, and without them receiving fair remuneration for the exploitation of those rights.

TCEs and TK involve important aspects of the culture and traditions of Indigenous Peoples, who should have the right to prohibit, or allow, the use of this knowledge. The use by third parties outside the community may even result in an offense to the cultural heritage of these Indigenous Communities. Accordingly, it is necessary to integrate into the legal system of intellectual property, figures and mechanisms that truly grant protection to TCEs and TK, preventing people outside the community from acquiring IP rights over them and grant Indigenous Peoples the necessary means to promote their traditional knowledge, control its use and obtain an economic benefit from its commercial exploitation.

For this reason, the World Intellectual Property Organization (WIPO), since 2009, through its, Intergovernmental Committee on Intellectual Property and Genetic resources, Traditional Knowledge and Folklore has tried to develop an international legal instrument that serves to effectively protect both TCEs and TK.  There are also some international treaties that protect these figures, recognizing that Indigenous Peoples have the right to protect and direct the use their heritage. Unfortunately, at the international level, there is no dedicated instrument or legal figure that fully, effectively, and directly protects TCEs and TK.

The Fashion Industry

Some of the most notorious cases of misappropriation of TCEs and TK are in the fashion industry. Many fashion brands have found Indigenous designs  “fashionable” and have misappropriated designs in their collections. This has been done without proper authorization from the respective Indigenous Cultures and Communities; and has been committed by top fashion designers to local designers, including:

• In 2013, Nike used a pattern of the traditional Samoan male tattoo called Pe’a on women’s training socks, resulting in several protests over the offensive use of said TCE in their products. Nike finally withdrew the products from the market.

• In 2015, the KTZ brand copied a traditional Inuit parka design into a men’s sweater. Following protests, KTZ stopped offering the sweater for sale.

• In 2019, the high-end ceramic brand Villeroy & Boch was charged with “misappropriation” of Aboriginal art due to its “Rock Desert” collection of plates and bowls made in Germany and sold in Europe and the United States. The company responded that the foregoing “was nothing more than a creative interpretation and was not intended to disrespect indigenous art or culture.”

Another, more recent and publicized example, is designer Carolina Herrera. Who, in 2019, presented the 2020 Resort Collection and misappropriated TCEs of the Town of Tenango de Doria, from the Isthmus of Tehuantepec, and communities belonging to them, in Mexico. 

As a result of this misappropriation by Herrera, Mexico issued a statement through the Ministry of Culture, requesting an explanation and confirmation of how this collection would benefit the Indigenous Communities. Though there was never an official response to the Mexican Government, in an interview, the label confirmed that the intention of the brand was never to offend Mexican Indigenous Communities, and that, on the contrary, they wanted to recognize their amazing work and express the love the brand has for the work, community, and country. Silent was any formal response about compensation to those Indigenous Communities whose rights had been misappropriated through the commercialization of this collection.

Mexico’s Response

Unfortunately, as in many other countries, the laws do not include full standards for the protection of these rights and Mexico was not an exception, though it did include information regarding Indigenous communities,  this did not include sanctions for breaching that protection.

On January 28th, 2019, the Human Rights National Commission in Mexico issued a General Recommendation 35 ” On the Protection of Cultural Heritage of Indigenous Peoples and Communities of the Mexican Republic“, which in general terms, included the following:

• An acknowledgement that there is a lack of legislative harmonization.

• The process of harmonization and homologation should be governed under the principles of universality, interdependence, indivisibility, and progressiveness of human rights, to allow coordination between with government authorities, and with the effective participation, of the Indigenous Peoples and Communities.

• The objective is the creation of a system, with the participation of all institutions. This system will be the institutional mechanism of public policy through which efforts, instruments, programs, services, and actions will be coordinated toward the protection, safeguard, comprehensive preservation, promotion, and development of the intangible cultural heritage of Indigenous Peoples and Communities.

• An acknowledgement that the information the country currently has does not protect and let Indigenous Communities participate.

• Both the Federal Criminal Code and the Criminal Codes of the states do not have precepts that protect intangible cultural heritage as a legal asset; there is no definition of the responsibility of companies in cases of appropriation without consent and improper use of intangible cultural heritage and its exploitation.

• In case of human rights violations related to intangible cultural heritage, the state must prevent, investigate, punish, and repair human rights violations. 

• The Federal Executive must promote the creation of public policies and a budget allocation that guarantees the protection, safeguard, preservation, promotion, and comprehensive development of the cultural heritage of Indigenous Peoples and Communities.

These recommendations were valuable, however they were left as mere “recommendations”. There have not been any subsequent amendments to laws other than those made to the Federal Copyrights Law, on January 24, 2020.

In that reform, the name of Chapter III and Title VII, called “Of the Popular Cultures” was modified to become “Of Popular Cultures and TCEs ” (Reform), as well as articles 157, 158, 159 and 160 of the Federal Copyrights Law were amended, as follows:

• The law finally recognizes that Indigenous Communities are holders of rights over works, of any kind, where they manifest elements of their culture and identity.

• These works shall be protected by the law, preventing them from being used or exploited for profit without first having obtained written authorization from the community that owns the work with assistance from the Ministry of Culture and the National Institute of Indigenous Peoples to identify the owner or if there is no identified owner, the Ministry of Culture may authorize the request.

• Said works will be protected against any deformation that causes or may cause demerit to the work, or damage to the reputation or image of the community who owns the work.

• In the transitory articles of the law it is established that the Ministry of Culture, together with the National Institute of Indigenous Peoples, will prepare catalogs of works and expressions of Indigenous Communities.

• This Reform is a great step in the protection of these types of rights, however, the process outlined is not yet implemented in the Regulation of the Law or other secondary laws. Additionally, neither the law, nor Reform, establishes that the Indigenous Community who owns the work will receive any economic remuneration for the exploitation for profit of their works.

Likewise, the Ministry of Culture, who will oversee the preparation of the catalogs for this type of work, along with the technical support of the National Institute of Indigenous Peoples, have not published anything regarding the subject.

Finally, the sanctions that will be implemented for using or exploiting these types of works for profit, without obtaining the written authorization of the owner, as well as deforming them with the aim of causing demerit to the work or damage to the reputation or image of the Indigenous Community who owns the work, are established in article 231, section IX, with a fine of 5,000 to 40,000 days of the current minimum wage and such conduct will be sanctioned by the Mexican Institute of the Industrial Property. It should be noted that a procedure must first be followed before this administrative authority can fine the offender, however, the Indigenous Community who owns the work will not obtain any financial compensation through this process. The effected community must wait for this process to end, in order to request any compensation through the judicial channel as it appears from jurisprudence created by the Mexican Supreme Court of Justice.

As we can see, Mexico is not an exception to the issues facing exploitation of Indigenous works. Other countries have more advanced laws and enforcement regarding this matter. While the creation of international legislation arrives or, failing that, each state offers in its national legislation greater protection to TCEs and TK, it is important to try to educate and make the population aware of the problem.

What may be of most importance is Awareness-— knowledge or perception of a situation or fact, concern about and well-informed interest in a particular situation or development.

For these Indigenous rights to be truly protected, there must be awareness, respect, recognition, and obviously effective provisions in the applicable laws.  If we make the design industry aware that the designs from Indigenous Communities come from tradition, not only from an idea but something protected; and we respect those traditions without judging them or wanting to change them, we can work together with Indigenous Communities to effectively protect these rights;  recognizing where those designs came from,  so customers know the real value of what they are purchasing. Also recognizing Indigenous Communities through a form of royalty, and finally having laws that protect Indigenous Communities and their TCEs and TKs. This is the path to follow, so all the interested parties can coexist. It is just a question of establishing rules for the game to have a win-win situation for everyone.