Awareness, Collaboration, Respect: Indigenous Rights in the Spotlight
While progress may be slow, all those involved in the fashion industry have a duty to protect indigenous culture, discovers Tom Phillips.
The importance of raising awareness of Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE) in the fashion industry was explored during a session yesterday presented by INTA’s Indigenous Rights Committee.
Moderated by Michael Pampalone, founder and partner, Dahan Pampalone LLC (US), Indigenous Communities and the Design Industry: Boundaries and Balances highlighted numerous examples of the appropriation of Indigenous designs by brands.
The heritage of Indigenous peoples must be “tied to the inspiration process” so as to avoid exploiting disadvantaged communities, said Mr. Pampalone, who is chair of the Indigenous Rights Analysis and Awareness Subcommittee of the Indigenous Rights Committee.
“I think it’s about preparing our clients to be able to facilitate them with the ability to be sensitive to these issues,” he added.
TK does not have an internationally accepted definition. However, it is the “living body of knowledge that is developed, sustained and passed on from generation to generation in a community,” explained Esther Aburto Olague, managing partner, OZM Legal & Business Consulting Services, S.C. (Mexico).
TCEs also do not have an international definition, but generally they are a creative form of expression, which embodies and expresses traditional cultural knowledge. Both are protected through international conventions, such as those adopted by the United Nations Educational, Scientific and Cultural Organization and the World Intellectual Property Organization (WIPO), confirmed Ms. Olague.
“The use of cultural expressions in the commercial field is fraught with risks and brands have to navigate a minefield of ethical, political, and legal questions ranging from addressing historical injustices to safeguarding artistic and commercial freedoms.”
Wend Wendland, WIPO (Switzerland)
She noted that “most countries have some laws that protect Indigenous rights,” and extrolled New Zealand’s laws as “some of the best” in the world.
Providing an in-house perspective, Pamela Weinstock, fashion expert and legal consultant (US), who works with fashion brands, gave examples of some cultural appropriations that have made international news, such as reality star and socialite Kim Kardashian’s ‘shape’ wear line originally called ‘Kimono.’
After accusations that the brand name was disrespectful to traditional Japanese culture, Ms Kardashian renamed the line in 2019.
In another example, the Mexican Ministry of Culture has approached numerous brands to admonish them for their appropriation of Mexican designs. For instance, in 2020, the Ministry contacted fashion brand Carolina Herrera (Venezuela) and its creative director to request an explanation of how a Mexico-inspired collection would benefit the country’s indigenous communities.
These brands were accused of taking traditional designs and selling them on garments “for enormous amounts of money without any attribution to those cultures,” explained Ms. Weinstock.
When these situations occur, outrage on social media followed by an apology by the brand and a promise to be more sensitive, has been a typical trend, she said.
“It seems like even where there’s a bit of a legal vacuum, the public has kind of stepped in,” added Mr Pampalone. “Social media has now become somewhat of a player in what these brands need to be considering before they come out with a particular [fashion] line.”
“It may be very important from a religious standpoint to a community, and now it’s being used on commercial items and it feels sacrilegious.”
Pamela Weinstock (US)
Further, Ms. Weinstock said, the controversy is often about disenfranchised communities, which have some sensitivity to a name or a design. “It may be very important from a religious standpoint to a community, and now it’s being used on commercial items and it feels sacrilegious,” she explained.
She also highlighted a project by intellectual property (IP) law firm Light Years IP and the Maasai tribe of Kenya, Africa. This was a community whose brand was worth more than US $10 million a year, the law firm says, yet 80 percent of the Maasai live below the poverty line.
“Light Years IP has now developed a licensing package, which it uses to approach brands in order to ask the Maasai for their approval to use their name and marks and designs on products, which I think is fantastic,” she said.
Wend Wendland, director of Transitional Knowledge Division, WIPO (Switzerland), shared efforts undertaken by the organization to tackle these issues.
“The use of cultural expressions in the commercial field is fraught with risks and brands have to navigate a minefield of ethical, political, and legal questions ranging from addressing historical injustices to safeguarding artistic and commercial freedoms,” said Mr. Wendland.
“Traditional knowledge is the living body of knowledge that is developed, sustained and passed on from generation to generation in a community.”
Esther Aburto Olague, OZM Legal & Business Consulting Services, S.C. (Mexico)
INTA is playing an “important role” in addressing the tensions between Indigenous heritage and the IP system, he continued. “This is good for business and good for the future, if not essential for the future of the IP system,” added Mr. Wendland.
It is not only Indigenous peoples who are asking for change, but also governments across continents. They argue that the IP system that they’re obliged to enforce via international laws, created in the West in the late 19th century, is not their system, he said.
“They don’t see themselves in the IP system. That’s quite unsettling,” said Mr. Wendland.
WIPO’s 193 member countries are negotiating new international legal instruments that would provide a special form of IP for Indigenous knowledge and cultural expressions, he said.
Mr. Wendland called these negotiations to reach consensus on a new international treaty, which would stand alongside the Paris Convention for the Protection of Industrial Property, “extremely interesting, controversial, and complex.” And, he predicted, it could result in “the biggest event in IP since the Agreement on Trade-Related Aspects of Intellectual Property Rights.”
But, Mr. Wendland added, negotiations have been going on for many years and whether it will achieve its aims “is unclear.”
Video courtesy of Adobe Stock / blackboxguild
Monday, May 2, 2022
Published by:
