Improving Accessibility

The resulting lack of IP protection leaves TKCEs vulnerable to appropriation by individuals outside the community.

“IP laws are based on Western legal norms and these are not generally designed with the cultural protocols and practices associated with indigenous culture and knowledge in mind,” said Benjamin Mitra-Kahn, General Manager and Chief Economist of IP Australia (Australia).

He added that indigenous knowledge, even when shared or protected by IP rights, will still have practices and protocols around its use that need to be considered.

“IP rights are generally registered in the name of an individual or a business. This might not be appropriate for indigenous knowledge that is held communally or that is held by custodians and passed down over time,” he said.

For instance, if knowledge has been shared, even if only within a community, it may not qualify for IP protection because it is not considered new or novel.

Janewa Osei Tutu, Associate Professor of Law at Florida International University (US), noted: “Consider the standard copyright term of life of the author plus 50 years. This is not long enough to protect something that has already been in a community for several generations.”

The two concepts—IP and TKCE—are not just seemingly incompatible from an operational perspective, Mr. Wendland said. Utilizing the IP system also requires access to legal advice and at least some funds—both lacking among many indigenous peoples.

Marion Heathcote, Principal at Davies Collison Cave (Australia), pointed out that for indigenous peoples and local communities, accessing appropriate tools from the Western IP system “revolves around capacity building in terms of education as to existing laws but also in terms of providing and improving access and practical assistance.”

Turning the Tide

“The lack of adequate IP protection has resulted in indigenous communities the world over being repeatedly confronted with the acute threat and reality of repeated acts of cultural appropriation and, in the age of the Internet, at an alarmingly exponential rate,” Ms. Heathcote said.

In Mexico, the debate over cultural appropriation and the fashion industry has intensified in recent years, with the Mexican government releasing statements highlighting brands that use indigenous Mexican designs without crediting the artists.

While the matter seems to have been settled for the brands accused of plagiarism, the Mexican government has not stopped there. In January, the government amended Mexico’s Federal Copyright Law to place obligations on companies or people who use or exploit TKCEs, including the requirement of written consent from the indigenous community that owns the work.

The late Adriana Aguerrebere was the founder of Impacto (Mexico), a nonprofit civil organization committed to the sustainable development of indigenous peoples. Before her death two months ago, she said: “With protections properly put in place, indigenous people can have the chance to leverage their heritage for their own benefit.”

She had noted that with plagiarism growing every year, “we need a framework because, with it, we can have the tools to protect TKCE. Brands will have to accept the consequences of their plagiarism.”

Impacto remains in operation, working with the Mayan women of Chiapas (Mexico) to help protect their designs as IP and to build “micro” businesses.

WIPO’s efforts to enhance capacity among groups that typically don’t use the IP system have also been successful.

In November 2019, women entrepreneurs from indigenous peoples and local communities in 24 countries, each with a business or project that includes an IP component, attended a week-long workshop at WIPO’s headquarters in Geneva, Switzerland. WIPO held the “Project-Based Training and Mentoring Program on IP for Women Entrepreneurs from Indigenous Peoples and Local Communities” in cooperation with INTA, the International Labour Organization, and the International Trade Center.

There have been successes. For instance, the collaboration between fashion designer Lisa Gorman and indigenous artists from the Mangkaja Arts Centre in Western Australia’s Kimberley region, and the resulting Mangkaja x Gorman clothing collection, have placed indigenous art, culture, and people on the international stage.

Mr. Mitra-Kahn noted: “Taking the time to reach commercial agreements around the use of indigenous knowledge provides participating indigenous artists with fair and reasonable licensing fees, while at the same time ensuring they have control over how their works are used.”

Mr. Wendland agreed, adding that prior and ongoing consultations are a key ingredient. “Through respectful and thorough discussions, the possibility of a win-win-situation is more likely, where indigenous peoples can benefit economically, socially, and culturally and the brand owner can enjoy the enthusiastic endorsement of the community and achieve a broader public relations benefit that increases brand equity,” he said.

Ms. Heathcote suggested that, in addition to promoting symbiotic relationships between indigenous communities and brands, industry codes of conduct could be put in place to develop appropriate and practical industry conduct and/or ethical guidelines.

The Mangkaja x Gorman clothing collection could be the first of many examples of successful collaborations that encourage brands across industry sectors to unite with indigenous communities for the benefit of all involved. What it takes is for stakeholders to work together to benefit communities across the world, through IP education, consultations, and most importantly, respect.

Video courtesy of Envato Elements / StockSeller