Decoding IPR

The fashion business has a long history of appropriating style aspects from many cultures, and it is recognized for its inventiveness. Fast-paced copying, driven by consumer demand for ever-changing designs, perpetuates the “piracy paradox” in fashion. Incorporating patterns and motifs from Indigenous civilizations, folk traditions, and ethnic aesthetics, designers frequently investigate multicultural influences. This cross-cultural interaction can result in creative designs, but it also raises concerns about respect and sensitivity to other cultures. It is becoming more and more expected of fashion designers and other creatives to be conscious of the customs and environments from which they get inspiration. When adding cultural aspects, proper acknowledgment, authorization, and pay are necessary. The impact of cultural appropriation can be profound, leading to feelings of erasure and exploitation among marginalized communities.  As the industry evolves, fostering a more inclusive and respectful creative environment becomes crucial to avoid perpetuating harmful stereotypes and misrepresentations. 

CULTURAL APPROPRIATION AND CULTURAL APPRECIATION

The distinction between appropriation and inspiration, meanwhile, is sometimes hazy. Cultural appropriation involves unauthorized adoption of elements from one culture, while cultural appreciation involves borrowing elements from another culture for sharing ideas and diversification. The United Nations Declaration on the Rights of Indigenous Peoples (Article 31) could transform the international intellectual property landscape, providing indigenous peoples with legal means to manage their traditional cultural expressions through an international instrument. The WIPO Intergovernmental Conference is currently negotiating an international instrument to ensure balanced and effective intellectual protection of traditional cultural expressions. This is especially controversial when members of the dominant culture borrow from the minority culture.

CULTURAL APPROPRIATION IN CREATIVE INDUSTRIES 

Creative industries involve various activities based on individual creativity, skill, and talent, generating wealth and job opportunities through intellectual property creation. Key sectors include music, Performing Arts, Visual Arts, Crafts, Film, TV, Animation, Photography, Video Games, Design, and Advertising and Marketing, which utilize creativity to promote products and ideas.

The ethical issues surrounding cultural appropriation are complex and multifaceted. One of the major impacts are on Marginalized Communities. Cultural appropriation can have a disproportionate impact on marginalized communities whose cultural elements are misused or commodified without proper representation or credit. This can perpetuate harmful stereotypes and contribute to the erasure of the culture’s true significance. When cultural elements are adopted without proper understanding, respect, or acknowledgment of their original meaning and context, it can be deeply disrespectful to the originating culture. This is especially problematic when sacred symbols or practices are used merely as fashion statements. The connected issue is commercialization of cultural symbols and styles, which  through fashion and other industries can lead to the exploitation of marginalized cultures if there is no fair distribution of profits or recognition of the original sources. The best instance for both the issues is in 2018 Gucci faced a backlash after its Runway Models wore sikh turbans during the Milan Fashion Week. Then once again Gucci faced backlash as it had sold $790 “Indy Full Turban” on Nordstrom’s website that resembled the traditional Sikh turban. 

Cultural appropriation often occurs within unequal power dynamics, where dominant cultures borrow from marginalized cultures without reciprocating or acknowledging the imbalance. This can be seen as an extension of colonial  or oppressive regime practices and the globalization of cultural heritage. Fashion giants such as Comme des Garçons and H&M have come under fire for appropriating traditional Japanese kimono patterns without seeking permission from Japanese communities or providing appropriate cultural context. This illustrates the unequal situation in which disadvantaged cultures may be openly appropriated by dominant cultures. 

CONSEQUENCES: CULTURAL, SOCIAL AND ECONOMIC IMPACT

At the socio-political level, Traditional Cultural Expressions (TCEs) ensure the identity, power, autonomy, and independence of indigenous communities, helping to define their relationships with others, especially after conquest. Cultural appropriation hinders indigenous people’s efforts to define themselves and establish their identity. It encourages humiliation and discrimination through unjust conditions and perpetuates a history of brutality inflicted on indigenous people, negatively impacting their individual and collective health and well-being.

TCEs are defined as tangible or intangible forms in which traditional cultures are expressed or embodied and may include expressions such as patterns, designs, signs, symbols, works of art, objects, rituals, songs, stories, dances, names, etc. They are handed down from generation to generation, are associated with an Indigenous or local community, and are often created by unknown authors. Traditional Cultural Expressions (TCEs) encompass every form of expression in which tradition could take place: it is passed down over generations and centuries, and it embodies feelings and beliefs of heritage and social identity.Examples of TCEs include rituals, handcrafts, folk dances and textiles, to name but a few.

An example of this is the Maasai tribes of Kenya and Tanzania versus Louis Vuitton. In 2011, Kim Jones designed a menswear collection that was supposedly “Africa inspired,” drawing from his childhood spent in Kenya. His collection incorporated duplicates belonging to the Maasai community without their consent. 

The French luxury brand Christian Dior was accused by the Indian design studio People Tree of copying one of their block print patterns for a garment that Bollywood star Sonam Kapoor was wearing. People Tree said that Dior’s dress’s yoga-inspired print bore a striking resemblance to a pattern they had developed years prior. This organization supported the traditional block print designers in their efforts to sell their creations. The designers did not form this institution in order to earn a profit; rather, their goal was to support the social and economic advancement of the traditional block print designers in the Rajasthani hamlet of Kalandera. Sonam Kapoor wore a Dior garment that replicated the hand-printed yoga patterns from the people tree dress. Block print designs had the potential to be registered under the Geographic Indication Act, 1999 and protected as intellectual property, even if they were not registered at the time. The dispute reached an out of court settlement and people tree signed a Non Disclosure Agreement, thus nothing about the dispute is available.

In Marant vs. the Mixe community of Oaxaca

In 2015, the designer Isabel Marant presented, in the spring/summer 2015 “Étoile”, the designer explicitly affirmed that she was inspired by textiles originated from Santa Maria Tlahuitoltepec Mexican communities. The traditional garments, called huipiles. The evident similarity between the two designs brought the communities affected by the copying to claim credit and withdrawal of Marant’s design from runways and commerce. No benefits from the sale and advertisements of Marant’s blouse were shared with the Mexican communities, despite the fact that the original huipil is generally sold at $18 while the derivative version was sold at $365. The dispute luckily ended in favor of the Mexican communities, since huipiles were officially recognised by the Congress of Oaxaca as cultural heritage.

TCEs and crafts can be significant sources of income for indigenous communities. When TCEs are appropriated without proper consent or compensation, those appropriating them benefit greatly at the expense of the source communities. Counterfeit TCE-related products may substitute genuine products for some consumers, increasing competition and compelling communities to purchase their own TCE-contaminated products. Consumers may prefer clothes designed by Western fashion designers instead of original sources.

CHALLENGES IN ENFORCING INTELLECTUAL PROPERTY RIGHTS

Traditional knowledge is a priceless resource that includes centuries’ worth of wisdom, customs, and cultural legacy. It is frequently possessed by indigenous peoples and local communities. Nonetheless, there are a number of real-world challenges in protecting this information.

Conventional wisdom does not easily fit into the frameworks of Intellectual Property (IP) that are now in place. These systems were mostly created with Western ideas of individual ownership and creativity in mind. Adapting them to accommodate traditional knowledge is complex and often inadequate. Moreover developed countries tend to overlook the value of traditional knowledge. This lack of appreciation hinders effective protection.  Indigenous communities often face an uphill battle in asserting their rights within global IP regimes. The developing countries must strengthen their bargaining power to protect traditional knowledge effectively. Whether through existing IP mechanisms or sui generis approaches, empowering these nations is crucial. These mechanisms recognize the unique nature of traditional knowledge and offer specialized protection.

FUTURE DIRECTIONS AND POLICIES 

The United Nations’ (UN) efforts to integrate indigenous people into international relations, research and analyze their circumstances and issues around the globe, explore strategies for advancing their rights, create institutions for the promotion and preservation of those rights, and create global norms for the protection of those rights are among its most notable historical developments since the UN’s founding more than 55 years ago.

The UNESCO 2003 Convention for the Safeguarding of the Intangible Cultural Heritage aimed at safeguarding and maintaining intangible cultural assets, including performing arts, oral traditions, customs, social customs, rituals, holiday celebrations, and the know-how to make traditional crafts. It raised local, societal, and global understanding and appreciation of the significance of intangible cultural assets. Lastly, it promoted the community, group, and individual involvement in protective efforts.

A worldwide legal framework to safeguard genetic resources, traditional knowledge, and traditional cultural manifestations is being negotiated by the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC). WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge 2024 emphasized on the importance of the patent office having access to appropriate information about genetic resources and traditional knowledge and this will prevent patents from being granted erroneously for inventions that are not novel or inventive. It promoted the efficacy, transparency and quality of the patent system. Article 3 deals with the disclosure requirement that is mandated for the Contracting Party is required to disclose the Country of origin of genetic resources and if not the source of Genetic Resources and the same provision is for traditional knowledge as well. Article 5 of the Treaty deals with the sanction which will be enforced if there occurs a failure to disclose the information mandated under Article 3.  By creating a clear and binding framework, Articles 3 and 5 help to protect genetic resources and traditional knowledge. This framework makes sure that benefits are distributed equitably, that the sources of these resources are acknowledged and reported, and that non-compliance has legal repercussions. These actions support the sustainable use of genetic resources, uphold the rights of indigenous populations, and save biodiversity.

CONCLUSION 

Underprivileged groups suffer when traditional cultural expressions (TCEs) are misused and commercialized without the right permission or recognition, a practice known as cultural appropriation. Indigenous peoples are intended to be given the tools necessary to save and manage their cultural legacy through legal frameworks such as the United Nations Declaration on the Rights of Indigenous Peoples and initiatives by the WIPO Intergovernmental Committee. Transparency and accountability are emphasized in the use of genetic resources and traditional knowledge in Articles 3 and 5 of the WIPO Treaty on Intellectual Property. In order to preserve cultural legacy and guarantee fair benefit-sharing as the creative industries develop further, it is imperative to cultivate an atmosphere that is more inclusive and courteous. By tackling these issues, ethical, legal, and educational programs might lessen the harmful effects of cultural appropriation and advance a more equitable global creative economy. In summary, bridging the gap between traditional knowledge holders and corporate interests requires a delicate balance. Respecting and understanding traditional knowledge while strengthening IP systems in developing countries can lead to more effective protection, However, imposing Western IP rights without considering traditional knowledge rights may have unintended consequences.