The Cultural Intellectual Property Rights Initiative: how did it begin?
Updated: Aug 16, 2020
The question I get most often in the past time is: how did the Cultural IP Rights Initiative come into being?
To start answering this question we have to go back to the autumn of 2016 when I was writing my second application for a pre-doctoral research program at Stanford Law School. Having been shortlisted on the waiting list a year before, my hopes were high and my ambition fearless.
I was lucky to have a guardian angel in this process, Mariangela Mihai, an Anthropology and Film PhD Candidate at Cornell University, who was helping me frame my vision and research proposal in a way that would work within the requirements of American universities. This was something totally new for me. Having been formed and trained in the Franco-Romanian academic legal research, fieldwork and empirical studies were far from my reach. But I learned from Mariangela and I pushed myself to fit in.
I was proposing a cross-disciplinary study at the intersection of law, cultural studies and business. And in addition to its contribution to academia, the study would result in an online platform providing solutions for eliminating cultural appropriation.
My proposal was not accepted at Stanford.
After two labour-intensive years that rejection letter felt like shattering my entire being.
I regained composure in a clarity talk with my good friend Hugo Dürr, now a Public and Community Health Specialist and graduate of the LUMID Programme in applied International Development and Management, and learned to #pivot.
Below is the original text of the proposal, much of which is implemented today in the Cultural IP Rights Initiative and more of which remains to be done.
Research Proposal - Monica Florina Boța Moisin - LSAC no. L34117908 Title: Cultural intellectual property - Bridging the gap between the fashion and product design industry and traditional creative communities. From competition to collaboration.
Structured on two theoretical questions and one product, this research proposal has two main objectives: (i) to analyze the effects that legal protection of traditional cultural expressions and cultural goods will have on the fashion and product design industry and (ii) to clarify what cultural appropriation is and provide a solution to reducing the frequency of this phenomenon through collaborative projects between artisans and designers.
INTRODUCTION Traditional design, encountered on traditional cultural expressions or expressions of
folklore (national costumes, traditional clothing and accessories, pottery, tapestry, embroidery), has been a constant source of inspiration for the fashion and product design industry. In recent times cultural appropriation has emerged as a type of cultural offense. “The possibility of misappropriation of the specificities of particular cultures is vastly increased in a world in which we have 24-hour connectivity, communications and the widespread travel and movement of persons”, says Francis Gurry, Director General of the World Intellectual Property Organization (WIPO).
This proposal is focused on design identified on textiles, clothing, accessories, and interior design products, consisting of elements perceived as an identification element of a group, community, or nation. Thus, (ethnic) identity design can be defined as the creative process of integrating tradition in the contemporary society. The difference between traditional design and identity design is that traditional design is specific to a particular group, community or nation (i.e. Romanian design, Peruvian design, Norwegian design, Scandinavian design, Japanese design, Asian design etc.) and stems from local craftsmanship.
While there is an obvious link between the agents creating identity design (i.e. fashion designers, product designers) and agents performing traditional design (i.e. artisans and crafters), in reality there is a major gap between artisans and designers. Despite the differences (i.e. there is no regulated market for commerce with authentic traditional products, there is no established industry for craftsmanship, artisans do not benefit of the intellectual property protection mechanisms the fashion and product designers benefit of, etc.) both artisans and designers compete on the same market when it comes to products of identity design (known as ethnic fashion, clothing or accessories that are confusingly similar to authentic traditional designs).
The underlying problem is traditional design being used as a commodity in order to derive profit and commercial benefits for commercial agents only, while not giving anything back to the source community. Louis Vuitton and the Masaai people, Isabel Marant and the Oaxaca Community in Mexico, Urban Outfitters and the Navajo Nation, KTZ and the Nunavut shaman’s parka, Tom Ford and the Romanian Blouse, are just a few cases of replicas of traditional design appropriated in fashion.
BACKGROUND AND INTERNATIONAL CONTEXT
Two phenomena with severe consequences from a cultural perspective, as well as a consumer protection perspective, occur at large scale: (i) cultural appropriation and (ii) counterfeiting of authentic cultural products.
Legal and commercial solutions are currently being researched and developed. From a commercial standpoint we hear of ethical fashion* as an emerging concept, not yet a rule. From a legislative standpoint the situation is not uniform either. Zambia recently passed the “Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act No. 16 of 2016” introducing concepts like “beneficiary of expressions of folklore”, “licensing agreements” for producing or commercializing certain goods categorized as expressions of folklore, “benefit sharing” between the licensee and the generating community, a dedicated authority for coordinating the recognition of beneficiaries and the granting of licenses.
By October 2017 the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“the WIPO Intergovernmental Committee”), in accordance with its mandate, will present its conclusions to the General Assembly of WIPO which will potentially lead to the conclusion of an international instrument. While most states favour a treaty, this stance is not unanimous. The situation is problematic in western and eastern Europe where traditional cultural expressions are not generally protected by the current intellectual property national systems and in fact, in most cases, the approach is to consider them as part of the public domain, immaterial patrimony, which cannot be protected through intellectual property legislation, thus being vulnerable and exposed to any kind of exploitation.
The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, although in force in many states, has not had quantifiable results as a legal instrument . It gives signatory states the freedom to implement any measures they consider necessary for the protection, promotion and development of cultural goods and services but does not refer to regulating commerce with such products.
Whilst regulation is certainty and an overarching international instrument will soon be adopted, implementation of regulation at a national level is ambiguous and requires a multi- faceted strategy. Rules in this subtle field of cultural intellectual property require a multi- disciplinary approach. Before successfully implementing legal constraints it is essential to first generate behavior. Susan Scafidi, author of “Who Owns Culture?” refers to the 3S test “source, significance (or sacredness), similarity” for consumer awareness.
A similar formula, at a bigger scale, is required for promoting culturally ethical fashion and product design. How to reduce and eliminate cultural appropriation? How to make the industry aware of the infringement of cultural intellectual property whilst not putting the lock on designer creativity?
At the level of the European Union, the EU Commission is proposing the extension of protection through geographical indication (GI) to non-agricultural products, as a possible solution. Whilst this could work in certain EU member states and for certain cultural goods, in my opinion this would not be most appropriate in the case of the Romanian Blouse. The biggest question is how would GI protection be enforced for the Romanian Blouse? And would such protection lead to sustainable artisanal protection given the hundreds of IA designs encountered in Romania and the lack of regulation or organizational structures to manage the production? As such, at a national level, I proposed the cultural trademark, as a sui-generis form of protection** of IA - the Romanian Blouse. Based on an homologated certification system and having a dedicated management and design research institute, the cultural trademark mechanism could, in my view, solve both the counterfeiting and the appropriation of Romanian Blouses and could provide a protection scheme applicable to any cultural good, irrespective of its country, or community of origin.
*A concept which is revolving around three pillars: (a) minimizing the environmental impact of garment manufacturing activities, (b) respecting fundamental human rights of the workers regardless of the location or legal system of a country and (c) providing to consumers a quality service and transparent information about the characteristics of a product. ** In Romania for instance, the Law on the protection of immaterial patrimony, adopted in 2008, two years after the adoption of the UNESCO Convention, contains provisions that are not in line with those of the Convention.
RESEARCH STRUCTURE, OBJECTIVES AND STRATEGY
The goal is that the outcome of this research will facilitate bridging the gap between the fashion and product design industry and local artisans and provide a legal framework for this relationship. Given that cultural intellectual property is an emerging field of law, and in the absence of well-established doctrine and case law, I intend to use a qualitative research approach for profiling the optimal legal solution for the problems presented above.
For this purpose, I see the input of key actors fashion industry in the design of this legal solution as essential.
First, the intention is to analyze how legislation in this field affects the fashion and product design industry. Namely, what legal obligations designers have when using traditional inspired designs in their creations?
For this purpose I will analyze 3 cases: the geographical indication model proposed by the EU Commission and implemented in India for the protection of Kashmir Pashmina Shawls; the model system of Zambia for all traditional cultural expressions including elements of clothing and garments; and the sui-generis mechanism of the cultural trademark, which I designed for the Romanian Blouse. For the first two models my research strategy implies interview-based discussion with scholars and authorities in India5 and Zambia and on-site 2 weeks research travel to both Dehli and Lusaka to elucidate the following: the rate of success in enforcement of the protection mechanisms, economic benefits for the local community, whether they had to deal with any cases of cultural appropriation, improvements since protection exists, difficulties in enforcing the GI in India and beyond/ the licensing system in Zambia and outside its borders, the status of the fashion and product designer in relationship with the source community – do designers need any kind of agreement with the source community? Are benefit-sharing mechanisms applied to fashion inspired by traditional design or only to authorised producers of authentic products? What behavior is considered cultural appropriation and what are the limits in using traditional designs in fashion and product design?
This first analysis pillar also requires an academic distinction between identity design (where cultural appropriation occurs) and counterfeiting of authentic traditional design (fake authentic products) and identification of whether the analyzed legislation deals with both or just the latter.
As a parallel exercise, the second analysis pillar focuses on fashion and product design industry key actors, with the purpose of identifying possible mechanisms of creative collaboration between designers and artisans, as representatives of traditional creative communities.
When it comes to the niche I am analyzing, which entails fashion and product design that “borrows” traditional designs, successful implementation of legislation cannot be conceived unless a specific conduct is accepted and endorsed by the fashion and product design industry stakeholders.
To this aim I propose a cultural negotiation exercise with the strategy/marketing divisions of 3 high-end fashion houses - Louis Vuitton (see the Maasai cultural appropriation case), Tom Ford (increased similarity with the Romanian Blouse, see singer Adele in 2011) and Valentino (frequent use of embroidery in their collections) leading to a fruitful dialogue between designers and artisans. This interview-based study will reveal: (i) the designer take on cultural appropriation and counterfeiting of authentic cultural products given the increasing negative media coverage on cultural appropriation in the fashion industry? (ii) whether the industry manifests interest in engaging in collaborative campaigns that would put together commercially competitive brands and local creative communities in producing derived products of design (iii) to what extent is a proposal for a joint project between groups of designers and local communities feasible***.
***This collaborative design phenomenon happens at the level of novice designers or fashion start-ups. Applying it to a luxury brand fashion collection with be of strong impact.
The results of this second pillar of analysis would materialize in a theoretical minimum standard scheme for the commercial use of traditional design inspired and it could be the basis of a future code of ethics (i.e. mentioning the source community as inspiration, including representatives of the source community, artisans or craftsmen, in the design process, agreement on a benefit sharing scheme, a corporate social responsibility action by which a percentage of the commercial gained obtained by use of the traditional designs returns back as an investment in the generating community). Ideally, this would constitute a pilot project for implementation by one of the fashion or product design industry key actors, with potential to become standard practice, a form of ethical fashion.
Realistically, in this debate it is the fashion industry that has the financial upper hand. Legal protection mechanisms for traditional cultural expressions may not solve the problem of cultural appropriation in fashion unless the business plans of luxury design fashion houses include cultural awareness and artisan support.
A project that brings together designers and artisans would be beneficial for both parties. Luxury brands could invite artisans and craftsmen to work in their ateliers together with the creation teams. This would not only give haute couture a clear advantage in comparison to fast- fashion companies but they would also be setting an example on how to avoid cultural appropriation and integrate the source communities in the creative process. An exercise of this kind would materialize in financial support for the local communities, it would help them group in artisanal associations and cooperatives (or similar organizational forms) whilst also raising the economic value of artisan input. The combination of legal protection of traditional cultural expressions and enforcement of this legal framework being supported by the fashion and product design industry through collaborative design projects with local artisans can revive craftsmanship worldwide and reduce cultural appropriation.
Derived from the two analysis pillars, the product I am proposing is a cultural appropriation online legal platform. Access to cultural and legal information on a single platform can educate designers and consumers, and facilitate law enforcement.
Referring back to the words of Francis Gurry, “in a world in which we have 24-hour connectivity, communications and the widespread travel and movement of persons”, implementation of legislation on traditional cultural expressions and expressions of folklore which are relevant to the fashion and product design industry (clothing, garments, tapestry, pottery) must be centralized on a dedicated legal online platform.
This last stage of my proposal implies working with a web-strategy and web-design team
in elaborating a potential structure for a platform that can become a legal enforcement mechanism itself.
Based on my discussions with internationally recognized designers in Romania, I learned that often times they lack the cultural and legal information when seeking inspiration in traditional design of other cultures and moreover, even if they want to reach out to the traditional community there is real difficulty in identifying the group, organization, or institution to get in contact with. As such, for a pilot project the platform would be composed of three sections: (i) presentation of the cultural appropriation phenomenon, visual examples and conclusions derived from the existing case law , (ii) presentation of the applicable legal instruments (international Conventions, national laws and sui-generis mechanisms, description of the mechanisms, enforcement, sanctions) with an attached database of all authentic elements of fashion, garments and accessories, cultural goods, protected by law, as well as a list of institutions, agencies or NGOs that represent the interests of the source communities (i.e. Light Years IP, Washington based NGO advocating for the Maasai cultural brand , Artists in the Black initiative of the Arts Law Center of Australia , La Blouse Roumaine – IA Association) and (iii) presentation of the ethics code resulting of the second analysis pillar and possible ways to integrate local creative communities in the fashion and product design creative process or methods to support the community that has been a source of inspiration for certain designs (benefit sharing schemes, social entrepreneurship schemes, the model applied by Light Years IP in the Maasai case, The Universal Day of the Romanian Blouse cultural movement initiated by La Blouse Roumaine online community , the Norvegian Institute of the Bunad and the Folk Costume).
With an initial informative and educational function, this platform can, in time, become a law enforcement mechanism endorsed by the World Intellectual Property Organization. With a database of the traditional designs protected by mechanisms of cultural intellectual property, a program similar to the plagiarism detection software can be integrated in the platform with the scope of identifying the degree of similarity between an identity design and an authentic traditional design. Based on the risk of confusion with a traditional cultural expression protected by law or with a traditional design protected under the future WIPO instrument, this program could certify whether a claim of cultural appropriation is reasonable, and if so, which community is entitled to claim benefits.
BENFITS AND IMPACT
Focused on a specific niche, at the intersections of law, culture, ethnology, tradition, fashion and design, the main outcome of this research is to create a tangible link between the fashion and product design industry and traditional creative communities. By clarifying the impact of the legislation on the protection of traditional cultural expressions and expressions of folklore on creative industries and by facilitating a conversation on culturally ethical design with industry key stakeholders, this research can be a first academically recognized step towards collaboration between two creative groups that have so far been engaged in an exploitative relationship.
In concreto, this proposal will generate added value through the following:
(i) It will explain the phenomenon of cultural appropriation, occurrences and consequences and raise awareness of the danger of cultural appropriation and counterfeiting of authentic products;
(ii) It will offer an up-to-date summary of existing legislation on protection of traditional cultural expressions and explain the functioning of certain protection mechanisms;
(iii) It will offer designers guidance for avoiding cultural appropriation;
(iv) It will be a first academic extended research in the field of cultural intellectual property, and potentially fashion law;
(v) It will propose the official academic recognition of the concepts of traditional design and identity design;
(vi) It will explain why the sui-generis mechanism of the cultural trademark is the optimal mechanism for achieving an equitable cultural exchange between traditional design and identity design;
(vii) It can generate a code of ethics in fashion and product design and lead to collaborative designer-artisan projects becoming a rule and not an exception;
(viii) It can encourage artisans and ethnic creative communities to preserve authenticity and not condemn traditional design to self-destruction;
(ix) It can lead to the developing of sustainable mechanisms for artisans and craftsmen in local creative communities worldwide and be a starting point in reviving this creative segment and regulating commerce with authentic cultural goods;
(x) If endorsed by WIPO it can become a dedicated platform for the fashion and product design industry in view of implementation of an international legal framework on the protection of traditional cultural expressions.
Text Copyright: Monica Boța Moisin