Tansi Nîtôtemtik,
This week the writers at Reconcili-ACTION YEG have been discussing cultural appropriation. As a quick review, cultural appropriation is the unauthorized borrowing of expressions, artistic styles, symbolism, myths, and knowledge from a dominated culture. It also happens when a person from another culture purports to be member of another group, but more on that later this month. For the Indigenous people of North America, cultural appropriation is everywhere. From Halloween costumes, headdresses at music festivals, mainstream fashion, and sporting mascots, unsolicited and inappropriate use of Native American culture is all around us.
While many people and businesses can rely on copyright, trademarks, patents, trade secrets, or other aspects of Intellectual Property (IP) laws to protect their creations against misappropriation, when it comes to protecting your cultural heritage, it is far more difficult. Intellectual property “laws are designed to protect an individual creation for a limited period, whereas cultural practices and expressions are developed collectively over many generations.”[1] The collective nature of cultural practices are also limited under the current framework of IP law, which requires an individual to seek a claim over something collective in nature.[2]
Even with the limitations of IP laws, First Nations across North America have felt compelled to use them to protect their identity. For example, “the Navajo Nation owns 86 Navajo trademark registrations to prevent others from implying a connection between their products and the Navajo Nation when none exist.”[3] Some Navajo weavers have protected their designs through the US Copyright office. [4]
Copyright protects literary, artistic, dramatic, and musical creations.[5] Copyright laws, for example, require a threshold for a work to be considered original- a difficult threshold for traditions to meet because they are often passed down from generation to generation. From
a “copy right standpoint, traditional cultural expressions are considered to be a part of the public domain and that makes them freely available for anyone to use.”[6] Or worse, for them to be misused as they were when Nike sold leggings for women in 2013 that featured a traditional tattoo for Samoan men. [7] Or more recently in October 2022, Ralph Lauren was selling a jacket that used the design of the traditional Mexican sarape. [8]
Customary Laws
Just because IP laws fail to adequately protect cultural expressions, does not mean that they are automatically free for anyone to use- we are forgetting about customary laws. Customary laws are laws that are accepted as legal requirements or obligatory rules of conduct. They are practices and beliefs that are so vital and intrinsic to our social and economic system, that we treat them as if they are laws. Every culture has its customary laws; we could write an entire blog (and maybe we will) on customary laws around the globe. If you have been fortunate enough to travel, you may have noticed a time or two where you accidentally violated a customary law as often people from other cultures/countries are unaware/choose to ignore these rules.
In relation to this article, customary laws dictate specific rights and responsibilities related to cultural obligations. For example, customary laws will limit the representation of crest designs by certain individuals, groups or families and only certain individuals are allowed to tell stories. Under Canadian law, an image may be considered public domain but under customary laws, the use of the image would be likened to property and identity theft.[8]
Today's blog was just a quick review of the limitations and challenges of IP laws in the protection of culture and cultural-related items. Check back later this month as we continue the discussion and highlight some solutions to the above problems.
Until Next Time,
Team Reconcili-ACTION YEG
[1] “Intellectual Property Issues in Cultural Heritage Project, 2015. Think Before You Appropriate. Things to know and questions to ask in order to avoid misappropriating Indigenous cultural heritage” (Accessed 3 Nov 2022) at 4, online (pdf): Simon Fraser University <www.sfu.ca/ipinch/sites/default/files/resources/teaching_resources/think_before_you_appropriate_jan_2016.pdf>. [SFU].
[2] SFU, ibid at 4.
[3] Ibid.
[4] Ibid.
[5] “Copyright” (Last modified: 25 Feb 2020), online: Government of Canada <www.canada.ca/en/services/business/ip/copyright.html>.
[6] “Group Calls for tougher laws protecting Indigenous Traditions from cultural appropriation” (5 April 2019), online: The Canadian Press < globalnews.ca/news/5132754/laws-protecting-indigenous-tradition-cultural-appropriation/>. [The Canadian Press].
[7] The Canadian Press, ibid.
[8] AJ Gonzalez, “Ralph Lauren Accused of Cultural Appropriation of Mexican Designs- Here’s What Happened” (21 October 2022), online: Remezcla <remezcla.com/culture/ralph-lauren-accused-cultural-appropriation-mexican-designs-what-happened/>.
[9] SFU, supra note 1 at 5.