Updated: May 5, 2019
Why is it becoming a bigger struggle for the fashion industry at its higher peak to maintain an ethical business model? My concern here is not about who is inspired and how they apply it to their creative stories but the fact that it goes deeper than that. While thousands of Artists from different sectors within the creative world draw inspiration from Africa, how many of them actually give Caesar back what belongs to Caesar?
Through the years, there have been countless cases of cultural appropriation in Africa and beyond without any consideration or compensation in favour of the various communities, brands, or people involved. This as result makes NOW a very crucial time for African brands/ cultural bodies/ communities to pay more attention to protecting their indigenous/cultural IP more than ever.
In order to advance in this industry, intellectual property and ethics will save the day due to the 2019 fashion and lifestyle consumer demands for radical transparency, accountability and sustainability.
Wiki describes ‘Indigenous intellectual property’ as an umbrella legal term used in national and international forums to identify indigenous peoples' claims of intellectual property rights to protect specific cultural knowledge of their groups.
On the other hand, the phrase "traditional cultural expressions" is used to refer to "any form of artistic and literary expression in which traditional culture and knowledge are embodied according to the World Intellectual Property Organization, WIPO.
Over the recent years cultural appropriation and cultural IP infringement have made headlines in mainstream media with cases like Ghana must go shopping bags VS Gucci couture, Maasai VS Louis Vuitton’s 2012 spring/summer men’s & Stella McCartney SS18 VS Ankara . Some of the prints that have been put to question e.g. the wax print have long been associated with Africa in the minds of many. However, Ankara, formerly known as Dutch wax print by African Print Dutch Company Vlisco was introduced into West Africa by Dutch traders in the mid-1800s and by the 1900s, Africa had embraced it. I know it sounds confusing to many Africans who may not be ready for this, however it's not hard to see where accusations of cultural appropriation or improper representation might spring up.
There is power in going back to research some facts around the origin of the Ankara and share your findings with us if any different so that we can update our information hubs and feel free to go through my previous blog around the history of African textile.
Nuno Gama, of Maison Nuno Gama explains Cultural appropriation to comprise of all types of acts that do not dignify the culture of people and withdraw its meaning and dignity. Thus, they are considered offensive.
“What is more, freedom of inspiration is an essential element to the fundamental freedom of intellectual and artistic creation. However, freedom of inspiration should not be confused with the right to use what is considered to be part of an indigenous cultural heritage without having the consent and benefit sharing of the indigenous people. Nuno expands further on his article around ‘intellectual property and ethics; the difference between inspiration in a culture and cultural appropriation.’
While we go back and forth on this topic trying to find sustainable solutions of how to protect our indigenous IP, Groups like WIPO have proposed the application of intellectual property law (IP law) to cultural property issues with the following solutions below as the three most commonly suggested IP tools.
A trademark, trade mark, or trade-mark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.
According to WIPO, even though trademarks, for example, prevent other manufacturers from using the “Genuine Cowichan Approved” label. Counterfeit sweaters will therefore be more easily recognizable. However, trademarks cannot actually prevent the exploitative use of Indigenous ideas or knowledge. For example, other clothing companies will still be able to produce sweaters using the techniques and patterns of the Cowichan Nation. They just cannot call them “Genuine Cowichan.”
One burning question is, when a trademark is used to certify community-owned knowledge, who should hold that title?
Copyright is a legal right, existing in many countries, that grants the creator of an original work exclusive rights to determine whether, and under what conditions, this original work may be used by others. Copyrights are also limited in duration, lasting only the life of the author and a further 50 years after their death.
WIPO explains that holders of a copyright have the sole right to produce or reproduce the copyrighted work, and have surrounding “moral rights” which prevent the distortion, or modification of the work in its reproduction. But what about those elements of a culture like oral histories or ceremonies integral to many Indigenous communities which do not fit neatly into the categories protected by copyright?
While these laws vary and can be confusing, the copyright Alliance share more on how to protect your fashion brand through copyright.
3. Patent law
A patent is a form of intellectual property. A patent gives its owner the right to exclude others from making, using, selling, and importing an invention for a limited period of time, usually twenty years. The patent rights are granted in exchange for an enabling public disclosure of the invention.
WIPO states that while the scope of patent law means it cannot protect Indigenous arts or creative works, hypothetically this law should be able to protect Indigenous knowledge, products, and discoveries from exploitation. However, while utilizing patent law in this way may be more feasible for future inventions and discoveries by Indigenous peoples, the law contains limitations that prevent it from effectively protecting previous traditional/historical inventions, discoveries and designs.
Despite the flaws around the current IP law and the concerns around it as a reasonable solution to issues of cultural appropriation, there is still protection that you get from these laws. Stay tuned for the part II series.
“The responsibility starts in the design department. Research and expert support are paramount to getting clarity on the limits between inspiration, appreciation and cultural appropriation.”
— Conclusions of the Cultural Sustainability in Fashion Workshop
Swedish School of Textiles, Borås