Tougher laws needed to police cultural appropriation in fashion, study says

Report says copyright laws demand a certain threshold for work to be considered original

A global think tank is calling for tougher intellectual property laws that would protect Indigenous arts and traditions from cultural appropriation in the fashion industry.

A new report from the Centre for International Governance Innovation says traditional cultural expressions “are undeniably” forms of intellectual property but are largely excluded from existing protections offered by the World Intellectual Property Organization (WIPO).

The study’s Canadian author Brigitte Vezina says “there is a grey zone between harmful misuse and permissible inspiration,” making it very difficult to assess when something has crossed the line.

“It is urgent. We don’t see any other way to put an end to cultural appropriation,” says the Montreal-born Vezina, an international law consultant in The Hague and previously a legal officer at WIPO.

“Copying traditional design motifs without consent can erode a community’s identity and cause profound harm.”

As defined by the Geneva-based WIPO, traditional cultural expressions include patterns, motifs and other design features created by traditional or Indigenous cultures.

Vezina says copyright laws demand a certain threshold for a work to be considered original — a threshold most traditions fail to meet because they are often passed down through generations.

“From a copyright standpoint, traditional cultural expressions are considered to be in the public domain and that makes them freely available for anyone to use,” says Vezina, adding that also makes them vulnerable to misuse.

Her report, Curbing Cultural Appropriation in the Fashion Industry, points to examples that include Nike workout leggings for women in 2013 that featured a traditional tattoo for Samoan men. A public outcry forced Nike to pull the leggings from sale and apologize, but they said no offence had been intended.

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“The problem is everything has to be done through social pressure nowadays because the legal basis does not exist,” adds Vezina, urging more public awareness on the issue but also greater industry sensitivity.

“A lot of designers claim innocence or that they didn’t know that they were doing anything wrong. Often it’s true, it’s unwilling and it might be out of ignorance but there’s also a lot of work that needs to be done to make sure that designers should be aware that it’s not OK.”

She notes that successful collaborations abound when the source material is acknowledged and respected.

They include the high-fashion Brazilian label Osklen, which drew inspiration for its spring 2016 collection in the tattoos and traditional fabrics of the Ashaninka people, an Indigenous tribe living in the Amazonian rainforest of Brazil and Peru.

The label asked permission and paid the tribe an agreed-upon equivalent of US$50,000, some of which funded a new school and a store where the tribe could sell artisanal jewelry and clothing.

While misuse can be an economic blow to a community, Vezina says the social and cultural impact can be far greater — “it can erode their sense of belonging within their community and their sense of identity.”

Vezina says the definition of cultural appropriation is “fluid” but she identifies three characteristics: a change of cultural context, a power imbalance between the taker and the holder, and the absence of the holder’s involvement.

She’s also come up with four questions that can help determine whether something crosses the line or not: Does it understand and respect the community? Does it merely replicate the work or actually transform it into something new? Does it acknowledge and attribute the community that served as inspiration? Does it include authorization and even collaboration of the source community or communities?

A WIPO intergovernmental committee has been working on developing a legal framework since 2000, adds Vezina. But she says it’s a long process that is entirely in the hands of member states, which include Canada.

The Centre for International Governance Innovation is a non-partisan think tank based in Waterloo, Ont.

The Canadian Press

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