A few weeks ago, the Oaxaca Slip-On model, created by Willy Chavarría and Adidas, sparked controversy by being inspired by the traditional sandal of Villa Hidalgo Yalálag, Oaxaca. The tribute quickly became the subject of criticism for not giving any credit or compensation to the community that carries on this tradition. Within hours, the Mexican government managed to withdraw the product from the market, obtain a public apology, and a commitment to include the communities in future projects.
What is interesting about this case, however, is that it highlights an increasingly common practice in the fashion world and reopens a debate on the protection of so-called traditional cultural expressions (TCEs) under current intellectual property (IP) systems. In an international market, the protection of expressions passed down from generation to generation, rooted in the identity and knowledge of a community, such as designs and crafts, is becoming increasingly complex.
Faced with these challenges, the World Intellectual Property Organization (WIPO) is negotiating a legal instrument to guarantee their international protection. Some countries, for their part, have adopted sui generis mechanisms, such as the Mexican Law for the Protection of Cultural Heritage. Meanwhile, what alternatives does Spanish legislation offer? How can the ceramics of Talavera de la Reina or the espadrilles of Menorca be protected?
The Constitution provides a framework for the protection of intangible heritage, pioneering in the European context. At the legislative level, Law 10/2015 defined cultural expressions, including traditional craft techniques. It also established measures to disseminate and transmit traditional crafts, such as the creation of inventories and the documentation of practices with community participation. However, it does not grant exploitation rights to communities, exclusivity over their designs, or regulate unauthorized commercial uses.
Despite the above, the IP system offers some protection mechanisms. Copyright, for example, protects original works; industrial designs, the appearance of the product or part of it; and trademarks (collective and guarantee) protect products of a specific association, as well as their materials, manufacturing method, origin, and quality.
At the regional level, certification marks guarantee product characteristics with the exception of geographical origin, and as of December 1 of this year, Regulation 2023/2411, which protects geographical indications for artisanal products, will come into force. Finally, unfair competition legislation allows for the prohibition of products that mislead consumers, create confusion about their origin, or take unfair advantage of a community’s reputation.
The IP framework thus appears to offer some avenues for protection for communities, with clear limitations such as the territorial and temporal protection of rights or the concepts of “authorship,” “specific expression,” and “originality” of TCEs. It also appears to prevent others from producing, selling, or marketing protected products and, like all rights of this nature, allows their holders to exploit them economically. But do communities and artisans really have the capacity to prevent cultural appropriation? Not so much. Today, they are responsible for monitoring the use of their designs and products in an international market and for deciding—strategically and financially—whether, how, and when to take action.
Therefore, in a context of unequal information and resources among actors, it is necessary to rethink these forms of protection and generate tools applicable to community dynamics so they can safeguard their knowledge and traditions. Because, as the governor of Oaxaca noted, “Cultural appropriation can no longer be reduced to a discussion about copyright or inspiration. Today, it is part of a global conversation about power, economics, and social responsibility.”
While the WIPO and countries adapt current IP mechanisms to the reality of communities and the market, perhaps the principles of Spanish heritage law can serve as a guide for the use of TCEs: respect and recognize communities, guarantee their participation in the creative process, and make them protagonists in the recreation, transmission, and dissemination of their heritage. And, of course, ensure fair compensation. Perhaps, in this way, it will be possible to guarantee an ethical approach to communities and avoid the dreaded cultural appropriation.
On this occasion, Mexico managed to suspend the sale of the product and protect its indigenous community. However, the call to those working in the fashion industry is clear to take the necessary measures to prevent a good intention to enhance cultural heritage from ending—through carelessness, carelessness, and lack of guidance—in poor execution and significant economic losses.
Source: cincodias.elpais
