The tragedy of cultural appropriation – The baffling benefits of intellectual property protection for ethnic minority cultural expressions

6/2022 13.12.2022
Atsteekkitanssit, México

Although public opinion and social media activism may be a strong tool in facilitating change, for true, long-lasting change to take place legislative change is required. What is the current legal framework regarding the regulation of cultural appropriation and how should it be changed to function more effectively in the future?

The legal framework

The United Nations Declaration on the Rights of Indigenous Peoples has been quoted as a source reflecting the protection cultural rights deserve. Article 31 of the Declaration on the Rights of Indigenous Peoples has stated ‘Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions – -’.bAlthough the message of the Declaration is strong, the current non-bindingness of the instrument allows for legal systems around the world to leave the protection of cultural heritage on a very ideological level. The factual outcomes have been disappointing.

Although intellectual property law, with a particular focus on copyright, has been suggested as an alternative path to protect ethnic minority culture against cultural expression, cultural heritage has not been easily subsumed under the existing legal framework. One could even argue, in particular given the complex legal arrangements made to for example cover art made by artificial intelligence with copyright, a certain ambiguous unwillingness on behalf of the legislator has been present when demanding for cultural rights to ethnic minorities.

Problems are wide-ranging. Because of the great extent to which copyright law provides protection and its relatively easy accessibility (the right exists as soon as a work passing the threshold of originality is created), a large number of exceptions have been put to limit this right.  In order for copyright protection to emerge and apply, a certain set of requirements must be fulfilled. Simply put; the protectable subject must be a ‘work’ that shows a certain degree of originality, meaning the work must be independently created by its maker (“author”) and possess at least a minimal degree of creativity. After the lapse of a certain period, and unless these requirements are fulfilled, the work becomes public domain and can be used freely.

Currently, this threshold creates so many obstacles and problems for the copyright protection of ethnic minority culture, traditional cultural expressions are practically excluded from the sphere of intellectual property protection altogether. The tricky part is one of the most inherent characteristics of ethnic culture, namely the concept of tradition. Tradition, building upon an infinite number of evolutionary adaptations, imitations and recreations of pre-existing materials, once developed by “authors unknown” and maintained by the current community, is very ill-fitted to the customary frame of copyright. The original source of a tradition is regularly hard to recognize, and oftentimes, when traditional cultural products are the result of cumulative inherited and shared knowledge, they are also particularly ill-fitted for the copyright requirement of an identifiable sole author. Finally, traditional works rarely fall within the typical 70-year timeframe defined by Western copyright law. Instead, these works may have existed for centuries, in some cases even millennia. To conclude, the concept of tradition leads cultural heritage and minority culture to stumble on all three of the most central criteria of copyright: the requirements of originality and sole authorship as well as timeframe.

Therefore, although in many ways appropriate and suitable, the sphere of intellectual property law seemingly refuses to embrace traditional cultural products. Traditional cultural expressions are precluded from the sphere of intellectual property law, and deemed to be in the public domain, available to everyone and anyone, whenever and wherever.

Solution

As clearly established by this problematicism, it is evident, intellectual property law must broaden its scope. Luckily, signs of improvement can be seen. A trend can be recognized on a global scale, as international model laws, established by for example the World Intellectual Property Organization WIPO and United Nations Education, Scientific and Cultural Organization UNESCO, strive to establish rules protecting minority cultures on an international level.

The recognition of a copyright for traditional cultural expression would be the best choice for protection, and luckily, this seems to be also what the two organizations are planning. WIPO and UNESCO have held that the creation of a new category of intellectual property protection may not be necessary. Instead, an extension to copyright, granting protection to indigenous communities and broadening the scope of performers’ rights has been argued to serve as a solution.

With copyright law recognizing traditional cultural expressions worthy of protection, technically, the indigenous peoples – insofar as their creations can be interpreted to be originals – should have the right to prevent third parties from using their rights without their consent. Legally allowing such protection to take place, will restore power to the indigenous peoples over their creations, and enable them to battle against those abusing their products – oftentimes those much more powerful in society.

Despite international efforts to ensure more extensive legal coverage for cultural heritage and to better protect ethnic minorities from the damage caused by cultural appropriation, these emerging international rules are not yet globally accepted, and thus, it is clear, they do not solve all possible cases of cross-border cultural appropriation. Societal interest and the maintaining of this topic in the forefront of political conversation must be top priority in order to ensure a brighter future of cultural property can be achieved – once and for all. This is an objective each and every one of us can further, maintaining an open and important conversation on the topic of cultural appropriation in our everyday lives. Together we can ensure a variety of cultures will grace our planet also in the future, and that hopefully, our offspring will live in a world where a wide range of different cultural expressions are enjoyed – ethically, legally and justly.

Writer is a former trainee of IPR University Center.

Kirjoittajat

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