What should the fashion industry know about the use of Traditional Knowledge and Cultural Expressions in their designs?

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It is estimated that, in 2019, the fashion industry will grow in Latin America between 4 and 5%[1]. Furthermore, Mexico has been considered as the most attractive market for luxury brands inLatin America.[2]However, recently some well-known fashion brands have been involved in public discussions with wide exposure in the media, due to the use of designs, considered as Cultural Heritage of indigenous communities, in their collections, which has been called from an anthropologic perspective as “Cultural Appropriation”. Mexico has 68 indigenous communities, each of them owning avast cultural wealth, which serve as a source of inspiration for the creation of many designers.

In certain jurisdictions, where there is high number of indigenous communities, such as Mexico, more and more cases have arisen in which the members of such communities complain about the alleged misuse of their traditional knowledge, especially those related to textiles or traditional symbols.

It is known that the protection of the Intangible Cultural Heritage to which Traditional Knowledge associated with Genetic Resources and Traditional Cultural Expressions, has represented a major challenge at a global level and so far, there is not a homogenous legal framework.

In Mexico, although, at a Constitutional level, the pluricultural nature of the Nation and indigenous rights are recognized, today there is no ad hoc regulation for the protection of Traditional Knowledge associated with Cultural Expressions. However, the recent cases involving well-known designers have resulted in government policies and law initiatives such as the Safeguarding of Knowledge, Culture andIdentity of Indigenous and Afro-Mexican Peoples and Communities Law Project.

In addition, the National Human Rights Commission recently issued a recommendation (General Recommendation 35) on the Protection of the Cultural Heritage of the Indigenous Peoples and Communities of the Mexican Republic, where relevant cases that have involved renowned brands and in which expressly states the need of legal provisions for the protection of collective rights which include civil and criminal mechanisms to endow communities with legal actions to be used against companies that misuse their Intangible Cultural Heritage.

Based on the above, these are the main points that Fashion industry companies should take into account:

• The Federal Copyright Law establishes that works developed and perpetuated by a community will be protected against its deformation, when it causes demerit or damage to the reputation or image of the community to which they belong.

• The works mentioned in the previous point are of free use as long as the name of community from which it is derived is mentioned. It is suggested to expressly mention the name of the community when using this kind of works.

• While there is no law which specifically provides it, in order to avoid media exposure that could harm the image of the company, and in order to avoid possible legal actions on the basis of an allegedly cultural appropriation, it is recommended to request prior informed consent of the community before incorporating any design or element that could derive from the Cultural Heritage of such community, under the terms of the UN Declaration on Rights of Indigenous Peoples.

Usually the communities, more than an economic benefit, they seek respect and recognition for their traditions preserving the spirit of the same. In this sense, win-win schemes may be built between the fashion brands and the communities, through the incorporation of Traditional Knowledge and CulturalExpressions or Folklore in commercial goods.

Basham’s Intellectual Property team analyzing and monitoring any new law initiative and government policies that may arise, in order to inform our clients in a timely manner. We will be pleased to receive any inquiries or comments you may have on this matter.

SINCERELY,

Mexico City, July 11th, 2019.

[1] Statista 2019. Business of Fashion; Mckinsey.

[2] Deloitte. Global Powers of Luxury Goods 2018.