WHITE PAPER REPORT 2021

Documenting Traditional Cultural Expressions: Building a Model for Legal Protection Against Misappropriation and Misuse with the Oma Ethnic Group of Laos

by Monica Boța-Moisin and Tara Gujadhur

YOUTUBE PLAYLIST

“Cultural Intellectual Property Rights”

Collectively, with the support of voice, we have produced a series of videos to raise awareness and share the story of this journey. 

OMA DATABASE

Traditional Textile Design Database

Securing Cultural Intellectual Property Rights for the Oma Ethnic Group of Laos. 

Frequently Asked Questions

Cultural intellectual property rights®️ (CIPR) are a proposal for a new generation of rights related to Traditional Knowledge (TK) and Traditional Cultural Expressions (TCEs). They recognise guardians and custodians of TK and TCEs and offer legal protection against misappropriation and misuse for an indefinite period of time.

With relevance to the fashion and textile industry, CIPR are designed to protect the intellectual work of artisans, craftsmen and craftswomen, and to offer a form of compensation for their contribution to the survival of cultural heritage by transmitting traditional designs, traditional techniques, and traditional cultural expressions from generation to generation.

Existing intellectual property laws do not offer a globally recognised tool for this kind of legal protection so the term “cultural intellectual property rights” was introduced by Monica Boța-Moisin (2016) and the Cultural Intellectual Property Rights Initiative® (CIPRI). The aim of promoting Cultural Intellectual Property Rights is for international law to change to ensure custodians of  Traditional Knowledge (TK) are treated with fairness and equity and Traditional Cultural Expressions (TCEs) are not commercially exploited to the detriment of the source communities. 

Learn more at: www.culturalintellectualproperty.com 

In legal terminology, “appropriation” is the act of taking something without permission, namely without the consent of the rightful holder (owner, guardian or custodian). While cultural appropriation is not legally defined, it is generally understood to include the  unauthorized use of cultural elements. 

Susan Scafidi, author of the book “Who Owns Culture? Appropriation and Authenticity in American Law,” defines cultural appropriation as taking traditional knowledge, cultural expressions, or artifacts from someone else’s culture without permission. This can include unauthorized use of another culture’s dance, dress, music, language, folklore, cuisine, traditional medicine, religious symbols, etc. 

Learn more about cultural appropriation at: A Guide to Understanding and Avoiding Cultural Appropriation by Nadra Kareem Nittle (ThoughtCo, 2020) and “What Defines Cultural Appropriation?” by Bel Jacobs for BBC Culture (May 2022).

Yes. 

Plagiarism is the act of presenting as new and original an idea or product derived from an existing source, without acknowledging the source. 

Copyright infringement occurs when an original work that is protected by copyright is copied without authorization. Copyright infringement is both a legal violation and an act of plagiarism. 

As a general rule, traditional cultural expressions (TCEs) are not subject to copyright protection. So when a TCE, like a traditional design of an ethnic group, is copied without permission, the plagiarism does not qualify as a case of copyright infringement. 

Examples of traditional design plagiarism: The (unofficial) verdict: cultural intellectual theft in Marant vs. the Mixe community of Oaxaca by Silvia Anthea Pannella (CIPRI, 2018) 

Mexico is at war against cultural appropriation on the catwalk by Beatriz García (2020)

Learn more about the difference between copyright infringement and plagiarism at: Is plagiarism unlawful? by Owen Dean (WIPO, 2018)

The Oma, a small ethnic community living in the hills of Phongsaly Province in northern Laos, embroider, stitch, and appliqué these colorful designs onto their traditional clothing, including head scarves, jackets, and leg wraps. 

TAEC has worked with the Oma since 2010, when the organisation was hired to survey their crafts and identify potential income-generating opportunities for their artisans. Most recently, TAEC has worked with them on documenting their traditional music and new year’s celebrations. Nanam Village is an approximately 9 hour drive from Luang Prabang, part of it unpaved, and is by far the most remote village (of 30 across Laos) that TAEC works with.

TAEC YouTube: Do you know the Oma of Laos?

Public Facebook Albums:

Learn more: The Story | The Oma vs. Max Mara

 

The 3Cs’ Rule: Consent. Credit. Compensation© is a tool for developing, maintaining and sustaining collaborative relationships with Indigenous people and local communities.

Developed by the Cultural Intellectual Property Rights Initiative®, the 3Cs’ Rule guides best practices for drawing inspiration from cultural heritage. Using this framework, fashion and textile industry stakeholders have the guarantee that inspiration will not turn into appropriation.

Consent: Obtain the Free, Prior and Informed Consent of the craftsperson or community
Credit: Acknowledge the source community and inspiration
Compensation: Engage in benefit-sharing, which can be monetary or non-monetary

If you are interested in implementing the 3Cs’ Rule by the Cultural Intellectual Property Rights Initiative® for your community, you can reach out to CIPRI and TAEC for support.

Learn More: How can the fashion industry treat Indigenous people and craft communities with fairness and equity? (September, 2020)

Traditional Knowledge (TK) includes knowledge, know-how, skills, innovations and practices that are passed between generations, in a traditional context.

This living body of knowledge is developed and sustained within a community and often forms part of the cultural or spiritual identity of the group. The group, often Indigenous or local communities, acts as the guardian or custodian of the body of knowledge. 

Examples of Communities with TK include: Maasai in Kenya, Maori in New Zealand, Native Americans in the US, First Nations in Canada, and the Oma in Laos. 

Source: World Intellectual Property Organization (WIPO)

Learn more at WIPO: www.wipo.int/tk/en/

Read also: Traditional Knowledge – A Cultural Intellectual Property by Sinduja Sivarajah, (CIPRI, 2020)

Traditional Knowledge and traditional culture are expressed as Traditional Cultural Expressions (TCEs). Sometimes also referred to as “expressions of folklore”, TCEs refer to both tangible and intangible forms that express, communicate or manifest the traditional culture.  

Tangible TCEs include: jewelry, traditional garments, headpieces, pottery, textiles for interiors, wood carvings, musical instruments, and forms of architecture. 

Intangible TCEs include: songs, dances, rituals, storytelling, food recipes, words, designs, names. 

TCEs form part of the identity and heritage of  traditional or Indigenous communities and are passed down from generation to generation. TCEs are constantly evolving, developing and being recreated within a community.

Source: World Intellectual Property Organization (WIPO)

Learn more at: https://www.wipo.int/tk/en/folklore/

The Cultural Intellectual Property Rights Initiative® (CIPRI) is a worldwide movement supporting the recognition of cultural IP rights for craftsmen and women who are the custodians and transmitters of traditional garments, traditional designs and traditional manufacturing techniques.

​This initiative was born from the need to eliminate culturally appropriative behavior in the fashion industry and aims to act as mediator between the interests of fashion businesses and those of artisans and traditional creative communities. 

​The Cultural IP Rights Initiative supports cultural sustainability and fashion as a form of education and promotion of cultural heritage and traditional cultural expressions. CIPRI developed the 3C’s rule as a tool to guide global companies toward respectful and fair collaboration with TCE holders. 

Monica Boța-Moisin, founder of the Cultural Intellectual Property Rights Initiative and Fashion Lawyer as she shares ideas of how the fashion industry can work in collaboration with communities that hold traditional knowledge. 

World Intellectual Property Organisation (WIPO) is one of 15 specialised agencies of the United Nations, WIPO provides information, resources, and services about intellectual property (IP) including copyright, trademark, and patents in an international context. 

WIPO tips to help Indigeous and local communities: Indigenous and Local Community Entrepreneurs and Intellectual Property 

There is currently no international legal framework that ensures legal protection for Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE). 

Some countries have adopted specific legislation in this area – for example Mexico, South Africa, Philippines, and Zimbabwe – or have adapted existing intellectual property protection tools to cover certain aspects in this area – for example the Geographical Indication for non-agricultural products like textiles and handicrafts in India, Bangladesh or Viet Nam. Panama for example, is one of the few countries in the world that has a sui generis law for the protection of TCEs and associated TK.

However, national laws are not enforceable internationally. 

The global movement that the Cultural Intellectual Property Rights Initiative® supports is the recognition of cultural IP rights for craftsmen and women who are the custodians of traditional garments, designs, and techniques. CIPRI also supports the idea of developing dedicated legislation (sui-generis legislation) for the protection of TK and TCEs. 

Negotiations on an international legal instrument are taking place within the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The protection mechanism they aim to design will be dedicated specifically to protecting and sustaining TK and TCEs and for that reason it is referred to as sui-generis protection.




Help us by spreading awareness of this issue and be a strong voice for artisan communities around the world. More resources are available at Tools for Advocates and Tools for Artisans.

Be part of the movement and use #notpublicdomain in your social media posts!

Be active, share, and contribute content during commemorative international days like Fashion Revolution Week, World Intellectual Property Day and Cultural Intellectual Property Rights Initiative® Anniversary (26 April), Cultural Fashion Day (22 June), and International Day of the World’s Indigenous Peoples (9 August).

Follow other established organisations working to advocate for traditional knowledge:

LINKS AND ADDITIONAL RESOURCES

CULTURAL APPROPRIATION AND INTELLECTUAL PROPERTY:

GLOBAL CASES | TRADITIONAL CULTURAL EXPRESSIONS (TCEs) AND THE FASHION INDUSTRY:

ORGANISATIONS:

LAW:

OTHER RESOURCES:

with the support of