Cultural appropriation is defined as taking intellectual property, traditional knowledge, cultural expressions or artefacts from someone else’s culture without permission. This also includes the unauthorised use of another’s culture’s dance, dress, music, language, folklore, cuisine, traditional medicine, religious symbols and the likes.
Any process of borrowing necessarily involves acts of appropriation, which are means by which borrowing occurs.
The first problem lies in the fact that developing countries like Kenya have not sufficiently defined their cultural industries within the Intellectual Property context. It is only recently that cultural industries have started realizing the full economic benefits that would be open to them, should they be granted adequate Intellectual Property protection and promotion.
Table of Contents
1. People and communities such as the Maasai in Kenya and Tanzania should fight against cultural appropriation of their traditional knowledge by luxury fashion labels.
2. The TRIPS agreement as part of the Uruguay Round in 1994 added new dimensions to the debate on Intellectual Property rights in traditional knowledge and the TRIPS Agreement sets minimum standards for countries to follow in protecting intellectual property.
3. UNESCO Universal Declaration on Cultural Diversity, 2005 has been ratified by over 100 countries as well as been acceded to by the European Union.
4. In accordance with the Declaration above, Article 11(1) of the Kenyan Constitution provides that culture is recognised as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation.
5. Other countries like the USA have the 1990 federal Indian Arts and Crafts Act to protect the traditional and cultural works of the Native Americans from exploitation.
6. What kind of breaches exist in the context of cultural appropriation?
7. Do the Maasai and other similar tribes and communities have a valid claim?
8. Remedies.
9. Benefit Sharing Deal: Light Years IP launched a Maasai Intellectual Property Initiative to among other things help the community regain control over their cultural brand by and to generate income from the brand in a way that is acceptable to them.
Research Objectives and Key Themes
This work examines the issue of cultural appropriation of traditional knowledge by luxury fashion brands, specifically focusing on the Maasai community, and evaluates whether current intellectual property frameworks provide sufficient protection or if they inadvertently facilitate exploitation.
- The intersection of traditional cultural expressions and international Intellectual Property law.
- Case studies of unauthorized commercial use of indigenous imagery (Maasai, Navajo).
- Legal challenges and shortcomings in current copyright and trademark frameworks regarding indigenous heritage.
- Strategic remedies including intellectual property registration and benefit-sharing models.
Excerpt from the Book
Do the Maasai and other similar tribes and communities have a valid claim?
In a similar case of Navajo Nation v Urban Outfitters (2012) in the USA, the Navajo Tribe, and a Native American tribe sued Urban Outfitters for breach and dilution of trademark and tarnishing of the brand before a federal judge in New Mexico. The Navajo Nation was seeking millions in dollars in its lawsuit over the retailer’s use of the name in connection with clothing, jewellery, flasks and other merchandise. The Navajo Nation had continuously used their trademark internationally since the 17th century and was a registered trademark since 1943. Their products include clothing, crafts, accessories, blankets and the likes. They argued that the ‘Navajo’ trademark is well known across the USA as a brand of authentic Indian-made goods and by the defendants use of the patterns in the clothing, there had been a breach. The plaintiffs relied on the federal Indian Arts and Crafts Act which prohibits the offer, sale or display for sale goods in a manner that falsely suggests it is Indian produced, an Indian product, or the products of a particular Indian tribe or Indian arts and crafts organization. The parties settled the case, with the plaintiffs receiving an undisclosed amount.
The Navajo Nation is a good model to follow as it took steps decades ago to protect its trademark. Registering the trademark has been helpful for them in protecting and asserting the rights and also in prioritization of protection of identity and intellectual property by pursuing such registrations.
The tribe has to date registered more than 80 trademarks with the US Patent and Trademark Office. Other tribes across the world should follow suit. The Maasai, for example, should register their trademark and design across the world. Tedious it may be, but it will definitely protect their indigenous, traditional and Intellectual Property rights.
Summary of Chapters
People and communities such as the Maasai in Kenya and Tanzania should fight against cultural appropriation of their traditional knowledge by luxury fashion labels.: This section introduces the definition of cultural appropriation and the specific challenges faced by the Maasai community regarding the unauthorized commercial exploitation of their culture.
The TRIPS agreement as part of the Uruguay Round in 1994 added new dimensions to the debate on Intellectual Property rights in traditional knowledge and the TRIPS Agreement sets minimum standards for countries to follow in protecting intellectual property.: This chapter reviews the role of the TRIPS Agreement in setting global standards for intellectual property and its limitations in addressing traditional knowledge.
UNESCO Universal Declaration on Cultural Diversity, 2005 has been ratified by over 100 countries as well as been acceded to by the European Union.: This part explores the guiding principles of the UNESCO declaration and the rights of parties to protect the diversity of cultural expressions.
In accordance with the Declaration above, Article 11(1) of the Kenyan Constitution provides that culture is recognised as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation.: This segment details the national legislative response in Kenya, specifically the Protection of Traditional Knowledge and Cultural Expression Act of 2016.
Other countries like the USA have the 1990 federal Indian Arts and Crafts Act to protect the traditional and cultural works of the Native Americans from exploitation.: This chapter provides a comparative look at the United States' legal framework for protecting indigenous crafts and traditions.
What kind of breaches exist in the context of cultural appropriation?: This section categorizes the specific types of legal breaches occurring, such as copyright and design infringement, when brands use indigenous regalia without permission.
Do the Maasai and other similar tribes and communities have a valid claim?: This chapter analyzes the legal viability of claims by comparing the Maasai situation to the Navajo Nation’s successful litigation against Urban Outfitters.
Remedies.: This section outlines practical steps for indigenous communities, such as issuing 'cease and desist' notices and pursuing formal intellectual property registrations.
Benefit Sharing Deal: Light Years IP launched a Maasai Intellectual Property Initiative to among other things help the community regain control over their cultural brand by and to generate income from the brand in a way that is acceptable to them.: This final chapter discusses the importance of supply and license agreements as a means to ensure communities receive fair compensation for the use of their cultural heritage.
Keywords
Cultural Appropriation, Intellectual Property, Traditional Knowledge, Maasai, Navajo Nation, Trademark, Copyright, Indigenous Rights, Benefit Sharing, Globalization, Cultural Expressions, Fashion Industry, Legal Protection, Kenya, USA.
Frequently Asked Questions
What is the core subject of this paper?
The paper addresses the issue of cultural appropriation of indigenous traditional knowledge by global luxury fashion companies, focusing on the lack of adequate legal protection for these communities.
What are the primary themes discussed?
Key themes include the intersection of international intellectual property laws, the economic exploitation of indigenous cultures, the effectiveness of national legislation like the Kenyan Act of 2016, and the necessity of proactive branding and trademark registration for indigenous groups.
What is the primary objective of this research?
The objective is to argue that indigenous communities, such as the Maasai, have a valid legal claim against companies using their imagery and to propose strategies for securing intellectual property rights and ensuring fair benefit-sharing.
Which scientific or legal methods are utilized?
The work employs a comparative legal analysis, reviewing international conventions like TRIPS, UNESCO declarations, and specific national statutes like the US Indian Arts and Crafts Act alongside recent case law examples.
What topics are covered in the main section?
The main sections cover the definition of cultural appropriation, the failure of existing laws to protect non-novel cultural expressions, and the practical implementation of remedies like trademark registration and license agreements.
Which keywords best characterize this work?
Important keywords include Cultural Appropriation, Intellectual Property, Traditional Knowledge, Indigenous Rights, Trademark, and Benefit Sharing.
How does the Navajo Nation case serve as a model in this study?
The Navajo Nation case serves as a success story of how proactive trademark registration and litigation against unauthorized retailers can protect tribal identity and lead to financial settlements or licensing deals.
What is the author's final conclusion regarding the responsibility of corporations?
The author concludes that beyond legal enforcement, there is a moral imperative ("matter of conscience") for companies that have profited from indigenous cultural heritage to contribute back to the communities that remain impoverished.
- Quote paper
- Joy Mutimba (Author), 2018, Why People and communities such as the Maasai in Kenya and Tanzania should fight against cultural appropriation of their traditional knowledge by luxury fashion labels, Munich, GRIN Verlag, https://www.grin.com/document/420576
