By Francesca Romana Ferrucci, Fulvia Cosattini and Chiara Perotti

Over the last years we have witnessed extensive disapproval of the fashion world when dealing with collections or campaigns inspired by different cultures. As a fact, criticism on alleged cases of cultural appropriation has been rising to the stars throughout the years and does not seem to come to an end.

Generally speaking, cultural appropriation is defined as the unrecognized or inappropriate adoption of traditions, practices, ideas, etc. of one culture by members of another cultural, usually the latter being more dominant.

Indeed the artistic heritage of different cultures has often inspired fashion collections -with all the criticism that goes with this choice-: Urban Outfitters, subject to complaints raised by the Navajo Nation; Gucci accused of disrespecting the religious Sikh turban; Isabel Marant, strongly criticized by an indigenous community of Oxaca, Mexico because she had allegedly copied Mexican embroidery designs and also Marc Jacobs and his choice of styling dreadlocks on his models down the runway.

And these are just a few examples of the variety of designers and artists who have been widely inspired by indigenous cultures and for this have been strongly criticized.

Can cultural appropriation pose a real obstacle to designers’ inspiration? Which are the boundaries and how should all of this be tackled under a legal perspective?

The World Intellectual Property Organization (“WIPO”) has been quite active throughout the years in attempting to properly address issues concerning the so-called traditional knowledge (“TK”), i.e. knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.

As a fact, TK does not enjoy a strong protection within the system of Intellectual Property Rights as there is no international instrument that grants tout court protection for TK.

Some countries indeed have special laws in place for certain cultural heritage, but this circumstance is just a needle in the hay and definitely does not represent a milestone in this field.

To face this situation, the WIPO has set up an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (“the Committee”), which has been actively working to find solutions that will ensure -among others- the right protection for TK.

The next step on the WIPO’s agenda is its 39th session of the Committee which will take place starting March 18th 2019, so to bring on negotiations with the objective of finding an agreement on the viable legal instruments to be adopted for the protection of TK.

While waiting for the results of the WIPO’s initiative, a glimpse at the possibility of extending existing legal instruments to the protection of TK feels appropriate: in this respect, copyright seems to be the most suitable. In fact, the Italian Copyright Law (L. 633/41) grants protection to a wide range of creative intellectual artworks belonging the most various fields and created by any means of expression, as long as they are characterized by a certain degree of creativity. To this extent, any human community, either put together by its common religious beliefs, artistic values or ethnicity, may -in principle- claim a TK which is unique and creative for the mere fact of being the direct expression of its traditions and beliefs. Moreover, the sole externalization of the work of art would be enough for giving rise to copyrights, with no need for registration, in so making access to protection easier for the interested human communities.

Following these arguments, even TK expressions characterized by the lowest degree of externalization, being the latter verbally expressed, written or even embodied in a religious hat, could potentially find shelter in the Copyright Law. This way local communities could actually prevent misappropriation of their cultural heritage, while also -putting it in a more materialistic perspective- considering whether or not taking an economic advantage from the popularity and recognition of their traditions.

However, the legal concerns do not end here. In fact, it is easy to see that in a community of people where the TK stems from it is not possible to identify a single owner of the moral right to the work of art, which is required for giving rise to copyright protection. Moreover, even if an author may be detected, this protection would last for a limited period of time, given that -according to section 25 of the Copyright Law- the right of economic exploitation arising from the creation lasts only until 70 years after the death of the author (with some minor exceptions).

Another existing tool that might be adapted to grant protection to TK is the one of geographical indications (“GIs”), which have been already used for preserving traditional products -such as liquors, sauces and teas- from misappropriation. In this respect, it is to note that GIs might be particularly useful when dealing with handmade products or crafts whose characteristics are linked to their particular geographical origin or local heritage and customs. Further advantages are provided by the unlimited duration of the protection granted and by the possibility of collective ownership.

However, TK protection under GIs’ provisions is not completely exempt from inconsistencies under a legal perspective. To name one, GIs only prevent the registered indication from being exploited, while leaving the knowledge itself and the techniques that may embrace such knowledge out of the scope of protection.

To sum up, there is for sure a certain degree of confusion on how TK is protected and the only sure thing is that designers are becoming more and more aware of the importance of cultural heritage.

At this point, we’ll just have to wait and see if the WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore will put down the cornerstone of TK’s protection.

Write to us at francesca.ferrucci@dlapiper.com, fulvia.cosattini@dlapiper.com and chiara.perotti@dlapiper.com to find out more!