Mexico’s new ban on the unauthorized use of indigenous art and design highlights the question of how intellectual property laws can be used in a global push against the exploitation of marginalized cultures.

The Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities allows groups to sue if someone without permission copies or imitates symbols, designs or other elements of their heritage, “even in a some degree of confusion. He is liable to a 10-year prison term for the illicit production or sale of indigenous creations.

But as the law raises the stakes, it leaves open crucial questions that could keep compliance and enforcement guessing. And the legal protection of a collective ownership of a culture can be fundamentally problematic because of the inherent subjectivity and conflicts with freedom of expression and the principles of intellectual property law.

The purpose of the sanctions enacted this year is “noble”, but “the law is too abstract”, said intellectual property lawyer Kiyoshi Tsuru of TMI Abogados in Mexico City. He also said creators could respond by “avoiding Mexican culture altogether” rather than just the indigenous groups the law is meant to protect.

“It’s something that needs to be addressed. However, there are still doubts whether it’s the most effective way,” Tsuru said. “Creators need to have a basic level of legal certainty, and they must also have their freedom of expression and their freedom to work and to be protected.”

Work by Glafira Candelaria Jose of the Otomi ethnicity in the village of San Nicolas, in Tenango de Doria, Hidalgo state, Mexico, June 18, 2019.

Photographer: Pedro Pardo/AFP via Getty Images

The law does not specifically address what is considered a cultural creation, how close is too close, and who in an indigenous community has the authority to grant permissions.

“Someone has to decide,” said Professor Rebecca Tsosie of the University of Arizona’s Indigenous Peoples Law and Policy program. “Even among indigenous groups, there is a lot of overlap because they are linguistically and culturally linked. You need someone to say what belongs to whom if you want to create some kind of enforceable system.

“It’s not okay”

When designer Carolina Herrera launched her Resort 2020 fashion line in 2019, the Mexican government loudly accused her of exploiting well-known indigenous patterns in her dresses. He promised legislation to deal with indigenous cultural property.

That same year, across the border, social media backlash over alleged cultural appropriation prompted Kim Kardashian to rebrand her clothing brand as Kimono.

Traditional intellectual property legal principles do not address such controversies. Cultural artistic conceptions are too old and general for copyright protection designed to reward individual creators for specific works, which eventually fall into the public domain. Trademark rights arise from use in commerce rather than creation, and exist primarily to avoid consumer confusion about who made a product.

Either way, outsiders taking something a minority group has developed and selling it to benefit the marginalized group not only “feels gross” but “is just morally wrong,” the lawyer said. intellectual property Lauren M. Ingram of Aronberg Goldgehn Davis & Garmisa in Chicago.

“It doesn’t seem fair because it’s kind of like ongoing oppression, economic oppression,” said Ingram, whose article on the subject won an award from the International Trademark Association.

“No elegant solution”

Wider international awareness of the profits derived from traditional art, style and symbols has spawned a push to recognize and legally protect the intellectual property rights of historically marginalized people.

“There is a strong global sentiment that cultural appropriation of Indigenous cultures is wrong and harmful that didn’t exist even 20 years ago,” Tsosie said.

Mexican law reflects the dialogue in places like the World Intellectual Property Organization, and countries are approaching the problem in different ways. But no coherent plan has emerged, and most approaches are much narrower than Mexico’s.

New Zealand refers trademark applications incorporating Maori text or images to an Indigenous Committee.

A Maori Moko design applied during the World of WearableArt Awards on September 25, 2015 in Wellington, New Zealand.

Photographer: Hagen Hopkins/Getty Images

In the United States, the Arts and Crafts Act of 1990 prohibits misrepresentation in the marketing of Native American crafts. The Navajo Nation sued under this law over the use of their name and art style to get a settlement from Urban Outfitters in 2016.

Some groups have turned to collective marks that signify membership in a group, such as Alaskan Natives’ Silver Hand program, to mark verified native products. Indigenous groups in the United States and other countries, including Australia, have also used sweeping unfair competition laws that also target consumer deception.

But these mechanisms have limits. Trademarks often can’t stop big companies from stepping in and using untrademarked designs or simply using and registering a trademark first. Some consumers are unaware of or do not find cross-cultural use of public domain creations problematic. Ingram also noted that questions of who should have the power to manage collective marks on behalf of a group remain tricky.

“There’s no elegant solution,” Ingram said.

“He’s a killer”

An administrative agency will establish regulations regarding the new Mexican law by mid-July, likely adding at least some clarity to the law’s parameters. As it stands, the law says there will be a new cultural registry, but registration is not required to support ownership. It also advises that disputes between or within a community be resolved through mediation, but does not specify who has the legal authority to represent a group, leaving it to the groups themselves.

Mexico is home to 68 different indigenous peoples, representing more than 15% of the country’s population and speaking hundreds of languages ​​and dialects, according to the International Working Group for Indigenous Affairs.

Some designs are well known to come from certain states but often overlap with different groups, said intellectual property lawyer Hugo Alberto Arriaga Becerra d’Arriaga y Dominguez in Mexico City. The law states that when multiple groups claim an item, it cannot be approved for use by others without everyone agreeing.

Mexican artisans from the Otomi ethnic group embroider their designs in the village of San Nicolas, in Tenango de Doria, Hidalgo state, Mexico, June 18, 2019.

Photographers: Pedro Pardo/AFP via Getty Images

“Most of it is against the Constitution,” Arriaga said, adding that a law can be struck down for vagueness, like in the United States. “I don’t think it will be very helpful to anyone.”

The uncertainty built into the law will “scare” companies operating in Mexico, said intellectual property lawyer Brian Pomper, executive director of the Alliance for Trade Enforcement.

“I’ve often been told, ‘I’m okay with bad laws,’ because companies can get around them,” Pomper said. “’What I can’t handle is the uncertainty.’ It’s a killer.”

‘Highlight Awareness’

Uncertainty aside, there is no consensus on whether and when alleged appropriation crosses a line, complicating efforts to create a reliable legal framework. Arriaga, for example, said he was not offended by Americans wearing Mexican sombreros, saying that “people want to be offended by everything these days.”

Yet when Louis Vuitton sells a Basotho blanket for 30 times the price Southern African artisans could earn, as happened in 2017, the perceived injustice upsets many in an increasingly impossible to ignore.

Shoes with a design by Mexican artisan Glafira Candelaria Jose of Otomi ethnicity displayed in her workshop in the village of San Nicolas, in Tenango de Doria, Hidalgo state, Mexico, June 18, 2019.

Photographer: Pedro Pardo/AFP via Getty Images

This can lead to principled conflicts, even among social justice advocates.

University of New Hampshire law professor Ann Bartow said she “hates that fast fashion dips into people’s cultures and exploits them in garish ways.” But she also has strong instincts for free expression and a tendency to favor low barriers to fair use, which she says conflicts with an impulse for strong legal enforcement of appropriation.

Bartow said she wrote about First Amendment issues in trademark law in the 1990s, but didn’t publish because “I couldn’t figure out how I got there. the”.

Ultimately, the kind of public pressure that caused Kardashian to drop the Kimono brand might be the most effective way to push back, some attorneys have said.

Worry about bad publicity could convince companies to work with minority groups to engage them ahead of controversy, Tsosie said.

“That can be a very effective mechanism: highlighting awareness of this exploitation,” Tsosie said. “A lot of these companies recognize that they need to engage with these Indigenous nations first before launching these ad campaigns.”