Absolutely.

A design is intellectual property, whether it’s sketched in a notebook by an illustrator, mocked up by a graphic designer on a computer, or embroidered on indigo-dyed cotton in a remote village in Laos. If it is generally understood that using someone’s photography or written work without acknowledgement or permission is wrong, why would a handcrafted textile design be any different? Over the past three decades, protecting the intellectual property (IP) rights of indigenous peoples and local communities has become recognised as essential, though how it should be done is much more debatable.

Public opinion. 

Unfortunately, it is not uncommon for traditional knowledge, artwork, design, and ideas to be co-opted by multinational corporations who have the power and financial clout to either ignore IP claims or drag them out in court. However, we have seen that a public outcry, negative press, and boycotting of brands can pressure companies to admit wrongdoing and improve their practices.

In legal terminology, the World Intellectual Property Organization (WIPO) labels handicrafts and traditional designs as Traditional Cultural Expressions (TCEs) and the knowledge associated to creating them as well as the meanings attached to them by the source communities, meaning the traditional manufacturing techniques, the symbols and meanings, as Traditional Knowledge (TK). 

The current conventional Intellectual Property Tools that are available at an international level, namely Copyrights, Trademarks, Geographical Indications, Patents or Industrial Designs, are not designed to protect Traditional Knowledge and Traditional Cultural Expressions against misappropriation and misuse. Each of these tools has specific rules and requirements that must be followed in order to offer protection. For example, in order to benefit from Copyright protection a work must be of authorship — meaning that the author, or authors, of the work can be clearly identified; it must be original — and therefore not similar to an existing work; and it must be fixed in a tangible medium of expression. Whilst the first and third requirement could be demonstrated in the case of traditional designs, the second requirement — originality — is problematic to demonstrate since this traditional aesthetic is passed on from generation to generation and so are the meanings associated with the designs. 

Moreover, Copyright protection is limited in time whilst the very nature of TK and TCEs requires an indefinite protection duration since they are meant to be kept alive and transmitted from generation to generation. This is why at a global level WIPO itself suggests that a sui-generis (meaning a unique) protection mechanism for TK and TCEs protection be designed.

Another example worth mentioning is the Geographical Indication (GI). This tool refers to a sign that can be used on goods with a specific geographical origin and possessing qualities, reputation, or characteristics that are essentially attributable to that place of origin. The tool was designed originally for protecting agricultural products like Champagne, Aceto Balsamico di Modena, or Prosciutto di Parma/Parma Ham. Since GIs were not designed for the protection of non-agricultural products such as handicrafts and traditional designs, such protection also poses problems. Firstly, not all countries recognise GI protection for non-agricultural products, and even if they would, such protection would only help in the case of marketing a product as coming from that region. For example, a GI protection for Oma textiles would only be effective if a fashion company would try to sell their products and name them Oma textiles, but does not stop a company from copying Oma designs, creating the Oma embroidery by machine instead of manually, and selling these products under their own label without crediting or compensating the Oma community. 

In fact, in most countries TK and TCEs fall outside the scope of protection of Conventional IP Tools and are considered as pertaining to the public domain, meaning that they can be used and exploited freely, by anyone, without the consent, credit or compensation of the source communities. 

Thus, Conventional IP Tools prove limited with regards to the protection of TK and TCEs and are not enabling cultural sustainability and cultural survival. This is why we support and advocate for the creation of a unique legal protection mechanism that is designed specifically for TK and TCEs.

In conclusion, Conventional IP Tools can offer some degree of protection, but not the kind that would ensure local and ethinic communities like the Oma are protected against cultural appropriation. An interesting resource for further research can be found here.

They could have approached the Oma community or artisans directly, and ordered their handmade work for a fair price to incorporate into their clothing, generating income for the community. There are organisations that work with brands to help link them to artisan groups and social enterprises in developing countries to collaborate. These partnerships can result in wonderfully creative products that also generate great visibility and earnings for both the brand and the communities. 

Max Mara and all brands can follow the 3Cs’ Rule: Consent. Credit. Compensation©. 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

The Oma are proud of their heritage and identity. They were initially gratified to see that their designs were being admired in Europe, but then dismayed that no one knew that these designs were Oma. They also did not appreciate that their artisans were not involved in any of the production of the clothing and patterns, and thus, did not earn any income from. Finally, they were unhappy with some of the placement of the designs. One specific motif combination is always used on headdresses. On the Max Mara designs, they were used on the bottom of long dresses, near the feet. This was felt to be inappropriate and disrespectful. 

“Our grandparents passed down these traditions to our parents, and our parents to us. We are the Oma people, and we preserve our culture by making and wearing our traditional clothes.” – Khampheng Loma, Head of Nanam Village