Last year after the Contemporary Pacific Arts Festival (CPAF) in Melbourne, Australia, ABC journalist Caroline Lafargue wrote an excellent article titled ‘Who owns traditional arts?’ In it, she notes how difficult it can be to determine whether the use of a traditional art form is an example of the modernisation of a practice, or the misappropriation of culture.
CPAF’s 2015 Symposium featured a panel on indigenous culture and intellectual property, which discussed the question of copyright and ownership - as well as community responses to cultural icons used out of traditional context. One of the panelists, Patricia Adjei, who works at Copyright Agency Viscopy, is an indigenous intellectual property law expert.
Adjei explained that although individual copyright is covered in the majority of countries in the world, members of the World Intellectual Property Organisation (WIPO) are yet to develop an international legal instrument for the effective protection of indigenous and local collective cultural heritage. This would include genetic resources, traditional knowledge, and traditional cultural expressions.
This would also necessitate collective licensing; but collective licensing of indigenous cultural material is still not recognised worldwide. WIPO members have been locked in negotiation over the issue for 15 years; countries have been unable to agree on considerations such as a common legal definition of traditional knowledge and of the concept of ‘public domain’ – which doesn't even exist in every country.
Furthermore, the inequality and exploitative relations between the developed and developing world plays out in this debate too - Lafargue wrote that it has “proved difficult to match the interests of developing nations, where much of this indigenous knowledge lies, with those of developed nations.”
CULTURAL APPROPRIATION IS ABOUT POWER IMBALANCE
Dr. Adrienne Keene, a Native American scholar and author of the influential blog Native Appropriations, has taken a particular interest in the appropriation of Native culture - which has long been rife in the United States. She has stated that cultural appropriation involves a power imbalance; keeping this in mind may make it easier to identify when appropriation is occurring.
Dr. Keene told Refinery 29: “There is always an inherent power imbalance — it is the dominant group taking from a marginalized group. With cultural appropriation, this also often plays out in the realities of colonization: It is the colonizer taking from the colonized.” When, for example, a company takes an indigenous traditional artform, and uses it in a product - or to sell a product - for profit, this is clearly appropriation.
She also stated that indigenous designs and artforms can be thought of as the intellectual property of the tribes and communities that invented them. And, given this, Dr Keene says, “they should have the right to have power over [the designs], and to economically benefit from them.” She added, “Christian Louboutin has a trademark on red soles, [which gives him] power over that design element and right of ownership. Why can't Native peoples ask for the same?”
NATIONAL LEGAL PROTECTIONS FOR TRADITIONAL KNOWLEDGE
Interestingly, Huffington Post reported last week on the result of Mexico’s indigenous Mixe community’s year-long action against designer Isabel Marant for plagiarism. The campaign involved social media outcry, protests at Marant’s New York store and a press conference held by the Mixe people. Their case against Marant and others illustrates the need for legal protections.
Marant had used the traditional red-and-white embroidery of the Mixe community in her spring/summer 2015 “Étoile” collection, without acknowledging the design’s origins; the garments retailed for as much as $365. This month, Oaxaca’s congress declared the Mixe community’s traditional designs and language to be Intangible Cultural Heritage, as per UNESCO guidelines.
The protected status means that the designs are recognised as unique to, and originating in, Mixe culture - but the status is not legally binding. Mexico is not a signatory to UNESCO’s 2003 Convention for the Safeguarding of Intangible Cultural Heritage and hasn’t even submitted the Mixe’s ‘Intangible Cultural Heritage’ to the Convention Committee for approval to list.
Oddly, Marant had also faced another challenge to her right to use the designs from high end brand Antik Batik, frequently cultural appropriator, who boldly tried to lay its own copyright claims to the indigenous design, and accused Marant of plagiarism. Thankfully, a French court ruled in December last year that neither Marant nor Batik could copyright the garments, as they were a cultural artifact of the Mixe people.
The question remains: how do we protect collective cultural property from this kind of exploitation in law? Although most nations do not recognise collective licensing of indigenous cultural material, two Pacific nations are notable exceptions: Nieue and Cook Islands. So far, they are the only two Pacific nations that have enacted national legislation protecting traditional knowledge.
To do so, Caroline Lafargue reported that they drew on the “Pacific model law on the protection of traditional knowledge and expressions of culture that was developed collaboratively with UNESCO, WIPO, Secretariat of the Pacific Community (SPC) and the Council of Pacific Arts and finalised in 2002.”
PEOPLE’S PROTESTS IN LIEU OF LEGAL PROTECTION
So, there is a need for, and lack of, solid legal protections for indigenous cultural material. Given this, one of the only tools people have to fight against cultural appropriation is to organise protests - combining social media campaigns, petitions, and public shaming of companies appropriating traditional designs, crafts and ornaments for huge profits.
In her article, Lafargue cites one example of this in relation to the Pacific: Nike’s 2013 usage of a traditional male tattoo pattern from Samoa on women’s leggings, which created outrage in Samoan communities across the globe. The tattoo apprpriated by the corporation - the pe'a - is a high honour, reserved for male chiefs in Samoan society.
Nike eventually bowed to public pressure by apologising and withdrawing the offending garments. Following this, the ABC spoke to Galumalemana Alfred Hunkin, a senior lecturer in Samoan studies at Victoria University in Wellington. He said:
"The tattoo is an icon which is very specifically integrated into Samoan culture. I think what Nike has done here is to, what we could call in modern terms, exploit the art of the Samoan people for commercial benefit. And I think that is a no-no for companies, particularly when it involves ethnic or indigenous traditional knowledge." [emphasis mine]
Hunkin noted that Nike wasn’t the only offender; that there were other companies using traditional tattoos on cloth as designs, and selling them worldwide. Samoan-born MP Su'a William Sio told the New Zealand media that Nike should have investigated the origins of the tattoo before the company ordered production of the design:
"Before you launch into something like this, there's generally a consultation with those who own the pattern and it appears Nike didn't taken the time to do that."
Nike said that the offending Tattoo Tech collection was inspired by tattoo graphics; many traditional tattoo artists and cultural experts note the proliferation of appropriated traditional symbols in western tattoos. In this 2015 blog post ‘Reviving & Protecting Melanesian Tattoo’, for example, we shared Julia Mage’au Gray’s thoughts on encountering a young woman who had lifted traditional tattoos from various cultures around the world - including Julia’s own - and had them tattooed on her body.
Mexico’s indigenous Mixe community’s year-long action against designer Isabel Marant for plagiarism (mentioned above) is another excellent example of how a protest campaign can be effective. Not long after Marant released the collection that plagiarised their traditional garment, a group of Mixe women held a press conference, highlighting the appropriation of the 600-year-old huipil design.
A petition was created in support of Mixe, and Mixe supporters staged at least two protests outside Marant’s Soho flagship store in New York, shaming Marant with signs saying things like “NO TALENT ISABEL MARANT IS A THIEF”. Following this, Marant admitted that the design she used was Mixe, and pulled the blouse from the market. And though not legally binding, having the Mixe community’s traditional designs and language declared UNESCO ‘Intangible Cultural Heritage’ is better than nothing.
Dr. Jane Anderson, an anthropology professor at NYU, told the Huffington Post that this may be enough to deter others from ripping off the Mixe community in future. Of the protest campaign, Dr Anderson said that what made the action of the Mixe community successful was the significant media outcry. “The media attention made it a liability and not a lucrative venture”, she said.
ISLANDERS ADAPTING TRADITIONAL CRAFT FOR MODERN BUSINESS
On another note, many have argued that although exploitation is a problem, international interest in Pacific art and crafts should be welcomed, as it indicates potential markets opening up for Pacific Islanders who possess traditional knowledge. The case of Florence Jaukae, single mother of five children, exemplifies how traditional craft combined with the entrepreneurial spirit can provide a livelihood for otherwise vulnerable people, and be a force for progressive change in a community.
Florence Jaukae hails from Goroka, PNG; where bilum weaving is a practice handed down generationally, and bilums can denote a girl’s social standing, where she came from, and her marital state. When Florence and her children were abandoned by her husband, she found comfort and an income in going back to the traditions taught to her by her elders, and weaving bilum cloth.
Instead of making the bilum cloth into a bag, however, with its marriage symbolism, she decided to sew it into a dress, and wore it into town. The break from convention turned heads; pretty soon, she became known as 'bilum meri' - the bilum woman. As word spread about the 30 year old single mother’s bilum cloth creations, she started to receive orders.
Florence began to sell bilum dresses, hats and scarves in a variety of colors, patterns and materials, depending on the tastes and budget of the buyer; today she has local and international customers. In 2014, her small business’ product made it to a fashion show in New York, where her bilum cloth adorned models on the runway.
You can read the amazing full story of how Florence Jaukae and other Papua New Guinean female entrepreneurs grew the bilum cloth business - and their plans for their futures - HERE.
WORDS by Pauline Vetuna.
Image 2 - Nike’s ‘Tattoo Tech’ garment, which caused outrage in Samoan communities around the world. Via ABC.