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Appropriation of culture v appreciation of culture

November 2022

Intellectual property rights protection of cultural heritage

On what grounds is Florence-based Uffizi Galleries suing French designer Jean Paul Gaultier for using Botticelli’s “the Birth of Venus” image in his clothing collection? It’s simple; cultural appropriation. The “Birth of Venus” image forms part of the cultural heritage of Italy and is protected pursuant to Italy’s Cultural Heritage Code which came into effect in 2004 and was updated in 2016. Under this code, a person must request for authorisation and pay a licence fee for the commercial use of any such cultural property. Jean Paul is alleged to be in breach of Italy’s Cultural Heritage Code. This reminds me of a similar situation where Louis Vuitton used Ghana’s kente (a colourful handwoven fabric which reflects the culture and identity of certain ethnic groups in Ghana) in its 2021 autumn-winter fashion show without requesting authorisation and paying a fee to the Ghanaian government for its use, despite wording in Ghana’s Copyright Act, 2005 (Act 690) for the payment of a fee for the commercial use of Ghana’s folklore. Nonetheless, it is evident, from the upsurge in the number of infringements of such cultural heritage codes, which are mere modifications of copyright, that the cultural heritage codes have failed to comprehensively protect cultural heritage from appropriation. There is therefore a need to introduce an additional form of intellectual property rights (IPRs) protection to these codes to protect traditional cultural expressions from appropriation.

Cultural appropriation vs cultural appreciation

So why does using the “Birth of Venus” image in a clothing collection amount to cultural appropriation and not cultural appreciation? The conversation on cultural appropriation vs cultural appreciation is one that has been going on for decades. Cultural appreciation is the understanding or admiration of some parts or aspects of cultural practices, values or expressions while cultural appropriation refers to the adoption of culture for commercial gain such as money or publicity without the consent or permission of the custodians of such culture. Thus, the main difference between appreciation and appropriation of culture lies in the latter’s requirement for consent or permission before any economic, financial or profitable gain is obtained while with the former, no such gain is obtained and as such no permission is required. For example, wearing Ghana kente at a graduation ceremony will be seen as cultural appreciation whereas using the Ghana kente in a movie to depict the Ghanaian culture, without the permission of the Ghanaian government will be perceived as cultural appropriation since the movie will reap economic and financial gain.

Intellectual property rights and culture

There is an overlapping and multifaceted regime between IPRs and cultural heritage such that IPRs can be used to guard against cultural appropriation. In the absence of a sui generis international IPR protection for traditional creativity, Geographical Indications (GI) have been suggested as an important IPR protective tool for cultural expressions. Hitherto, GIs were mainly developed to protect agricultural products however, recently, it is being used to protect other non-agricultural products such as textiles. As an example, the author’s article with Dr Janice Denoncourt on “Protecting Ghana’s intellectual property rights in kente textiles: the case for Geographical Indications,” discusses considerations for using GIs to protect Ghana’s kente.

Geographical indication protection

The Agreement on the Trade-Related Aspects of Intellectual Property Rights of 1994 provides that a good qualifies for GI protection where there is a definite link between the good and its place of origin. Such a link may be qualitative or reputational or may be natural or human characteristic factors present in the good’s place of origin. A qualitative link is usually a measurable physical characteristic which shows that the physical state of the good is attributable to certain unique features of its geographical origin. A reputational link, on the other hand, creates the sense that the relationship between the good and its geographical origin is built on the goodwill and consumer reputations associated with it. Examples of GIs include “Cashmere” from the Kashmir region of India, “Champagne” from the Champagne region of France, “Tartans” from Scotland, “New Forest Pennage Ham” from the UK and most recently, the “Couteau Laguiole” from the Laguiole and Thiers regions of France.

Furthermore, a GI is a certification tag which speaks to the quality of a product and has the potential of acting as a product differentiator, distinguishing between authentic original products from a location and unauthorised products of low quality. This helps in promoting positive market branding and goodwill, thus resulting in trade promotion of the product.

Like all other traditional IPRs, GI protection is territorial. Thus, a GI may be protected in one jurisdiction but not in the others. It is therefore expedient to not only protect a GI in the country of origin but also internationally. This can be done: (i) by obtaining corresponding GI protection directly in other countries through any of the forms of protection of GIs available in those countries; (ii) under a bilateral agreement such as the agreement between the European Union and other countries such as Albania, Australia and USA; and (iii) through multilateral agreements such as the Paris Convention for the Protection of Industrial Property of 1883 (as amended), the Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods of 1891 and the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958 updated via the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications of 2015.

A GI is distinguishable from all the other traditional IPRs because of its ‘shared character.’ It is a sign or symbol whose rights are collectively owned by all the people in the community in which the product originated. Copyright, patents and trademarks have their rights being owned by an individual author or institution. Conversely, with GIs, their ‘shared characteristic’ ensures that they belong to all the producers of the geographical area. This makes them better suited to protect cultural expressions because such expressions are communal and reflect the characteristics of an entire community. Thus, the rights in it must be shared by all the producers in the community.

Nonetheless GIs by themselves are not enough to provide a comprehensive system of protection for traditional cultural expressions. GIs mainly protect the name, quality and origin of the product but not the specific designs. To that end it must be combined with other traditional IPRs such as copyright to offer a complete protection for these products.

Some may argue that instead of providing an additional system of protection for these cultural expressions, there can be a mere modification of the traditional IPRs such as copyright law to cater for the adequate protection of the cultural expressions. However, it is the author’s opinion that copyright is not enough to protect traditional cultural expressions, no matter how many times it is modified. This is because the underlying nature of copyright is inadequate to protect the history and culture inherent in such cultural heritage. Thus, using GIs in addition to Italy’s Cultural Heritage Code to protect Botticelli’s “Birth of Venus” image, will protect the reputation of the image against its misuse and imitation while also reinforcing the need for fashion labels and other big brands to obtain the permission and pay a fee before using the image to sell their products.

The way forward

The appropriation of cultural heritage by big brands and labels has been a growing issue over the last few years. With the lack of an international system of IPR protection exclusively for traditional cultural expressions, most countries rely on their national cultural heritage laws which, in the author’s opinion, is not comprehensive enough to provide solutions in disputes involving cross border commercial appropriation of culture. Nonetheless, despite the lack of an appropriate international systems, GIs in Europe and beyond are being considered as an additional layer of protection for cultural heritage involving non-agricultural products to offer a more comprehensive form of protection against appropriation of their cultural heritage.

This article was prepared by Michelle Okyere, a PhD candidate at the Nottingham Trent University and an Associate at Bentsi-Enchill, Letsa and Ankomah, a prestigious law firm in Ghana.

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