The 3Cs' Rule - Get Weaving!
The following article will talk about a practical solution proposed by the Cultural Intellectual Property Rights Initiative intended to suppress cultural appropriation in the fashion industry by following a simple 3Cs' Rule. Developed by cultural IP Lawyer Monica Boța-Moisin in 2017, the 3Cs' Rule stands for Consent, Credit, and Compensation.
The aim of this article is to introduce the notions of "consent", "credit" or source acknowledgement, and "compensation", in relation to elements of Traditional Knowledge and Traditional Cultural Expressions.
To start with, it is important to ask ourselves some necessary questions, like:
What is the difference between Inspiration and Copying?
Is it enough for brands to take Consent from local and Indigenous Communities and not give them the credit and compensation for their work?
Is it enough for the brand to just give Credit and leave out Consent and Compensation?
Is it enough for brands to apologize for the unauthorized use of someone’s Traditional Knowledge and Traditional Cultural Expressions?
Traditional Knowledge and Traditional Cultural Expressions
Traditional Knowledge (TK) is a thriving and living body of knowledge that is developed, sustained and passed on for generations, helping form the cultural and spiritual identity of the community. Examples of Traditional Knowledge include practices, skills, know-how, that are passed on from one generation to the other.
Traditional Knowledge can be expressed in Tangible or Intangible forms, by an individual or a group of people. These forms are called Traditional Cultural Expressions (TCEs). Examples of Traditional Cultural Expressions include ‘expressions of Folklore’, like dance, art, music, designs, jewellery, handicrafts, architectural forms etc. (see Traditional Knowledge - A Cultural Intellectual Property).
Cultural Appropriation
“Cultural appropriation” can be described as the act by a member of a relatively dominant culture of taking a Traditional Cultural Expression and repurposing it in a different context, without authorisation, acknowledgement and/or compensation, in a way that causes harm to the traditional cultural expression holder(s). (1)
Cultural Appropriation and copying have been a part of the fashion industry, on a commercial and profit driven scale, since the industrial revolution. More often than not, it is assumed that Traditional Knowledge is part of the public domain, and hence free for everyone to use.
This problem stems from the fact that there is no framework in place to regulate and reduce occurrences of cultural appropriation and that fashion is considered too utilitarian for Copyright protection. In turn, fashion and textile industry stakeholders - brands, designers, customers - need to show more cultural empathy and awareness of the fact that cultural appropriation can diminish the cultural value associated with the TK and/or TCE, and of the craft related to it.
Many luxury and non-luxury fashion brands have a history of cultural appropriation. Few examples are reiterated here:
The Masaai tribes of Kenya and Tanzania v. Louis Vuitton (2012)
In June 2011, Kim Jones debuted with his menswear collection for Louis Vuitton. It was supposedly an “Africa-inspired” collection, drawn from his childhood spent in Kenya. While he was appreciated by plenty for the collection, it was not taken well by many others. The Masaai are an ethnic group across southern Kenya and northern Tanzania. They are living a semi-nomadic life and are known as warriors and cattle-rustlers. This collection by Jones had incorporated the print belonging to this community without consent or authorization from them.
Credit - Louis Vuitton
Credit: www.thefashionlaw.com
Nike Air Force 1 Puerto Rico and the Guna culture of Panama
In 2019, Nike announced the launch of their sneakers “ Air Force 1 Puerto Rico” which enhanced the Mola pattern originating from the Guna culture from both Panama and Colombia. Nike had inaccurately ascribed it as originating from Puerto Rico. After facing a major backlash by the representatives of the Guna People, Nike cancelled the launch of those sneakers. The ‘Mola’ is a Traditional Cultural Expression original to Panama and Panama is one of the few countries that recognises the intellectual rights of its Indigenous people.
Credit: www.theviolenceofdevelopment.com
Isabel Marant and the Mexican community of Santa María Tlahuitoltepec
In 2015, the designer Isabel Marant presented the blouse below in her spring/summer “Étoile” collection:
Credit: Isabel Marant
The designer explicitly affirmed that she was inspired by textiles originated from the Mixe Community of Santa María Tlahuitoltepec, Mexico. The Mixe or Ayuuk Community was neither acknowledged as a source of inspiration in the marketing of the collection, nor compensated from the proceeds of the blouse. The traditional blouses, as worn by the community are shown in the picture below (2):
Credit: www.change.org
Navajo Nation v Urban Outfitters
Urban Outfitters, came out with an entire range of products which had prints originating from the Navajo tribe. The collection included all sorts of items starting from clothes, perfumes to underwear and each item had the print. The Navajo leaders claimed a lawsuit in 2012 against Urban Outfitters for the unauthorised use of their designs and sale of items under their name. This unauthorised use of the name ‘Navajo’ for the purposes of profit is another great example where designers and brands do not find it necessary to consult and acknowledge the origins of their designs.
Credit: www.thefashionlaw.com
What we see common in all of these examples of Cultural Appropriation in Fashion is that more often than not, brands and creators have no authorisation from local and Indigenous communities for the prints and motifs that they use. There is hardly any new or original element in their designs, they are directly copied without consent, most often without using the original handcraft techniques and instead using digital prints or machine embroideries. Most probably, these commercial brands appropriate the designs without understanding their true meaning or the value that they represent for the source community and the holistic negative consequences of the appropriation. From the perspective of the Indigenous or local community, these are unethical and unfair practices.
Why The 3Cs' Rule?
Consent. Credit. Compensation.
Despite the lack of a harmonised legal framework applicable to the protection and promotion of Traditional Knowledge and Traditional Cultural Expressions, the law provides solutions for equity and fairness in contractual relationships. Taking the regulations in the field of intellectual property law, specifically the copyright regulations, as a starting point, CIPRI proposes the 3Cs' Rule as a tool for developing, maintaining and sustaining collaborative relationships with Indigenous people and local communities. By cumulatively respecting the 3Cs', fashion and textile industry stakeholders have the guarantee that inspiration will not turn into appropriation.
The concepts of Consent, Credit and Compensation are universal and can be used in all jurisdictions - worldwide. An important condition for the Rule to provide its intended outcome is for the three elements - (1) informed consent, (2) source acknowledgement and (3) fair and equitable financial or non-financial compensation - to be simultaneously fulfilled. They cannot be used in isolation.
The nature of Consent
According to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Free, Prior and Informed Consent (FPIC) is a specific right that pertains to Indigenous peoples.
Stakeholders in creative industries or designers that are inspired by Traditional Cultural Expressions need to first get the Free, Prior and Informed Consent of its custodians. The community must be made aware and grant permission for the usage of their motifs, art and expressions. The principle of prior informed consent should govern any access to TK or TCEs belonging to Indigenous peoples or local communities.
Who should give the Consent?
The custodians of the Traditional Knowledge and Traditional Cultural Expressions should be the ones giving Consent to use their creations for any purpose of profit. They can be represented by senior community members, community leaders or through community organisations.
Under the Copyright Law, the author of the work is the first and true owner of that work. In any jurisdiction, Copyright Law provides the obligation to get permission from the first owner of the work in any situation when the work is used for the purposes of profit. In case of TK and TCE, the first owners of the work are the Indigenous and local communities. This ensures transparency and will prevent wrongful use and unfair use of their creations and cultural heritage elements for profit purposes.
Why is source acknowledgement important?
The textile and fashion designer or the fashion business that produces and sells garments and accessories inspired from TK and TCEs belonging to Indigenous and local communities, needs to give due credit to the community and celebrate the origins of their inspiration. Source acknowledgment can be done in multiple ways - from storytelling, to product labelling, our Cultural IP Community members are giving credit to the source community in various ways that enable cultural appreciation.
Credit and Copyright
Copyright is a type of intellectual property which protects the intellectual creation of the author of a creative work, be it artistic or literary. Amongst the artistic works that fall under copyright protection we find drawings, paintings, photographs, graphic designs, type forms, a variety of visual representations, many of which we find in the fashion industry - textile patterns, textile prints etc. Protection arises from the moment the work is expressed in a fixed form.
According to copyright law, the author of any artistic or literary work protected by copyright has the exclusive right to permit or deny any use of the work for commercial purposes, and is entitled to be credited as the author any time the work is used or displayed. When a literary work is used without source acknowledgement, we call it plagiarism. When a photograph or any other artistic work is used without the permission of the author, we call it copyright infringement.
Unfortunately, copyright protection does not extend to Traditional Cultural Expressions and elements of Traditional Knowledge. As previously mentioned, TK and TCEs are mostly seen as work that is available in the public domain because Copyright as an intellectual property protection tool was developed with another subject matter in mind (historically it was created after the apparition of the printing press and was primarily designed to protect the known authors of literary works).
This ‘free for everyone’ perception often leads to unequal treatment of artisans and craft custodians and a lack of appreciation of their creativity and hard work. In case of a creation made by the Indigenous and local communities, despite not benefiting from copyright protection, it is imperative to acknowledge their work as original source of inspiration any time a derivative work is created.
What compensation methods are possible?
The custodians of TK and TCEs have to be compensated justly for the use of their TK and TCEs. Under the Copyright Law, owners/creators are given exclusive rights to reproduce and sell their work. If a third person uses that work without prior permission of the owner, the owner can sue that person for damages. Also, the author can allow others to commercially exploit the work and in return the author is entitled to financial compensation. In legal terminology we call this licensing - granting a license to use and commercially exploit a creative work.
Compensation methods:
In the case of the 3Cs' Rule however, we imagine a variety of compensation mechanisms, not limited to direct financial compensation. As the rights deriving from custodianship of TK and TCEs belong to the entire community and not solely to a group of individuals, investment in community well-being and in developing sustainable growth projects that engage various community members and foster social innovation are a desirable solution.
A great example with respect to compensation methods for Indigenous and local communities can be found in ‘The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS)’ (3). The Protocol is a supportive agreement to the Convention on Biological Diversity (CBD), it sets out a legal framework for the implementation of one of the three objectives of the CBD: the fair and equitable sharing of benefits arising out of the utilization of genetic resources.
The benefit-sharing provisions under this Protocol specify that benefit-sharing measures need to be provided in the national legislation for the fair and equitable share of benefits that arise from the utilization of genetic resources. The contracting party (Indigenous and local community) is entitled to a share of the benefits resulting from the commercial exploitation of the genetic resources they are providing or are custodians of. This Protocol is a great step in the right direction. More dialogue and awareness like this can result in the fair compensation to the Indigenous and local communities.
In conclusion, ethical and fair uses of elements inspired by TK and TCEs belonging to an Indigenous or local community, a craft community or individual artisans, imply the completion of the following steps cumulatively:
Consultation with the custodians/owners prior to the use of their expressions, transparent disclosure of the intended purposes of the use and acquisition of Free, Prior and Informed Consent;
Acknowledging the source(s), the originators;
Sharing the benefits of the commercial use with the originators.
At Cultural Intellectual Property Rights Initiative our experts can help and support you in successfully implementing The 3Cs' Rule and developing benefit-sharing business models with craft communities.
Let's Get Weaving!
Authors: Monica Boța-Moisin (Cultural IP Lawyer and Founder of CIPRI) and Shravani Deshmukh (IP Consultant)
(1) Vézina, B. (2019),"Curbing cultural appropriation in the fashion industry with intellectual property", accessible at: https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html
(2) Pannella, S., (2018), The (unofficial) verdict: cultural intellectual theft in Marant vs. the Mixe community of Oaxaca, available at: https://www.culturalintellectualproperty.com/post/the-unofficial-verdict-cultural-intellectual-theft-in-marant-vs-santa-maria-tlahuitoltepec
(3) Official website of the Convention on Biological Diversity. Signed by 150 government leaders at the 1992 Rio Earth Summit, the Convention on Biological Diversity is dedicated to promoting sustainable development. Accessible here: https://www.cbd.int/abs/about/
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