April 9, 2021 6 min read
This story originally appeared on Alto Nivel
The textile designs, paintings, sculptures and any other form of expression of the current indigenous peoples of Mexico will finally be legally protected against any plagiarism , at least that is what an initiative to reform the Federal Copyright Law intends. which will be approved shortly by the Chamber of Deputies.
In the last 10 years, the National Human Rights Commission (CNDH) and the National Institute of Copyright (Indautor) have warned that at least 23 clothing brands, Mexican and foreign, have improperly copied designs from indigenous communities .
Image: Via Alto Nivel
One of the most notorious cases was registered in 2019 with a series of garments from the house of the famous designer Carolina Herrera. Developed by the American Wes Gordon, the “Resort 2020” collection exhibited patterns and embroideries with figures of plants, flowers and animals similar to those that are stamped on their blouses and traditional dresses by the indigenous people of the states of Hidalgo, Oaxaca and Coahuila.
As there is no protection for the authorship of the indigenous, they do not receive any economic benefit for the reproduction of their designs, therefore, the reform initiative of the Chamber of Deputies provides for the recognition of these collective creations.
The legislators’ proposal, which has already been publicized in the Lower House Gazette, establishes the addition of a fraction to article 4 of the Federal Copyright Law, recognizing as object of protection works “created by peoples and indigenous communities ”.
Recognition in the reform includes that these creations “have been transmitted for generations”, so they reflect the meanings and values of each original culture.
The initiative also highlights that the protection that the Federal Copyright Law will grant will be to the creative collective of original works, since the designs, especially textiles, of the Mexican indigenous peoples do not have a single author.
Image: Via Alto Nivel
All rights reserved
Currently, article 17 of the Federal Copyright Law establishes that the works protected by this norm, when published, must bear the expression “Reserved Rights”, or its abbreviation “DR”, followed by the symbol ©.
Although it is difficult for indigenous peoples to stamp these legends on their garments, especially if they are everyday clothes, in the case of those products that they themselves put up for sale, it would be feasible to include the warning on rights reserved.
This would make it possible to formalize the protection that will be given with the change in legislation, which would also make it easier for communities to sue all those who copy and commercialize their designs.
In any case, the same article 17 of the Federal Copyright Law adds that the omission of the legends “Reserved Rights” or “DR” does not imply the loss of the creator’s rights, although in these cases if someone reproduces a work Without exhibiting these guidelines, it is the player, licensee or publisher who must demonstrate that they have the consent of the creator.
In other words, if a design from an indigenous people is reproduced on a garment from a clothing brand, it will be the consortium that must prove that it has the respective permission to reproduce the work, even if it does not bear the legend “DR”.
That is why the addition of a fraction to article 4 of the Federal Copyright Law is important, because in case of controversy, with or without the expression “Reserved Rights”, indigenous peoples may demand compensation for damages if their rights are copied. designs, which will be fully recognized in this standard.
Image: Via Alto Nivel
In 2019, after the plagiarism of indigenous designs of various clothing brands became known, the CNDH issued a recommendation in which it warned that “Mexico does not have an adequate legal framework that addresses the specificities and characteristics of the indigenous peoples and indigenous communities, even to make effective their right to the protection ”of their cultural heritage. Those shortcomings include the protection of the iconography of these communities.
The Mexican Ombudsperson added that the lack of effective protection has resulted in “various acts of misappropriation of the intangible cultural heritage of indigenous peoples.”
In its recommendation, the CNDH documented at least four cases of plagiarism of original designs that were marketed by different companies , showing with images the products that used the iconography of native peoples without due consent.
The Commission recommended to the Executive and Legislative powers of the country to create an inter-institutional system, in which indigenous peoples and communities participate, which coordinates all “efforts to guarantee collective recognition of their creations,” which should include the protection, safeguarding , promotion and development of their intangible cultural heritage. So far that system has not been created.