"Cultural Appropriation: A Copyright Crisis or a Moral Imperative?"
ABSTRACT
Cultural appropriation has been a widely a topic of research and discussion in recent times. It has implications for the identity of indigenous communities. Members of such a group have questioned the use of their customary labour. This covers design, art, and literature. Different sectors have commercially exploited the works of indigenous communities without properly honouring them. This has resulted in various conflicts over copyright violations.
INTRODUCTION
Differences on cultural appropriation and cultural appreciation
Depending on the person, cultural appropriation and appreciation might be interchanged. A sane person who has bothered to think about the nature of culture, how it develops, changes, and is adopted by others, as well as the fact that no one person or group of people can truly own a culture, knows that a culture needs to be "appropriated" in order to be valued, relevant, and long-lasting. Cultural appropriation is the first step toward cultural appreciation; albeit some who use the word find it insulting. Cultural appreciation is therefore absolutely required for the general good.
Therefore, neither is awful. However, you can come to believe that 'cultural appropriation' is wrong if you let the most sensitive people on the planet, who have made themselves moral arbiters of society, not bother to learn about how cultures have changed over time. However, I would caution anyone against ignoring the 'everything is offensive' camp.
Culture is an important aspect of society. It has an intellectual origin. Culture is defined as “way of life, consisting of arts, music, literature etc”. For ages, humans have exchanged cultural values. This interaction occurred through clothes, customs, folk music, and other means. This cultural interaction has resulted in diversity. However, culture has recently been under scrutiny. The problem of cultural appropriation has been hotly debated. Cultural appropriation is defined as “when people of superior culture copy customs and traditions of an inferior culture.”
Many fashion firms have faced claims of cultural appropriation. They do not acknowledge the work drawn from indigenous community designs. This has resulted in various disagreements. Indigenous cultural works must be protected. Copyright law safeguards the interests of these populations.
Cultural works are an important aspect of intellectual property. Failure to acknowledge such works is a violation of copyright law. It safeguards the work's original form. Thus, it is critical to comprehend the function of copyright in cultural appropriation.
THE ROLE OF COPYRIGHT IN CULTURAL APPROPRIATION
Traditional cultural expressions are an important aspect of a community. They encompass both tangible and intangible creations. Tangible creations include works such as pottery, costume design, carvings, and so on. Intangible creations include things like traditional dance and folk music. It is critical that traditional cultural expressions are protected. Cultural appropriation is prevalent in a variety of industries, including fashion and music. With rising demand for a wide range of garments, the fashion industry draws inspiration from indigenous works to create unique trends.
These works are then not properly recognized by such fashion designers. Nike has imitated a traditional Samoan tattoo called pe'a. This design was used on women's leggings. The designers failed to recognize the Samoan community, which prompted community members to criticise the design. Similarly, a performer plagiarised Bengali folk music and used it in his newest album without recognizing the original creator.
In 2015, Kiini, a bikini firm, launched a lawsuit against Victoria's Secret, saying that the latter had copied some Kiini designs. As a result, it was discovered that Kiini is a derivative work of a Brazilian artist. The suit was abandoned.
In 2018, a fashion business derived certain patterns from People Tree. As a result, people filed claims for copyright infringement. In such circumstances, it is critical to demonstrate that the work obtained is 'original.' Every traditional term carries an underlying significance. Such open derivation of traditional cultural expression might be harmful to a community's identity. As a result, copyright law plays an increasingly significant role. The subject matter of traditional cultural expression determines the scope of protection. However, copyright law makes no distinction between the protection of traditional cultural expression and derivative work. Some replicated works may also be deemed original, depending on the skill exercised. For example, one Australian tribe had incorporated specific artwork onto its rugs. The artworks were recreated, and the tribe claimed.
As a result, the courts considered conventional practices as well. The cultural works are in the public domain. This undermines the customs that govern the use of such cultural works. It’s also tough to locate the original author. A traditional expression is initiated by specific members of the community or by an individual. Copyright preserves an author’s exclusive rights. Traditional cultural expression is regarded as the work of "unknown authors." Copyright protection requires that the original inventor be identified. If the author cannot be identified, the entire community may be protected.
The World Intellectual Property Organisation drafted requirements for Traditional Cultural Expressions. This was done to ensure the cultural expression of indigenous populations. However, because copyright protection is jurisdictional, many forms of traditional folklore in developing countries are unprotected. Section 38 of the Indian Copyright Act, 1957, protects performers' rights. It provides an incentive for indigenous groups to safeguard their traditions. However, it has its limitations. The protection provided to such artists is only for 25 years. After that, it is in the public domain. Many traditional Indian folk tales are not protected. Folk music from India is used in films. This is done without acknowledging the creators. This can also cause economic problems for these artists. This can also cause economic problems for these artists. They cannot earn royalties for their work. The public domain provides recording labels unwarranted rights to use indigenous folk music.
As a result, the Act lacks suitable measures for protecting indigenous tribes' cultural folklore. The UN Declaration specifies indigenous populations' rights to perform their cultural customs. To prevent cultural appropriation, international copyright law must consider this aspect.
CONCLUSION
It is critical that some limits be implemented to prevent cultural appropriation. Derivative works based on such works must acknowledge the original artist. It is equally critical that such derivative works do not alter the identity of the culture. The scope of conserving traditional cultural expression requires broadening. The protection provided is restricted in nature. Various countries must amend their laws to include provisions for the protection of cultural expressions. Indigenous groups' cultural expressions should be preserved under their customary laws. The laws should be based on the customary laws of the community.
There should be institutions where artists and authors can receive royalties from their work. These institutions can also enter into licensing arrangements. It is critical that international organisations provide a consistent and effective system for protecting traditional cultural expression. This would lead to a more concrete national policy. It is critical for the courts to determine whether aspects of derivative work demand acknowledgment. The act should also include compensation measures for the indigenous community's contributions that are not acknowledged.
REFERENCE
Counterculture noun - definition, pictures, pronunciation and usage notes | Oxford Advanced Learner’s dictionary at Oxfordlearnersdictionaries.com, https://www.oxfordlearnersdictionaries.com/us/definition/english/counterculture (last visited Oct 8, 2024).
Counterculture noun - definition, pictures, pronunciation and usage notes | Oxford Advanced Learner’s dictionary at Oxfordlearnersdictionaries.com, https://www.oxfordlearnersdictionaries.com/us/definition/english/counterculture (last visited Oct 8, 2024).
Counterculture noun - definition, pictures, pronunciation and usage notes | Oxford Advanced Learner’s dictionary at Oxfordlearnersdictionaries.com, https://www.oxfordlearnersdictionaries.com/us/definition/english/counterculture (last visited Oct 8, 2024).
Curbing cultural appropriation in the fashion industry with intellectual property, WIPO, https://www.wipo.int/wipo_magazine/en/2019/04/article_0002.html#:~:text=It%20can%20be%20described%20as,cultural%20expression%20holder(s) (last visited Oct 8, 2024).
Alatis, Cultural appropriation and intellectual property in the world of fashion ALATIS (2021), https://alatis.eu/en/actualites/cultural-appropriation-intellectual-property-fashion/ (last visited Oct 8, 2024).
The Copyright Act, 1957 (14 of 1957),
https://copyright.gov.in/documents/copyrightrules1957.pdf (last visited Oct 8, 2024).
PICTURE REFERENCE
Alatis, Cultural appropriation and intellectual property in the world of fashion ALATIS (2021), https://alatis.eu/en/actualites/cultural-appropriation-intellectual-property-fashion/ (last visited Oct 8, 2024).