Actualizado: 7 may 2021
The Mexican Senate has approved the Law for the Safeguarding of the Elements of Culture and Identity of Indigenous, Afro-Mexican and Equivalent Peoples and Communities devised to protect the rights of indigenous peoples over their collective cultural work. This is intended to counteract the plagiarism of crafts and typical garments by their native people, that were until now considered part of the public domain.
This reform legislates the so-called "cultural appropriation" and comes about after the usage of Mexican inspiration by several international brands, such as Carolina Herrera or Isabel Marant, was frowned upon by both the Mexican public and authorities.
What is cultural appropriation?
Cultural appropriation is the phenomenon where members of a dominant culture exploit the symbols of a traditionally marginalised culture. One example of cultural appropriation would be using a Native American feather headdress as a Halloween costume - while being of European descent. But his is not always clear. For instance, some would consider wearing dreadlocks as appropriative of Rastafarian culture, while others would see it as an hommage to such culture, while many others would simply consider it a fashion choice. The limits are blurry and hard to grasp.
At any rate, while acts of "cultural appropriation" severely condemned in the media, especially in the United States, it0s mostly of no legal consequence anywhere in the world.
Although there is a working group in the United Nations and in the World Organization of Intellectual Property that deals with "traditional knowledge" of indigenous cultures, the focus at present is especially on the medical and pharma areas and their goal is to prevent companies from patenting methods and medical products already existing in traditional cultures. With regard to cultural appropriation, there is an acknowledgement of the matter but have been hardly any legislative developments.
Mexico intends with this law (still under development) to create an organization designed to classify these groups and their works, and ensure that permission is obtained (and a payment is made) every time a third party outside the cultural group wants to use its creations.
Trend, or Exception?
Although public outcry against cultural appropriation is common these days, regulating it in a systematic way would be problematic both from a theoretical and practical point of view. In the first aspect, it is not universally accepted that this is a bad thing. Some people support the notion that cultural appropriation is a misnomer, and that cultural exchange is all but mandatory for any creative endevour. One example of this would be rock-and-roll music, that was an "appropriation" of black music by the white population.
From a practical point of view, it would also be difficult to set up and enforce. The Government and relevant organizations would have a monopoly to determine who belongs to each culture and who has the right to use it. This would leave many difficult questions open: what would happen to people who descend only in part of that culture? what will happen to works that are inspired only in part by the culture but have an additional creative development? could a company of foreign capital employ designers of such culture to use its symbols? The questions are endless and very difficult to solve fairly.
In short, the result of the implementation of this type of regulation will be, in the best of cases, patchy, and in the worst, terribly illiberal. In the end, this well-intentional regulation may end up becoming a protectionist tax to foreign companies like any other.
Victoria Sofía Martín Santos
Esquivel & Martin Santos