- 8 May 2018
- Posted by: Adams & Adams
- Category: IP Live
In the South African context, we are regularly confronted by examples of what is labelled as “cultural appropriation”. What is cultural appropriation and where is the line between cultural appreciation and cultural appropriation? In this guest post (the first in a series of posts on this topic), Myriam Christmann introduces us to the concept and provides an explanation of why cultural appropriation sits uncomfortably with many of us.
Allegations of cultural appropriation are frequently in the headlines in both South Africa and abroad. While it is not a new concept, the phenomena of cultural appropriation (and the blurry line between it and cultural appreciation) seem to have been reported far more frequently in recent years. This is most likely due to the rise of new technologies, the lack of effective enforcement mechanisms and potentially also an element of naivete in consumer awareness and behaviour in the market.
Cultural appropriation is an omnipresent and diverse phenomenon and it is something that occurs globally. Although examples in the fashion industry probably get the most attention, cultural appropriation extends from the creative industries to the sciences. Accordingly, there are regularly claims of misappropriation of traditional cultural expressions by individuals and communities of cultural minorities.
Despite there being a lot of attention to cultural appropriation and numerous difficulties in dealing with it, cultural appropriation itself is a relatively simple phenomenon. The concept stems from sociology and deals with the adoption of the elements of a minority culture by members of the dominant culture. In many instances, those from the dominant culture may reduce cultural elements to exotic fashion or toys, which may have deep meaning to the original culture. In a sense, cultural appropriation is a form of bullying where a dominant party uses unfair tactics to exert its dominance over a smaller party.
In a more straightforward manner, cultural appropriation is a means to the end of ethnocide, an anthropological concept referring to the extinction of several cultures and the assimilation to one particular culture. The latter is the dominant culture and is today portrayed by the Western society. Although the law does not currently regulate ethnocide in itself, model laws and recommendations acknowledge that the right to cultural identity is protectable as an International Human Right.
In this series of articles, I would, however, like to go a step further. I am of the opinion that, if carefully drafted, intellectual property laws can be beneficial for the support of indigenous people and the protection and safeguarding of their culture, hence their traditional knowledge and traditional cultural expressions. Well-drafted intellectual property laws seem to be the most appropriate means to achieve the protection of such rights, and indeed, legislators ought to be drafting such legislation.
The first reason is that the right to (intellectual) property constitutes a fundamental right in most of today’s constitutions. Accordingly, it should be obligatory for any state to ensure that intellectual property rights are accessible and granted. And secondly, the philosophies on which current intellectual property regimes are based, protect the identity (in form of its material expression) of the creator. This fundamental rationale is nonetheless not sufficient in light of the interconnection with intellectual property and human rights. When having a closer look at the philosophies that underlie current IP laws, – in both modern society and indigenous communities – it becomes apparent that they share similar values.
It is time for contemporary laws to safeguard the past and the future. Creative works are the product of the individual’s imagination and emanate from the spiritual inner self, which is why there is such high emotional and spiritual value to the expressions attributed by the community to which they belong. Perhaps that is one reason why cultural appropriation sits so uncomfortably with many.