Receipt: January 31, 2022
Acceptance: February 14, 2022
In the last decade, a wave of accusations has been launched against brands and companies for using cultural elements of indigenous groups. In Mexico, several cases have had considerable resonance: the complaint by the Mixe community of Tlahuitoltepec against the French company Isabel Marant for copying its Xaam nïxuy blouse; the protest by the Secretary of Culture, Alejandra Frausto, against the fashion house of Carolina Herrera for the use of embroidery from Tenango de Doria and the sarape from Saltillo; and on three different occasions the fashion clothing company Zara has been accused of plagiarism for using designs from Aguacatenango, Chiapas.
While it seems unfair for private companies to seize and profit from the iconography and designs produced by indigenous communities, what is less obvious is how to think about rights over collective cultural expressions, developed collectively, passed on from generation to generation, these products are also sold as merchandise. Developed collectively, passed down from generation to generation, these products are also sold as merchandise. Who are the owners and what rights do they have over these products? What happens when cultural products are separated from the set of practices, knowledge and ways of life that are interwoven in their production?
Various institutional and legal responses have been formulated to recognize the particular characteristics of cultural expressions. In 2003, unesco approved the Convention for the Safeguarding of the Intangible Cultural Heritage, which recognizes the living and dynamic dimension of cultural heritage, the main source of identity for groups and communities. In Guatemala, the Weavers' Movement led the reform of the law so that Mayan weavings are recognized as collective intellectual property of indigenous peoples. Recently in Mexico, in 2019, the Senate approved the Law for the Safeguarding of the Knowledge, Culture and Identity of Indigenous and Afro-Mexican Peoples and Communities, which seeks to prevent the misuse and misappropriation of the knowledge, culture, expressions and identity of indigenous and Afro-Mexican communities based on their collective and inalienable rights over these elements.
In this issue of Encartes we invite researchers to share their reflections on these issues surrounding the heritage of indigenous iconography and the cultural rights of indigenous communities.
The capitalist, colonial and patriarchal world enjoys good health thanks to the permanent dispossession of the goods, life and millenary wisdom of indigenous, Afro-descendant and rural peoples. Thus, transnational corporations with great power violently penetrate every corner of the world to privatize that which has not been privatized, appropriating the intellectual and material authorship of seeds, medicine, art, food, music, etc. All the knowledge that for millennia has been created and protected by community, communal or collective logics in numerous peoples, are thought by the capitalists as "nobody's knowledge" or "knowledge without owner" if they are not incorporated under the logic of individual property. This has happened with ancestral seeds when criminal companies introduce modifications in their cells and claim ownership of the entire seed; it also happens with the weavings of native peoples when companies or individuals introduce small modifications and appropriate millenary knowledge.
Therefore, to answer the question, capitalism, before protecting individual property, steals it from others, and when it already has it, it builds legal mechanisms to protect what it has taken away. Faced with this, the peoples have sought to build mechanisms to protect what belongs to them, finding options that go hand in hand with the way the West has been naming them: as "ethnicities" and "cultures". Thus, while the life of native peoples is an inseparable whole, the West insists on naming their creations as "cultural expressions", isolating what it names as "culture" from the political, economic, epistemological and ontological spheres. Although the concept of "collective cultural expressions" is problematic, many peoples are using it to seek to protect their knowledge in multiple fields.
There are other processes that aspire to be built within the framework of sovereignty, self-determination and autonomy of the peoples; this has meant disregarding the State as the governing or legitimizing entity of their existence.
The validity of collective rights implies the recognition of equally collective subjects as the legitimate depositaries of certain goods that are of common interest and use, such as territory and cultural heritage. There are goods adjudicated to certain groups or corporate sectors, such as cooperatives whose ownership is recognized under the figure of collective marks, but they do not cease to exercise exclusivity and monopoly over them. This is not the case, however, of collective property, which is extended to the people and the entire community. The so-called commons would be a representative case of this type of property. At present, collective rights are inalienable and imprescriptible and refer to the defense of territory, culture and identity.
I will answer the questions by also talking about the uncertainties.
One can agree with the expansion and domination of capitalism on a global scale, but we must also admit its differentiated realization, because it does not act alone, but in the midst of other existences and resistances. As many authors have suggested today, the interweaving of multiple existences and the extension of distinct worlds problematize and destabilize capitalism and identities.
The formulation of the first question must be interrogated because it assumes that the capitalist world is centered on the protection of individual property. The legal operations of large corporations, for example, challenge this assumption.
"In a capitalist world, focused on the protection of individual property, how are rights over collective cultural expressions to be thought of?" - My position is that generalizations such as "a capitalist world" and "individual property" should be discarded in the first place, because from the outset these terms and the relationship between them require complexification.
As for the second part of the question, "how to think", I would point out that there are many who are thinking, writing and discussing these issues. But I would add that it is also necessary to consider what thoughts are conveyed by indigenous actions and movements in the face of successive and secular attacks on their lives, territories, creations and goods. The possible answers, which are diverse, are in them.
On the third part, I would like to warn that it is not only about cultural expressions, but about existences, social relations and lives that are also made in and with those cultural creations. This caveat connotes the previous answers and thus makes direct and simplified answers difficult.
One of the interesting points that the discussion on the protection of cultural expressions has brought into play is the oppression and exclusion of vulnerable groups from the law. In the particular case of Mexico, native, indigenous or Afro-Mexican peoples have placed at the center of the debate the need to deconstruct the law and think of it not only from an individualistic perspective, but also from a collective perspective.
The logic currently followed in the field of law is to protect these collective cultural expressions from a mercantile and individual point of view, hence instances within the World Intellectual Property Organization (wipo), belonging to the un, insist on proposing the intellectual property system as the most suitable way; however, experience has shown that this way does not solve the main problems currently encountered. This is the case of the collective or sui generis intellectual property legal frameworks of Brazil, Costa Rica, Peru, Nicaragua and Venezuela, which protect expression.
However, it is necessary to establish that this perspective of law focuses on the protection of objects, of creations; however, rights over collective cultural expressions must be centered on the person, hence, as Dr. Francisco López Bárcenas points out, these rights must be understood as a right linked to cultural identity, as well as to a close relationship with territories.
As I said earlier, such concepts are those that have become officialized or available for knowledge defense struggles; many communities have made use of them, and the fact that they are official does not mean that they are easy to use or that they are respected by the capitalist system. But it is vital to recognize that the concepts of "heritage", "cultural heritage", "intangible cultural heritage" or "cultural appropriation" do not always represent a step forward in the autonomy of native peoples; on the contrary, in many cases they become straitjackets within which more complex, deeper and more politically charged claims must be accommodated.
From the Mayan Weavers Movement of Guatemala, Mayan clothing and textile creations are not thought of as "cultural heritage", much less as "State heritage", but as collective knowledge and creations of the Mayan peoples, elaborated mainly by women in the context of the autonomy of their lives. It has been chosen to use "patrimony of the indigenous peoples", which is more specific. But in any case, in order to protect their own collective creations, the original peoples have had to adopt concepts contradictory to their epistemologies, such as "patrimony", "property", etc.
The knowledge of the peoples only begins to be named as "patrimony" or "property" in the face of the stalking and permanent theft of the colonial and patriarchal capitalist systems. Without this stalking, seeds, medicine, food, fabrics, etc., are part of their daily life. However, there is also the difficulty that at some point it may be forgotten that concepts such as "heritage", which were strategically adopted to defend a good, may become naturalized. And this can lead to differences between those who stick to official definitions, who are even willing to negotiate with States so that they can provide them with some protection, and those who struggle to find ways out that are more in line with sovereignty, autonomy and self-determination that do not make them dependent on the State.
"Epistemological extractivism" is a notion that has been useful to denounce and describe the third phase of capitalism, consisting of exploiting culture as a raw material without thoroughly contemplating all its implications. The term intangible cultural heritage has been incorporated into international legislation with the explicit purpose of safeguarding these assets and their custodians. However, its mere inclusion does not guarantee anything. Moreover, its scope is limited. The Convention for the Safeguarding of the Intangible Cultural Heritage (unesco, , 2003) itself omits the issue of collective ownership of cultural heritage and its protection. It will therefore be necessary to await a process that will stem from a general movement for the right to self-determination and autonomy of the peoples, from which their cultural integrity will be guaranteed, enriched with the contribution of new categories such as biocultural heritage, since it is the source that allows for the conditions of sustainability of the communities and their culture.
This would help the peoples to identify the type and degree of affectation of their heritage, since the conditions under which dispossession currently takes place, as in the case of traditional knowledge (for example, with the implementation of the Nagoya Protocol as a national policy in Mexico) are different precisely from what may be the extraction of resources such as minerals.
The novelty consists in the fact that these technologies make it possible to duplicate the goods in order to consummate their appropriation. By means of their application, it is possible to achieve a doubling of these goods with respect to their properties without them suffering any alteration whatsoever. Even without affecting the interpretative systems of the social actors. On the other hand, there is a growing interest in native modes of interpretation, to the extent that they make it possible to discern the practical efficacy of their applications, for example in traditional medicine, which allows companies to save on the expense and time involved in repeated trial-and-error attempts.
I would answer in the affirmative, but pointing out that these notions belong to different conceptual spheres, and also that they have limitations. The intangible cultural heritage, agreed by unesco in 2003, established a policy of conservation and international cooperation for its safeguarding and support. This stimulated the creation of national instances in several countries for cultural registers, which offer limits, although fragile in many cases, to the constant attacks that affect their continuity.
The concept of cultural appropriation, on the other hand, becomes entangled in its own extension and ambivalence about who appropriates what from whom and through what kind of relationships.
On appropriation, I want to evoke here some thought-provoking statements made by Homi Bhabha at a discussion meeting on this topic.1 He remarks that no one speaks of appropriation until someone considers that something inappropriate is occurring, and stresses the inappropriateness of the use of appropriation for any cultural intersection. Finally, he draws attention to the sense of ownership that can arise in the notion of appropriation, with the question of "who owns what?" (Asega et al.., 2017).
There is in this statement an emphasis on "relationality" that problematizes the concept of cultural appropriation. The adjective cultural adds imprecision. So I would tend not to see in this concept a step forward for the autonomy of indigenous groups, to take up the question on its own terms. As far as cultural diversity is concerned, the challenge is to create the conditions not only for the tolerance of diversity and identities, but fundamentally for the existence and symmetry between differences. In Tim Ingold's beautiful formulation, used as a metaphor, the spider dances with the fly in the web, but neither the fly becomes the spider nor the spider the fly (2011).
One of the main problems when addressing the issue of the protection of cultural expressions is the homogenization of the conceptual categories with which we try to explain it. This circumstance means that the processes of theorization do not run parallel to the real processes experienced by native, indigenous or Afro-Mexican communities or peoples, and therefore do not necessarily contribute to the realization of processes of autonomy in these spaces.
It is important to consider that even in the academic and legal spheres there are discussions about the concepts of culture, intangible cultural heritage and cultural expressions that are not yet agreed upon. Hence, in Latin America, theoretical proposals are being developed from the very cosmovision of the native and indigenous peoples from an anticolonial stance; that is, for the construction of true autonomy and liberation based on their own philosophical, theoretical and even juridical proposals.
Ethnicizing and culturalizing indigenous and Afro-descendant peoples has been very successful because it goes hand in hand with the folklorization and commodification of their lives. Due to the imbalances of power, with these culturalization and folklorization the capitalists gain more than the peoples themselves, because they create symbols and spectacles that have the power to hide the colonial history of violence and theft, creating the illusion that they "appreciate" "ethnicity", or that they "value our culture", by returning it to us as merchandise.
Undoubtedly, in the face of the threat of theft, appropriation or destruction of knowledge, communal protection mechanisms emerge. I am thinking of the Weaving Schools, implemented by the National Movement of Mayan Weavers of Guatemala, whose objective is to communally safeguard millenary knowledge, defend autonomy in the elaboration of our own clothing, transfer wisdom in an intergenerational way, promote the care of Mother Earth, defend territories and communal goods, etc. I am also thinking of the collective safeguarding of native seeds, the elaboration of medicine and ancestral foods made by women in different communities, who at the same time defend their territory against transnational companies. All this undoubtedly promotes what has been called "identity", but it goes much further than that, because it is an integral defense against the threat of the destruction of their lives.
What must be recognized is the creativity in the defense of life carried out by many communities, whose inhabitants, with great dignity, refuse to be reified in order to defend communally what they have created for millennia, without ignoring the destruction that these systems have caused when they have created confrontations within the same communities and peoples. It is essential to deactivate the idea that the creations of native peoples are exclusively "cultural expressions", because that is only a sample of the separation that the Western world has made.
In the context of global tourism, there have been cases of transformation of rituals into spectacle and there is a tendency to show identity rhetorically as a distinctive feature in the same gesture by which it is reified. Identity politics is a strategy for the recognition of peoples, but it has often focused on the formation of an essentialized image of identity, or it is assured that it is preserved anyway, despite the loss of territory, language or food habits, as if it could survive after and despite the dissolution of its main referents. On the other hand, identities can be reconfigured through contact with other cultural influences without disappearing.
To answer this question, I will briefly describe a partial context2 on the conflict between the "Tribos" collection of Havaianas sandals (produced by the Alpargatas factory) and the Yawalapiti graffiti (Alto do Xingu, Mato Grosso).3
This collection provoked an intense debate around the questions raised here, i.e., whether the drawings were collective property or whether they were copyrighted, and who should authorize their reproduction. That is, whether the drawings were collective property or whether they were copyrighted, and the question of who should authorize their reproduction: the authors of the drawings? Part of the collective? Which collective? These questions arose from the fact that the advertising agency that produced the "Tribos" collection campaign had obtained the right to use and reproduce the designs from a Yawalapiti, but not from the putaki wikiti ("owner of the village", or the chief of the Yawalapiti people). Nor had there been consultation with or consent from the other peoples of the Upper Xingu.
In the case of the "Tribos" collection, it was not the classic colonial decontextualization, but a political gesture and a lot of misunderstandings. In his favor, Anuiá Yawalapiti claimed that he had done so because the "Tribos" collection was not commercial, since it was a limited production and free distribution. He also claimed that "I didn't know I had to ask permission because the drawing was mine, the painting was mine".
The free distribution, with the advertising intention of the company Alpargatas (owner of the production of Havaianas sandals), did not annul the commercial character of the "Tribos" collection. Even without the direct sale of the products, an advertising action constitutes a commercial extension. But could we add that design and product, once united, transform each other? In what way? This would be a hypothesis for an investigation on the assumptions of the "cultural biography of things".4
It is important to consider that linking cultural identity with expressions, by itself, would not imply a risk of reification; however, the current problem centers on the use of a double discourse in justifying the protection of these expressions.
If we review the legal instruments that exist in several countries for the protection of cultural expressions, including the recent Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities, we see that within its justification it proposes a recognition of the identity-expression link.
The problem with these legislations is that the development of protection mechanisms focuses on the object and not on the subject that creates them; thus, by recognizing the right of identity linked to the creation and not to the subject, legislations are generated that end up objectifying expressions and therefore commodifying them.
Faced with this panorama, what is required is the generation of legal frameworks that strengthen the processes of autonomy recognized in the constitutional frameworks as well as in Convention 169 on indigenous and tribal peoples of the International Labor Organization (ilo), that is, to think and build differently from the law, to think of indigenous and Afro-Mexican peoples as subjects that can generate their own protection mechanisms, in coordination with the Mexican State.
Asega, Salome et al. (2017). "Apropriação cultural: uma mesa redonda". Porto Arte: Visual Arts Magazinevol. 22, no. 37, pp. 1-24. http://dx.doi.org/10.22456/2179-8001.8013
Ingold, Tim (2011). "When. ant Meets spider. Social Theory for Arthropods," in Tim Ingold, Being Alive. Essays on Movement, Knowledge, and Description. New York, Routledge, pp. 89-94.
Kopytoff, Igor (1986). "The Cultural Biography of Things: Commoditization as Process," in Arjun Appadurai (ed.), The Social Life of Things: Commodities in Cultural Perspective. Cambridge: Cambridge University Press, pp. 64-92. https://doi.org/10.1017/CBO9780511819582.004. https://doi.org/10.1017/CBO9780511819582.004
Novaes, Marina (2015, February 14). "As sandálias da polêmica". The country. Retrieved from https://brasil.elpais.com/brasil/2015/02/13/politica/1423839248_331372.html, accessed February 18, 2022.
United Nations Educational, Scientific and Cultural Organization (UNESCO).unesco) (2003). Convention for the Safeguarding of Intangible Cultural Heritage. Retrieved from https://ich.unesco.org/en/convention, accessed February 18, 2022.
Strathern, Marilyn (2004). Partial Connections. Lanham: Rowman & Littlefield.
Rachel Barber is a PhD student in Social Sciences at ciesas Occidente. She works on the construction of labor identities of artisan weavers in the highlands of Chiapas. Her master's thesis, Un gusto adquirido: la artesanía mexicana y la adaptación sociocultural de los migrantes estadounidenses en Chapala, which deals with the relationship between the consumption of crafts and the sociocultural adaptation of American retirees in Chapala, Mexico, was published by the University of Guadalajara in 2021. She is interested in the topics of material culture, social change and anthropology of labor, and the incorporation of documentary and audiovisual methods in ethnographic study.
Aura Cumes is a Maya Kaqchiquel from Guatemala, thinker, writer, teacher and activist. She assumes as a political ethical principle to question all forms of domination. Much of her efforts have focused on the fight against sexism and racism, seen as problems produced by two major systems of domination: colonialism and patriarchy. D. in anthropology from the Centro de Investigaciones y Estudios Superiores en Antropología Social (ciesas) Mexico. M.A. in Social Sciences from flacso Guatemala. Co-compiler of the book La encrucijada de las identidades, feminismos y mayanismos en diálogo (2006) and co-author of the research Mayanización y vida cotidiana, el discurso multicultural en la sociedad guatemalteca (2007).
Xóchitl Eréndira Zolueta Juan has a law degree and a master's degree in law from the unam Law School. She is a specialist in indigenous law, human rights and environmental law; she has experience in civil, criminal, family and amparo litigation. She collaborates with national and international non-governmental organizations, giving workshops, courses, diploma courses and seminars. She has worked at the Instituto Nacional Indigenista and the Instituto Nacional de Antropología e Historia. She has teaching experience at the Law School of unam, the Latin American Faculty of Social Sciences, Mexico City, the Institute for Professional Training and Higher Studies of the Attorney General's Office of Mexico City and the Benito Juarez University for Wellbeing. Currently he also collaborates with the Chimalli, Derechos Culturales collective.
Jesús Antonio Machuca Ramírez is a sociologist from the Faculty of Political and Social Sciences at unam. He is currently a research professor at the Ethnology and Social Anthropology Department of the span class="small-caps">inah. He has taught courses on Anthropology and cultural heritage at the National School of Anthropology and History. He has been coordinator of the seminars El Patrimonio Cultural en el Contexto de las Transformaciones del Siglo xxi and Aproximaciones multidisciplinarias al estudio de la memoria, with Dr. Anne Warren Johnson, as well as the Diplomado de Análisis de la Cultura y Patrimonio y Cultura, at the Coordinación Nacional de Antropología del inah. She is currently conducting an analysis of the institutional challenges posed by the paradigms of cultural diversity, human rights and sustainable development.
Suely Kofes is a full professor in the Department of Anthropology, ppgas and PhD Program in Social Sciences. She is coordinator of the Laboratório Antropológico de Grafia e Imagem (LA'grima), ifch, Unicamp. She has a bachelor's degree in History (ufgo) and a master's degree in Social Anthropology. She obtained her doctorate at the École des Hautes Études and at the usp. She was a visiting professor at the Autonomous University of Barcelona and the University of Cambridge (1999/2000), the University of Illinois and ehess (2006-2007). Publications: Mulher, Mulheres: Identidade, Diferença e Desigualdade na relação entre patroas e empregadas domésticas, Editora da Unicamp (2000), Uma trajetória, em narrativas (Mercado das Letras, 2015), Vida&Grafias, Lamparina.