Intangible Cultural Heritage of Asia and the Pacific

Comparison of Max Mara dress, and traditional Oma women’s clothing. The designs on the Max Mara clothing was printed, whereas traditional Oma clothing is hand-embroidered and appliqued. © TAEC Laos

Protecting Cultural Intellectual Property Rights: The Oma in Lao PDR

Background
On 2 April 2019, the Traditional Arts and Ethnology Centre (TAEC) received text messages from a former employee who was traveling in Croatia. She had glanced into a Max Mara boutique in Zagreb and noticed patterns on clothing that looked exactly like those of the Oma ethnic group. TAEC staff recognized these designs immediately, as the organization has been working with Nanam Village, the largest Oma community in Laos, since 2011. TAEC has trained and worked with Oma women to create and sell products based on their craft skills, and conducted research on traditional Oma music, which is showcased in TAEC’s special exhibition, “Voices of the Wind: Traditional Instruments in Laos.”
An agrarian community, the Oma live in the remote mountains northern Laos. Their exact population is difficult to establish, as they are often grouped as part of the larger Akha ethnic group. However, it is estimated that in Laos there are fewer than 2,000 Oma across eight villages. Traditional clothing is still a vital part of the identity and pride of Oma people—hand-spun, indigo-dyed garments with vibrant red embroidery, and applique are distinctive and unique to their group.
At first, TAEC’s team thought perhaps the Oma had partnered with the Italian fashion company to develop a line of clothing. However, upon examination, the patterns were simply a print—not hand-embroidered or handsewn. Further, there was nothing on the labeling of the clothes to acknowledge the motifs as belonging to the Oma. Reaching out to Baan Nanam, the residents there knew nothing of this infringement.
TAEC immediately wrote multiple e-mails and messages to Max Mara to point out the patterns’ origins, and asked the company for justification of their use. After one week with no response, TAEC took to social media with side-by-side comparisons, which garnered public outrage and press coverage. Max Mara’s legal team responded straightaway, with demands to pull the posts and threats of legal action. TAEC published two public responses to Max Mara’s e-mails which pointed out that (1) TAEC was not the legal representative of the Oma, nor did the Oma have a trademark protecting their products, (2) Max Mara’s plagiarism wasn’t illegal, but was severely unethical, (3) the Max Mara designs did not show any significant changes to the original motifs, (4) the plagiarism may have been unintentional, but now that it had been identified, should be rectified.
TAEC’s social media posts on the situation garnered over one million “likes,” six thousand shares, and hundreds of comments. The story was picked up by publications in the USA, Australia, and Japan, and a petition gained over six thousand signatures. However, Max Mara, realizing that there was no legal basis to the claim of plagiarism, successfully ignored the controversy, and within two months, public anger faded. TAEC also did not have the resources to continue to pressure Max Mara.

Comparison of Max Mara dress, and traditional Oma women’s clothing. The designs on the Max Mara clothing was printed,
whereas traditional Oma clothing is hand-embroidered and appliqued. © TAEC Laos

Cultural intellectual property rights
The situation with the Oma and Max Mara brought home the importance and challenge of protecting cultural intellectual property from misappropriation and plagiarism, particularly by international textile and fashion companies. While TAEC has always considered itself an advocate for the interests of ethnic minority communities, this was an unfamiliar area.
Through research and connecting with organizations like the Cultural Intellectual Property Rights Initiative (CIPRI), TAEC quickly discovered that international law and public opinion are ambiguous about rights to creative knowledge and work that is traditional and shared by a community and culture in the developing world. Common Intellectual Property (IP) instruments, such as trademarks, geographical indications, and copyrights, have limited applicability. Thus, it is not uncommon for large international brands to harvest motifs, materials, and ideas freely from people that lack the educational, financial, and technological resources to have their custodianship recognized.
It is now understood that the appropriation of artisanal designs and traditional motifs, forms of ICH, has been common in fashion for decades. However, more recently, the public has been vocal in its recognition that there is a fine line between “appreciation” and “appropriation” and that taking these designs without permission, acknowledgment, and compensation is no longer acceptable. Isabel Marant’s attempt to protect designs that were originally a copy of Mexican Tlahuitoltepec embroidered blouses in 2015, and Dior’s copying of Romanian costumes from the Bihor region in 2017, are recent examples that received significant press coverage. The Maasai people of Kenya and Tanzania and Native American and First People’s populations in the Americas have repeatedly had their traditional textiles and crafts copied by fashion houses.

Documenting traditional cultural expressions
Since this issue arose, TAEC has joined the movement to support the recognition of the rights of communities over the “cultural expressions” of their traditional knowledge.

Traditional knowledge is a living body of knowledge passed on from generation to generation within a community. It often forms part of a people’s cultural and spiritual identity.

Traditional cultural expressions also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.

– World Intellectual Property Organization

This year, together with Nanam Village and the Cultural Intellectual Property Rights Initiative, TAEC launched a project to assist the Oma to secure their cultural intellectual property rights. It is hoped that developing this model, which will include creating a database of Oma traditional textile designs, will provide an avenue for other artisan communities to protect their own Traditional Cultural Expressions. In partnership with the Lao Handicrafts Association and the Department of Intellectual Property of the Lao PDR government, Laos could take significant strides towards enabling its local communities to protect their ICH, enter into fair commercial agreements, and also position the country as a leader in cultural intellectual property best practices.

 


References
World Intellectual Property Organization (WIPO). 2003.
Consolidated Analysis of the Legal Protection of Traditional
Cultural Expressions/Expressions of Folklore. Background
Paper N.1. WIPO: Geneva.
World Intellectual Property Organization (WIPO).
Documenting Traditional Knowledge – A Toolkit. WIPO:
Geneva