- 1 The last census carried out in 2010 by the National Institute of Statistic and Geography (Institu (...)
- 2 Figures provided by the Ministry of Social Development (Secretaría de Desarrollo Social) y and th (...)
- 3 http://www.inegi.org.mx/
1Modern Mexico is the result of centuries of tough clashes aimed to find its roots and identity. Despite the undeniable Spanish legacy, it owes most of its current traditions, customs and cultural richness to its indigenous peoples. Followed by Brazil and Colombia, Mexico possesses one of the largest indigenous heritages and populations in Latin America: mayas, mixtecos, huicholes, zapotecos, mazahuas and purépechas –just to mention a few ethnic groups– are among the 16 million people deemed as indigenous in Mexico.1 Furthermore, in 2010 more than 8 million people were involved in the elaboration of crafts2 and in 2012 more than 8% of the gross domestic product (GDP) was generated by the tourism industry, in which the consumption of handicrafts played a significant role.3
- 4 Constitución Política de los Estados Unidos Mexicanos, February 5, 1917.
2A quick look at the Mexican Federal Constitution (MFC)4 evidences that indigenous peoples have not gone unnoticed within the process of democratic maturity and inclusiveness undertaken in Mexico. Since 2001, indigenous rights are expressly recognised at a constitutional level. However, effective federal laws to protect indigenous traditional knowledge are still missing. In this regard, it is time to re-evaluate the efforts made to protect indigenous creations, which constitute an invaluable asset for the development of Mexican culture and society. Thanks to its indigenous peoples and communities, Mexico owns unique traits and a vast cultural diversity. As a result, a stronger and more accurate legal protection of indigenous works has to be afforded.
3Are intellectual property and copyright law the only ways to protect indigenous creations in Mexico? In an attempt to find an answer we will first analyse the main concepts surrounding traditional knowledge –which have been adapted either in an anthropological or legal sphere– and then we will observe the existing legal framework in Mexico regarding indigenous creations. We finalise the paper with an assessment of the possible solutions to further protect these important assets.
4This work tackles an issue that encounters various basic concepts, namely traditional knowledge, folklore, intellectual property, copyright and indigenous rights, which may pertain to different domains and whose definitions vary enormously. In an attempt to acquire a broader picture of the scope of our analysis we commence with a revision of the key terms that will pop up throughout this article.
- 5 Geertrui van Overwalle, Protecting and sharing biodiversity and traditional knowledge: Holders and (...)
- 6 Ibid., p. 587.
5It has been maintained that «The term traditional knowledge is understood to comprise both aesthetic and useful elements, as well as literary, artistic or scientific creations. Consequently, categories of traditional knowledge include, inter alia, expressions of folklore in the form of music, dance, song, handicrafts, designs, stories and artwork; elements of language; agricultural knowledge; medicinal knowledge».5 The distinction between traditional knowledge and indigenous knowledge has also been pointed out: «Indigenous knowledge is a subset within the traditional knowledge category: indigenous knowledge is traditional knowledge held and used by communities, peoples and nations that are indigenous».6
- 7 Stephen B Brush, The demise of ‘common heritage’ and protection for traditional agricultural know (...)
- 8 Ibid., p. 19.
6Although they share many attributes, traditional knowledge and indigenous knowledge are not interchangeable terms. Their distinguishing characteristics include localness, oral transmission, origin in practical experience, stress on the empirical rather than theoretical, repetitiveness, changeability, being widely shared, fragmentary distribution, orientation to practicalperformance and holism.7Nevertheless, the primary distinction between them belongs to the holders rather than the knowledge per se. In short, traditional knowledge is a broader category that includes indigenous knowledge as a type of traditional knowledge held by indigenous communities.8
- 9 Thomas Cottier and Marion Panizzon, «Legal perspectives on traditional knowledge: the case for int (...)
7Some authors have opted for a narrow definition of traditional knowledge stating that such a concept: «Expresses the ways and means by which individuals or communities identify and improve genetic resources over time, including processes related to their extraction from nature and their preparation for human usage».9
- 10 Michael Blakeney, Intellectual property in the dreamtime: protecting the cultural creativity of i (...)
8Considering the narrowness of terms as folklore, traditional knowledge has acquired more importance during recent times. Folklore as a concept is usually discussed in copyright, whereas traditional knowledge is broad enough to embrace traditional knowledge of plants and animals in medical treatment and as food. Thus, the discourse shifts from copyright to patent law and biodiversity rights.10 However, taking into account the number of intricacies of traditional knowledge, our study will be limited to traditional cultural expressions –folklore– and their relationship with intellectual property and copyright law.
- 11 María del Pilar Montes de Oca Sicilia, El libro de las palabrotas, Lectorum, México, 2007, p. 97.
9Our second key term, whose etymological origins can be found in the German language, is commonly used in Spanish and other Romance languages to refer either to traditions, costumes and popular believes or to the discipline that studies all those elements.11
- 12 World Intellectual Property Organization (WIPO) http://www.wipo.int/tk/en/folklore/
- 13 Idem.
10The World Intellectual Property Organization (WIPO) considers that traditional cultural expressions or expressions of folklore include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.12 Moreover, it has established that traditional cultural expressions are integral to the cultural and social identities of indigenous and local communities, and they embody know-how and skills and transmit core values and beliefs. It has also asserted that their protection is related to the promotion of creativity, thus enhancing cultural diversity and the preservation of cultural heritage.13
- 14 WIPO/UNESCO Model provisions for national laws for the protection of folklore against illicit explo (...)
11According to the WIPO/UNESCO Model provisions: «Folklore (in the broader sense, traditional and popular folk culture) is a group oriented and tradition-based creation of groups or individuals reflecting the expectations of the community as an adequate expression of its cultural and social identity; its standards are transmitted orally, by imitation or by other means. Its forms include, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts».14
12The term folklore has raised a number of concerns throughout the process of protection of indigenous rights. However, it seems that a certain degree of harmony has been reached in connection with the scope and connotation of such a concept. It is currently accepted:
- 15 Luis Schmidt, «Traditional knowledge: valuing folklore», Managing Intellectual Property, Euromoney (...)
That folklore is characterised by: i) oral transmission or by imitation;
ii) traditional knowledge expressed in language –stories, epics, legends, tales or poetry–, music –folk songs or instrumental music–, spiritual activity –dance, rituals or ceremonies–, arts and crafts –drawings, paintings on bodies or other surfaces, carving, pottery, jewellery, textiles, carpets, costumes or musical instruments; iii) passing of traditions from generation to generation by unfixed forms; iv) community-oriented forms of finding knowledge and expressing it; and v) continuous utilisation and development of traditional knowledge.15
13It is worth highlighting that the position adopted by indigenous peoples in respect of this term differs from the one followed by Western civilisations. For indigenous peoples folklore represents a form of living, survival or self-determination; hence, it is not a good that can be owned or sold as merchandise that entertains, decorates, circulates in trade or that pursues a commercial aim. Accordingly, folklore is linked to the land, living species, the indigenous community or spiritual living; it is a living and continually evolving tradition or living heritance that if granted any protection should be regulated exclusively by the customary laws of the indigenous communities, which are alien to the legal regimes of the modern world.
14From the perspective of Western civilisations folklore is considered as belonging to the public domain of information that can be freely used for creating works or for collecting databases. Nevertheless, as we will observe, intellectual property and copyright law give protection to individual expressions which fulfil the originality requirement and that have been fixed in a tangible medium of expression. Folklore, nonetheless, is not individual, but collective expression. Besides, it is not original, but tradition characterised by repetitive patterns and slow changes and it is not fixed. More important, it does not represent economic or patrimonial rights that can be owned or transferred, it cannot fall into the public domain and cannot be seen as collectable data.16These dissimilarities are further described:
- 17 Siegfried Wiessner, «Defending indigenous peoples’ heritage: an introduction», Saint Thomas Law Re (...)
The indigenous view of the world, generally speaking, is the antithesis to the Western paradigm: communitarian, not individual, focused on sharing rather than shielding things, respect for land and all living things as sacred rather than as objects ripe for exploitation and consumption. This view arguably set them up for defeat. They were not prepared for the onslaught of Western conquerors who took advantage of this sharing philosophy. They fenced in the land they took by superior firepower, bribery, fraud, corruption, and so forth. Indigenous peoples, if not exterminated, were constricted into ever-smaller patches, breadcrumbs of land of often the most barren kind.17
- 18 Michael Blakeney, The Protection of Traditional Cultural Expressions, EC-ASEAN Intellectual Proper (...)
- 19 Mariaan De Beer, «Protecting echoes of the past: intellectual property and expressions of culture (...)
15The negative connotations and Eurocentric definition of folklore have been outlined. It has been observed that the Western conception of folklore tended to focus on artistic, literary and performing works, whereas in Africa, for instance, it was much more broad, encompassing all aspects of cultural heritage. In this regard, the Western view of folklore has been criticised, «... as something dead to be collected and preserved, rather than part of an evolving living tradition».18 The term traditional cultural expressions has been slowly replacing that of folklore as a more neutral concept which reflects the constant evolution of indigenous communities and cultures.19
- 20 J. Thomas McCarthy, McCarthy’s Desk Encyclopedia of Intellectual Property, 2nd edition, BNA Books, (...)
- 21 Idem.
16Intellectual property is defined as «Certain creations of the human mind that are given the legal aspects of a property right. ‘Intellectual Property’ is an all-encompassing term now widely used to designate as a group all of the following fields of law: patent, trademark, unfair competition, copyright, trade secret, moral rights, and the right of publicity».20 In fact, «The word ‘intellectual’ is used to indicate that these kinds of ‘property’ are distinct from real estate or personal property in that they are products of the human mind or intellect. These kinds of legal rights are intellectual property in the sense that the law grants property-type protection to nontangible creations of the human intellect. In one sense, intellectual property is legal recognition of a property right in certain kinds of information».21
17The essential object of intellectual property is the protection of creativity, which can be expressed in many different forms. Traditionally, intellectual property has been regarded an umbrella term covering three basic areas: copyright, which includes original artistic works; trade marks, which distinguish products and services in the course of trade and must be distinctive, and patents, which refer to the exclusive right granted to an invention deemed as novel. Trade marks and patents are also categorized as industrial property rights under the concept of intellectual property.
- 22 World Intellectual Property Organization (WIPO) http://www.wipo.int/about-ip/en/copyright.html
18Copyright constitutes one of the fields or areas of intellectual property law. The WIPO defines copyright as «a legal term describing rights given to creators for their literary and artistic works».22 The American legal system defines this term as follows:
- 23 J. Thomas McCarthy, op. cit., p. 93.
A federal right owned by every author of a work to exclude other from doing any of the five activities in connection with the copyrighted work: (1) reproduction; (2) adaptation; (3) distribution to the public; (4) performance in public; or (5) display in public... Under the idea-expression dichotomy, copyright does not protect an abstract idea; copyright protects only a specific, concrete expression of an idea. To be valid, a copyrighted work must have originality and some modicum of creativity.23
19Unlike the American common law regime, the Mexican copyright system belongs to continental law or droit d’auteur (derecho de autor) family. That regime, which attaches great importance not only to the economic or patrimonial rights, but also to the moral or personal rights of the author, is defined in article 11 of the Mexican Copyright Law (MCL):
- 24 Ley Federal del Derecho de Autor, December 24, 1996.
Author’s right is the recognition made by the State in favour of all creators of literary and artistic works listed in article 13 of this Law, by which protection is granted in order for the author to benefit from prerogatives and exclusive privileges of personal and patrimonial character. The first ones integrate the so-called moral right and the second ones, the patrimonial right.24
20Beyond the existing differences and similarities between the common and the continental law systems, what we must keep in mind is that both the copyright and the droit d’auteur regimes grant a monopoly limited in time in favour of creators of original works. These characteristics, shaped under the auspices of Western civilisations, raise severe conflicts with respect to the interests and way of living of indigenous peoples, as we will see.
- 25 Jorge Alberto González Galván, La validez del Derecho Indígena en el Derecho Nacional, Instituto (...)
21Following a Mexican scholar, indigenous right can be defined: «… as the group of norms established by the State in connection to the rights of indigenous peoples and their internal norms».25 Although this discipline concerns not only intellectual property, but also other areas such as, inter alia, constitutional law, human rights law, civil and criminal law, there is currently a special domain entirely devoted to the study and analysis of all the elements around indigenous peoples and communities.
- 26 Article 2 and other provisions of the Mexican Federal Constitution were subjected to a thorough am (...)
22Article 2 of the MFC reads as follows: «The Mexican Nation is unique and indivisible. The Nation has a multicultural composition originally founded on its indigenous peoples which are those who descend from populations that lived in the present territory of the country when the colonization started, and that preserve their own social, economic, cultural and political institutions, or part thereof».26
- 27 Karla Pérez-Portilla, La nación mexicana y los pueblos indígenas en el artículo 2º constitucional(...)
23Despite the assertion that the Mexican Nation is unique and indivisible, it also conforms a multicultural –pluricultural– nation, which incorporates the peoples resulting from the mixture between Spaniards and Mexican natives: mestizos, and indigenous peoples with different lives, dialects, traditions and world views –cosmovisiones–, with a unity that is fundamentally territorial.27
24Furthermore, Section A (IV) of the same provision establishes: «This Constitution recognises and guarantees the right of indigenous peoples and communities to free determination and, as a consequence, to autonomy for: Preserving and enriching their languages, knowledge and all elements that conform their culture and identity».28
25Article 1 of the Indigenous and Tribal Peoples Convention of 1989, ratified by Mexico on 5 September, 1990, indicates:
- 29 Indigenous and Tribal Peoples Convention (also known as Convention 169 of the ILO), 1989.
1. This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. 3. The use of the term peoplesin this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law».29
26The United Nations Declaration on the Rights of Indigenous Peoples, asserts the right to protect traditional cultural expressions. Article 31 (1) states:
- 30 United Nations Declaration on the Rights of Indigenous Peoples, September 7, 2007.
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.30
27The MCL grants protection, albeit in a very limited fashion, in favour of traditional cultural expressions, devoting Title VII, Chapter III, to the so-called «Popular Cultures». Article 157 refers to the scope of application establishing that: «This Law protects literary and artistic works, arts and crafts, as well as all original expressions in their own languages, and the uses, customs and traditions of the multicultural composition that shapes the Mexican State, which do not have an identifiable author».31
- 32 Berne Convention for the Protection of Literary and Artistic Works, 1886, Stockholm, July 14, 1967.
28The foregoing provision is consistent with article 15, paragraph 4 (a) of the Berne Convention, amended as a result of the Stockholm Diplomatic Conference held in 1967. This provision stipulates that «In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union».32 During the Stockholm Diplomatic Conference the possibility of adding «folkloric works» to the list of protected works was discussed, but in the end it was not approved. Hence, the result of the Conference was just an amendment to grant protection in favour of those works whose authors are unknown. This clearly demonstrates that the Berne Convention has been of little help to protect traditional cultural expressions.
- 33 MCL, op. cit.
- 34 Idem.
29Article 158 of the MCL establishes that «The literary, artistic, popular and craft works, developed and perpetuated in a community or ethnic group originating in or established in the Mexican Republic, will be protected by this Law against their distortion, made with the aim of causing demerit to the same or harm to the reputation or image of the community or ethnic group to which they belong.”33 Additionally, article 159 refers that “It is free the use of literary, artistic, popular and craft works, protected by this chapter, as long as its provisions are not contravened».34
30Finally, article 160 requires that credit is given to indigenous peoples when their traditional cultural expressions are used: «In every fixation, representation, publication, communication or utilisation in any way of a literary, artistic, popular and craft works protected by this chapter, the name of the community or ethnic group or, in any case, the region of the Mexican Republic to which it belongs, will have to be credited».35
31The above provisions raise a number of problems mainly because, at first glance, they seem to make traditional cultural expressions equal with works of authorship, which nevertheless do not have an identifiable author. However, they subsequently provide that popular and craft works are protected against their distortion, but that anyone can use them provided that credit is given to the community, ethnic group or corresponding region. Yet, the biggest paradox lies in the fact that any work of authorship, either created by an indigenous or non-indigenous subject, is not only protected against distortion but also against any unauthorized use. In this regard, by mixing up concepts such as traditional cultural expression and works of authorship, the MCL rules out popular and craft works from copyright protection and permits their use by anyone. Nevertheless, that category of works cannot be excluded from copyright protection, provided they fulfil the originality requirement. As a result, the MCL fails to afford effective protection to traditional cultural expressions and, what is worse, it subjects popular and other works to the ravages of free use.
- 36 Erin Mackay, Indigenous traditional knowledge copyright and art – shortcomings in protection and a (...)
32The above also evidences the huge contradictions between traditional cultural expressions and the standards set out by copyright law. In fact, copyright identifies different categories of protectable subject-matter: it is a temporal right that protects the tangible expression of ideas and is based on notions of incentive and reward for economic purposes.36 Furthermore, the indigenous concept of property and ownership is radically opposite to the one shaped by Western civilisations. In this regard, even when justice demands that indigenous peoples are recognised and remunerated for their artistic creations, intellectual property is not the proper means towards that objective, thus raising the need to ponder new legal alternatives.
- 37 Tonina Simeone, Indigenous traditional knowledge and intellectual property rights, Library of Parli (...)
33The protection of traditional cultural expressions has followed primarily two approaches. On the one hand, some countries have passed specific legislation establishing minimum standards for the recognition and protection of that subject-matter. On the other hand, a number of countries have employed their existing legal instruments, including intellectual property laws to protect traditional knowledge.37
34In recent years, databases have received an increasing importance when protecting traditional knowledge. Nevertheless, it seems that the several disadvantagesoutweigh the advantages offered by such a method. In particular, there is concern about the costs, access, use and contents of the database. Therefore, this route requires further consideration and analysis.
- 38 Geertrui van Overwalle, op. cit. p. 595.
35Given that the MCL is rather contradictory and inconclusive towards the protection of folklore, which is mainly explained by the jumble of concepts and the fact that traditional cultural expressions are not works of authorship in the meaning given by copyright law, a parallelregime consistent with the MCL and other regulations based on customary law that considers the collective nature of traditional cultural expressions and effectively benefits indigenous peoples would signify a better answer vis-à-vis the protection of that field. Some jurisdictions already evaluate the implementation of such a regime, adopting different designations such as «collective community intellectual property rights” or “traditional intellectual property right».38
36Traditional cultural expressions deserve proper and effective legal protection in Mexico and any other country. Intellectual property and copyright, as monopoly tools shaped by the Western society, have proved not to serve as suitable ways to shelter indigenous and popular creations. In fact, intellectual property seems to contradict customary norms of indigenous communities in many different aspects, favouring companies and individual property rather than indigenous groups.
37The Mexican legal system has failed in protecting traditional cultural expressions suitably. The correspondence between indigenous creations and authored works deduced from the MCL, is not the appropriate approach to afford protection to traditional cultural expressions. Although traditional creations may involve attributes also found in copyrightable works, they embrace other elements that are typical of indigenous peoples and clash head-on with Western schemes.
38Intellectual property stands as the protective system of human creativity par excellence, and as such, its prevalence results vital for providing legal certainty to authors and their creative works. However, taking account of the particularities and special nature of indigenous creations, neither intellectual property as a general structure nor copyright as the appointed guardian of literary and artistic works are the suitable routes to assure legal protection in favour of traditional cultural expressions.
39Under this scenario, as intellectual property and copyright law are but one means of tackling some of the needs of indigenous peoples, the adoption of a parallel framework consistent with the legal norms in force and whose primary objective is the protection of traditional knowledge and traditional cultural expressions, constitutes a doable alternative that the Mexican lawmaker should thoroughly reassess.