A U.N. Effort to Make Cultural Appropriation Illegal?

Diplomats from around the world are meeting in Geneva this week to discuss how intellectual property laws can stop the “misappropriation and misuse” and “offensive and derogatory use” of “traditional cultural expression.” Or as the CBC put it: They’re asking whether “cultural appropriation” should be “illegal worldwide.”

Thankfully, that’s just a worst-case scenario. Bureaucratic rot makes it unlikely that anything will get that far.

The meeting is being held by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), a group established in 2000 by the World Intellectual Property Organization, a United Nations agency. The committee’s aim is to create legal protections for “traditional cultural expressions,” which can include “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.” In the 17 years since the IGC was established, it has yet to establish any actual substantial regulations.

What sort of appropriation does the committee want to stop? University of Colorado Law Dean James Anaya, an indigenous leader and a technical analyst for the IGC, points to products that purport to be made or endorsed by indigenous groups but aren’t. At the Geneva meeting, Anaya offered Urban Outfitters’ “Navajo line” as an example. The Navajo Nation actually brought suit in U.S. court against Urban Outfitters over that line of products in 2012, and the case was settled out of court last year. It’s unclear how an international intellectual property bureaucracy would improve the situation.

But it’s clear how it could create new avenues for rent-seeking. The World Intellectual Property Organization generates revenue from fees, such as the ones it charges for international trademarks. Any system the IGC creates is likely to include a similar international mechanism for registering whichever “traditional cultural expressions” get protections. Such a setup could have a chilling effect on any commercialization of folklore, even by members of the original indigenous communities.

After all, the same forces of globalization and decentralization that have made intellectual property laws more difficult to enforce offer the potential to drastically expand native producers’ reach. KPMG has noted, for example, that the internet offers a “new potential for indigenous Australians in regional and remote areas to access global audiences.” An IGC-style intellectual property regime would inevitably require such entrepreneurs, not just the big corporations accused of cultural appropriation, to get additional approvals for their activity.

Meanwhile, the same governments with long histories of abusing indigenous populations would be responsible for deciding who belongs to such populations and who faces criminal penalties for not meeting the governments’ definitions. Kathy Bowrey, a law professor at the University of New South Wales in Australia, tells Reason that she would love to see the IGC succeed in setting up an system that genuinely protects indigenous culture. But she has no hopes that it will. Given the “racist practices that mark everyday lives of First Nations people domestically,” she says, “I’m not sure why there is an expectation that these states would operate differently on the international stage.”

One area being negotiated this week might be an exception to the above complaints. The IGC is also looking at “traditional medicines,” which outside companies have a history of incorporating into drugs they then patent for themselves. In this case, the committee aims to “avoid the granting of erroneous patents,” a goal that would limit rather than expand the excesses of intellectual property laws.

Of course, the IGC might not succeed in adopting any rules at all. Its members hope to organize a major diplomatic conference on the issue in the next two years, but first the World Intellectual Property Organization has to decide in October whether even to extend the committee’s mandate. The IGC’s mandate last expired in 2014, at which point it stopped its work for a year.