Traditional Cultural Expressions: Art Nouveau and a Mexican Mural in Paris
Picture above was taken by Miguel Martinez Colin.
Between 1997 and 1998, the Mexican and French Presidents held mutual Official State visits[1] during which, in commemoration of 30 years the transportation systems’ cooperation,[2] they exchanged art pieces to be exposed in each other’s nation. The French piece is a Subway railing recognized as a Guimard[3] entrance evoking the Parisian Art Nouveau style of Hector Guimard[4] and is installed in the subway station Museo de Bellas Artes in Mexico City. The Mexican piece is a mural entitled Huichol Thought and Soul made by the indigenous artist Santos de la Torre from the Huichol tribe, in their traditional art form representing their cosmogonic vision; it is installed in the subway station Palais Royal – Musée du Louvre in Paris.[5] The author, style, and value of the French piece have been publicly recognized since its installation. Sadly, the Mexican piece was presented with an incorrect name,[6] it was incorrectly installed which modified the actual original work, the author received no compensation for it and his name was omitted.[7]
This case reflects an entire category of expressions that are in constant risk of facing practices that would be considered infringement within the private or commercial scope. The Traditional Cultural Expressions or TCE’s for WIPO[9] are tangible and intangible forms in which traditional knowledge and cultures are expressed. Their distinctive elements are their display of a cultural identity transmitted inter-generationally and related to a local community.
TCE’s have characteristics that vary case-by-case and when combined with the number of national and international legislations, they could seem impossible to protect.
In this case, the traditional doctrine of Public Domain[10] could be counterproductive for the TCE’s since it regards them as not worthy of protection due to time constraints and a lack of innovation linked to their intrinsic traditional aspect; unfairly, if an outsider fixates a work derived from the community’s TCE’s he could indeed enjoy Copyrights.[11] Given this, it seems valid to question if the only difference there is the lack of monetary interests and representation behind the TCE’s? If that were the case we would be failing as societies and lawyers.
Nevertheless, as times and concepts evolve, the Intellectual Property system has been constantly moving in favor of providing the opportunity of protection to the TCE’s as tradition-based creativity and innovation.[12] This proposed TCE’s protection under Intellectual Property is a legal one against misappropriation and unauthorized use; it is not to be confused with the UNESCO’s[13] perspective of promoting and preserving the TCE’s.
In many cases, TCE examples all over the world could fit in the Copyright system since the list of works in the Berne Convention[14] covers many of them and it is not exhaustive. In addition, they are covered by legislation in more than 110 countries[15] Some interesting case law examples can be found in Australia where successful litigation in favor of TCE’s has taken place within the last decades.[16]
As with the broader concept of Traditional Knowledge that encompasses the TCE’s, its legal protection not only serves as guarantees for consumers against misleading authenticity claims and monetary loss, it is so relevant because it has the potential to create wealth, that can empower their holders contributing to the achievement of the Sustainable Development Goals[17] in the interest of every country.
Footnotes
