Today, August 9th, is the International Day of the World’s Indigenous People. Because of the importance they represent, the General Assembly of the United Nations decided in December 1994 to designate this day for this celebration.
Indigenous People are custodians of a great wealth of traditions, languages and cultural expressions that are very characteristic of their places of origin. Particularly in Mexico there are more than 11 million indigenous inhabitants distributed in more than 60 towns, who speak more than 300 linguistic varieties and are protected by Article 2 of our Constitution, since they conserve their own social, economic, cultural and political institutions.
Recently, the term “cultural appropriation” has emerged, which is intrinsically related to the collective cultural expressions of Indigenous People, since it is understood as the adoption or use of elements of a culture by members of another community, usually without understanding or respecting its meaning, and even without the consent of the members of the original culture, which can be perceived as a disrespectful or exploitative attitude.
On January 24th, 2020, the Federal Copyright Law (“LFDA”) was amended, including the Chapter “On Popular Cultures and Traditional Cultural Expressions”, which in summary protects the exploitation of those copyright works derived from popular cultures or expressions of traditional cultures, belonging to the indigenous people and communities referred to in Article 2 of the Constitution.
The procedure foreseen in the LFDA establishes that as in any copyrighted work, recognition must be granted to the original author, in addition to the need to obtain written permission from the community or people to which a certain traditional cultural expression belongs to. Additionally, it is foreseen that in case there is any doubt as to the community or people to whom written authorization must be requested, support may be requested from the Ministry of Culture, accompanied by the National Institute of Indigenous People.
Even the Ministry of Culture itself can issue a technical opinion to authorize the request to use a traditional cultural expression, being in turn, part of the collegiate body that can resolve disputes in this matter.
In addition, the United Nations Declaration on the Rights of Indigenous People in its Article 31 mentions the following:
- Indigenous people have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge, traditional cultural expressions and 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, literature, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property of such cultural heritage, traditional knowledge and traditional cultural expressions.
- Together with indigenous people, the States shall take effective measures to recognize and protect the exercise of these rights.”
This Declaration of the General Assembly is not a normative instrument of international law; however, it is a document that accredits the commitment of some Member States to carry out internal measures (at the national level) to implement the principles of law contained therein.
It is a source of pride to have legal regulations that seek to give visibility and protect the expressions of the Indigenous People and their Culture, in order to prevent the dilution of their valuable traditions and crafts that ultimately represent a country rich in culture and plurality.
In VAHG we provide Intellectual Property services related to copyrights and the necessary counseling to be able to respectfully and legally use the traditional copyright expressions of the Indigenous People of our country. For legal advice you can contact our Intellectual Property Team.
| Mariana González Sánchez | Partner
Intellectual Property +52 (33) 38171731 Ext 222|mgonzalez@vahg.mx |
Martín Arias Cuevas | Associate
Intellectual Property +52 (33) 38171731 Ext. 236 | ariascuevas@vahg.mx |