The importance of protecting cultural intellectual property

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In this article, Travelife for Accommodation explains cultural intellectual property rights and provides some advice to businesses about how to respect them.

Intellectual property (IP) is an original design or idea that comes from the mind and is owned by a person or their employer if it was conceived in the course of their employment. Establishing who has IP ownership rights is well-covered by existing legislation in most countries however the law typically does not address what happens if this ownership might be collective, as it might be for the unique designs and traditions of indigenous peoples. 

This collection of unique arts and traditions that are conceived by a cultural group is known as cultural intellectual property (cultural IP) and it can include designs, art, music, skills, dress and innovations.  Due to the lack of adequate legal protections these groups also have little control over how or where these important expressions of their identity are used, and often do not receive any credit or financial gain, even when others are commercially benefiting from their use in their own businesses. For many indigenous people their identity is closely linked to these traditions and this exploitation can be deeply distressing.

There are different organisations working worldwide to ensure that the IP of indigenous people and local communities are protected formally. For example, the Parliament of Australia has published indigenous cultural and intellectual property rights, including the right of indigenous people to:

Define what constitutes indigenous cultural and intellectual property

Own and control indigenous cultural and intellectual property

Be recognised as the primary guardians and interpreters of their cultures

Authorise the use of indigenous cultural and intellectual property according to indigenous customary law

Be given full and proper attribution for sharing their heritage.

Travelife certified hotels are encouraged to collaborate with indigenous people and local communities to ensure their culture and rights are respected. When aspects of local culture are featured in hotel operations (e.g. music, art, food) then Travelife requires that hotels ensure this is done respectfully and in consultation with any local cultural representatives. They must also ensure that any artists are properly credited.

What can your business do?

Perhaps the most important thing to remember is that the cultural group that owns the intellectual property should decide for themselves if and how they would like it represented, along with how they want to benefit from it. That means that the process starts with consultation directly with the group themselves. You should find out how to communicate with right representatives, then begin an open and respectful dialogue.

You will also need to ensure that your business is aware of what might be covered by cultural IP. This includes:

  • Literary, performing and artistic works (Copyright): e.g. designs you use in the hotel, shows that guests see.
  • Languages (e.g. if you are teaching guests basics, is this appropriate and acceptable?).
  • Types of knowledge, including spiritual knowledge.
  • Tangible and intangible cultural property (e.g. knowledge about the area, recipes for meals or beauty products).
  • Indigenous ancestral remains and genetic material (are you displaying anything?).
  • Cultural environmental resources.
  • Sites of indigenous significance (think about how they are promoted and visually represented images).
  • Documentation of indigenous heritage.

The 'Desert Flower' example

An Australian aboriginal artist was browsing the internet and found that her art had been used in a carpet design at a European hotel.  Whilst it is possible that the hotel simply randomly purchased the design from a supplier with no knowledge of the origin, this was still unjust for the artist.  Not only was this art based on her ancestral traditions and therefore connected to her cultural identity, she also got no credit or royalties for the work that was now being used in a commercial enterprise.  Click here to read a news article about this case.

If you do feature cultural representations in your business, we strongly recommend you train your staff about the issue and ensure that at least one person is responsible for compliance. You should also fully review your operations to ensure you have used cultural IP appropriately.  Where you identify potential problem areas, immediately remove the cultural representation and consult with the cultural owners about how to remedy the situation.

Further reading

UNWTO Boosting Tourism Development through Intellectual Property

What is Indigenous cultural intellectual property and copyright and how can I respect it? - ABC News

Home - Arts Law Centre of Australia

Traditional Knowledge (wipo.int)

Indigenous peoples (ifad.org)

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