How should foreign impact and commercial use of traditional design, with the intent to promote development in indigenous communities, be considered in relation to the lege de ferenda legal protection stipulated in

Sammanfattning: The rich Mayan weaving tradition in Guatemala has survived even though the indigenous population has been subject to centuries of hardship and oppression. After conducting a field study and scrutinising the commercialisation process of the traditional designs in five different producer cooperatives of which, for the purpose of this thesis, some are characterised as weaving cooperatives and others as international projects, I found that there has been and still is a large degree of foreign influence in the structure, organisation and the commercialisation process of traditional textile crafts. The commercial use of traditional Mayan designs by foreign volunteers or designers, often without explicit consent or benefit-sharing agreements, have been explained or justified by the overall development agenda and poverty reduction purposes of the projects. The purpose of this thesis is therefore to scrutinise how the foreign impact and commercial use of traditional Mayan design, with the intention to promote development in the indigenous communities, could be considered as a misuse in relation to the lege de ferenda legal protection formulated in the Draft Provisions (DPs). WIPO/GRTKF/IC/11/INF/2 p 2.The DPs, which is one of the two processes on which the international protection of TCEs currently is considered, is being drafted internationally within the World Intellectual Property Organisation (WIPO) framework. The work on international protection of TCEs was initiated in 1996 as a reaction from some countries to the perception of TCEs belonging to the public domain and therefore not protected by the existing IP regime. In relation to this question, following issues needs to be addressed. Firstly, how has the traditional Mayan designs been affected by the colonisation, the over 30 year war in Guatemala and the following international aid efforts from Non-Governmental (NGO:s) and international organisations and can the Mayan designs commercialised today be characterised as such traditional designs covered by the DPs? Secondly, what does the foreign impact in the commercialisation of traditional designs entail and what are the attitudes regarding custodianship/ownership of traditional designs amongst the foreign designers in the internationally initiated projects, the people working for the weaving cooperatives and weavers working independently? Thirdly, does the scope of protection in DPs address the issue of use of Traditional Cultural Expressions (TCEs) in a commercial context with a specific agenda to promote development, and finally, would addressing such an issue likely make any difference to the de facto protection of traditional designs for the indigenous communities in Guatemala? After conducting a field study and scrutinising international conventions, domestic legislation, working documents from the World Intellectual Property Organisation (WIPO) and literature in the field it can be concluded, in relation to the objectives posed, that the Mayan traditional designs are not static and due to e.g. colonisation and the armed conflict, some of the traditional designs have been changed and lost. However, the ancient Mayan weaving traditions as such has survived and the designs today still contain traditional elements and symbolism and are therefore covered by the DPs. In regard to the ongoing controversy whether the traditional designs in the Mayan weavings have originated from Pre-colonial Mayan communities or if they have been adopted after being introduced by the Spanish colonisers, it can be concluded to have little relevance for the assessment of the lege de ferenda legal protection of traditional designs in the DPs. As stated in the commentary to article 1 DPs, the notion ''heritage'' is used to capture the inter-generational quality of TCEs. TCEs maintained and passed between three or even two generations has generally by experts been considered to form part of a ''heritage''. According to that definition, the traditional designs made in the different Mayan communities, regardless of the initial origin, have characteristics of such a heritage and are to be characterised as a form of TCE. When it comes to what the foreign impact in the commercialisation of traditional designs entail it can be concluded that there in general seems to be a difference between the foreign impact in the weaving cooperatives and in the international projects scrutinised. The foreign impact in the commercialisation process of traditional designs in the weaving cooperatives started in the 1960s and foremost consisted of international volunteers selecting which traditional designs and products that should be commercialised. However, all the profit went to the indigenous weavers. The foreign impact in the current international projects scrutinised on the other hand is characterised by foreign designers that use some of the traditional Mayan designs, incorporate and re-contextualise them in different contemporary products. Although the designs are used and commercialised with the best intentions, providing the indigenous weavers with working opportunities and vocational weaving education, the indigenous weavers lack possibilities to influence the final product outcome. When it comes to attitudes regarding exclusivity or ownership of traditional design, it can be concluded that it in general seems to be widespread and accepted that Mayan communities copy designs from each other. There is a general conception, that traditional designs belongs to the public domain, amongst indigenous weavers, international designers and volunteers alike and there is no traditional Mayan legislation protecting traditional designs. In addition, the indigenous weavers in question depend on the extra income that the textile commercialisation generates and subsequently there seems to be no general protests against the use and commercialisation of the traditional designs by non-indigenous parties. However, during the interview sessions some have argued that the copying and adaptations of traditional community designs give rise to anger amongst some of the indigenous weavers. There has also been some conflicts in the producer cooperatives relating to the copying of community designs which indicates the frustration and fear of reduced income when products and designs are being copied. During the interview sessions some weavers have held that they rather see their community designs copied by weavers from other communities than enterprises. When deciding if the foreign impact and commercial use of traditional design could be considered as a misuse in relation to the DPs it can be concluded that neither the provisions of the DPs, nor the commentary distinguishes TCEs used for development purposes from other types of uses. Moreover, use of TCEs for development or poverty reduction purposes is not explicitly exempted from the scope of protection stipulated in article 3. The DPs contains a three level protection, registered TCEs, non-registered TCEs and secret TCEs. Even though the traditional Mayan design in general must be considered to be of particular ''cultural and spiritual'' value, which is a requirement to obtain the stronger protection through prior and informed consent (PIC), there is scarce documentation of traditional design in Guatemala. With the lack of information concerning registration possibilities as well and the non-existence of a independent Mayan organisation with the resources to assist the various indigenous communities, the assessment of misuse has to be considered in the light of the weaker form of protection as a non-registered TCE. It can be concluded, after assessing the foreign impact and use of traditional design in the producer cooperatives scrutinised, that the mere selection of which traditional designs shall be subject to commercialisation cannot, according to the wording of the provisions and the commentary to the DPs at this stage, be considered as a misuse. The use of traditional designs in the international projects on the other hand could be considered as a misuse. Not on the ground of lacked PIC but do to the fact that the products with traditional designs are sold without acknowledging the source, i.e. from which indigenous community the design derives. The commentary to the DPs also stipulates that there should be a benefit-sharing agreement even when non-registered TCEs are used. What benefit- sharing shall entail has so far not been expressed in the DPs. The international projects scrutinised rarely negotiated agreements of benefit- sharing with the indigenous communities in question. Instead salaries where paid to the indigenous weavers for their work. Hence, the lack of such benefit-sharing agreements could be another ground for misuse of traditional designs in a DPs context. The fact that the use of traditional design, or any form of TCEs, for development purposes is not exempted from the scope of protection in the DPs could lead to discouragement of similar international projects. Even if much is left to desire when it comes to the scrutinised international projects way of handling and using traditional Mayan designs the projects still contributes with beneficial elements, like working opportunities for the indigenous population and in a way provides possibilities for the Mayan weaving heritage to develop. However, a precondition for such an exemption to the scope of protection is that DPs also contained guidelines as to what a ''development purpose'' or ''poverty reduction purpose'' needs to entail. It is impossible to predict what addressing the issue of commercialisation of TCEs for development purposes in a DPs context in practice would result in for the de facto protection of traditional designs in the indigenous communities in Guatemala. There are in my view some circumstances that indicates that the inclusion of such a perspective merely would lead to insignificant effects in practice, even if the DPs becomes a fully fledged legally binding international convention. There will most likely arise problems in relation to implementation as well as enforcement of the legal protection of traditional designs due to the vast social differences, lack of information and financial resources in the indigenous communities. Moreover, the strongest protection of TCEs presupposes registration possibilities and subsequently also a certain structure and awareness within the indigenous community. However, there are also circumstances that indicate the importance of addressing the use of traditional designs in a developments context in the DPs. The consideration of human rights in a business context has in recent times developed from being a ''soft issue'' to a competition advantage. Therefore, one of the greatest advantages of addressing the issue of protection of TCEs in relation to projects using TCEs for development purposes is that international development organisations, fair trade organisations and others that finance similar projects become aware and start to consider TCE as an important part of the development agenda and fair trade movement as such.