Group Rights

Mayan women are pushing the envelope on collective intellectual property rights to safeguard their cultural heritage

Claire Gilmore

Mayan weaver at loom

Photo: Clark & Kim Kays

In November 2017, the Constitutional Court of Guatemala ruled in favour of the National Movement of Maya Weavers for a second time. The court is now demanding that Guatemala’s Congress “deliver a national law that protects the collective intellectual property of indigenous weaving designs, recognized as creations of Indigenous peoples.”

The movement in defense of indigenous weavings emerged in May 2016 and is being led by the Women’s Association for Development of Sacatepequez (AFEDES), with the support of 30 weaving cooperatives from 18 linguistic communities. The weavers are making a bold move in response to the theft of their designs by transnational corporations in declaring themselves a collective and calling for changes to Guatemalan law that would afford them such legal recognition. They state in their collectively written declaration Textiles are the Books that the Colony was Not Able to Burn:

“Faced with the problems of racism, devaluation, plagiarism, theft, and the appropriation of our creations as indigenous people…. Our movement demands that the government protect collective intellectual property rights over our textiles and Mayan apparel, which are vulnerable to appropriation, commodification, and inappropriate uses that violate our community standards and spiritual values.

“We know that our traditional shirts (güipiles) and all the items with which we clothe ourselves, regardless of the indigenous nation that created them, are collectively owned and we must protect this form of authorship.”

In November 2016, the Weavers Movement introduced Bill N. 5247 which seeks to reform five legal articles on the Law on Copyright and Related Rights, the Law on Industrial Property, the Law on Protection and Development of Crafts and the Criminal Code.

As reported by Intercontinental Cry in March 2017, the bill has two objectives: “First, it calls for a recognition of a definition of collective intellectual property, which is linked to the right of Indigenous Peoples to administer and manage their heritage. Second, it asks that indigenous nations be recognized as authors, in which case they would automatically benefit from intellectual property law. Recognizing indigenous nations as authors just like individuals or companies means that corporations that benefit from the export of Mayan hand-woven goods will have to pay royalties to the communities who are the authors of huipiles.”

AFEDES has pointed to the huge discrepancy between the way international markets value their traditional textiles and the poor compensation they receive for them: “At the markets we are subjected to haggling that does not appropriately value our textiles, yet when they are delivered to design companies they command high prices in dollars – why is there a difference?” Meanwhile, not only are these same textiles commanding high prices abroad and being cut up to make products such as high-end handbags, export companies are beginning to machine-make industrial güipiles.

A direct challenge to el capitalismo

In their declaration, AFEDES states: “as weavers, we are claiming recognition as a collective with rights to protection under intellectual property law. We are not claiming our individual authorship because we consider ourselves part of a collective.”

This claim of collective rights mirrors what is known in Canada as aboriginal title – collective ownership of traditional lands by an Indigenous nation – and is emblematic of a subversive shift away from a foundational paradigm of the modern, colonial, capitalist worldview. As Jacinthe Poisson postulates in her 2015 working paper on indigenous collective property, “Claiming collective property to the land challenges the liberal conception of human rights as a bundle of rights to which only individuals are entitled.” Upsetting the ideological – and legal – applecart of our entire system of ownership, and especially land ownership, could have widespread implications – it’s no surprise that struggles for collective rights have met with resistance.

On the other hand, Indigenous cultural norms and customary laws tend to emphasize the collective and interpret rights in that context. It’s a fundamental culture clash that can have perplexing results – for example, if a non-Indigenous author documents indigenous legends and publishes them in a book, he or she enjoys the protection of copyright in the work and the exclusive economic rights that come with it. If the author learned of the legends from the indigenous community, publication would constitute an infringement of indigenous cultural norms but would be sanctioned by intellectual property laws.

Property is recognized as a human right in the Universal Declaration of Human Rights, while both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are silent on the subject. Poisson notes “While it is undeniable that ‘property confers power,’ … property law ‘can render relationships within communities either exploitative and humiliating or liberating and ennobling.’ As Hernando de Soto suggests, this could largely depend on how property is defined, protected and enforced.”

Indigenous peoples have been at the forefront of mobilizations to change the ways property is defined and to claim recognition of being “capable collective subjects who are identified as legitimate beneficiaries of distinct rights.”1 In recent years, progress has been made internationally towards recognition of indigenous collective rights. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes and reaffirms “that Indigenous peoples possess collective rights which are indispensable for their existence, well-being, and integral development as peoples.” Article 13 of the Indigenous and Tribal Peoples Convention of the International Labour Organization (ILO) stresses that governments must respect the collective aspects of the relationship of the Indigenous people with their lands or territories. And importantly, the Inter-American Court of Human Rights has instigated a major judicial innovation of the creation of rights i) to Indigenous communal property and ii) to collective cultural identity and juridical personality (unfortunately those standards have gone largely unnoticed by Canadian courts).

Unfortunately, governments tend to require some prodding via the legal system before they will entertain major progressive reforms. The bill put forth by AFEDES has been called the “most accessible and the most swiftly developed legal reform to come out of Guatemala’s current political context” – and now Guatemalan congress is legally bound to act on it.

AFEDES’ Angelina Aspuac has stated, “The recent ruling issued by the Constitutional Court, which exhorts the Congress to issue a special law that recognizes collective intellectual property rights, is only one legal step. Yet, it is a political conquest where women weavers can dignify themselves as weavers of a political fabric that passes through our hands and is reflected in the colorful güipiles.”

The weavers have clearly issued, and are winning, “a challenge for the country to broaden its awareness and realize that our creations are more than just accessories or crafts,” as they state in their declaration. “They are a symbol of our history, of the resistance that we have maintained over 500 years, which has naturally evolved, changed, been transformed. Nevertheless, they contain – and are – the essence of the people. They are the wisdom of men and women, which is translated into what we see. They are more than colors, more than symbols. They are evidence of Mayan survival and they speak of our relationship with the universe and our profound love for life.”

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