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 visits1 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 Guimard3 entrance evoking the Parisian Art Nouveau style of Hector Guimard4 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 WIPO9 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 Domain10 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’s13 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 Convention14 covers many of them and it is not exhaustive. In addition, they are covered by legislation in more than 110 countries15 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 Goals17 in the interest of every country.
Press Release 485, Office of the United Mexican States President, Special Coverage of President Zedillo’s State Visits to France and Germany (Oct. 6, 1997) http://zedillo.presidencia.gob.mx/welcome/PAGES/briefingroom/giras/europe-oct97/b485.html [https://perma.cc/GF4F-CYFV].↩
Press Release 483, Office of the United Mexican States President, Special Coverage of President Zedillo’s State Visits to France and Germany (Oct. 6, 1997) http://zedillo.presidencia.gob.mx/welcome/PAGES/briefingroom/giras/europe-oct97/b483.html [https://perma.cc/GF4F-CYFV].↩
Samples of this famous entrance were also donated by France to the cities of Chicago and Washington. https://metropolyarts.wordpress.com/2013/03/03/les-edicules-du-metropolitain-a-travers-le-monde/ [https://perma.cc/A2SM-CGAZ].↩
Press Release, RATP, Stations full of treasures: the art and the culture in the subway and the RER, (Sept. 30, 2011) http://www.ratp.fr/fr/upload/docs/application/pdf/2011-10/dp_culture.pdf [https://perma.cc/G6NZ-LWXZ].↩
Presented as “Mistery and Trip of the Three Sacred Spirirts” Misterio y Viaje de los Tres Espiritus Sagrados. Daily agenda for October 6, 1997. State visit to the French Republic by the President of the United Mexican States Ernesto Zedillo and his wife. http://zedillo.presidencia.gob.mx/pages/giras/euro97/oct6.html [https://perma.cc/DD27-D5J7].↩
Jay Weissberg, Film Review: ‘Echo of the Mountain’, VARIETY, (March 21, 2017, 20:15) http://variety.com/2015/film/festivals/film-review-echo-of-the-mountain-1201423012/ [http://perma.cc/AR55-VHQ7]; Clarence Tsui, Echo of the Mountain (Eco de la montaña): Cinema du Reel Review, (March 21, 2017, 20:10) http://www.hollywoodreporter.com/review/echo-mountain-eco-de-la-690410 [http://perma.cc/T7NJ-NJ46].↩
Picture was taken by Cristofer Beteta.↩
World Intellectual Property Organization. Glossary of key terms related to intellectual property and genetic resources, traditional knowledge and traditional cultural expressions. http://www.wipo.int/tk/en/resources/glossary.html#48 [https://perma.cc/8SSJ-8L8X].↩
“Status of an invention, creative work, commercial symbol, or any other creation that is not protected by any form of intellectual property”. Black’s Law Dictionary (10th ed. 2014).↩
Such as the photograph of a traditional engraving.↩
World Intellectual Property Organization. Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, 2015. http://www.wipo.int/edocs/pubdocs/en/tk/933/wipo_pub_933.pdf [https://perma.cc/DCV4-SDJ3].↩
Convention on the Protection and Promotion of the Diversity of Cultural Expressions art. III, Oct. 20, 2005. http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html [http://perma.cc/QR35-RBY5].↩
Berne Convention for the Protection of Literary and Artistic Works art. 2, Sept. 28, 1979. http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=283693 [https://perma.cc/5KGL-VD3V].↩
Traditional Knowledge, Traditional Cultural Expressions & Genetic Resources Laws. http://www.wipo.int/tk/en/databases/tklaws/search_result.jsp?searchPage=1&subject=tce [http://perma.cc/86XP-MCJW].↩
Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240 https://case.edu/affil/sce/authorship/milpurruru.pdf [http://perma.cc/ADZ9-GQXQ] ; Bulun Bulun v R & T Textiles,  ALR 157 https://case.edu/affil/sce/authorship/Bulun-bulun.pdf [http://perma.cc/5BE6-2Q9U].↩
A group of 17 Goals established by the United Nations to transform the World. http://www.un.org/sustainabledevelopment/sustainable-development-goals/ [https://perma.cc/H946-UTDH].↩