Cultural Appropriation or Intellectual Property Protection? An Analysis

Abstract

Historically speaking, cultural appropriation in the fashion industry has been characterised by many as an inherent feature of the globalized creative economy. This pattern continues to remain evident today, with Dior’s “Sauvage” perfume campaign, Kim Kardashian’s attempt to trademark ‘Kimono’ for her shapewear line and prohibited reproduction of indigenous artists’ work. This paper discusses the legal frameworks of intellectual property law in the fashion industry and its impact on cross-cultural borrowing in fashion. The analysis  utilizes qualitative analysis and theoretical integration, employing case laws from various jurisdictions and legislations, as well as offering an assessment on current available policies to offer protection to Traditional Cultural Expressions (TCEs). The results indicate that intellectual property law fails to protect said TCEs fully,  with limited tools available to prevent a legal environment where cultural heritage is vulnerable to uncompensated commercial gain.

Introduction

The complexity of the relationship between fashion and cultural appropriation cannot be understated, as fashion inherently shares characteristics with the concept of cultural appropriation.^[1] Imitation is inseparable from the design process.^[2] This phenomenon is particularly prevalent in the current-age of widespread information, where designers are exposed to multicultural influences more than ever.^[3] The innovative and referential nature of fashion encourages the blend of cultures in order to make its mark in the seemingly oversaturated market.^[4] This is where cultural appropriation mostly arises, where cultural elements are stripped of its meaning and primary purpose for the usage by another.^[5] As a process of branding, companies or individuals aim to trademark cultural expressions that as a result deprive people within the culture from using their cultural art, designs, ethnic names, signs and symbols.^[6] Understandably, this caused a major uproar for many ethnic and indigenous communities, as this has resulted in the misuse of cultural tradition, disregarding the accumulation and progression of dynamic knowledge that has been passed from one generation to another for profit.^[7]

To what extent does trademark protection cross the line of culture appropriation? What are the stands taken by case laws and legislations? Most importantly, should trademarking cultural identity be ethical, especially in situations of commodification of original expressions by a third party? This article will explore cultural appropriation in fashion design through various means, including symbolic borrowing and commercialisation of traditional attires.^[8] This article will distinguish the difference between cultural appropriation and equitable collaboration, while evaluating the effectiveness of intellectual property law in distinguishing and enforcing such appropriation. Case laws from various jurisdictions will be discussed in-depth to illustrate courts’ attitudes to cultural appropriation and its impact on the area of fashion and luxury law as a whole. 

Background

The World Intellectual Property Organisation (WIPO) defines TCEs as any form or medium that the traditional culture is expressed, passed down from generation to generation, which forms as part of the identity and heritage of a traditional or indigenous community.^[9] This can include art pieces and clothing, items frequently appropriated by the fashion industry. This article will further analyse the intellectual component of TCEs in the intellectual property (IP) domain, specifically in regards to fashion and luxury law.

The protection for TCEs can be categorized into three separate rationales, which includes value-based, harm-based and traditional intellectual property based.^[10] TCEs serve as the cornerstone of many indigenous communities, tied both economically and intrinsically to the community. Intellectual property protection for TCEs can also prevent culturally offensive usage of TCEs by third parties, deterring any devaluation from symbiotic violence or and structural oppression.^[11] Lastly, under the traditional view of intellectual property, TCEs correspond to any other form of work, sharing common nature such as the incentivisation of creativity, autonomy and collective ownership. indigenous people should have their work protected under intellectual property due to the nature of incentivisation of creativity, autonomy and collective ownership.^[12] Through the lens of fashion law, it is argued that individuals or companies that utilise TCEs for profit purposes may be liable of a copyright infringement.

An amendment to the Berne Convention for the Protection of Literary and Artistic Works offered a mechanism for international protection of unpublished and anonymous works, to provide international protection for TCEs.^[13] 1976 marks where sui generis protection mechanisms were introduced for TCE protection through the Tunis Model Law on Copyright for Developing Countries^[14], with an additional model developed by the WIPO and United Nations Educational Scientific and Cultural Organization (UNESCO) in 1982, known as the WIPO-UNESCO Model Provisions^[15].

One of the major influences however, is the United Nations Declaration of the Rights of Indigenous Peoples, where the human rights of indigenous peoples against cultural discrimination is recognised. Hence, indigenous people have the rights to maintain, control, alter their traditional cultures, heritage and sciences with the obligation for each state to take measures to enable the exercise of rights.^[16] These rights also include the rights to control TCEs as their intellectual property, as well as access, practice their cultural traditions.^[17] Further discussion of the impact of this specific treaty will be continued below.

Legal Analysis

As mentioned above, the United Nations Declarations of the Rights of Indigenous People stand as one of the most influential legislations, directly acknowledging the power for indigenous people to control TCEs as intellectual property.^[18] However, despite the support provided by the United Nations, the legal status of TCEs remains ambiguous, as no clear legislative framework is available to guide the intellectual ownership and management of TCEs.^[19] This implies that the law for cultural appropriation on fashion is still murky, with more needed to be clarified.

With the increased traction to grant TCEs protection as a separate form of intellectual property, the WIPO Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore has hosted multiple debate sessions including defining the term ‘Traditional Knowledge’ to include handicrafts, designs, art work, and elements of languages.^[20] The term ‘Public Domain’ was also defined in the lens of ‘Traditional Knowledge’, which excluded ‘Traditional Knowledge’ and TCE from its definition in an attempt to protect from appropriation and unjust enrichment.^[21] A proposal of ‘Traditional Knowledge Commons’ was introduced to prevent the overlap of public domains, conning terms such as ‘publicly available and accessible’, ‘publicly available but not accessible’, ‘accessible but protected’ and ‘unprotected but not accessible’.^[22] These terms would serve as labels for TCEs, which can provide identification for fashion designers in their endeavor to draw inspiration. For example, a designer would not be able to imitate TCEs under the ‘unprotected but not accessible’ label without any monetary consideration or improper gain.^[23] It is argued that though the labelling system might pose to be an effective system for individuals and companies to identify publicly available and accessible TCEs, the cost of pursuing an identifiable Prior Informed-Consent (PIC) from all indigenous communities as a prerequisite to ensure proper benefit-sharing is established legally would be too high and discourage compliance.^[24] This discouragement might lead to individuals and fashion companies to continue with cultural appropriation, resulting in a failure to protect intellectual property of indigenous people.

Intent on preventing unauthorized usage or misappropriation by third parties, the WIPO agreed to include pre-existing materials and contemporary expressions of traditional cultures in the definition of TCEs, continuing with its resolution to protect TCEs under intellectual property.^[25] Additionally, a cultural expression must be identified with a living tradition and community that actively associates and practices to be considered a traditional creation.^[26] It should not exhibit individual ownership as it goes against the nature of a traditional creation.^[27] Applying this definition, though not by a large margin, the liability for trademark infringement is lowered as fashion designers and houses can utilize cultures from extinct civilizations such as the Maya and Akkadians as the artwork belongs to a lost tradition that is long gone to history.

A recent development by the WIPO includes a compulsory disclosure for patent applications based on genetic resources and, or associated traditional knowledge.^[28] As noted earlier, this can include any artwork or design. Contracting parties that signed the Treaty are legally obligated to credit the indigenous people of such genetic resources and traditional knowledge.^[29] However, this sheds light to the strikingly obvious problem – the lack of legal instruments to preserve TCEs as cultural heritage belonging to indigenous communities from WIPO member states.^[30] This development comes with several implications, including the fact that this treaty only guarantees at best a disclosure of the source of indigenous people or the local community, but not the protection of the actual TCEs that the local communities are trying to protect.^[31] This means that a major Fashion House can register a design patent from an indigenous community as a core component of a patent application, as long as it discloses the source. It is argued that this development fails to account for the actual preservation and discretion of TCEs. Clearly, considerable exploitation of traditional communities rights under the United Nations Declarations of the Rights of Indigenous People continues due to the lack of specific legally enforceable mechanisms.^[32]

Conventional IP systems are not only inadequate to protect TCEs, but also actively harmful to certain aspects.^[33] Most TCEs fall under unprotected ‘public domains’, with follow-on creations heavily inspired by TCEs able to receive protection as “new” intellectual property, in which the right owners can determine the usage of the new TCE.^[34] Not to mention, current IP laws serve as an overgeneralisation and lack the nuances of customary laws or values associated with TCEs.^[35] The current state of international law lacks an international agreement that ensures protection of TCEs.^[36] This represents a major structural deficit, as good international IP law can ensure a standard of harmonization through establishing mandatory baseline standards among national laws across states.^[37] Notwithstanding the many protocols developed by cultural institutions to protect rights of tradition-bearers, it merely serves as “soft law”, with no actual mechanism for enforcement.^[38] This means that fashion houses can still proceed with cultural appropriation with no major legal repercussions.

Case Law Discussion

Despite the seemingly barren state of IP law in respect of TCEs, legislations of several countries and organizations have managed to establish independent laws that mimic the functions of IP to offer protection to TCEs.^[39] This article will focus on Australian cases, a jurisdiction that features developing  national and regional sui generis measures.

In the Australian case of Bulun Bulun & Anor V R & Textiles Pty Ltd^[40] , Mr. John Bulun Bulun (Mr. Bulun Bulun) and Mr. George M (Mr. M), the claimant commenced an action against R & Textiles Pty Ltd, the company for an alteration and copy of his artwork, featuring imagery that serves as sacred importance to his clan group, the Ganalbingu people onto fabric. This fabric was then imported into Australia and put up for general sale across the country. Held, the Federal Court of Australia decided that there was copyright infringement of Mr. Bulun Bulun’s work. Mr. M proceeded to claim that the traditional owners of the Ganalbingu people also shared certain rights in the artistic work, but was dismissed. Considerable legal analysis on copyright and indigenous art can be inferred from the judgement provided by Justice Von Doussa.

The same artwork was the subject of a previous action in Bulun Bulun v Nejlam^[41]. In this case, a t-shirt manufacturer known as Flash Screenprinters reproduced Mr. Bulun Bulun’s work onto a t-shirt, naming the t-shirt design “At the Waterhole” as part of a t-shirt line marketed as “ The Aboriginals”. The company later produced another “At the Waterhole” t-shirt that was altered to include elements drawn from works of artists. It is important to note prior to this case, indigenous artworks were assumed to not be protected by copyright due to the assumptions that indigenous artworks lacked originality. The artworks were considered to lack originality as they were based on traditional creation designs passed from generation to generation and lacked the independent creative effort of an individual artist. Interestingly, it was noted that indigenous artworks with distinctive styles are considered to be ‘original’ and therefore subjected to copyright protection.^[42] This implies that fashion houses who utilise indigenous artworks, at least in the Australian jurisdiction, are in breach of copyright and can be subject to judicial remedies such as damages.

Back to the case of Bulun Bulun & Anor V R & Textiles Pty Ltd, Mr. Bulun Bulun is recognised as the owner of the copyright per section 35(2) of the Copyright Act as he is the author of the artistic work.^[43] Though the fabric produced was not an exact reproduction, Justice Von Doussa added that the fabric was a substantial reproduction, which constitutes an infringement of copyright. The collective ownership of TCEs also raises the question of joint ownership, which Justice Von Doussa commented that a lack of evidence suggests the possibility of a joint ownership, even if the indigenous community was the ‘supplier’ of the artistic ideas to Mr. Bulun Bulun. Additionally, this case serves as a testament to the Australian Courts’ recognition of the importance of protection of the interests of Indigenous communities in artistic works, which raises the stakes for fashion houses who choose to commercialise TCEs from local communities.^[44] Applying this to fashion law, any designer that chooses to substantially reproduce part of a TCE can constitute as copyright infringement, subject to the conditions mentioned above.

Critical Analysis

As demonstrated by the two Australian cases discussed above, the conventional IP law system does not serve the protection of TCEs, especially in the realm of fashion. Many academics and discussions have called for a purely sui generis approach, while some consider a mixture of sui generis mechanisms and existing IP law as the best approach.^[45] This article will consider the preservation of TCEs as a separate form of IP under a sui generis system, as well as its application in a fashion context.

In adopting a sui generis system, TCEs would be categorised as independent property rights capable of being enforced as an IP.^[46] By recognising TCEs as a unique form of expression, it can fall under the protection under intellectual property law.^[47] The principle of access and benefit sharing in community rights and be applied to TCEs to ensure preservation.^[48] By allowing TCEs to exist as an independent property right, it operates well under the collective rights of self-determination and self-governance endorsed by the United Nations Declarations of the Rights of Indigenous People. Through this system, communities can be protected from unwarranted commercial exploitation or misappropriation.^[49]

How would fashion and luxury industries navigate the ethical usage of TCEs considering the lack of comprehensive TCE protection legislation? Apart from the typical due diligence checks, a better alternative would require a shift in industry culture and standards. This is where cultural sustainability comes into play.^[50] Implementing a rights-based approach serves as a legally grounded strategy for commercial fashion industries to strive for equity.^[51] To achieve equity, social justice and cultural intellectual protection, a rights-based approach strips down the power structures in the fashion industry through appreciating self-governed customary laws.^[52] Through establishing knowledge partnerships with indigenous communities and ethnic groups, it fosters a space for ethical innovation and understanding that would further shape not only fashion and luxury law, but also IP and International laws.^[53]

Conclusion

In conclusion, the current IP system mostly fails to protect TCEs from cultural appropriation, exposing indigenous groups and ethnic communities, supplying limited tools to protect TCEs from cultural exploitation and uncompensated commercial gain.^[54] However, many countries have chosen to implement sui generis measures, whether through their own copyright laws or standalone systems.^[55] Perhaps, this new direction signifies the recognition of protection of cultural erasure in legal frameworks, and could signal a shift to higher industry standards that encourage both the fashion and luxury industries to build and strengthen relationships to create more innovative fashion.

Bibliography

Table of Cases

1. Bulun Bulun v Nejlam Pty Ltd (Federal Court of Australia, 1989)
2. Bulun Bulun v R & T Textiles Pty Ltd FCA 1082

Table of Legislation and International Instruments

1. Berne Convention for the Protection of Literary and Artistic Works 1886 (as amended 1979)
2. Copyright Act 1968 (Cth)
3. Indigenous Peoples’ Rights Act of 1997 (Republic Act No 8371) (Philippines)
4. UNESCO and WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other Prejudicial Actions (1985)
5. UNESCO and WIPO, Tunis Model Law on Copyright for Developing Countries (1976)
6. UNGA Res 61/295, United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007) UN Doc A/RES/61/295

Books

1. Adebola T (ed), Intellectual Property Rights and Traditional Knowledge in the Global South (Springer 2026)
2. Anderson J, Law, Knowledge, Culture: The Production of Indigenous Knowledge in Intellectual Property Law (Edward Elgar 2009)
3. Gardetti MA and Larios-Francia RP (eds), Sustainability Challenges in the Fashion Industry: Civilization Crisis, Decolonization, Cultural Legacy, and Transitions (Springer 2023)
4. Janke T, Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (WIPO 2003)
5. Torsen M and Anderson J, Customary Law and Intellectual Property: Background Brief No 7 (WIPO 2016)
6. Traditional Knowledge Division and the Department for Transition and Developed Countries, A Guide for Countries in Transition (WIPO 2013)
7. WIPO, Intellectual Property and Traditional Cultural Expressions/Folklore (WIPO 2005)

Official Documents

1. CBD, ‘Report of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing on the Work of its Eighth Meeting’ (10 November 2009) UNEP/CBD/WG-ABS/8/2
2. WIPO, ‘Brief Summary of Working Documents’ (31 January 2008) WIPO/GRTKF/IC/12/INF/2
3. WIPO, ‘Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources’ (14 December 2023) GRATK/DC/3
4. WIPO, ‘List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be found’ (6 December 2010) WIPO/GRTKF/IC/17/INF/9
5. WIPO, ‘The Protection of Traditional Knowledge: Draft Articles’ (18 June 2018) WIPO/GRTKF/IC/37/5

Journal Articles

1. Abdel-Jaber H, ‘The Devil Wears Zara: Why the Lanham Act must be amended in the era of Fast Fashion’ (2021) 15(2) Ohio State Business Law Journal 234
2. Bhattacharjee S, ‘Preservation or Protection? The Intellectual Property Debate Surrounding Traditional Cultural Expressions’ (2025) 66 Harv Intl LJ 237
3. Bonadio E and Egeland S, ‘The Protection of Cultural Heritage by Trademarks’ (2023) 18 Journal of Intellectual Property Law & Practice 205
4. Fajarwati, ‘The Legal Protection Towards Traditional Clothes: Intellectual Property Regimes in ASEAN’ (2022) 5(1) Substantive Justice International Journal of Law 49
5. Graber CB, ‘Aboriginal Self-Determination vs. the Propertisation of Traditional Culture: The Case of Sacred Wanjina Sites’ (2009) 13 Australian Indigenous Law Review 18
6. Sádaba T, LaFata V and Torre A, ‘Cultural Appropriation in the digital context: A comparative study between two fashion cases’ in HCI in Business, Government and Organizations (Springer 2020)
7. Torsen M, ‘”Anonymous, Untitled, Mixed Media”: Mixing Intellectual Property Law with Other Legal Philosophies to Protect Traditional Cultural Expressions’ (2006) 54 The American Journal of Comparative Law 173
8. Vargas A, ‘WIPO’s Proposed Treatment of Sacred Traditional Cultural Expressions as a Distinct Form of Intellectual Property’ (2022) 23 Chicago Journal of International Law 235
9. Wilson K, ‘Unprotected Heritage: The Inadequate Safeguarding of Traditional Knowledge and Cultural Expressions under Intellectual Property Law and the TRIPS Agreement’ (2024) 3 ILRA Student Forum 1

Thesis

1. Lackner SI, ‘Who Wore it Better? Cultural Appropriation in the Fashion Industry: How International Law Fails to Safeguard Indigenous Peoples’ Traditional Clothing’ (Masters thesis, Aristoteles University Thessaloniki 2025)

Websites and Online Sources

1. Eton A, ‘The Intersection of Culture and Design’ (Medium, 2023) https://medium.com/design-bootcamp/the-intersection-of-culture-and-design-f777e57110b8  accessed 6 March 2026
2. Jaszi P, ‘Protecting traditional cultural expressions – some questions for lawmakers’ (WIPO Magazine, 2017) https://www.wipo.int/en/web/wipo-magazine/articles/protecting-traditional-cultural-expressions-some-questions-for-lawmakers-40072  accessed 7 March 2026
3. Rojo JU, ‘Protecting fashion and cultural expressions’ (World Trademark Review, 2019) https://www.worldtrademarkreview.com/article/protecting-fashion-and-cultural-expressions  accessed 6 March 2026
4. Secretariat of the Convention on Biological Diversity, ‘Introduction to access and benefit-sharing’ (Convention on Biological Diversity, 2010) https://www.cbd.int/abs/infokit/all-files-en.pdf  accessed 8 March 2026
5. UN Office of the High Commissioner for Human Rights, ‘The Committee on the Elimination of Racial Discrimination’ (Leaflet No 12, 1997) https://www.ohchr.org/sites/default/files/Documents/Publications/GuideIPleaflet12en.pdf  accessed 8 March 2026
6. Vézina B, ‘Curbing cultural appropriation in the fashion industry with intellectual property’ (WIPO Magazine, 2019) https://www.wipo.int/en/web/wipo-magazine/articles/curbing-cultural-appropriation-in-the-fashion-industry-with-intellectual-property-40880  accessed 6 March 2026
7. Winter L, ‘As Gucci’s Cruise Collection embraces pro-choice references and the beauty brand challenges unrealistic ideals, why are they still getting it wrong?’ (Glamour, 2019) https://www.glamourmagazine.co.uk/article/gucci-controversy  accessed 6 March 2026
8. WIPO, ‘Traditional Cultural Expressions’ (WIPO) https://www.wipo.int/tk/en/folklore/  accessed 6 March 2026

^[1] Teresa Sádaba, Valeria LaFata and Andrea Torre, ‘Cultural Appropriation in the digital context: A comparative study between two fashion cases’ ( HCI in Business, Government and Organizations, Copenhagen, 2020)  https://doi.org/10.1007/978-3-030-50341-3_38 accessed 6 March 2026

^[2] Brigitte Vézina, ‘Curbing cultural appropriation in the fashion industry with intellectual property’ (WIPO Magazine, 2019) https://www.wipo.int/en/web/wipo-magazine/articles/curbing-cultural-appropriation-in-the-fashion-industry-with-intellectual-property-40880 accessed 6 March 2026

^[3] Abaz Eton, ‘The Intersection of Culture and Design’ (Medium, 2023) https://medium.com/design-bootcamp/the-intersection-of-culture-and-design-f777e57110b8 accessed 6 March 2026

^[4] Hala Abdel-Jaber, ‘The Devil Wears Zara: Why the Lanham Act must be amended in the era of Fast Fashion’ (2021) 15(2) Ohio State Business Law Journal 234, 234

^[5] Javier Uhthoff Rojo, ‘Protecting fashion and cultural expressions’ (World Trademark Review, 2019) https://www.worldtrademarkreview.com/article/protecting-fashion-and-cultural-expressions accessed 6 March 2026

^[6] Lottie Winter, ‘As Gucci’s Cruise Collection embraces pro-choice references and the beauty brand challenges unrealistic ideals, why are they still getting it wrong?’ (Glamour, 2019) https://www.glamourmagazine.co.uk/article/gucci-controversy accessed 6 March 2026

^[7] Titilayo Adebola (ed), Intellectual Property Rights and Traditional Knowledge in the Global South (Springer 2026) 339

^[8] Ibid

^[9] WIPO, ‘Traditional Cultural Expressions’ (WIPO) https://www.wipo.int/tk/en/folklore/ accessed 6 March 2026.

^[10] Alberto Vargas, ‘WIPO’s Proposed Treatment of Sacred Traditional Cultural Expressions as a Distinct Form of Intellectual Property’ (2022) 23 Chicago Journal of International Law 235, 257

^[11] WIPO, Intellectual Property and Traditional Cultural Expressions/Folklore (WIPO 2005) 16

^[12] Sayan Bhattacharjee, ‘Preservation or Protection? The Intellectual Property Debate Surrounding Traditional Cultural Expressions’ (2025) 66 Harv Intl LJ 237, 238

^[13] Berne Convention for the Protection of Literary and Artistic Works (adopted 9 September 1886, last revised 28 September 1979) 1161 UNTS 3 (Berne Convention) art 15.4

^[14] UNESCO and WIPO, Tunis Model Law on Copyright for Developing Countries (1976)

^[15] UNESCO and WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and other prejudicial factors 1985, s14

^[16] UNGA Res 61/295 (13 September 2007) UN Doc A/RES/61/295, art 31

^[17] UNGA Res 61/295 (13 September 2007) UN Doc A/RES/61/295, art 12

^[18] Molly Torsen and Jane Anderson, Customary Law and Intellectual Property: Background Brief No 7 (WIPO 2016) 4

^[19] Ibid

^[20] WIPO, ‘Brief Summary of Working Documents’ (31 January 2008) WIPO/GRTKF/IC/12/INF/2

^[21] WIPO, ‘List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be found’ (6 December 2010) WIPO/GRTKF/IC/17/INF/9

^[22] Ibid

^[23] Sayan Bhattacharjee (n 12)

^[24] CBD, ‘Report of the Ad Hoc Open-Ended Working Group on Access and Benefit-Sharing on the Work of its Eighth Meeting’ (10 November 2009) UNEP/CBD/WG-ABS/8/2*

^[25] WIPO, ‘The Protection of Traditional Knowledge: Draft Articles’ (18 June 2018) WIPO/GRTKF/IC/37/5

^[26] Ibid

^[27] Ibid

^[28] WIPO,’ ‘Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources’ (14 December 2023) GRATK/DC/3

^[29] WIPO (n 28)

^[30] Sayan Bhattacharjee (n 12)

^[31] Ibid

^[32] Enrico Bonadio and Siri-Helen Egeland, ‘The Protection of Cultural Heritage by Trademarks’ (2023) 18 Journal of Intellectual Property Law & Practice 205

^[33] Molly Torsen and Jane Anderson (n 18)

^[34] Ibid

^[35] Molly Torsen, ‘”Anonymous, Untitled, Mixed Media”: Mixing Intellectual Property Law with Other Legal Philosophies to Protect Traditional Cultural Expressions’ 54 (2006) The American Journal of Comparative Law 173, 179

^[36]Jane Anderson, Law, Knowledge, Culture: The Production of Indigenous Knowledge in Intellectual Property Law (Edward Elgar 2009) 147

^[37] Petr Jaszi, ‘Protecting traditional cultural expressions – some questions for lawmakers’ (WIPO Magazine, 2017) https://www.wipo.int/en/web/wipo-magazine/articles/protecting-traditional-cultural-expressions-some-questions-for-lawmakers-40072 accessed 7 March 2026

^[38] Molly Torsen and Jane Anderson (n 18)

^[39] Indigenous Peoples’ Rights Act of 1997 (Republic Act No 8371) (Philippines)

^[40] Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082

^[41] Bulun Bulun v Nejlam Pty Ltd (Federal Court of Australia, 1989)

^[42] Terri Janke, ‘Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions’ (WIPO, 2003) 80

^[43] Copyright Act 1968 (Cth) s 35

^[44] Terri Janke (n 42)

^[45] UN Office of the High Commissioner for Human Rights, ‘The Committee on the Elimination of Racial Discrimination’ (Leaflet No 12, 1997) https://www.ohchr.org/sites/default/files/Documents/Publications/GuideIPleaflet12en.pdf  accessed 8 March 2026

^[46] Traditional Knowledge Division and the Department for Transition and Developed Countries, A Guide for Countries in Transition, (WIPO, 2013)

^[47] Ibid

^[48] Secretariat of the Convention on Biological Diversity, ‘Introduction to access and benefit-sharing’ (Convention on Biological Diversity, 2010) https://www.cbd.int/abs/infokit/all-files-en.pdf accessed 8 March 2026

^[49] Christoph B. Graber, ‘Aboriginal Self-Determination vs. the Propertisation of Traditional Culture: The Case of Sacred Wanjina Sites’ (2009) 13 Australian Indigenous Law Review 18, 24

^[50] Cultural Intellectual Property Rights Initiative

^[51] Stephanie Isobel Lackner, ‘Who Wore it Better? Cultural Appropriation in the Fashion Industry: How International Law Fails to Safeguard Indigenous Peoples’ Traditional Clothing’ (Masters thesis, Aristoteles University Thessaloniki 2025)

^[52] Miguel Angel Gardetti and Rosa Patricia Larios-Francia (ed), Sustainability Challenges in the Fashion Industry: Civilization Crisis, Decolonization, Cultural Legacy, and Transitions (Springer 2023) 91

^[53] Fajarwati, ‘The Legal Protection Towards Traditional Clothes: Intellectual Property Regimes in ASEAN’ (2022) 5 (1)Substantive Justice International Journal of Law 49 https://doi.org/10.56087/substantivejustice.v5i1.165  accessed 8 March 2026

^[54] Kennedy Wilson, ‘Unprotected Heritage: The Inadequate Safeguarding of Traditional Knowledge and Cultural Expressions under Intellectual PropertyLaw and the TRIPS Agreement’ (2024) 3 ILRA

STUDENT FORUM 1, 1

^[55] Molly Torsen and Jane Anderson (n 18)