Authored By: Ananya Tulsian
Rajiv Gandhi National University of Law, Punjab, Patiala
Abstract
For centuries, indigenous textile traditions have functioned as living repositories of cosmological knowledge, collective memory, and social identity but today, luxury designers and fast-fashion brands reproduce these traditions without credit, compensation, or permission, leaving originating communities with no meaningful recourse. This article investigates why international intellectual property law at the present moment is structurally unable to address this problem. Drawing on the TRIPS Agreement, WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC), and the non-binding provisions of UNDRIP, it argues that the gap is not incidental but built into the legal architecture itself and goes on to harm the more vulnerable communities. A system premised on individual authorship and time-limited protection cannot, of course, accommodate knowledge that is communal, ancestral, and continuous. The argument is grounded in three cases: Navajo Nation v Urban Outfitters, the Paris ruling in the Antik Batik dispute over Oaxacan huipil designs, and Milpurrurru v Indofurn from Australia, each of which exposes a different layer of the same failure.
Introduction
The 2020 Carolina Herrera episode is an open testimony to the relevance of my culture is not your costume meme. It shoes that this isn’t just a meme but rather the grim reality of cultural appropriation. The Mexican government sent a letter demanding an explanation for the use of embroidery patterns from Tenango de Doria and Oaxaca in the designer’s resort collection, patterns that belonged, by any reasonable account, to indigenous communities who had no say in how their designs travelled to Paris showrooms. No lawsuit came. No international body stepped in. The strongest instrument a sovereign state could deploy was a strongly worded email that became news for a week and then did nothing. That is not a dramatic failure of enforcement. That is the law working in its actuality as its written.
The effort to translate cultural appropriation grievances into legal language is not new, but the honest version of that conversation requires asking what rights an indigenous community actually holds over textile traditions it developed and transmitted across generations, and who owes them anything. International IP law answers that question, but not really.
This article treats that silence as a subject rather than a background condition. The central question is whether the WIPO IGC framework gives indigenous communities real legal protection against the fashion industry’s appropriation of their traditional cultural expressions (TCEs). The answer is that it does not, and the structural reasons behind that failure are worth sitting with, because they expose the assumptions baked into international IP doctrine that no incremental fix will reach. The analysis moves through the conceptual and legal terrain, the case law, and what that combined experience tells us about what genuinely protective instruments would need to look like.
Background and Conceptual Framework
WIPO’s draft articles use ‘traditional cultural expressions’ to cover textile designs, weaving patterns, embroidery motifs, ceremonial clothing, and the aesthetic vocabularies encoded in cloth and dress.[1] What makes this useful as a legal category is also what makes it legally awkward. TCEs are creative works in the copyright sense, indicators of origin in the trademark sense, and also something neither category can adequately hold: expressions of collective identity that belong to no individual and carry no expiry. Classical intellectual property law has never been comfortable with that third category, and the discomfort is not incidental.
The Berne Convention’s copyright framework, absorbed into TRIPS,[2] requires an identifiable author, a fixed tangible form, and a defined protection period. Each element creates a specific failure when applied to TCEs. A weaving practice passed down across twenty generations has no single author, or any fixed-term framework, it entered the public domain long ago and represents cultural influence and assimilation for a diverse group of indigenous people. It is not just a practice; it represents the life and cultural identity of a group of people. Trademark law offers a partial route through collective or certification marks, but registration demands legal capacity, institutional organisation, and money that most indigenous communities simply do not have. Even where such marks exist, they protect only the registered name or symbol, not the underlying design process that constitutes the real cultural asset or the real art that constitutes these practices.
UNDRIP, adopted in 2007, recognises in Article 31 that indigenous peoples have the right to maintain, control, protect, and develop their cultural heritage and traditional knowledge.[3] It creates no private right of action, no enforcement mechanism, and no obligation on states beyond a broadly worded duty to take effective measures. The UNESCO Convention on Intangible Cultural Heritage[4] similarly acknowledges the worth of living heritage while deliberately avoiding anything that looks like an enforceable right, relying instead on a safeguarding model wholly dependent on domestic implementation.
The WIPO IGC was established in 2000 to address these gaps, with a mandate covering TCEs, traditional knowledge, and genetic resources, producing and refining draft texts ever since.[5] That it has met for twenty-five years without generating a binding instrument is not really a story about procedural difficulty. It reflects a genuine and enduring disagreement between developed countries, which benefit commercially from the free circulation of cultural material, and developing countries and indigenous groups, which bear the costs. The IGC is a concentrated expression of the structural asymmetry that defines international IP governance.
Legal Analysis
TRIPS is the foundational text of the international IP order, and its relationship to TCEs is defined almost entirely by what it omits.[6] The agreement was negotiated to protect the IP assets of industrialised economies: pharmaceuticals, software, entertainment. The intangible heritage of communities that had never conceptualised their cultural practices in proprietary terms was not part of that conversation. The result is a framework not merely incomplete but structurally resistant to TCE protection. TRIPS treats the public domain as a resource freely available to all, which means a Zapotec weaving tradition practised for five centuries is, under the agreement, available for a Paris fashion house to take, commercialise, and even register as its own. The law does not ask where a design came from.
This is documented, not theoretical. Western fashion entities have obtained trademark and design registrations over motifs originating in indigenous communities.[7] The legal architecture permits this because it asks only whether the applicant used the mark commercially or produced an original work, not whether the underlying visual vocabulary was taken from people who never consented to its extraction. The question of derivation is invisible to the system.
The WIPO IGC draft articles propose protection for TCEs against unauthorised use, with beneficiaries defined as indigenous peoples and local communities rather than individual authors.[8] The draft draws a distinction between secret or sacred TCEs, which would receive absolute protection, and widely disseminated TCEs, which would require attribution and equitable benefit-sharing. That distinction reflects genuine legal sophistication. The difficulty is that the draft articles carry no binding force, no ratification pathway, and no dispute resolution mechanism. They are a proposal, refined over two decades, that member states have consistently declined to adopt.
Domestic law sometimes steps in, but inconsistently. The United States Indian Arts and Crafts Act[9] prohibits false labelling of products as made by Native American artists. It is a consumer protection measure, not a cultural property instrument. A non-indigenous company can reproduce Navajo geometric patterns in complete detail as long as it does not claim the goods were made by Native artisans. The visual design language stays entirely unprotected. Peru enacted legislation in 2002 covering collective indigenous knowledge related to biological resources, but that addresses bioprospecting rather than the visual and textile TCEs at issue in fashion appropriation. Australia, through case law rather than statute, has developed the most legally inventive domestic response, examined below.
What the IGC’s paralysis makes clear is that the conceptual tools for a solution are not absent.[10] Geographical indications law has already established that some forms of value are inherently communal and territorially rooted. The Champagne designation protects a collective right that no individual producer invented; it derives from collective practice and geographic origin, not individual authorship. Extending that reasoning to indigenous textile traditions is not a departure from existing IP principles. It is applying, to a context the law has ignored, reasoning the law has already accepted elsewhere. That this extension has not occurred is a matter of political resistance, not legal impossibility.[11]
Case Law Discussion
Navajo Nation v Urban Outfitters Inc[12] gets cited more than almost any case in this field, and the reason is worth understanding. The Nation sued over products marketed under the ‘Navajo’ name, including items described as ‘Navajo hipster panties’ and a ‘Navajo flask.’ The Nation relied on registered trademarks in the NAVAJO designation across multiple product categories, as well as the Indian Arts and Crafts Act. The federal court in New Mexico allowed the case to proceed. The parties reached a confidential settlement in 2016.[13]
No judicial precedent came out of that settlement. What the litigation did clarify was the shape and limits of what existing law can actually do. The claims had legs because the Nation had registered its name and could demonstrate commercial misuse of that registration. If Urban Outfitters had marketed identical products under a different label while replicating every Navajo geometric pattern, the legal position would have looked very different: no IACA violation, and most likely no trademark infringement either. The visual design vocabulary, the product of generations of weaving practice, would have sat entirely outside the protected zone. The case shows what trademark law can accomplish in optimal conditions. It also shows, without quite saying so, how little that covers.
The French litigation over the huipil blouse of the Mixe community in Oaxaca arrives at the same boundary from a different direction.[14] In 2015, the Tribunal de Grande Instance de Paris examined a dispute in which the brand Antik Batik stood accused of copying a traditional blouse design. The court found that neither the indigenous community nor the brand could establish protectable copyright. The community’s claim failed because French copyright law requires an identifiable human author; collective, anonymous, multigenerational creation does not qualify. The brand’s claim failed because its version was not sufficiently original to attract independent protection.[15] The practical consequence was that the design belonged to the public domain, freely available to anyone. The court’s reasoning acknowledged the community’s historical connection to the pattern, but acknowledgement without legal consequence is not a remedy. A design can carry five centuries of cultural meaning and still be legally ownerless.
The most legally adventurous judicial engagement with these questions appears in Milpurrurru v Indofurn Pty Ltd[16] before the Federal Court of Australia. The case concerned carpets manufactured in Vietnam reproducing sacred artworks by eight Aboriginal artists. Copyright infringement in the individual works was established without difficulty. What distinguished the judgment was Justice von Doussa’s approach to the harm: infringement was assessed not only against the artists’ economic loss but against the communal, ceremonial, and spiritual injury caused by decontextualising and commercially reproducing sacred material.[17] The statutory framework still required individual authors for copyright to subsist, so the community as a collective had no actionable claim. The court pressed against that constraint in its damages reasoning, treating the cultural injury as legally cognisable even where it could not be formally pleaded. Milpurrurru is thirty years old and still has no successor. It shows what becomes possible when a court reads existing doctrine with genuine conscience. It also shows, by its very isolation, how little those qualities can substitute for appropriate instruments.
Critical Analysis and Findings
Read in sequence, these three cases describe something more than a collection of individual inadequacies. Each reaches the limit of what available law can do and stops there. The IACA operates only against false labelling. French copyright cannot process communal authorship. Australian copyright requires individual authors. WIPO’s draft articles float above all of it, unratified. What stays consistent is not that the law fails randomly but that it fails in the same direction every time: it can perceive the individual author and the registered proprietor; it cannot perceive the community.
That is not accidental. Intellectual property law was constructed around a liberal conception of the creative individual whose labour generates protectable rights.[18] That conception was never designed to accommodate creativity and knowledge that are by nature collective, intergenerational, and inseparable from ceremonial life. The fashion industry has always been skilled at scanning the global aesthetic landscape for material it can lift and resell. The current legal order did not design this outcome, but it sustains it, reliably and without friction.
Attributing the IGC’s quarter-century of non-output to procedural complexity is too charitable an explanation.[19] A binding TCE instrument with genuine enforcement mechanisms would constrain the fashion industry’s access to a reservoir of creative material it currently treats as free. The resistance to such an instrument reflects calculated commercial interest, not confusion about what text to draft. Developed-country delegations understand exactly what an enforceable TCE regime would mean for their domestic industries, which is precisely why the output has remained aspirational.
The geographical indications analogy deserves more sustained attention than the IGC process has given it. GI law has already resolved, imperfectly but workably, the question of how to protect knowledge that belongs to a region or community rather than an individual, derives its value from origin rather than authorship, and carries no expiry date. That architecture is already there. Extending it to TCEs would not require abandoning IP law’s foundations; it would require applying an accepted principle to a context that has been deliberately excluded. That extension has not occurred because powerful interests have prevented it.[20]
Conclusion
The WIPO IGC does not currently offer indigenous communities substantial protection or to say meaningful recourse against the appropriation of their textile and fashion traditions. That observation is not to blindly criticize the ambitions that established the IGC or of the advocates who have sustained its negotiations but it aims to demonstrate how framework actually delivers when a Mixe weaver in Oaxaca, a Navajo artisan in New Mexico, or an Aboriginal artist in Arnhem Land attempts to use it.
What the case law and negotiating history reveal, taken together, is that incremental adjustment of existing IP doctrine cannot close this gap. Milpurrurru demonstrated that copyright can be stretched with creative judicial reasoning, and Navajo Nation demonstrated that trademark law can provide a remedy where a community has already secured formal registered rights. These remain workarounds. They depend on the affected community having individual-style protections already in place or the institutional capacity to litigate, which the communities most exposed to appropriation typically lack.
A binding international instrument for TCE protection is achievable as a matter of legal design. It is blocked as a matter of political will. Getting there requires developed-country governments to acknowledge something they have consistently avoided: that their domestic fashion industries have been extracting value from communities that received nothing in return, and that this arrangement is not a neutral consequence of the IP system but a choice the IP system has made. Until that reckoning takes place, the WIPO IGC will continue producing polished drafts that describe the problem accurately and solve nothing. Fashion will continue reaching into other people’s histories. The law will continue watching.
References and Bibliography
Table of Cases
International Instruments
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (adopted 15 April 1994, entered into force 1 January 1995) Annex 1C, Marrakesh Agreement 1869 UNTS 299.
United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res 61/295.
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 April 2006) 2368 UNTS 1.
WIPO Documents
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, ‘The Protection of Traditional Cultural Expressions: Draft Articles’ WIPO Doc IGC/47/5 (2024).
WIPO IGC, ‘Gap Analysis on the Protection of Traditional Cultural Expressions’ WIPO Doc WIPO/GRTKF/IC/7/5 (2004).
WIPO IGC, ‘Consolidated Document Relating to Intellectual Property and Genetic Resources’ WIPO Doc IGC/40/4 (2020).
Domestic Legislation
Indian Arts and Crafts Act of 1990 (United States) 25 USC s 305 et seq.
Cases
Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240 (Federal Court of Australia).
Navajo Nation v Urban Outfitters Inc 893 F Supp 2d 1116 (D NM 2012); Settlement Agreement (D NM, filed 16 November 2016).
Tribunal de Grande Instance de Paris, Antik Batik v Movadef and Others (10 December 2015) RG No 14/10781.
Bibliography
Journal Articles
Brown Michael, ‘Can Culture Be Copyrighted?’ (1998) 39(2) Current Anthropology 193.
Coombe Rosemary, ‘The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy’ (1993) 6 Canadian Journal of Law and Jurisprudence 249.
Drahos Peter, ‘Indigenous Knowledge and the Duties of Intellectual Property Owners’ (1999) 11 Intellectual Property Journal 179.
Sunder Madhavi, ‘IP3’ (2006) 59 Stanford Law Review 257.
Reports
Vezina Brigitte, ‘Curbing Cultural Appropriation in the Fashion Industry with Intellectual Property Law’ (2019) CIGI Papers No 213.
[1]WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, ‘The Protection of Traditional Cultural Expressions: Draft Articles’ WIPO Doc IGC/47/5 (2024).
[2]Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, 15 April 1994) 1869 UNTS 299.
[3]United Nations Declaration on the Rights of Indigenous Peoples (New York, 13 September 2007) UNGA Res 61/295, art 31.
[4]UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003) 2368 UNTS 1.
[5]WIPO IGC, ‘Consolidated Document Relating to Intellectual Property and Genetic Resources’ WIPO Doc IGC/40/4 (2020) para 14.
7]Brigitte Vezina, ‘Curbing Cultural Appropriation in the Fashion Industry with Intellectual Property Law’ (2019) CIGI Papers No 213, 4-7.
[9]Indian Arts and Crafts Act 1990, 25 USC s 305.
[10]WIPO IGC, ‘Gap Analysis on the Protection of Traditional Cultural Expressions’ WIPO Doc WIPO/GRTKF/IC/7/5 (2004) 23-27.
[11]Peter Drahos, ‘Indigenous Knowledge and the Duties of Intellectual Property Owners’ (1999) 11 Intellectual Property Journal 179, 192.
[12]Navajo Nation v Urban Outfitters Inc 893 F Supp 2d 1116 (D NM 2012).
[13]Navajo Nation v Urban Outfitters Inc, Settlement Agreement (D NM, filed 16 November 2016).
[14]Tribunal de Grande Instance de Paris, Antik Batik v Movadef and Others (10 December 2015) RG No 14/10781.
[15]Tribunal de Grande Instance de Paris (n 7), reasoning at paras 18-22.
[16]Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240 (Federal Court of Australia).
[17]Ibid 257-259 (von Doussa J).
[18]Madhavi Sunder, ‘IP3’ (2006) 59 Stanford Law Review 257, 281-284.
[19]Vezina (n 3) 11-13.
[20]Drahos (n 18) 196-198.
