The Piracy Paradox and Indigenous Fashion
31 Pages Posted: 23 Aug 2021
Date Written: April 20, 2021
The conventional justification of intellectual property laws is that recognizing exclusive rights is indispensable for encouraging creativity. The Piracy Paradox challenged this assumption by providing strong evidence of the fashion industry’s robust creativity in the face of widespread copying of designs, thereby suggesting that some types of creativity may not need exclusive rights. This Article examines the applicability of the piracy paradox in the context of non-Western cultures. It categorizes indigenous fashion as those open to commercialization and those closed to it. With some important caveats, this Article suggests the piracy paradox may apply to indigenous fashion that is open to commercialization. However, tolerance of unauthorized copying, which is at the core of the piracy paradox thesis, does not seem to exist in the case of sacred or restricted indigenous fashion. Instead of resulting in more creativity, unauthorized copying of indigenous fashion has created the hot-button issue of cultural appropriation and a relationship of mistrust between source communities and mainstream designers. This Article concludes by suggesting that recognizing enforceable cultural rights, creating professional ethical principles, and implementing corporate social responsibility standards can serve as mechanisms of creating a harmonious relationship between indigenous communities and mainstream fashion designers.
Keywords: Piracy Paradox, Intellectual Property Law, Copyright Law, Traditional Cultural Expressions, Traditional Knowledge, Cultural Appropriation
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