Wednesday 24 April 2019

Communal Intellectual Property and Fair Working Conditions are at the Heart of Democracy and Human Rights

COMMUNAL INTELLECTUAL PROPERTY AND FAIR WORKING CONDITIONS ARE AT THE HEART OF DEMOCRACY AND HUMAN RIGHTS: Aruna Chawla, lawyer, Indian operations head of Cultural and Intellectual Property Rights Initiative

Michael: Perhaps start with telling me a little bit about your Initiative.

Aruna: I graduated this year from law school so I just started out, possibly one of the youngest here. And I am doing a couple of things, one of which is working with Avant Garde Lawyers as an art law expert; what we do at AGL is provide legal expertise and assistance to artists at risk both in terms of immigration, human rights protections etcetera, and also commercial aspects like intellectual property, etcetera, which is more of the socio-economic side mostly not looked at in arts organisations of this kind that we’re seeing. Other than that, I’m also working on the Cultural and Intellectual Property Rights Initiative which focuses on the manner of utilisation of traditional cultural knowledge and property in a way that sustains societies that that traditional knowledge comes from and corporates or the economic organisations that utilise them. An example of this could be, say, design sensitivities of traditional communities being take up by big design houses – say for example Stella McCartney – which would pick up this design, present it on the runway, sell it across the world, but also in a benefit-sharing model, give it back to that community. It is an extremely important aspect of the cultural rights idea that we were talking about yesterday with Karima as well. The intellectual property protection for traditional knowledge does not exist as of now in the form of patents of how traditional knowledge is applied, or in the form of trade-marks for organisations that work in these – but we’re looking at a model where that traditional knowledge itself can be protected and utilised and not just its applications.

Michael: So that’s obviously quite innovative. In South Africa, we’ve got the situation where a lot of indigenous knowledge around, for instance, the use of medicinal plants and this sort of thing is now at the forefront of innovations to protect those rights as well because these are now being commercialised and monetised and used in other ways by people beyond the originating communities. It’s quite a difficult thing, isn’t it, to establish that as a right in the first place?

Aruna: It is. In the arts field you can attribute intellectual property to one person, so when it is violated, that person can step up and at least, even if they can’t afford legal assistance, talk about their rights being violated. With cultural knowledge, it’s a whole society that owns it; you can’t attribute it to a single person; communities are not going to have legal organisations representing them at all times; these are just people who have had a certain way of living for years and have gathered the knowledge. That is what we are trying to do: we are trying to focus on giving it back to these communities where we can’t attribute that intellectual property to a single person, but also enable them to fight for their rights, utilise the knowledge they do have in an economically sustainable way because it’s not just always about fighting for rights – it’s about getting it back.

Michael: I’m imagining that corporates are quite resistant to this sort of idea because they have an instinctive imperialism, essentially, to misappropriate other people’s communal intellectual property.

Aruna: That’s true. I think that what’s interesting about this model is that it’s benefit-sharing, so it’s not that profits are completely taken away from the organisation, it’s that profits are shared among two people or two groups contributing to an economic endeavour. Which is what happens in economic organisations as well: you pay the CEO, you pay the CFO, but that’s people coming together, putting their brain-power together to achieve a common profit – and it’s the same thing that we are focusing on in a benefit-sharing model. One person with the expertise, another person with the money, or the entrepreneurial knowledge, getting together to present this economic or capitalist venture to the world and earning money out of it.

Michael: How do you share with a community? Because for one thing you have to define that community and that’s kind of tricky because communities can be very fluid at their edges.

Aruna. Yeah, so a legal intellectual property protection given to traditional knowledge is a geographic indication. So for example, Champagne which is a geographical indication, it’s about traditional knowledge that’s been going on for centuries of people in the Champagne region in France knowing how a particular variety of sparkling wine is supposed to be made. And this is the exact kind of model we are building on. Now, Champagne was able to build on that investment value over a few years. How we started focusing on this was one of Dior’s collections which appropriated the Bihor – Bihor is a Romanian community and they have a particular design form – and Dior’s collection presented this on the runway, got this design trade-mark and started utilising this and exploiting this without giving it back to the community where the design was inspired. Stella McCartney on the other hand works with the Mexican communities that she’s inspired from and creates opportunities for these women who’ve traditionally been making these designs over centuries and pays them to make them instead of paying factories to make copies of the design who have no relevance or relations to the creation of that design.

Michael: So what you’re saying is that in parallel to trying to create a new – because in many respects it is quite new – legal framework, you’re trying to create a new ethic, really, around how creative industries appropriate and use and for want of a better word exploit other cultures’ specific heritage?

Aruna: Exactly, yeah. So the problem is not with appropriation, it’s when that idea is misappropriated and the profits of that are not shared, which is the whole idea of intellectual property, that the person who creates it or the person who has put in the labour is compensated for the work they do – and it’s just that here we are talking about a community.

Michael: Now you’re obviously from a legal background but do you have ethical or aesthetic concerns about distortions of culture?

Aruna: I think that’s always sad – but I think it’s important to look at whose culture is being distorted. I mean, if it’s my culture distorted, I have the right to say anything about it. What I can do is provide support for what that community wishes to do. I think aesthetic innovation is always going to happen and we are always going to be inspired by what is around us and that is how creativity develops; I mean, nature’s already created all the colour combinations for us, all the colour schemes for us, and we’re constantly being inspired by what already exists. So aesthetic innovation is always going to happen and at times it will lead to distortion as well; distortion happens when someone has a particular way of looking at things and decides to do it a little differently. I think that synthesis will continue happening and that thesis-antithesis idea is going to be there.

Michael: In this globalised world where images can obviously traverse the Earth in seconds, and there is the emergence of elements of a global monoculture, is it really possible to compartmentalise cultures in that way – bearing in mind that on top of that culture itself, including traditional cultures, are not static as people tend to present them?

Aruna: Personally I don’t think it’s possible. Even as lawyers the first thing we learn in law school is that law is not static either; it’s about what’s happening in society at that time and what needs the most legal protection, or what kind of legal protection is required. As society changes, laws are going to keep changing and they’re interrelated in terms of that change and growth.

Michael: So that’s an interesting dynamic tension: that both culture and the arts and law itself are not static entities, that they are continually evolving – and they’re all interpretive actually. So I think a lot of lay people have this conception of the law that it is unchanging but that’s obviously not so, especially with case law and precedent and how that evolves.

Aruna: There case law, there’s policy changes happening at all times and law is about interpretation. I mean, if we’re looking at the UDHR [Universal Declaration of Human Rights] and we’re talking about human rights, but as lawyers we are also working towards making sure the UDHR stops being relevant any more in our lives; we want to be in a position in society where we don’t have to keep fighting for the application of the UDHR, but human rights are already protected and documents like these, or the UN bodies, become obsolete.

Michael: We’ve just seen the FreeMuse presentation relating to women in the arts. Do you see a particular gendered skewing of rights and access in India in particular and in South Asia?

Aruna: I think definitely yes, and I’m sure across the world this is true; women have the additional threat of personal bodily autonomy; the first way in which women are controlled is by sexually harassing them; they are threatened not just with taking away access or a platform but also personal threats against bodily autonomy. Men face the threat of death too – but that’s not because of their gender; women face it because of their gender. And it’s not true just for the arts community, but it’s true for all communities across the world and for all industries across the world.

Michael: How does one apply what you’re doing to the broader human rights framework, because it’s obviously located within that, it isn’t just specific to the Universal Declaration of Human Rights?

Aruna: There’s something I will be talking about tomorrow: when we talk about social rights, cultural rights, artistic rights, the first thing that comes to mind is economic rights because when you’re independent you have the financial assistance – whether it’s by funding, or financial sustainability, or the entrepreneurship of what you do – to be able to exercise all the other rights, your social and political rights, your citizenship, of exercising the right to vote, etcetera. They mean nothing if you don’t have the money to exercise them; you live in a society where you always have to purchase food or pay rent for where you live. And that the kind of work I am personally doing as well, empowering artists, specifically in the industries of arts, fashion, luxury, and culture and I focus on economic empowerment.

Michael: So there’s a clear equity aspect in all of this?

Aruna: Absolutely. A big problem in the fashion industry is working conditions of labour, them not being paid fair wages, so if the fashion industry does not pay the labourers fair they’re violating their labour rights, they’re also their human rights because they’re being treated as second-class citizens that don’t deserve to spend money as we do. That impacts the environment because they can’t afford to make environmentally sustainable choices. And this is all a human rights concern.

Michael: Some red flags have been raised during this conference about the misuse of cultural rights to assert false conditions of difference between people, or groups of people, classes of people. Is there maybe some concern in the specificity of your work to try and make sure that at the same time as focusing on very specific cultural rights that you are also doing it within a very universalist ethic? There’s a lot of abuse of culture, particularly religion but not just religion, culture more broadly, as an excuse for prejudicial policies and actions by civil society etcetera. I presume you must keep a weather-eye out for making sure that in strengthening certain communal rights you’re not prejudicing communities external to those communities as well, you’re not trying to create conditions of specificity that are outside of the general human commune if you will?

Aruna: Yeah. I think it’s a very important consideration to have, especially when today and over the years this has always been an issue, when cultural diversity is placed completely at odds with cultural relativism. I mean these two are at odds but it’s not that all of us are different or that we have different practices, it’s that we are still humans at the end of the day who make different choices – even if we were to have the same religion and the same practices, our way of expression might be different. But that does not make us enemies of each other. Say for example the economic independence work that I personally like focusing on: the big fashion houses have the responsibility of paying the labour that they work with a fair wage, even though that labour union might not be strong enough or might not be monetarily as sound as the one person owning a design organisation. And this is about the power dynamics; this is what cultural diversity is about, or democracy for that matter, that people who are in power do not make decisions that the minority has to suffer for.