Portuguese and Brazilian Fashion Design Experiences Regarding the Protection of the Rights of Indigenous People and Local Communities

From left to right the work of: Alexandra Moura with Cobertor de Papa (Pope Blanket, traditional product from Maçainhas (Portugal) Photo by Rui Vasco/Moda Lisboa; OSKLEN Collection with the Ashaninka indigenous people Photo by OSKLEN; AUÁ Collection with the Ye’kwana indigenous people Photo by Breno Mayer 

 

By Lígia Carvalho Abreu (2017)[i]

Brazil has one of the most protective legislations in the world concerning the recognition and protection of the rights of its people who have pre-Colombian origins.

The Brazilian Constitution and the legal Status of the Indigenous People are the most important instruments which recognise the social organisation, habits, traditions, languages and beliefs of the indigenous communities, as well as their natural rights over their lands. Those communities have legal personality. Their existence is not dependent on any registration or any act of public power. They can be judicial and extrajudicial, represented in conformity with their uses, habitats and traditions.

The rich identity of those communities based on a particular relationship with their land and nature has long fascinated the modern world, not only for its exoticism but also for the artistic, scientific and commercial potential of their traditional knowledge.

The know-how, the techniques, the creations of the mind and the cultural traditions of collective use, which are passed on from generation to generation and are constantly recreated as the result of their interaction with nature, compose the traditional knowledge of the indigenous people.

Those cultural expressions are “the source of Brazilian cultural diversity and a reference to sustainable development”[ii]. Their protection is a key element to Brazil’s social cohesion and development policy.

Thus, the collective rights of the indigenous people over their traditional knowledge are inalienable, unattachable and irrevocable.     

In order to grant a free choice of means for the self-sustainment of the indigenous population and to protect their goods of artistic, historical and cultural value, public entities and any other person such as designers or representatives of fashion brands who are interested in contact and accede to the indigenous people’s culture, are legally bound by several duties to those communities.

According to the new legal Status of the Indigenous people, public entities, namely the indigenous federal body and the federal public prosecutor, participate in the negotiations of a contract related to the access of third persons to traditional knowledge so as to clarify the indigenous community about their rights and duties. This results in a contract to inform them about the consequences of their acts and the effects it may have on the environment. They supervise the elaboration and the respect of the contract and also when the indigenous community refuses to give consent to the use of traditional knowledge, the federal bodies must accompany the third person during all their stay on indigenous land so as to ensure the compliance of the decisions made by the indigenous people.       

The indigenous, their communities and organisations, and the federal public prosecutor, can take legal action to declare void acts and legal transactions which violate the indigenous people’s rights as well as claim compensation for damages.

In this context, the defense of the indigenous people’s rights concerning their traditional knowledge is favoured with the reversal of a burden of proof. For example, it is not the indigenous community who has to proove the rights claimed, but rather the other party must prove that they did not use indigenous traditional knowledge without consent. The Brazilian Union (the federal government) is also in charge of supervising the contracts celebrated by indigenous communities with foreign entities and defending, subsidiarily, the interests and rights of those communities in national and international courts.  

The indigenous people are the owners of their patrimony and have the right to manage it. Third persons wishing to accede to traditional knowledge must have the previous, free and clarified consent of the indigenous community. The indigenous people can freely decide if they give or not their consent to use their traditional knowledge, without justification.

The conditions of this access must be written on a contract. The contract must be signed by the third person’s representative and by the leader of the indigenous community or by the representative of their organisation - which is a recognised legal person of private law and involves one or more indigenous communities - or even by any indigenous person chosen by the community to negotiate the contract.

For the contract to be valid, it must imperatively provide:

  • The right of indigenous people to be informed by the user of traditional knowledge about the forms of access and deadlines for the period of use;
  • The prohibition of using traditional knowledge by non-authorised persons;  
  • The respect of the rights of image of the indigenous people, for instance, respecting the decisions about the permitted and forbidden forms of using traditional knowledge and,
  • Fair and equitable benefit sharing of access to traditional knowledge. For instance, if a drawing is part of the indigenous community’s culture, or composing a pattern of a fabric for a fashion brand, then this disposition of fair and equitable benefit sharing is essential to the contract because the indigenous community has authorial rights over its creation (the drawing), be it or not protected by any form of intellectual property rights. The same reasoning applies to the indigenous people´s rights over their technologies and inventions which are used by third persons. The fair and equitable benefits of the contract belong to the entire community because traditional knowledge has a collective nature. It cannot be an object of a private or exclusive right, even if the author or the source of traditional knowledge is only one person in the community.    

Indigenous communities have their own uses and traditions concerning commercial relations and the conclusion of agreements. However, the Brazilian common law (federal law) can be applied to the contracts between those communities and third persons, except if the communities do not agree with common law dispositions because they consider them to be offensive to their traditions.

The acts and legal transactions between third persons and the indigenous people are void, so they do not produce legal effects when they do not respect the use, habits, beliefs and traditions of those communities. The liability established in the contract is extended to all persons that maintain contact with the person that will use the traditional knowledge.

In addition, Brazilian law administers fines, applied by the indigenous federal body, for the following behaviours: the use of traditional knowledge, be it or not protected by intellectual property rights, without the previous, informed and written consent of the indigenous community and the non-compliance of contract dispositions.

Portugal has no indigenous people but has organised local communities of artisans who perpetuate secular traditional knowledge. The protection of these cultural expressions is foreseen in the Portuguese Constitution. It is related to the freedom of expression, the freedom of cultural creation, the freedom of association to promote cultural values and a strategy element of the affirmation of Portuguese cultural identity in and outside the Portuguese borders.   

The usual form of intellectual property protection related to the products of Portuguese traditional knowledge from the local communities is the trademark, copyright, the appellation of origin and geographical indications. For product issue with traditional knowledge and relevance to fashion, the usual form of protection for this is trademark or copyright. The trademark functions as a sign that distinguishes the product or services of a trader from those of another trader. Copyright protects the artistic, scientific and literary works of an author. In this context, product issue with the traditional knowledge of local communities is considered to be the products of a trader and at the same time, artistic works. 

Both the traditional knowledge of the Brazilian indigenous people and the Portuguese local communities is endangered.

Indigenous territories are being reduced and affected by the construction of illegal roads, drug traffickers, oil companies, illegal woodsmen, illegal rubber tappers, conservative programmes which create conservative zones without the respect of indigenous rights, among others.         

In Portugal, some of the traditional products, for instance embroidery, are being copied by Chinese enterprises and sold not only in Chinese stores but also in Portuguese stores. Counterfeited products and knockoffs of traditional Portuguese products are diluting the Portuguese culture. In addition, some artisans are abandoning their traditional activities because they do not get enough income. Some artisans who still remain are becoming older. Thus, it is really important to create projects to protect and promote traditional knowledge.

Here are some examples of partnerships between fashion brands and indigenous and local communities, which are shaping an alternative approach to the current fashion system, based on the respect of the local and indigenous community rights. 

  1. Osklen and the Asháninka

 OSKLEN Collection with the Ashaninka indigenous people and Ashaninka man Photos by OSKLEN

In Brazil, the Asháninka live in the rainforests of the State of Acre.

The fashion world is being seduced by this culture, for instance by:

  • The traditional dress, the chusma, which is a long piece of fabric, made from cotton and woven by Asháninka’s women on looms, with vertical lines for men and horizontal lines for women and can be ornamented with feathers and beads. It can take up to three months to be complete;
  • Tattoos that cover their body; 
  • Their necklaces, their feather headdresses or arm and leg bands
  • Their image and their name.      

The famous Brazilian luxury brand Osklen, known for being the pioneer in the production of sustainable garments, has a spring/summer collection named Asháninka. This collection is composed by garments inspired by the Asháninka culture. Oskar Metsavaht, founder and creative director of Osklen, has created, for instance, a black dress with a printed image of an Asháninka person, coats and skirts based on the chusma traditional dress, a white dress with printed feathers and dresses and skirts with Asháninka’s black geometric patterns.      

The use of this traditional knowledge, image and name was authorised by the indigenous community. Osklen signed a contract with the indigenous community in accordance with their commercial uses and traditions.

 OSKLEN Collection with the Ashaninka indigenous people and Ashaninka man Photos by OSKLEN

The Asháninka received an amount of money - approximately 46.500 Euros - which was stipulated by this indigenous community. This money has been used for the construction of a new school in their village and to buy a piece of land in order to install their store in the city Cruzeiro do Sul, close to their village, in which they can sell their artisanal products. Part of money gained with the royalties is used for constructing a building for the people who attend the Yorenka Atame Center, a School representing the Knowledge of Forests, located in the village of Marechal Taumaturgo. This school is a place for meeting different indigenous and non-indigenous people. Together they can take courses to manage their natural resources in a sustainable way.        

Other advantages from the contract are Osklen promoting the Asháninka’s best practices of biodiversity protection and supporting a trip made by two leaders of this community to the COP-20 and COP-21 of the UN Conference on Climate Change.

     

2. Auá and the Ye’kwana 

AUÁ Collection with the Ye’kwana indigenous Photo by Breno Mayer/ Ye'kwana basket   

In Brazil, the Ye’kwana live in the rainforests of the State of Roraima. Basketry with geometric and animal motifs, such as monkeys, wood-peckers and frogs (Mawaadi, Sadö, Iadakaaku, Wanaadi Motai and Ke’kwe), paddles ornamented with painted animals, sculptures of animals made in wood, boxes with geometric motifs (the kanwa), necklaces and bracelets made of beads and drawings of animals, are among their traditional products.      

Auá, a Brazilian brand known for making fashion patterns signed by renowned artists and for its partnerships with the indigenous people, has a collection named Ye’kwana. The patterns of this collection were based on the universe of this tribe. For instance, the jumpsuit and dress patterns reproduce the geometric motifs of their basketry and traditional boxes.     

In order to use the Ye’kwana name and their traditional knowledge, Auá has signed a contract with the tribe. The indigenous federal body and anthropologists participated in the negotiation process between the fashion brand and the Ye’kwana.

The Ye’kwana receives a percentage of the value of the sale from each piece of clothing. This percentage is fixed by agreement between Auá and the indigenous people.

Apart from this monetary benefit sharing, there is an exchange of knowledge between Auá and the Ye’kwana, permitting the participation of the indigenous people in the fashion system and their existence and subsistence. 

 

3.  Auá and the Maxakali

                                                                   

Auá Maxakali Collection

The Maxakali live in the northeast of the Brazilian State of Minas Gerais, in the same State where Auá is based. These indigenous people have a vast knowledge about biodiversity which is reproduced in their drawings, hymns, legends and accessories made of beads. Auá has a collection named Maxakali. The clothes of this collection were inspired by this traditional knowledge. The fashion brand and the indigenous community signed a contract in which they established a commitment so as to design together the Maxakali Collection.

The indigenous community receives a percentage of the value from the sale of each piece of the collection. In addition, the Maxakali often meet the designers of Auá at their fashion brand atelier. They share knowledge about their way of sewing, of creating bead necklaces, of hymns and legends. Together they are promoting the understanding of cultural diversity and, at the same time, permitting the participation of the indigenous people in the fashion system and their existence and subsistence.    

 

4.    Alexandra Moura and the Local Maçainhas Community (Guarda)

Alexandra Moura Collection Gender, pronoun, individual! using Cobertor de Papa Photo by Rui Vasco/Moda Lisboa

The Cobertor de Papa (Pope Blanket) is a blanket with long fur exclusively made of churra sheep wool. It has been handmade since the XIII century in Guarda, northeast of Portugal and it is part of the identity of the Maçainhas Community. From the weaving machine the wool is placed into a compressor and later moves on to the opening machine. Finally, it is stretched onto a frame and put to dry in the sun in order to gain the furry look which makes the Pope Blanket very warm. It is produced in a mixture of two colours (white and brown) with embroidered stripes in blue, red, green or brown. The Pope Blanket is part of the memories of those who have produced it through the ages.

With the support of the School of Arts and Crafts in Maçainhas, Portuguese designer Alexandra Moura has reinvented the Pope Blanket. She has transformed it into modern coats.

The designer has signed a contract with the city council of Guarda in order to promote this traditional product through her designs. She started to work with the School of Arts and Crafts in Maçainhas and its artisans.      

Alexandra Moura owns copyright over her designs, but the Pope Blanket is a trademark of the Maçainhas community.

This partnership is important to promote the Pope Blanket in the market. Without these types of partnerships the traditional knowledge of local communities is likely to vanish, and with it the history and collective memories of the Portuguese people. 

 

 

[i] Based on a text written by Lígia Carvalho Abreu and presented at 4th NW Fashion Conference, Antwerp November 2016.   

[ii] Article 196 nº 6 of the proposal of Legal Status of Indigenous People.