A recent incident involving replication of an Inuit design by a UK fashion label raises interesting questions regarding whether businesses should be required to go beyond the scope of law and consider what is ethical within the culture being borrowed from. Salome Awa, an Inuit woman, was outraged to discover a sweater made by fashion label Kokon To Zai (KTZ), which appeared to be an exact replica of her great-grandfather Ava’s Inuit design. According to copyright laws in Canada, copyrights from original literary, dramatic, musical or artistic work can be automatic upon creation, and last for the life of the creator and 50 years following the end of the calendar year of the creator’s death. In this case, it is likely that Ava died more than 50 years ago, thus the design is in the public domain. So, what is the problem?

Ava’s designs are considered deeply sacred within Inuit culture, and were never intended to be replicated, not even by another Inuit person. The fact that the designs are being mass produced and sold for profit is extremely disrespectful to Inuit people. Awa was able to use her position as a reporter for CBC North to get the word out. Readers were outraged and sent angry emails to KTZ demanding they pull the sweater from sale. KTZ eventually took the sweater, which had been retailing for around $925, off the market. Its apology email to Awa suggests that the fashion label admires and appreciates Inuit clothing. However, KTZ evidently did not take the time to research the design to discover its cultural significance. Should fashion labels be required to consider the ethics of the cultures whose designs they wish to replicate? It is arguably too great a burden to place on businesses to expect them to conduct research into cultural intricacies. Regardless of whether fashion labels should be required to do this, the disapproval they receive from the public may ultimately persuade labels to be more ethically aware when borrowing designs from indigenous groups. The KTZ scenario may suggest the rising influence that a socially-concerned generation armed with social media may exert on businesses’ behaviours.

Another question to consider is why some indigenous groups can claim intellectual property (IP) rights over designs, even though an original creator is likely not identifiable and the 50-year period has surely expired. For example, even though DKNY received negative messages for launching the amauti—a women’s parka used to carry babies—and removed it from DKNY’s catalogue, Inuit women are still able to manufacture and distribute it. Similarly, in Panama, Law 20 was designed to protect indigenous women from the widespread sale of cheap mola imitations—panels traditionally sewn onto blouses—and profit from the mola designs should they choose. In fact, Inuit women have now joined a special committee on indigenous people at the World Intellectual Property Organization, operated by the United Nations in Geneva.

What distinguishes the amauti design, used by Inuit women, from Ava’s design, which prohibits replication by anyone, even another Inuit person? Perhaps the distinguishing factor is that the amauti is a generic design whereas Ava’s design is more distinct. Or perhaps it is because Ava’s design is sacred while the amauti design is not. In order to better understand how IP operates within indigenous designs, one must determine what gives someone control of an indigenous design, even when that person is not the original creator.

The ability to protect these designs introduces the idea of “cultural property”. In fact, Canada recognizes cultural property rights, the Cultural Property Export and Import Act serves to preserve Canada’s artistic, historic and scientific heritage. The International Committee of the Red Cross, too, has various treaties to protect cultural property during armed conflict. While it is beneficial to hold onto one’s cultural heritage, there are many gray areas that cultural property brings. Firstly, what is to be considered cultural property? For example, is the kimono the cultural property of Japan and tartan the cultural property of Scotland? Another question to consider is how cultural property rights will be split amongst members of the group. Do all indigenous women in Panama have rights over the mola designs?

Such difficult questions suggest that cultural property may be too abstract a term for courts to define. Nevertheless, as many cultures possess intellectual property assets, it will be essential to protect these rights in light of the commercialization efforts of large corporations in the years to come.

Jasmine Godfrey is a JD Candidate at Osgoode Hall Law School and is currently enrolled in the course “Legal Values: Commercializing IP” (Winter 2016). As part of the course requirements, students are asked to write a blog on a topic of their choice.