Creative Economy & Cultures of Production, Creativity & Cultural Labour, Cultures of Creativity

Who has the right to claim authorship when we talk about artisan production?

Jazmín Ruiz Díaz (Photos courtesy of the IPA)

News related to traditional handicrafts does not usually hit the headlines in Paraguayan newspapers. However, this time was different. The reason: A dispute between an association of women potters against an entrepreneur from the capital city. The accusations were cultural appropriation from one side, and of breaking patent rights from the other party. 

As a journalist researching the collaborations between traditional handicraft and fashion, I felt the need to contribute to the debate. My motivation for doing a PhD in this topic is to incentivise better practices in the grey areas where collaborations like this happen, especially regarding issues such as authorship and intellectual property. Therefore, I wrote an article with my reflections that was published in El Nacional, a Paraguayan digital newspaper. What follows is an edited and translated version. To access the original article please click here.

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According to the information spread through the press, this is what happened: Claiming the “invention” of a portable version from a traditional ceramic kiln (image 1), an entrepreneur from Asunción sent a cease-and-desist letter to the Women Potters Association from Caaguazú-Itá -called Kambuchi Apo- based on the argument that they have “copied” his innovation. In response, this association presented a formal complaint to the National Direction of Intellectual Property (Dinapi, by its initials in Spanish) for “appropriation”. An investigation for “a punishable act against intellectual property and possible violation of copyright” then started.

Although the main arguments provided by both sides revolved around the question of whom obtained the patent first, I reckon that a more important question is: Who has the right to claim authorship when we talk about artisan production? Trying to answer this question, I make some considerations based on my doctoral research with the intention of expanding the discussion on what we understand by creativity and by artisan work; these are the main questions to consider when talking about cultural industries and creative work.

Do not treat what is artisanal as industrial
Industrial production is, by definition, the opposite of artisanal production. While the former category refers to the mere transformation of raw materials into goods, the latter -following the UNESCO definition- emphasises who produce them: the artisans. These are the ones bringing their specific skills and knowledge into the production process. Therefore, establishing a hierarchy based on the idea of the entrepreneur as an inventor and the traditional potter as a mere workforce is not only unfair but misleading. In fact, since the object under dispute required artisan hands for its elaboration, we should at least consider it as a product of co-authorship.

Moreover, traditional pottery production has cultural and economic value for the community where is produced, which means that it requires protection from intellectual property frameworks. However, as a collective practice whose authorship or origin is hard to be determined, this type of ceramic demands legal figures that contemplate the complexity of traditional knowledge beyond copyright’s issues. Therefore, last year, Dinapi has created a team in charge of the development and promotion of policies to protect traditional knowledge in Paraguay. The team also includes the National Handicraft Institute (IPA, by its initials in Spanish).

Intellectual property, but for traditional knowledge
In the case analysed, the entrepreneur tries to argue that his innovation lies in making the adaptations to the tatakua de ñai’ü (black clay kiln) to make it portable.  However, this innovation cannot be considered as an isolated element, while the knowledge behind the development of the portable version does not get acknowledged. However, some could question that ‘kilns are made in all cultures’, which is true. Yet, with these considerations, we emphasize the product rather than the knowledge and practices for making it. The traditional clay pottery from the cities of Itá and Tobatí is the result of a set of abilities, skills and knowledge that are part of the potters’ identities and livelihood. The portable tatakua would not exist without its ancestral tradition that goes back to the precolonial times when it was used by the Guarani native communities.

Coming to the second question that should be considered in this context, this is: Is this a case of cultural appropriation? To analyse this case, I use the definition provided by the scholar Brigitte Vézina that understands the concept as the ‘act of taking a cultural element from a source community culture, repurposing it in a different culture without permission and acknowledgement’. The entrepreneur claims authorship even though he is an outsider of the community and although the work is done by potters from Itá. It is, thus, a top-down relationship ruled by a power unbalanced situation in which artisans are not involved as equals nor as co-authors. Lastly, instead of searching for the approval of the community, the entrepreneur begins a legal proceeding by submitting a cease-and-desist letter. It should be also considered that the kiln under discussion is made with black clay, which is a limited natural resource. Hence, its production should be done in a sustainable way ensuring that future generations of potters from Itá and Tobatí will be able to continue their craft.

Searching for the right path
Meanwhile, the legal actions persist, on the 10th of June, the Ministry of Culture has declared that “the knowledge, techniques and ancestral elaboration methods of the Ñai’ũpo” is part of the Intangible Cultural Heritage of Paraguay. However, not the government, nor legal frameworks will be able to completely stop the diffusion of bad practices. Entrepreneurs, designers, and creative workers have much to contribute as mediators between traditional crafts and the markets, not only locally but also transnationally, but artisans need to be considered as active participants in the creative process and rewarded accordingly.