In recent years, the issue of cultural appropriation has gained significant relevance within intellectual property forums; however, the interpretation of this concept is not uniform, and as we have mentioned, it remains a topic of ongoing debate.
From the perspective of a lawyer specializing in intellectual property, it is crucial to examine this issue carefully and raise questions that invite deeper reflection. For example, the Federal Law for the Protection of the Cultural Heritage of Indigenous Peoples and Communities establishes mechanisms to safeguard the cultural heritage of these communities. However, its implementation and effectiveness are subject to questioning.
This law, enacted in 2022, aims to establish mechanisms to protect the cultural heritage of indigenous peoples and communities. For example, it intends to create a National Catalog of Indigenous and Afro-Mexican Peoples and Communities to identify, catalogue, register, and document their cultural expressions. However, addressing the question of its implementation, as of today, if this catalog exists, it is not public. This raises doubts about the transparency and effectiveness of the protection system because how can people be expected to know what should be considered part of a community's heritage if there is no centralized mechanism accessible to them for information?
And it's crucial not to lose sight of this point, because specifically in this law it is established that acts, contracts, or agreements entered into by any member of a community on an individual basis, which result in the use, exploitation, or commercialization of elements of the cultural heritage of indigenous and Afro-Mexican peoples and communities, are null and void. However, without a catalog defining what should be considered heritage and without a clear registry of who can be considered its holders, where does the legal certainty lie for individuals and third parties interested in entering into agreements or contracts with these communities if they don't even know what is protected and who is responsible for protecting it?
Furthermore, it's possible that some elements of Mexico's cultural heritage have been obtained or influenced by other countries due to various historical factors such as pre-Hispanic exchange, Spanish conquest and colonization, migrations from different parts of the world, and globalization. This raises the question, Isn't a country's cultural heritage a combination of different cultures? and Isn't this exchange a form of cultural appreciation?
Humberto Mendoza.
[1] Article 53, Federal Law for the Protection of the Cultural Heritage of Indigenous Peoples and Afro-Mexican Communities
