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fi gures woven throughout from a “big box” retailer such as Target, is the inherent, indigenous nature and value of the rug lost? Or are we all just becoming more culturally diverse in our choice of home furnishings? Does it really matter as long as the Guatemalan community’s TCE is protected and it is being compensated for its use? As one researcher has noted regarding the economic eff ect of intercultural trade, “[i]nternational economic effi ciency is achieved through the choice off ered by intercultural exposure—the opening of trade between Portugal and England. As a result, however, cloth manufacture in Portugal ceases, with its techniques, tradi- tions, and lifestyles, and in the cultural sense, there is a loss of choice and diversity that could be maintained only through ineffi cient means.”13


In other words, the availability of cheaper,


and perhaps better quality, goods from other cultures may ultimately destroy indigenous traditions. Such may be the cost of cultural diversity in a global economy.


Lastly, the agreement on Trade-Related Aspects of


Intellectual Property Rights (TRIPS), administered by the World Trade Organization (WTO), provides interna- tional copyright and trademark protection that may apply to TCEs.11


Signifi cantly, TRIPS provides protection for


geographical indications, or indications that identify a good as originating in a territory or region when a quality, reputation, or other characteristic of the good is essentially attributable to its geographic origin.12


EFFECT OF TRADE T e dissemination of TCEs is enriching, and cultural diversity is enhanced when TCEs are mixed and meshed with a variety of other cultures. However, does globalization actually dimin- ish the very TCEs sought to be protected and shared? For example, if we can purchase a rug with native Guatemalan


1


Intellectual Property and Traditional Cultural Expressions/Folklore, Book- let No. 1, World Intellectual Property Organization, WIPO Publication No. 913(E), at 2. 2 Id. at 5.


3 4


Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Forms of Prejudicial Action, 1982, World Intellectual Property Association.


MCCA.COM


Convention on the Protection and Promotion of the Diversity of Cultural Expressions, UNESCO, adopted 20 October 2005. 5 17 U.S.C. §102. 6 17 U.S.C. §201.


7 8 See Intellectual Property and Tradi-


Berne Convention for the Protection of Literary and Artistic Works, §15.4(a), Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986).


CONCLUSION In the United States, intellectual property laws combine to provide means to protect TCEs from unfair use and ensure compensation for their use. Ultimately, however, while the broader availability of divergent cultures’ TCEs may add to the coff ers of indigenous peoples and enrich the cultural diversity of the world at large, the widespread dissemina- tion of such TCEs comes at a cost. And, any meaningful assessment of the ability to establish and protect ownership of TCEs must take these costs into account. D&B


Adrienne E. Dominguez is a partner in the Dallas offi ce of T ompson & Knight LLP. She focuses her practice on matters involving intellectual property litigation and complex com- mercial litigation representing national clients in numerous com- mercial matters, including patent and copyright infringement, antitrust, class actions, and breach of contract lawsuits.


tional Cultural Expressions/Folklore, Booklet No. 1, World Intellectual Property Organization, WIPO Publica- tion No. 913(E), at 17. 9 15 U.S.C. §1951, et seq.


10 11


Agreement on Trade-Related As- pects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organi- zation, Annex 1C, 1869 U.N.T.S. 299;


The Indian Arts and Crafts Act of 1990, Public Law 101-644.


33 I.L.M. 1197 (1994). 12 Id. at §3, art. 22.1.


13


Conflict and Complementarity in Trade, Cultural Diversity and Intellec- tual Property Rights, Tomer Broude, July 2007, at 14 (citations in original omitted).


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MARCH/APRIL 2014 DIVERSITY & THE BAR®


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