Da (in)existência de direito dos povos e comunidades tradicionais brasileiros ao exercício de titularidade patrimonial sobre as expressões culturais tradicionais exploradas no mercado da moda

Abstract

Traditional peoples and communities (PCT), defined in Brazil by Decree No. 6,040/2007 as culturally differentiated groups, as they display peculiar characteristics in terms of the form of social organization, occupation of territory, production and transmission of knowledge, commonly have been victims of exploitation of their traditional cultural expressions (ECT) by the fashion market, configuring the practice called cultural appropriation that also implies the unauthorized exploitation of their intellectual assets. The lack of protection and censorship of these practices is still based on the difficulty of delimiting the legal nature of the rights that should support the ownership of PCTs over this intellectual and cultural heritage, since neither the typical regime of Intellectual Property or Intangible Cultural Heritage are shown to be adequate for the protection of this specific knowledge. Despite this, it is already possible to see, at an international and national level, norms and initiatives aimed at the protection of various rights in favor of the PCTs and that could make it possible for these collectivities to exercise ownership over their intellectual and cultural assets in the fashion market, by requiring them to economic counterparts. Thus, the objective of this study is to analyze whether the Brazilian legal system already has a normative structure capable of enabling the exercise of PCT patrimonial ownership over the ECT explored in the fashion market.