On January 17, the decree was published in the Official Gazette of the Federation, through which the Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican People and Communities was enacted, which entered into force on January 18, 2022.
The aim of this law is to recognize and protect the collective right of ownership held by indigenous and Afro-Mexican people and communities over their cultural heritage, knowledge and traditional cultural expressions, as well as the manifestations associated with the same that, in a continuous or discontinuous manner, have been practiced and transmitted to them by members of their own community from previous generations, based on the following principles:
- Fair and equitable distribution of benefits
- Gender equality
- Equality of cultures and non-discrimination
- Self-determination and autonomy
- Free expression of ideas and manifestations of culture and identity
- Legal pluralism
- Pluriculturality and interculturality
- Regarding cultural diversity
This property right is recognized as: inalienable, imprescriptible, unwaivable, unseizable and collective.
Among the most relevant aspects of this law are the following:
- Agreements entered into by individual members of the community with third parties on the collective patrimony are considered null and void. However, on the other hand, the coexistence of a collective property between two or more communities over the same cultural heritage is admitted, as long as there is an agreement between the communities involved.
- Indigenous and Afro-Mexican people and communities are recognized as subjects of public law.
- Terms are established and defined with respect to the use, enjoyment and exploitation of cultural heritage and its use by third parties. The above, introducing the figure of an authorization agreement entered into between the co-owners of the collective property and authorized third parties.
- This temporary authorization, in favor of third parties, may be set for up to 5 years.
- Disputes arising in connection with issues regarding the framework of this law will be resolved by the National Copyright Institute through mediation or complaint procedure, at the choice of the community or people related to the concerned matter.
- It defines and regulates the misappropriation of these assets by means of conducts that imply their unauthorized use, or the performance of acts usurping the quality of owner. The right to claim the above will not be subject to any time period of limitations and may be exercised at any time through its authorities or representative institutions.
- This new regulation also includes a catalog of infractions and offenses related to the improper and unauthorized use of the elements of the collective patrimony.
- The acknowledgement or registration of any element of the cultural heritage may not be opposed in an exclusive capacity against other people and communities.
- The law emphasizes the protection of traditions, customs, spiritual ceremonies, sacred places, objects of worship and symbolic systems.
- Finally, it creates, respectively, the System for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican People and Communities, as a permanent mechanism of concurrence, collaboration, coordination and inter-institutional agreement of the federal government, with the participation of the people and communities; and the National Registry of the Cultural Heritage of Indigenous People and Communities as an instrument for identifying, cataloguing, registering and documenting the cultural manifestations of the people and communities. Due to the latter, registrations may be requested, even when there is a dispute with third parties, simply by making the corresponding annotation.
At Hogan Lovells, we are available and ready to assist you with consultations related to the regulation described above, as well as with any other legal matter.
Authored by Edgar Mata and Montserrat González.