HISTORY OF TARTAN AND CULTURAL INFLUENCE

While tartan is now inexorably linked with Scotland, widespread early Celtic use dates back to around the sixth to eighth century.^{Footnote 10} Until the nineteenth century, none of the designs were heraldic, or associated with clans, and were associated only with regions throughout early Celtic migration. Color variances were due to the availability of dyes and personal preferences. The National Records of Scotland (“NRS”) holds the first known written mention of a Scottish Highland tartan. Dated from 1538, Exchequer records for King James V list checkered pattern tights as ‘Heland tartane.’^{Footnote 11} Records are sparse following this first mention until the 1700s, and the Dean Orphanage and Cauvin’s Trust of Edinburgh maintain one of the earliest tartan production and pattern records.^{Footnote 12} This spinning book holds records of wool spun and distributed by the Orphan Hospital Manufactory and Paul’s Work from 1734 to 1737.^{Footnote 13} The spinning book also contains a shorter record of tartans supplied from 1751 to 1752.^{Footnote 14}

The Dress Act of 1746 attempted to exert social control over Highland clans by banning tartan as well as Gaelic culture and language.^{Footnote 15} The Dress Act was repealed in 1786, and by that point, tartan had already become integrated into mainstream Scottish culture, including the Lowlands. For example, Edinburgh military uniforms displayed tartan patterns, and Bonnie Prince Charlie donned tartan in 1746.^{Footnote 16} The tradition of royalty and tartan continued, and King George V also wore tartan on a Scottish excursion in 1822.^{Footnote 17}

Despite a historically verified royal and public use, Highland tartan was associated with crime or poverty for centuries.^{Footnote 18} For instance, the NRS holds a letter from a Scottish jailer, Hugh Forbes, stating his prisoners have committed only the crimes of poverty and tartan.^{Footnote 19} Around the turn of the century, the image and association of tartan deliberately shifted through royal and Lowland use as well as the Victorian-era romanticization of the Highlands and invention of clan association.

As tartan became fashionable and a national symbol of Scotland, national branding, marketing, and clan identifications normalized. The first registry to request clan associations was the Highland Society of London in 1778, which sent requests to clan leaders to “be respectfully solicited to furnish the Society with as Much of the Tartan of his Lordship’s Clan as will serve to Show the Pattern and to Authenticate the Same by Attaching Thereunto a Card bearing the Impression of his Lordship’s Arms.”^{Footnote 20} However, many of the clan leaders were unaware of what their official tartan might be but were pleased with the official recognition. For instance, Baron MacDonald responded thusly: “Being really ignorant of what is exactly The Macdonald Tartan, I request you will have the goodness to exert every Means in your power to Obtain a perfectly genuine Pattern, Such as Will Warrant me in Authenticating it with my Arms.”^{Footnote 21} The tartan moved so far from its warring Highland clan and criminal associations that it was incorporated into advertising and tourism promotion in the nineteenth century, with animated traditional Highland dress even found on postcards as early as 1920.^{Footnote 22} Even the present day modern, ancient, and muted color configurations of official tartans are simply due to the intensity of the dyes available, with the older dyes offering a less intense palate due to transport over long distances and are meant to mimic naturally faded fabrics as chemical dyes were not available. There is no distinct clan identification difference between new and old; this is a clear example of branding and classification formed by modern registries.

Taking into account the ingrained historical and cultural influence of tartan, the Scottish Government considers it to be “one of Scotland’s most iconic and valuable assets.”^{Footnote 23} An analysis commissioned by the Scottish Parliament, executed by ECOTEC, concluded that “the tartan industry is a significant contributor to the overall Scottish economy; and larger in economic terms than suggested by previous industry estimates.”^{Footnote 24} Economic benefit is frequently used as a benchmark of cultural value, including when justifying cultural regulation, promotion, or protection; scholars or policymakers may calculate a numeric value through measurement of financial profitability, participant attendance, or production volume.^{Footnote 25}

While this economic measurement approach provides a tangible, concrete value, this approach poses a serious danger of oversimplifying the social impact of cultural value to the point of reductionism. This reductionist approach to assessing value of intangible cultural heritage may allow for more successful lobbying for preservation, but economic benefit does not encompass the true present cultural value of ICH. Basing cultural value on economic return skews value heavily towards Western structures of ICH regulation and production. Further, if policymakers and stewards of ICH too frequently lean on economic benefits of ICH, ICH with less apparent or indirect economic benefits may dwindle by means of recognition and preservation exclusion.

“Tartan’s importance to Scotland cannot be overestimated. It is deeply embedded in Scottish culture and is an internationally recognised symbol of Scotland.”^{Footnote 26} This symbol serves to maintain identity and local solidarity and also directs positive attention towards Scotland through heritage and genealogical tourism as well as private and public scholarship. This attention to maintaining and preserving Scottish tartans crosses over to preserving and practicing other Scottish ICH, such as Highland dance, song, attractions, and historical contributions. The tartan’s powerful Scottish identity reaches globally, serving as a symbol of Scottish pride and nationalism at festivals such as New York Tartan Week and an official Tartan Day in Arkansas.^{Footnote 27} In this way, using tartan to brand Scottish culture demonstrates a softer, less political national branding, still seeking to emphasize positive, shared features of the community through an intangible piece of property which can be displayed in a tangible fashion.

Despite all efforts, placing a calculable value on cultural diversity may not be possible through traditional means, and scholars have explored cultural diversity and value through the lens of biodiversity and value.^{Footnote 28} UNESCO has further extended the connections between the development of cultural diversity and biodiversity in ecosystem development and sustainability.^{Footnote 29} These connections demonstrate a precedent for protection even in the absence of calculable value. For instance, biodiversity preservation is based on the “precautionary principle,” a theory that mandates protection in the event of suspected harm to the environment or public good, even in the absence of scientific consensus of such harm.^{Footnote 30} Scientists still make discoveries about intricate interdependencies and new uses and functions for animals and plants previously thought “useless” or “unimportant.” These unforeseen or clandestine functions of existing and evolving diversity should provide sufficient rationale for biodiversity protection as well as ICH preservation whether the true value of the ICH is known, is yet unknown, or cannot be calculated at all. Under these theories, a lack of precise value should not hinder or diminish protection of cultural diversity, especially considering the soft or indirect impacts of preserving ICH.

COMMUNITY REGULATION

Until recent years, tartan producers and community-led organizations governed tartan documentation and regulation to the exclusion of any government intervention.^{Footnote 31} The Scottish Tartans World Register (“STWR”) catalogued tartans centrally in a registry that contained nearly 3,000 designs. The STWR would make note of a design for free and charge £50 to officially register a design.^{Footnote 32} While a fairly comprehensive registry, the STWR did not hold a monopoly on records and registration. The Scottish Tartans Society (“STS”) operated as another independent registry for tartan design.^{Footnote 33} Although now defunct as a registry, the STS remains as a web resource.^{Footnote 34} In addition to documenting tartans and other Scottish history, the STS also opened a tartan museum in the United States in order to bridge international interest. The museum still stands in the state of North Carolina, which holds a large population of Scottish descendants.^{Footnote 35} Thus the activities of community-led registries extended beyond design documentation and registration to acting as cultural liaisons and networking hubs.

In 2008, Scottish lawmakers moved to create an official government register of tartans, modeled largely after the existing community-based registers, with aims to promote the Scottish tie to international tartans and fuel the domestic economy.^{Footnote 36} During legislative debate, representatives presented arguments which supported official register with legal authority. In addition to improving tartan image and giving confidence to users, lawmakers cited benefits to tourism and related activities, such as genealogical tourism.^{Footnote 37} Further, government registration tends to offer commercial neutrality with no exposure to private commercial risk.^{Footnote 38} However, much of the basis for co-opting this organizational system can be attributed to a cultural branding which would create indirect benefits for Scotland through assuring continued association with the tartan.

Strong arguments against establishing a government-run tartan register were also put forth, many of which pointed to the lack of a measurable, significant benefit to establishing a state-run register. The most direct query asks: “Is there any damage being done to the Scottish economy by ‘unregulated tartans’? If the answer is ‘No,’ then Parliament has no business debating this at public expense.”^{Footnote 39} Of particular relevance to the intellectual property system is the critique that the tartan register is “a toothless tiger,” conveying no additional legal rights and “reinvents the wheel,” as community registers were widely accepted and respected as effective and reliable.^{Footnote 40} The government register further depends on existing register cooperation (which did occur) but nonetheless can create confusion among the existing registers. On the side of public administration, this type of redundant register may open floodgates for similarly burdensome administrative public bodies, stressing financial and manpower resources.^{Footnote 41} Finally, a government-run register might make registered tartans more available to the public but does not guarantee consistency or reliability, as such initiatives are subject to administrative changes and budget constraints.^{Footnote 42}

On 9 October 2008, the Scottish Register of Tartans Act 2008 (“the Tartans Act”) was passed, receiving royal assent on 8 November 2008.^{Footnote 43} The Tartans Act took effect and launched on 5 February 2009. The new government-run registry received official support from community-run registries, and incorporated their existing databases into the NRS registry.^{Footnote 44} Further, many of the structural and procedural elements of tartan registration were adopted from the existing community regulators.

While the Tartans Bill stated its purpose as promoting and preserving cultural heritage, the cost to register is £20 higher than the STA registration, at £70. “Total costs could reach £75,000 a year for the project, which MSPs were told could run at a loss.”^{Footnote 45} Further, an independent briefing concluded that a “full recovery of costs is not possible.”^{Footnote 46}

Enterprise Minister Jim Mather released the following statement on the Tartans Act: “I hope the work on a register will continue to be backed by industry and political consensus. And I hope the register will become a focus for authenticating all the superb varieties of tartan we design and produce” [emphasis added].^{Footnote 47} While Mather stated that part of the goal of passing tartan legislation includes authentication of tartan designed and produced in Scotland, the Tartans Act contains no requirement for association in any way with Scotland. As domestic legislature has limited international powers to restrict international design and production of intellectual property, accomplishing the benefit of Scotland-centered design and production of tartan without creating an internationally recognized right, such as a certification mark or protected designation of origin.^{Footnote 48} Further, many tartans may be registered with no Scottish company holding a license to sell or produce a copyrighted tartan held by a commercial entity which is actively economically exploiting the tartan. Notably, lawmakers did bring into legislation debate that the official association with Scotland will maintain the link and provide indirect benefits.^{Footnote 49}

To more fully compare the motivation and aims of the Tartans Act with the stated aims, an examination of the text of the Act indicates the breadth of influence and reveals the indirect benefits to be primary and the direct purported benefits correlational, not causal, only—if occurring at all. Only the following criteria must be met to officially register a tartan with the NRS:

The Keeper of the Scottish Register of Tartans has discretion to refuse any application which does not meet the criteria.^{Footnote 51} In addition to thread count and color information, registrees must provide “a description of the tartan including your reasons for designing it and explaining your choice of colours; the name of the tartan and evidence of your association with that name.”^{Footnote 52} If the tartan includes a proper name, the registree must include disclaimer that anyone sharing the proper name may wear the tartan design. However, the registration affects no intellectual property rights and offers no enforcement mechanism other than removal from the registry.^{Footnote 53} So while a disclaimer must be made, a registree could not utilize the Tartans Act to exclude others from wearing a tartan with a proper name identifier.

The primary criteria for acceptance onto the register centers around the design of the tartan and whether it is “sufficiently different” from designs currently on the register.

The Tartans Act additionally identifies qualities which will not be counted as sufficiently different. For instance, increasing or decreasing the size of the sett will not create sufficient difference nor will varying a shade of the colour; “Therefore, for example, light blue, navy blue and purple are all considered to be blue and changing the shade from light to dark blue will not change the basic pattern.”^{Footnote 55}

Certain tartan designs are eligible for protection already under international and domestic intellectual property law, and equally important to establishing what the Tartans Act does do is establishing what it does not. The Tartans Act does not affect any other intellectual property rights available to a rightsholder or preclude others from using or producing a design independently of other intellectual property rights. The majority of countries around the globe are governed under the Berne Convention for the Protection of Literary and Artistic Rights (“the Berne Convention”), an international treaty setting minimum regulatory standards and national treatment provisions related to copyright.^{Footnote 56} The Berne Convention mandates the protection of literary and artistic works, which may include patterned designs, like a tartan, subject to no formal registration, as long as the design meets the basic copyright requirements such as authorship and duration.^{Footnote 57} As the Berne Convention sets minimum standards, domestic lawmakers may set enhanced protections as well, so additional or longer protection may be offered for registrations. Under UK law, the Copyright, Designs & Patents Act (“the CDPA”), intellectual property rightsholders have the exclusive right to copy, make, sell, create derivatives, and pursue infringers for the protected time period, generally 70 years following the death of the author.^{Footnote 58} In the United Kingdom, tartans also might be protected as registered designs under the Registered Designs Act of 1949 for five years from the date of first registration, renewable up to 25 years.^{Footnote 59} Power to change UK intellectual property law is not devolved to the Scottish Parliament so the Tartans Act was unable to make provisions to introduce new intellectual property rights or change existing intellectual property law in the UK.^{Footnote 60}

However, most tartan will be ineligible for any type of conventional intellectual property protection unless it is newly created.^{Footnote 61} Likely due to this lack of eligibility for intellectual property protection, litigation surrounding use and misuse of tartan designs is sparse. Thus the intellectual property system as it stands provides little recourse for individuals or clans with cultural associations or ownership in a tartan design in the event of exploitation or commercialization. However, one recent case, Abraham Moon & Sons Ltd. v. Thornber & Others, found infringement of the copyright in a new tartan design and in the “ticket stamp,” the written instructions for expert weavers.^{Footnote 62} Despite defendants’ cites to numerous cases holding that instructions cannot be copyrighted, the judge was persuaded that the complexity and information held in a ticket stamp communicated a visual image to expert weavers and had “real visual significance”; thus it was a graphic work, protected by copyright.^{Footnote 63} There has yet to be any further case law on tartan, so it is uncertain whether this decision offers any certainty for new designers as previous case law has discounted similar constructs as uncopyrightable instructions.^{Footnote 64}

As existing IP protection seems insufficient to ubiquitously protect tartan, two alternatives might be well suited: geographical indications or a type of sui generis protection through legislation. Both types of protection are already used around the globe, to various extent, to protect regionally specific design and thereby the surrounding ICH. Interestingly, the UK protects another type of pattern and textile production, Harris Tweed, through special legislation and trademark. The Harris Tweed Act of 1993 created the Harris Tweed Authority for the following purpose: “To promote and maintain the authenticity, standard and reputation of Harris Tweed; for preventing the sale as Harris Tweed of material which does not fall within the definition…”^{Footnote 65} The legislation defines Harris Tweed as “a tweed which has been hand woven by the islanders at their homes in the Outer Hebrides, finished in the islands of Harris, Lewis, North Uist, Benbecula, South Uist and Barra and their several purtenances (The Outer Hebrides) and made from pure virgin wool dyed and spun in the Outer Hebrides.”^{Footnote 66} Passing sui generis style legislation in accompaniment to a trademark is a unique solution but is highly customized. Harris Tweed is essentially a localized commercial operation, with three mills and self-employed resident weavers, which lent very well to legislative protection. With such a high commercial demand for the tweed, trademarking the product and supporting the local industry with legislation secured the residents’ livelihoods, maintained the association with the geographical origin, and provided the economic means for islanders to continue the tradition.

Geographical indication (GI), or appellation of origin, is an IP protection which seems to fit nicely into the stated goals of the Tartan Act. GIs are indications of origin from a region or locality and also indicate a geographically attributable quality or characteristic, which may include the geographical name (as with Scotch whisky) or may simply have acquired a strong association with the designated regions (as with Basmati rice).^{Footnote 67} Many GIs might appear to overlap with trademark rights; however, they are distinguishable as “trademarks as a private monopoly right and geographical indications as a collective public right.”^{Footnote 68} This distinction would seem to indicate a GI rather than a trademark is more appropriate for ICH. However, the desirability of GI protection is lessened by a lack of international legal cohesion and tartan’s nonagricultural nature.

First, GI protection has been granted primarily to food and wine in the EU,^{Footnote 69} and certain countries may use different legal mechanisms, such as sui generis protection or trademark law, to protect origin designations.^{Footnote 70} From a practical perspective, pushing for expanding GI protection in a global forum at WIPO may not be a worthwhile path, politically or economically, despite the rising implementation of expansive GIs in the EU. Second, while the tartan register does delineate quality and originality standards for registration, it is unclear whether consumers would associate a higher quality tartan with Scottish production origin. Historical origin is distinct from production origin, and if the purpose of a GI is to ensure quality and prevent consumer deception as to origin, tartan may not garner such protection. Practically speaking, the manufacture, design, and distribution is already geographically widespread and attempts to reign in and claw back these elements to Scotland would likely prove futile. Third, based on the goals stated for passing legislation, maintaining global association between Scotland and tartan seems to be paramount. Foreign registrations are allowed and encouraged; the Tartan Act has no requirement for involving Scottish industry or even listing a Scottish connection in the description. A voluntary official register thus serves as a positive reinforcement measure rather than offering negative punitive consequences for not registering. By preserving this association, more indirect benefits through tourism and branding may occur rather than direct, local benefits through defending limited and highly monitored production, as with the Harris Tweed Act.

Despite the apparent suitability of GIs for protecting ICH in general, the system is not widely utilized across the globe. In 1958, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration came into effect but, to date, has secured only 27 total parties.^{Footnote 71} The possible expansion and international harmonization of GIs has been contested by some WIPO negotiation members, citing issues ranging from impact on innovation to global fair trade.^{Footnote 72} Nonetheless, developing countries with primarily agricultural or geographically dependent quality measures, e.g., Antigua coffee or Darjeeling tea, rely upon GIs for economic and associated traditional craftsmanship protection.^{Footnote 73} While GIs are often promoted as a “pro-development intellectual property right,”^{Footnote 74} trademarks and GIs are dangerous to use when protecting ICH and ICH-related goods as the protection is exposed to the risk of “genericide.”^{Footnote 75} Genericide occurs when the trademarked name becomes so widely associated with the good that there is no longer a consumer identification function, such as with aspirin or elevator.^{Footnote 76} These terms were previously brand names which became the overarching term for the product. Thus trademark may not be the best protection on its own if, within a given market, there is a high risk of genericide. This may already be the case with tartan; a consumer may not refer to a non-Scottish checked pattern as “plaid” and the Scottish counterpart as “tartan.” This makes trademark too thin a protection for important ICH and was a likely catalyst for the additional legislative protection for Harris Tweed.

One further issue surrounding a registration system is appointing a single individual or entity to hold registration title. In contrast to much intellectual property regulation, the Tartans Act does allow an applicant to register a tartan with an unknown designer. Given the age and unknown origin of many of these designs, this is a necessary allowance. However, in an intellectual property context, what rights are conferred to registrees who are not the original designer? As the register guidelines disclaim conferring any intellectual property rights,^{Footnote 77} much of the expectations and indirect rights associated with a tartan register are due to piggybacking on already effective, accepted community self-regulation. Further, if two individuals hold copyrights to tartans that are deemed too sufficiently similar for both to meet the register eligibility requirements, the register operates on a first to file basis. Most removal requests that are approved are related to a brand name trademark infringement.^{Footnote 78}

Obtaining clan approval to register a clan tartan is an interesting adaptation which appears to grant a form of community or collective right. While the right does not extend as far as an enforceable intellectual property collective copyright, the structure presents the ability to exercise a form of collective control over an official recognition to ICH.^{Footnote 79} While older tartans with an unknown designer will fall into the public domain, this official register is offering a form of ancillary intellectual property rights in practice, whether foreseen or not. Consumers, designers, and producers will recognize governmental authority, and the mere listing may deter use of a tartan that is truly in the public domain, especially as the register grants no intellectual property rights, potentially chilling creative contribution to the general public good.

ALTERNATIVE COURSES FOR CULTURAL PRESERVATION

If a government does choose to step in and intervene in community-regulated ICH, typically it will operate for cultural preservation only, i.e., not a fee charging registrar but in a museum-like function. Charging an official fee to register ICH without conveying additional rights appears to be an unusual governmental action, atypical of safeguarding movements that have primarily indirect social and economic benefits. For instance, in contrast to a fee-based Tartan Register, Scotland also has created a free listing register and online wiki for ICH free of charge and serving a similar function.^{Footnote 80}

At the time of writing, 158 countries have ratified the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (“the ICH Convention”).^{Footnote 81} In contrast to the World Heritage List, which focuses on tangible cultural locations,^{Footnote 82} the ICH Convention focuses on “Oral traditions and expressions, Performing arts, Knowledge and practices concerning nature and the universe, Social practises, rituals and festive events, Traditional craftsmanship.”^{Footnote 83} Notably absent from the signatories are the United States and the United Kingdom. While speculation regarding this absence may point to concerns about the integrity of domestic intellectual property systems and sovereignty, a UK representative simply stated that the United Kingdom had no intangible culture to protect.^{Footnote 84} This claim, while wholly erroneous, is not uncommon in certain developed countries and is one driver of the acceptability of commercialization of ICH, which may diminish its cultural value. At minimum, identification and recognition through joining this international treaty would help to protect the diverse ICH within the United Kingdom.

On the legislation-heavy side, separate law regarding protection of ICH might be implemented. However, this approach is often implemented with minority indigenous populations, who were previously and currently marginalized in representation.^{Footnote 85} While entire bodies of law meant to protect minority cultures may not be relevant or efficient for domestic ICH legislation, the argument that a majority population needs no legal protection for ICH falls short in the face of globalization and rampant commercialization. Thus some type of legal recognition of ICH and not only of intellectual property or of tangible cultural heritage is necessary.

Should ongoing legislative action to register tartans discontinue due to funding or administration change, a more informal partnership through the NRS could be formed to support UK community organizations and to ensure continuity as well as the nature of ICH without stifling the evolution of the ICH. For instance, Welsh community organizations continue to run the Eisteddfod Genedlaethol Cymru, a traditional festival celebrating Welsh language and traditional culture as well as contemporary manifestations, consistent with the spirit and community benefit that ICH offers.^{Footnote 86}

If the government register does continue, in order to fully accomplish the goals of the Tartan Act, specifically to fuel Scottish design and production, the Act could be altered to reflect the political rhetoric surrounding its passage.^{Footnote 87} Limiting production and licensing to Scottish businesses or mandating a certain amount of compulsory licensing to Scottish businesses could create more of the economic and social benefit sought by the Act. Alternatively, a direct tie to Scotland in the description and function may better meet the goals of the Act. The current climate of Scottish nationalism following the recent referendum may present an interesting context to discuss this further.

Lastly, the government might provide no registration function involvement at all and leave any incentive or identification to the intellectual property system. The 2003 Convention includes an article regarding the role of community participation in ICH management:

While recognizing the value of community management and input into ICH management, “widest possible participation” is vague in definition and application. Additionally, community participation itself is wrought with practical implementation difficulties, such as self-selecting representative community members, unequal bargaining power, and paternalistic impact on the ICH itself.^{Footnote 89}

The Scottish Government sought the cooperation and input of representatives from existing clan and community tartan registers, and no law prohibits alternative registers should the community find the government structure unsatisfying. However, the motivation and return for operating a duplicate register is greatly diminished in the face of officially sanctioned registration, and no further community participation is incorporated formally into the register operations. This practical discouragement of community organization may impact the external benefits which already arose from community regulation of ICH, such as festival sponsorship, web resources, and community-run museums, as well as unknown future events or organizations with social and economic benefits through collective action.^{Footnote 90}