ABSTRACT I. INTRODUCTION A. Existing Intellectual Property Regimes B. What are Traditional Cultural Expressions? What is the link with the Fashion Industry? C. Protection of Traditional Cultural Expressions (TCE) II. INSPIRATION VERSUS EXPLOITATION A. Inspiration, Public Domain and Derivative Works B. Defining Appropriation- A New Legal Offence? III. CLEARANCE OF TRADITIONAL CULTURAL EXPRESSION RIGHTS FOR FASHION BUSINESSES A. Envisioned Clearance Practices. Examples of legal Provisions in Kenya and South Africa B. Business and Legal Implications for Small to Medium Enterprises and for Fashion Empires IV. CONCLUSION I. Introduction
Existing Intellectual Property Regimes
To contextualize the subject matter, it is important to briefly capture the basic background information about intellectual property. Intellectual Property (IP) refers to the intangible products of the mind which include inventions, literary and artistic works, designs, performances, names, symbols and signs as well as plant varieties. (5)
The established IP regimes are patents, copyright, industrial designs, trademarks and trade secret protection. One of the theories of IP (6) is based on the need to incentivize creators and inventors so that they invest more in innovations which in turn make life easier for humankind. Without incentives for inventors, there would be no innovative products as we know them today. These incentives include the opportunity for an inventor to recover their initial costs accrued to create or invent.
Copyright (7) is a protection granted to an author to control copies of his works for the author's lifetime plus fifty to seventy years depending on the jurisdiction. Some of the works protectable by copyright include songs books, paintings, photographs, sculptures and even choreography. This protection also extends to derivatives of such mentioned works. Copyright also grants the author paternity rights and right to integrity of the works which are jointly referred to as moral rights.
Industrial design (8) is protection granted to the artistic and design aspect of a product, which determines the product's appearance. In some laws, it is protection granted to the combination of colors, shapes and lines in a product. This protection extends to products, including but not limited to food, garments, household appliances, jewelry, toys among others.
A trademark (9) is an exclusive right to use a distinctive sign, symbol, name or a combination of any of these to an individual, company or group of people in regard to production of goods or services. For groups, people, or communities, such marks are referred to as collective marks and certification marks. Distinctiveness of a name, symbol or sign is important in relation to a good or service. Where such is descriptive of the good or service, an owner's claim to the trademark right is likely to fail.
Geographical indications (10) GIs) are protections granted to signs used on goods that have a specific geographical origin which possess qualities, reputation or characteristics that are attributable to the place of origin. GIs generally include the good's place of origin. Under GIs, there is also a special form of protection known as Appellations of Origin. They consist of a geographical name or a traditional designation used on products that have a specific quality or character due to a geographical environment, such as Elets lace from the Russian Federation and Gra?anicko Keranje lace and crocheted dolls from Gracanicko.
Patents (11) are the highest form of protection that grants an exclusive right to an invention which is a product or process that provides a new way of doing something or a new technical solution to a problem. For an invention to be patentable, it must be novel, have inventive step and industrial application. In other jurisdictions, it must be new, useful and non-obvious.
Trade secret (12) protection is granted to information or technological knowhow that provides a competitive edge to a business entity. Such information is basically kept secret or is unavailable to the public. Where a trade secret is violated, it results in an unfair competition claim. A trade secret ceases to be one, if it is protected by patent because a patent is granted in exchange for public disclosure.
These existing forms of intellectual property will help contextualize the question of protecting traditional cultural expressions and whether there is need for a sui generis (13) approach.
What are Traditional Cultural Expressions? What is the link with the Fashion Industry?
There is no precise definition of Traditional Cultural Expressions which previously was implied to be synonymous to Traditional Knowledge (TK). (14) Since then, there have been a few attempts to define Traditional Cultural Expressions (TCEs) by international instruments. On the national level, most countries have absconded from a definition. With little universal agreement on what these rights are, and how they can be enforced, ambiguity may be by design--so that these rights can evolve without unintended consequences. (15)
One of the earliest international instruments, the UNESCO-WIPO Model Rules, (16) uses the terms "traditional cultural expressions" and "folklore" in a synonymous context. In similar fashion to a majority of legal instruments, as opposed to defining the term, the Model Rules provides a list of traditional cultural expressions. In section two of these Model Rules, the drafters attempt to define folklore as "productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community." (17) This definition is quite solid compared to definitions attempted by later instruments, but at the same time, in this current context, it leaves one hankering for a further definition of the word "traditional" or "tradition."
The Cambridge Dictionary defines "traditional" as "following or belonging to the customs or ways of behaving that have continued in a group of people or society for a longtime without changing." (18) A further look into the noun "tradition" defines it as "following or belonging to the customs or ways of behaving that have continues in a group of people or society for a long time without changing." (19) This article will examine these definitions vis-a-vis the issue of globalization and the dynamic nature of culture, customs and tradition, whichever synonym preferred.
The World Intellectual Property Organization states "[t]raditional cultural expressions may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions." (20) The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions under article 4 (3) defines "cultural expressions" as "those expressions resulting] from the creativity of individuals, groups and societies and that have cultural content." (21)
Since ancient times, garment and jewelry makers have adorned their works with cultural expression. (22) Some, if not most, of these elements of traditional cultures were not so eminent in the way people dressed. For example, when one looks at the evolution of western fashion within the last fifty years, fashion has a "modern" approach, (23) which has been carried on and transferred to the various colonies acquired by western European countries.
With the imposition of Western culture on the colonies, for a period, anything "traditional" was viewed as "uncivilized." Fast forward to the twenty-first century, traditional cultural expressions are now in vogue--almost a token of virtue among the so-called "civilized." The colonized once mimicked the colonizers, and now, the former colonizers imitate, honor, or "dress up" as the colonized--depending upon the perspective. (24)
These traditional expressions have come to play an ornamental role and have become a marketing imperative for many fashion brands, whether locally in their respective countries or internationally. As such, we have seen flair from various indigenous and pre-industrial cultures making a comeback on the catwalk, in fashion magazines, and have trickled down to day-to-day apparel. (25)
With this growing recognition of the marketing power of traditional knowledge and a consciousness of traditional cultural expression being recognized as community rights, we must examine how to deal with the two together. Traditional Knowledge (TK) and genetic resources are the subject of much study. For example, the benefit sharing approach under the Convention on Biodiversity (26) requires that the consent of the owners of a genetic resource be sought and the associated TK be accessed and utilized to preserve the resources. (27) However, this could be considered a quasi-patent right in the TK realm. Additionally, attention should also be paid to the cultural natural resources held by traditional communities.
A recent case in the United States is probably the most reported and studied example of the enforcement of these types of rights. Navajo Nation v. Urban Outfitters Incorporated (18) shows the potential for protection when traditional knowledge and cultural expression rights are meshed with existing intellectual property regimes. In the United States, the Navajo nation is commonly called an "Indian reservation." However, the official status is that of a "Dependent Nation," (19) which enjoys a large degree of sovereignty, but remains dependent upon the United States. The Navajo Nation does not refer only to land, but to the Navajo people. The Navajo Nation case involved the use of the name "Navajo" in a derogatory manner "Navaho" and the use of the "Navajo Print Fabric Wrapped Flask" by the defendants. This was considered particularly insensitive because Navajo culture taboos the...