WIPO NATIONAL SEMINAR ON OMANI TRADITIONAL VALUES IN A GLOBALIZED WORLD Muscat, February 13 and 14,...

WIPO NATIONAL SEMINAR ON OMANI TRADITIONAL VALUES IN A GLOBALIZED

WORLDMuscat, February 13 and 14, 2005

International Experiences in the Sui Generis Protection of

Handicrafts

WIPO Secretariat

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Sui Generis Protection of Handicrafts

1. Handicrafts as the expression of cultural identity of traditional communities

2. Protection of handicrafts under non-specialized IP statutes

3. Experiences in protecting handicrafts under specialized IP statutes

- Panama

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1. Handicrafts as the expression of cultural identity of traditional

communities

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Handicrafts constitute one category of TK: they are an intertwined, symbiotic combination of ideas and of expressions. They are are useful objects (at least, so were they originally) which conform to popular esthetic values.

Like the other elements of TK, they stem from traditions and express those same traditions: they are linked to a certain community and serve as an element of its identification.

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“Handicrafts do not seek to last millenia, nor are they possessed by the haste of dying soon. They go by with the days: they flow with us. They wear out slowly, they do not seek death, nor does them deny it: they accepts it. Handicrafts are the heartbeats of the human time.

They are useful objects and yet they are also beautiful; objects that last; and yet objects that also wear out and resignate to wear out; objects that are not unique as an artwork and which can be replaced by similar objects — but never identical. Handicrafts teach us how to die and thus they teach us how to live.”

(Octavio Paz, “Los Privilégios de la Vista”)

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2. Protection of handicrafts under non-specialized IP statutes

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trademark - Arte Seri (Mexico) (registered in 1994 and 1995 in five different classes, by the Cooperative Society “Artesanos Los Seris”; the Seri people is made up of a number of communities, organized as clans, in the Sonora desert; materials used are five local plants; culturally specific skills are applied)

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collective trademark - Arraiolos Carpets (Portugal) (the carpets of Arraiolos have been produced by local artisans since the 13th century; the industry was initiated by moors, North African people of Arab culture who dominated the South of Portugal between the 8th and the 14th centuries; the patterns have changed but the techniques and the materials used remain unchanged)

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collective trademark - handkerchiefs of the fiancées (broidery manufactured in a few villages in Minho, the most Northern Province of Portugal; its origines date back to the 17th century)

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geographical indications - Olinalá (Mexico) (handicrafts made by the Olinalá, an Indigenous tribe of the desert of Sonora in accordance with special techniques and skills; articles are made of wood from the Aloe tree, endemic to the region)

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geographical indications - Russian Federation - several applications for registration pending:

Gorodets painting

Filimonov clay toys

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patent - Gzehl (Russian Federation) (in the second half of the 14th century, in the district of Gzhel, south of Moscow, artisans initiated the manufacture of majolica; in the middle of the 17th century, it was industrialized by small factories; today the manufacture of enameled ceramics is

concentrated at the “Gzehl” factory)“Majolica paste” Patent No. 2153479;“Porcelain glaze” Patent No. 2148570

industrial designs (protected in the R.F by patent certificates)

such as Plate (Patent No. 48143),Kvasnisk (a container for kvass)(Patent No. 48142) and tea service (48144)

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The problems: - distinctive signs do not permit the craftspeople to prohit

others to manufacture the crafts; they only give the right to prevent others from using similar signs in the course of trade to designate similar or identical handicrafts; moreover, both marks and collective marks, if not registered in behalf of all accredited crafstpeople, permit the registered owners to exclude other local craftspeople from using the same signs (this argument was raised by Mexico in support of the use of geographical indications)

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The problems (cont.): - patents are granted only to new, inventive and useful

inventions; handicrafts have (per definition) utility and a few methods of their manufacture may be new and inventive; but the handicrafts as such are not patentable subject matter; the shape of the khanjar and the concept of the baskets woven of date tree leaves, for example, are not patentable

- designs are registrable when they are new or original; newly created handicrafts can be registered as designs, but the style, the materials, the techniques that serve as their source cannot

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3. Experiences in protecting handicrafts under specialized IP

statutes

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- Panama - The registration of “Molas” of the Kuna people

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a) 1984 - Panama prohibited the imports of “mola” fabrics, embroideries, and imitations

b) 2000 - Panama enacted Law No. 20, which established a regime of registration of collective rights of indigenous communities for the protection of their cultural identitites and traditional knowledge

“Article 5. The collective rights of the indigenous communities are recognized on their work instruments and traditional art, as well as the technique for making them, expressed in the national basic materials, through the elements of the nature, their method of process, elaboration, combination of natural dyes, such as the carved tagua (ivory plant) and wood (cocobolo and nazareno), traditional baskets, nuchus, chaquiras, chacaras and any other cultural expression of traditional aspects of these communities.”

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c) 2001 - Panama enacted Executive Decree No. 12, which regulated Law No. 20; Article 3 lists the subject matter of indigenous collective rights to be classified by DIGERPI (the IP office of Panama): 77 types of handicrafts and elements of TK.

“Article 3(14). Mola (Morra in Kuna); a women’s blouse; application of a small decorative piece to a larger piece of fabric with working on the back. A combination of fabrics of many different, striking colors. The technique used is derived from the craft of embroidery (or appliqué). These are hand-made by native Kuna women, and they consist of one or more layers of fabric cut and sewn together in such a way that the color of each of the lower layers shows through. The designs on a Mola are based on cosmovision, while others merely use a geometric shape.”

Application; Formal examination; Appeals; Registration. The registration gives the right to exclude others (…) as well as to license.

The application comprises: a) the identification of the indigenous peoples; b) the representative bodies; c) the request (in the native language and in Spanish); d) the description of the object (techniques, materials, patters, etc); e) the history (tradition); f) the communities and population benefited; g) a specimen of the object

The resulting rights shall not affect the traditional exchange of the object between indigenous peoples.

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d) 2002 - DIGERPI developed the forms and the regulation of use of “Mola Kuna Panama”; Mola Kuna Panama was registered

- the regulation of use recognizes the rights of Kunas in their molas as intellectual property;

- it establishes a collective mark and a certification mark (nominative and figurative)

- it acknowledges that the molas are in constant evolution- it defines the owners of the rights (the Kuna people) and

identifies their representative bodies- it defines the modalities of use of molas- it defines the rights: the right to exclude others from the use;

the right to license; but there is no right to assign; and the right to license is limited (it may not interrupt the traditional transmission of knowledge from one generation to the other)

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Page 1 of the application of the registration of Mola

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Certificate of registration no. 1 of collective ip rights

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And now, what?

Panama is promoting additional registrations of handicrafts.

Panama is working on a new, encompassing law, that protects all three categories of TK in a broad sense, not only of indigenous peoples but also of local communities.

Panama has still to negotiate the international recognition of its national regime, by means of bilateral negotiations (on a reciprocity basis, as permitted by Law No. 20)

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Thank you!

If you have any questions as regards this presentation, please do not hesitate to

contact

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WIPO NATIONAL SEMINAR ON OMANI TRADITIONAL VALUES IN A GLOBALIZED WORLD Muscat, February 13 and 14,...

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