The use of intellectual Property in the protection of Arts and Crafts in Zimbabwe

A great deal of skill, creativity and ingenuity is involved in the production of arts and crafts. Crafts are goods or products made of diverse materials. In visual arts, the artist uses various elements, form or material to express ones’ feelings and emotions as well as own perception of the environment around him or her. These creators of works indeed must benefit economically from their works. It is the focus of this article to try and bring the issue of protection to both the artists and the relevant stakeholders. In other words, to come up with a properly crafted system of ensuring that the works are protected in a manner that will benefit both the artists in particular and the country in general. Such products resulting from the creations by craftsman and artists deserve protection.

Zimbabwe is one of the African countries that is very rich in terms of cultural heritage as evidence by the presence of Arts and Crafts across the country, from border to border. These creations, however, to a greater extend, benefit individuals and the communities economically.

For starters, let us define the following terms.

a) Intellectual Property Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works.

b) Copyright Is a set of exclusive rights regulating the use of a particular expression of an idea or information and these rights are of limited duration. Copyright literally means theright to copy. Copyright is an internationally accepted form of intellectual property law.

c) Art Art is a diverse range of human activities and the products of those activities; thisresearch shall focus primarily on the visual and performing arts

d) Craft A craft is a pastime or a profession that requires some particular kind of skilled work

e) Handicraft Handicraft is the traditional main sector of the crafts; it is a type of work where useful and decorative devices are made completely by hand or by using only simple tools.

f) Artistic Works Artistic works generally include paintings, drawings, sculpture, and works of Artistic craftsmanship, performances, architectural works of art, engravings and photographs.

This ariticle focuses on copyright protection of the arts and crafts works. As postulated by Kroeck, (2012), a work is automatically protected by copyright when it is created, that is, “fixed” in a copy or phonorecord for the first time, nor publication is required for copyright protection. Chron, (2011) asserts that Copyright law protects any work of original expression as soon as that work is fixed in a physical medium. This means that as soon as you create a craft it is technically protected by copyright law. The protection, promotion and development of the Arts and Cultural Industries can only enhance the capacity to create new jobs, generate income and increased inflows of foreign currency if it is based on a clear policy. Maonera (2007) asserts that Zimbabwean intellectual property-related legislation is also relevant to the protection of cultural products that have value as intellectual property. The Copyright Act provides copyright protection for literary and artistic works that include paintings, sculptures, drawings, engravings and photographs; works of architecture, being either buildings or models of buildings, or works of craftsmanship.

In their study, Mandewo and Khalfan, (2010) assert that although it is apparent that Arts and Crafts are protected by laws, the creators of such works are not aware of that legal possibility. They propound that from the lessons learnt in Zimbabwe, Tanzania and Egypt, the prevalence of ignorance among the creators of such works and the protection of Arts and Crafts is simply a matter of blueprint phenomenon which in reality nothing has since materialized.

In relation to this article, Mandewo and Khalfan (2010) were however quick to adopt the dimension of protection from the angle of using Zimbabwe’s Industrial Designs Act 26.2 of 1996. This avenue, as can be observed, will actually create a gap for the protection of other such forms of works, like the performing arts, which does not necessarily require protection under the Industrial Design Act. In other words, Industrial Design is not just but enough to offer protection for Arts and Crafts. Therefore this study would like to explore further from this angle in order to offer a more comprehensive kind of protection for the Arts and Crafts.

One of the most significant studies as far as misappropriation and exploitation of indigenous people’ is that of the Aboriginals’ indigenous artistic works. For a long time now, there have been a lot of cases involving third parties exploiting indigenous peoples’ designs without authority, acknowledgement or even benefit-sharing. The case in Australia, Milpurrurru v Indofurn Pty Ltd (1995), known as the ‘Aboriginal carpets case’ can be considered as one of the cases that heralds positive protection from misappropriation. (Wiseman, 2010)

International Instruments

Artistic works are protectable subject matter through Intellectual property regimes. The legal framework of intellectual property is covered by various international instruments. The Berne Convention for the Protection of Literary and Artistic Works was formulated in 1886, and has been subject to several revisions. The scope of subject matter under this Convention is literary and artistic works, which is interpreted broadly to embrace any production in the literary, scientific or artistic domain. There is also the Paris Convention (1883) and the TRIPS Agreement (1994) The WIPO Performances and Phonograms Treaty (the WPPT) protects performances of literary and artistic works or expressions of folklore.

WIPO Copyright Treaty (the WCT, 1996) This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, as regards Contracting Parties that are countries of the Union established by that Convention.It is interesting to note that Zimbabwe is a signatory to all the above treaties and conventions.

Zimbabwe Copyright and Neighboring Rights Act (2004) Initially, it was Copyright Act (Chapter 26:1) which came into force on January 1, 1981. The law’s subject matter was particularly focusing on Copyright and Related Rights (Neighboring Rights), Enforcement of IP and Related Laws, IP Regulatory Body, Traditional Cultural Expressions, Traditional Knowledge (TK). In 2004, the law was amended and was later called Copyright and Neighboring Rights Act (2004). Part II Sec 9 (2) reads; Copyright subsists in a work if it is eligible for copyright in terms of Sec. 10…Sec. 10 literary works and… (c) artistic works.

Ownership of copyright

On ownership of Copyright, Sec 14 (6) states that ownership of any copyright conferred by Sec. 13 shall initially vest in the State or the International organization concerned, not in the author. Then Section 18 (a) states acts restricted by copyright in artistic works. It spells out that subject to the Act, copyright in an artistic work shall vest in the owner the exclusive right to do or to authorize the doing of reproducing the work, importing the work in Zimbabwe or exporting it from Zimbabwe, other than for the personal and private use of the person importing or exporting it.

In spite of the provisions of the Act, there still exist complaints from some communities that their cultural expressions and representations are being used without artists’s authority. To make matters worse, their works are used in disrespectful and inappropriate ways, causing cultural offence and harm. We hear other artists complaining that third parties exploit their designs without their authority or mutual agreement or even benefit-sharing.

Sec. 15 (f) states that any literary, musical or artistic work, the life of the author and fifty years from the end of the year in which the author dies. Legal rights based on the copyright system empower copyright owners and their heirs in title to benefit financially for a long but fixed period of time This then poses some challenges when it comes to crafts made communally, for example the Tonga basketry in Matabeleland North province of Zimbabwe.

To protect the cultural works under the Industrial Design Act may pose a lot of challenges.As provided in Part III 6 (2) and (3) these cultural products may not generally pass the aspect of new or cultural. Only a sigh of relief can be brought about under section 12 (2) where it says; Where copyright subsists in an artistic work and an application is made by, or with the consent of, the owner of that copyright for the registration of a corresponding design, that design shall not be treated for the purpose of this Act as being other than new or original by reason of any use previously made of the artistic work… The sui generis protection Having realized that the existing protection regimes do not fully embrace and take on board adequate protection of cultural products, the researcher suggested that what appears most appropriate is a sui generis system of protection that takes into account cultural products’ economic importance, against the background of concerns raised by the majority of the participants in this study.

Sui generis is a Latin phrase meaning “of its own kind”. A sui generis system, for example, is a system specifically designed to address the needs and concerns of a particular issue. This simply means a system entirely separate from and different from the current IP system can be used to protect the cultural products. Any sui generis regime should define the nature of the rights conferred.

Another very important observation by Asein (2009) is that there is need for a comprehensive national strategy within the framework of cultural and economic development. Thus, under this system, Zimbabwe should enact regulations whose aim is to prevent the sale, importation, exportation, reproduction and adaptation of the cultural products. Therefore to come up with a system of its kind, a model can help to institute such a dimension.

The COINDTRAM Model

I would like to suggest a kind of a model that can be used to protect cultural products in Zimbabwe. COINDTRAM is actually an acronym which stands for Copyright- Industrial Design – Trademark protection model. Mixing and blending relevant provisions under each regime will help to come up with a unique protection model of its kind.

Till next time!

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