From biopiracy allegations to cultural misappropriation, indigenous groups and local communities are now ready to claim and defend their rights over what they view as part of their traditional knowledge (TK) and traditional cultural expressions (TCEs). This movement has influenced activists, academics, and legislators to propose concrete solutions for the preservation and advancement of traditional materials for the benefit of these communities. Among the different approaches, UNESCO, for example, looks to safeguard what they define as ‘intangible cultural heritage.’ Meanwhile, the World Intellectual Property Organization (WIPO) follows an intellectual property (IP) approach. While the international community still discusses the exact implications of the use of concepts like ‘heritage,’ ‘folklore,’ or ‘traditional knowledge and expressions,’ at WIPO, TK is related to technical learnings, and TCEs are linked to creative expressions that characterize the cultural identity and heritage of a distinct community. In the absence of international consensus on this topic, most of these claims have been handled either within the national jurisdictions or through bilateral or regional agreements. Whereas some jurisdictions have opted to grant protection under the already existing forms of IP such as copyright, trademarks, and patents, others have chosen to create a sui generis form of protection.
Colonization, trade, and immigration have created a melting pot of cultures from district indigenous and immigrant groups in Panama. Here, legislators have designed a more complex scheme to handle the status of traditional expressions. First, this jurisdiction recognizes sui generis collective rights to indigenous groups over registered expressions, a grant that at first sight seems to trump any individual third-party right. As a second form of protection, copyrights cover individual rights but only non-indigenous tradition-based works that satisfy the general requirement of copyright protection. Lastly, any other traditional material, commonly called ‘folklore,’ is classified as part of the public domain. In this third category, we find any form of artistic work or technical teaching that fails to fulfill the threshold of the two first, therefore remaining free to the public.
Some commentators have questioned the sui generis laws, as these rights might overlook third parties’ needs and support a more holistic view. Considering that the different levels of protection might interact with each other in different ways and that laws don’t operate in a vacuum, it is appropriate to analyze a piece of legislation by considering the social, economic, and cultural context. Nevertheless, most of the time, the question concerning TCEs is far from whether they should be acknowledged and protected beyond the original community. Instead, the discussion has been directed straight to the methods for its protection. However, it is essential to examine the impact that the legal protection of TCEs has on creativity and innovation, not to discourage conservation but to encourage the evolution of the law.
Since TCEs cover a broad spectrum of expressions, ranging from music, dances, etc., to traditional rituals and technical learning, this study will focus instead on traditional handicrafts. The primary example used throughout this paper is the Kuna’s (also known as Guna people) ‘Mola’ since this is the unquestionable flagship TCE of the country. Likewise, the Kuna people have been the leading proponents of the country’s sui generis legislation and spokesmen for indigenous’ traditional expressions. The Mola is a handmade multi-layered cloth patchwork incorporated into the Kuna women's traditional costume, thereby a distinguishing feature of the Kuna’s culture (See Annex ‘The Kuna Mola’). Nevertheless, it has been threatened by third parties’ ‘falsifications’ or ‘counterfeits’ for its use in clothing and apparel. This represents an interesting case for traditional handicrafts since the fashion industry is usually very open and flexible to copying since it is considered necessary and instrumental for success. With this background, the following study will review how much the different levels of protection on TCEs could affect creativity and innovation in the fashion industry.
Available at SSRN