TRADITIONAL HANDICRAFTS AND THE INTELLECTUAL PROPERTY
Actualizado: 17 de sep de 2019
Handicrafts can be traditional cultural expressions in their design, appearance and style, and can also embody traditional knowledge in the form of the skills and know-how used to produce them. These traditional techniques are vulnerable to imitation and misappropriation. All too often cheap imitations undermine sales of traditional handicrafts as well as the quality reputation of the genuine product.
There is not universally agreed definition of handicrafts but they have the following characteristic:
- they are produced by artisans, completely by hand or with the help of hand-tools or even using
machinery, provided the artisan’s direct manual contribution remains the most substantial component of the finished product
- they are representations or expressions that are symbolic of the artisan’s culture
- they encompass a wide variety of goods made of raw materials
- they distinctive features can be utilitarian, aesthetic, artistic, creative, culturally attached, decorative,
functional, traditional, or religiously and socially symbolic and significant; there are no particular restrictions on production quantity, and no two pieces are exactly alike.
- they are transmitted from generation to generation.
- they are linked to an indigenous or local community.
From an IP perspective, handicrafts can have three distinct components:
Reputation: derived from their style, origin or quality
External appearance their shape and design;
the skills and knowledge used to create and make them.
Each component can potentially be protected by a distinct form of IP:
Protecting the reputation and distinctiveness of handicrafts
Trademarks: used to identify and distinguish the goods or services of a particular firm and to distinguish them from identical or similar products produced by competitors. Registering and using a trademark can increase consumer recognition of authentic handicrafts and add to their commercial value.
Collective marks and certification marks: can be used to inform the public of certain characteristics of the products or services marketed under such marks. A collective mark distinguishes the goods and services of members of an association, which is the owner of the mark, from those of other undertakings. There is no requirement for certification; any member of the association is entitled to use the mark.
Registering and using a collective or certification mark can help indigenous communities to distinguish their crafts from others, and promote them and the artists who made them nationally and internationally. It can help improve their economic position and ensure that they get fair and equitable returns.
Geographical indications: is a sign that can be used on goods with a specific geographical origin and possessing qualities, reputation or characteristics that are essentially attributable to that place of origin. These products are often the result of traditional processes and knowledge, carried forward by a community from generation to generation in a given region. Handicrafts made using natural resources, with qualities derived from their geographical origin. Geographical indications do not directly protect the actual knowledge or know-how associated with
Unfair competition: is used to restrain dishonest practices in the marketplace, and can be a useful means of combating false and misleading claims as to authenticity or origin .Protecting the external appearance of handicrafts
Copyright: protects the products of creativity. It provides copyright owners with exclusive rights that allow them to benefit financially for a long but fixed period of time(the life of the author plus 50 years). These rights, also called economic rights, protect copyright owners against unauthorized reproduction and adaptation. Handicrafts may be protected by copyright if they are original and possess artistic qualities. Ex: enamel works, jewelry, sculptures, ceramics, tapestries, woven goods and leather ornaments.
Designs: the aesthetic aspect or outward appearance of a product, such as its shape, patterns, lines or colors, and may be embodied in a wide range of handicraft products.
In most countries, a design must be registered in order to be protected. In addition, it must be new, original and have individual character. Protection lasts for a limited period, usually up to 25 years. Some countries exclude handicrafts from design protection, which only applies to products made by industrial means.3
Protecting the know-how associated with handicrafts
Patents: protect inventions that are new, involve an inventive step and are capable of industrial application. They allow the patent owner to prevent others from commercially using the invention for a fixed period of time (20 years). Patents can provide indirect protection to handicrafts by protecting the tools or the process used to make them, where an artisan has substantially improved an earlier process or invented a new one capable of industrial application.
Trade secrets: Any confidential information that provides artisans with a competitive edge may qualify as a trade secret. Trade secrets may relate to the composition or conception of a product, a method of manufacture or the know-how necessary to perform a particular operation. Artisans may hold information that they want to keep hidden from their competitors because of its commercial value and the likelihood that competitors would use it.
In order to qualify as a trade secret, the information must be confidential or secret, it must have commercial value because it is secret, and reasonable steps must have been taken to keep it confidential or secret. Unlike patents, which have to be applied for, trade secrets are automatically protected as long as the information is kept confidential. Artisans, who possess trade secrets can prevent others from improperly acquiring, disclosing or using them. For example, if a textile enterprise finds that an employee has revealed a secret weaving technique to a competitor, it may obtain a court order to prevent the competitor from using that technique. However, trade secrets law cannot stop people who acquire or use the information in a legitimate way.