Traditional dresses are highly dignified among Ethiopians. It is very common to beautify traditional dresses with handwoven embroidery designs, locally referred to as Tibeb. Ethiopians wear traditional dresses decorated with handwoven Tibeb patterns also at important occasions such as religious ceremonies, wedding programs, funerals, public festivals and other cultural events.
The market for traditional dresses with Tibeb patterns is so competitive that weavers always need to create new and aesthetically pleasing designs. Although the basics are learned from ancestors, weaving Tibeb patterns requires special skill and the creative talent of the weavers.
Recently, exploitation of Ethiopian traditional dresses decorated with handwoven Tibeb patterns for commercial purposes by foreigners is being observed. On the other hand, both the Constitution of the Federal Democratic Republic of Ethiopia and other relevant programs and laws of the country recognize that the government should extend protection for the traditional cultures of Ethiopian communities in general and creative works of citizens in particular.
Hence, the article examines whether Tibeb patterns enjoy any legal protection under Ethiopian law. Since Tibeb patterns can be regarded as works of applied art, the article specifically looks into the country’s copyright regime to check if such regime can protect Tibeb patterns. The article contends that the existing copyright system cannot protect Tibeb patterns. At the same time, since Tibeb patterns are tangible form of traditional cultural expressions, the article also looks into the country’s laws to check if they are protected as such. Now again, the article contends that traditional cultural expressions are not protected, and the same is true with Tibeb patterns.
Then, the article concludes with a recommendation that Ethiopia needs to adopt a sui generis system to protect its traditional cultural expressions and accede to the African Swakopmund Protocol aimed at protecting traditional knowledge and expressions in the continent, thereby Tibeb patterns get protection.
Keywords: Tibeb Patterns, Works of Applied Art, Traditional Cultural Expressions, Copyright, Sui Generis
Nowadays, clothing has become more than necessity, and one’s clothing can be an expression of his identity. By the same token, Ethiopians can be identified with their traditional dresses. Traditional dresses have great meaning and are worn even during special occasions such as religious festivals, wedding ceremonies and funerals.
Ethiopian traditional dresses are usually handwoven and decorated with colorful embroidery designs, called Tibeb. Tibeb is a decorative pattern which is handwoven with supplementary weft into the middle or/and border of dresses. Tibeb patterns are woven in one or two colors, but sometimes many colors are used. In fact, the multicolored Tibeb patterns are a recent addition to an ancient way of dressing.
There are various Tibeb patterns of both traditional and modern designs. In Ethiopia, the market for traditional dresses with woven Tibeb provides consumers with an infinite choice of designs. And some common Tibeb patterns have respective names such as Broancha, Isom Dink, Saba, Dirib and Tind Dirib. Names of other Patterns include Meskel, Kokob, Asa, Ebab, Zenbaba, among others. However, there is no limit to the kinds of patterns that weavers can create.
In order for weavers to be competitive in business, they need to know as many patterns as possible. Hence, weavers are constantly expected to create new patterns and color combinations, which requires them to have special skill and creative talent. That is why weavers sometimes keep their creations hidden from their fellows.
Perhaps modern textile factories cannot replicate the intricate Tibeb patterns that result from the special skill and creative talent of weavers. To mention as an instance, Chinese enterprises tried to produce imitations of Tibeb patterns at an industrial scale and supply to the Ethiopian market at cheaper prices. However, their products could not compete with the handwoven domestic products, mainly due to the superior quality and unique feature of the weavers’ embroidery.
The foregoing discussion reveals two important points. The first is that the handwoven Tibeb patterns embroidered on Ethiopian traditional dresses can be considered as creative works of the weavers. The other is that the handwoven Tibeb patterns are being copied and misappropriated by foreigners for commercial purposes.
On the other hand, it is acknowledged that people ought to enjoy the fruits of their intelligence, effort and perseverance, and that governments have a responsibility to provide legal protection for the property interests of their people. In this regard, the Constitution of the Federal Democratic Republic of Ethiopia provides that the government has a duty to protect the fruits of citizens’ labor and creativity. Accordingly, the government issued various policies and programs which recognize the promotion of local creativity through intellectual property protection. This implies Ethiopian weavers also deserve intellectual property protection for their creative works of Tibeb patterns.
Now, therefore, it is important to examine whether Tibeb patterns are protected under the existing intellectual property framework or any other regime, if any, in Ethiopia.
The intellectual property framework in Ethiopia comprises of general and specific laws. The general laws can be the Civil, Commercial and Criminal Codes and others that concern civil and criminal remedies for infringements. Laws that are specifically destined for intellectual property include, among others, patent, copyright and trademark laws.
Since a work of applied art refers to the artistic work on objects of everyday use, Tibeb patterns can be considered as artistic works applied to traditional dresses that have functional purpose, i.e., Tibeb patterns themselves are works of applied art. Hence, examination of the protection for Tibeb patterns means examination of the protection accorded to works of applied art.
At first glance, copyright law seems to be the ideal method of protecting works of applied art. Because, copyright protection inherently extends to literary and artistic works, and works of applied art are treated as literary and artistic works.
The Copyright and Neighboring Rights Protection legislation is the first comprehensive law enacted to protect specifically literary and artistic works in Ethiopia. The legislation provides a list of works protected as literary and artistic productions under the country’s copyright system. But works of applied art are not included.
Although the list is only illustrative and works of applied art may be included therein, the legislation was amended and works of applied art have been added to the list.
Now, it seems like Tibeb patterns are protected as works of applied art under the Copyright and Neighboring Rights Protection Amendment legislation. However, the question of whether works of applied art in general and Tibeb patterns in particular satisfy the prerequisites for copyright protection is still at issue.
The relationship between copyright and works of applied art is not as easy as it looks. In other words, copyrightability of works of applied art is issuable. On the one hand, creative works with aesthetic features should be copyrighted in order to inspire creations. On the other hand, works of applied art are mass-produced for the public’s normal use in everyday life, and precluding any imitation of the functional aspect of the works will hinder competition. This discloses that copyrightability of works of applied art needs to be examined meticulously.
Coming to Tibeb patterns, it has already been indicated under the preceding section that they are creative handwoven designs embroidered on traditional dresses. In Ethiopia, weaving is among the many unique and dynamic visual traditions which together make the country a land of cultural diversity. Weaving tradition is one that has passed down from generation to generation as living and evolving culture of the communities in the country. Even the main technical features of the weaving equipment or handloom have remained unchanged for generations. Note that it is this traditional weaving culture and knowledge that produces Tibeb patterns. In other words, Tibeb patterns are traditional cultural expressions of Ethiopian communities.
This reveals the issue of whether Tibeb patterns satisfy the prerequisites for copyright protection can be examined also from the view point of traditional cultural expressions.
Unfortunately, it is widely recognized that traditional cultural expressions cannot be effectively and expediently protected by copyright, and copyright law is not the right kind of law. A number of reasons are forwarded, but the following are common.
Generally, copyright system insists that a work be original in order to qualify for copyright protection. Even though different questions may arise on the meaning of originality, an original work is one which is independently created (neither already in the public domain nor copied from another) and whose intellectual creation is not trivial.
While copyright requires a decisive mark of individual originality, traditional cultural expression is the result of an impersonal and continuous process of creative activity in a community by consecutive imitations that have been handed down from one generation to another.
The same is true for Tibeb patterns. Tibeb patterns are traditionally woven on the basis of imitation of designs that have consecutively been evolved through generations. This implies individual weavers may not be said to be original creators of Tibeb patterns.
The copyright law in Ethiopia, however, requires works to be original creations of their authors in order to enjoy copyright protection.
Ownership of copyright resides in the author who creates the work. Copyright recognizes the ownership of individual authors in their individual work, and traditional cultural expressions cannot be attributed to an individual author. Because traditional cultural expressions are based on a communal notion that a community owns them as having inherited from its ancestors. In fact, communities perceive traditional cultural expressions as communally owned cultural properties, which are not known in the realm of copyright.
The copyright law in Ethiopia tells that the author who intellectually creates the work is the owner of copyright. Since individual weavers of Tibeb patterns are not original creators, as just discussed, they cannot be owners of copyright. Besides, it is possible to say that communities in the country consider Tibeb patterns as collectively owned cultural properties. Hence, the ownership rules in the country’s copyright system do not apply to Tibeb patterns.
2.3. Duration of Protection
Copyright system generally grants protection for a definite period of time, usually limited to the life of the author and a fixed period after his/her death. The copyright law in Ethiopia also protects authors for a period limited to their life and fifty years thereafter.
On the other side of the spectrum, traditional cultural expressions have existed for an undetermined period of time, during which they have been further developed while being transferred from one generation to another. They are much older than the existence of copyright system itself. Therefore, a copyright-type protection does not provide traditional cultural expressions with a long enough protection.
When it comes to Tibeb patterns, the fact that they have been and will continue to be in existence for indefinite period of time like any other traditional cultural expression makes them unfavorable for copyright protection.
In summary, since they show off typical features of traditional cultural expressions, Tibeb patterns cannot be properly protected under the existing copyright system in Ethiopia.
3.1. The Notion and Forms of Traditional Cultural Expressions
Although a widely accepted definition of the term traditional cultural expressions, also referred to as expressions of folklore, does not exist, existing definitions have some commonalities which enable to conceive traditional cultural expressions as referring to both the tangible and intangible forms of the living and evolving cultural creations of a community. Simply put, they are modes which are passed down from generation to generation, and in which communities express their traditional cultures and knowledge.
The forms in which traditional culture and knowledge are manifested can be grouped into four:
As they display and also are the living and evolving creations of weaving applied to traditional dresses, as repeatedly said, Tibeb patterns can be regarded as tangible form of traditional cultural expression of Ethiopian communities.
3.2. Rationalizing a Sui Generis Protection for Tibeb Patterns
Currently, markets are highly competitive and also connected across-the-board, and there is always a demand for new products. In order to offer new products to customers, modern markets badly want new inputs such as designs, melodies, rhythms and even genetic materials and medical solutions. Here, traditional knowledge and expressions become indispensable source of such inputs.
Westerners, for instance, have long had recourse to cultural expressions of traditional communities as a basis for new creations and products. This exploitation constantly takes place without the knowledge and consent of the concerned communities who do not even share any benefit. Traditional cultural expressions are being commercialized on a global scale without due respect for the cultural and economic interests of the communities in which they originate. The situation is further exacerbated by technological advancements, particularly in the fields of audiovisual recording, broadcasting and cinematography.
The fact that there are many instances evidencing exploitation of traditional cultural expressions at the international level gives credence to the importance of legal protection for traditional communities. In this respect, a legal protection that only recognizes the rights of traditional communities may not suffice. Since they constitute manifestations of intellectual creativity, traditional cultural expressions deserve to be protected rather by a kind of law inspired by the protection of intellectual productions.
Since they constitute intellectual productions, traditional cultural expressions might seem to be protected under intellectual property regime. However, it is not easy to establish that they are protected under such regime.
Traditional cultural expressions pose particular policy and legal issues in intellectual property regime. Thus, they receive a special focus in national and regional intellectual property laws as well as institutions. In any case, intellectual property regime falls short of protecting traditional cultural expressions, mainly owing to its multiple requirements and misaligned foundations relative to traditional cultural expressions. Accordingly, a sui generis type of law which regards the intellectual property aspects of traditional cultural expressions is necessary for an adequate protection against exploitation.
Globally, there have been efforts to develop a sui generis system for the protection of traditional cultural expressions and knowledge. The United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO) prepared Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions in 1985.
The Secretariat of the Pacific Community developed the Pacific Regional Framework or Model Law for the Protection of Traditional Knowledge and Expressions of Culture in 2002. The Secretariat further prepared Guidelines, based on the Pacific Model Law 2002, for developing national legislation for the protection of traditional knowledge and expressions of culture in 2006.
The African Regional Intellectual Property Organization (ARIPO) adopted the Regional Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore in 2010.
In Ethiopia, a sui generis system is not something novel. The typical prototype is the legislation for the protection of traditional knowledge and genetic resources. The legislation recognizes that the traditional knowledge in relation to genetic resources deserves a special protection with the objective of benefiting Ethiopian communities.
Despite the presence of misappropriation by foreign enterprises such as the Chinese ones, as already indicated, Ethiopia lacks a special legal instrument to protect the intellectual property aspects of its traditional cultural expressions. Neither is Ethiopia a member of the regional Swakopmund Protocol. This leaves Tibeb patterns without protection. On the contrary, the copyrightability of individual works based on or inspired by Tibeb patterns would be determined on a case-by-case basis.
Basically, Tibeb patterns embroidered on Ethiopian traditional dresses have two kinds of characteristics. They can be regarded as both works of applied art and traditional cultural expressions. Thus, the exploration of their legal protection can be made from these two perspectives.
Works of applied art are protected as literary and artistic works under the copyright regime. Though Tibeb patterns are works of applied art, they do not fulfill the requirements for copyrightability and align with its foundations. Neither are Tibeb patterns protected under any law as traditional cultural expressions.
Therefore, a sui generis system is required if Ethiopia needs to protect its traditional cultural expressions including Tibeb patterns.
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