The Panamanian government has acted to protect a specific kind of indigenous craft: the mola (1). Moreover, the country's Cuna population, which crafts molas, is well structured and organized, and the Cuna themselves have taken concrete steps to protect their culture.
The growing interest on the part of industrialized countries in all kinds of indigenous art has contributed to the commercialization of molas. To respond to the demand and increase their earnings, many souvenir shops have begun to sell copied molas to tourists.
This counterfeiting has economic repercussions on the Cuna women who make the molas. "Pirates," as the counterfeiters are called in Spanish, take advantage of the women's creativity and sell many copies of their designs, whereas the original creator can only sell one.
2. Protection of the Mola
2.1 Intellectual Property Legislation
In 1994 the government of Panama completely revised its intellectual property legislation but did nothing with respect to the protection of indigenous art. In 1995, however, it passed Act 41, which incorporated into Panama's legislation various international agreements pertaining to intellectual property, including the 1983 Paris Convention for the Protection of Intellectual Property. The primary reasons for the government's change in attitude were the need to comply with new international obligations; the need to protect the production, marketing, and distribution of merchandise from countries that are signatories of those international agreements; and, above all, the desire to link Panama's economy more closely with international markets.
We will analyze the existing framework of intellectual property as it relates to the protection of indigenous art and, more specifically, of the mola. Intellectual property can be defined as those creations (ideas, inventions, designs, writings, films, etc.) that can be protected by copyrights, patents, trademarks, and registration of an industrial design. The term "property" is used because the result of a process of intellectual creation carried out in the mind of a person is considered to belong to that person.
Panama's framework of intellectual property is divided into two major areas of legislation: copyright and industrial property.
A. Copyright Legislation
Copyright means the right of a creator over his or her work. A work is defined as "an original intellectual creation that may be artistic, scientific, or literary and may be disseminated or reproduced in any way." (2) In other words, a work is the result or product generated by the mind, intelligence, and imagination of its creator. A work is understood to be any product resulting from the personal effort of one's intelligence, imagination, or art and originating in the mind of a person. (3) Examples of works include writings, songs, paintings, drawings, sculptures, and plays.
According to the definition provided in article 2 (1) of the Ley No. 15 del 8 de agosto de 1994 por la cual se aprueba la Ley sobre el Derecho de Autor y Derechos Conexos y se dictan otras disposiciones (Act No. 15, August 8, 1994, respecting copyrights and related rights and enacting other provisions), a creator is "a natural person who performs an act of intellectual creation." This means that the Cuna women who sew molas are creators.
Copyright law is intended to protect the rights of those who have created a work, but one may wonder what rights and kinds of protection the law covers as well as what conditions must be met before it can be enforced.
Copyright law protects the creator's exclusive right to carry out or authorize the following activities: to translate a work into another language; to reproduce the work by any means; to perform, recite, or exhibit a work in public; to broadcast it on radio or television; to tape a musical work; or to make use of a film. Creators also have the exclusive right to lend or sell their works.
Although copyright law guarantees certain rights of creators, the mola is not considered to be a protected work. Instead, molas and indigenous art in general are regarded as folklore, as defined in article 2 (11) of Panama's Copyright Act, which defines expressions of folklore as characteristic elements of traditional cultural heritage created in Panama by its ethnic communities and passed along from one generation to the next, reflecting the community's traditional artistic expectations. Moreover, article 9 of that Act clearly specifies that it does not cover expressions of folklore.
B. Industrial Property
Panama's Ley No. 35 del 10 de mayo de 1996 por la cual se dictan disposiciones sobre la propiedad industrial (Act No. 35, May 10, 1996, enacting provisions related to industrial property) "is intended to protect inventions ... industrial models and designs ... brand names of products and services, collective trademarks and certification trademarks ... and trade names." (6) Cuna women could therefore register patents for both the sewing techniques and the designs used on molas because these would be considered as two separate components.
It is not certain whether DIGERPI would grant the Cuna a patent on their sewing techniques because, by doing so, it would make the Cuna the only ones entitled to produce molas. Non-Cuna Panamanians have begun to sew molas, and many Cuna live in Colombia. Therefore, if a patent were issued to one group, another could be disadvantaged.
The Cuna, however, could obtain an industrial patent on their mola designs. A shape, motif, design, or decoration used on an industrially made product is considered to be an industrial model. For example, a mola design copied onto an industrially made tablecloth could be protected. The woman who produced that mola design would then own exclusive rights over the mola, and no one could use the design without her authorization.
This alternative is nevertheless problematic. Many mola designs already exist, and an infinite number can eventually be created. Registering a patent for each of them would be extremely complicated and expensive, given that the procedures and fees required to register an industrial model are similar to those related to an invention. Unfortunately, the current intellectual property system recognizes only individual rights and fails to acknowledge the collective rights of indigenous peoples. This means that the Cuna people, as a whole, cannot be legally considered the creators of mola designs, despite the obvious reality that their designs are in part the product of collective Cuna imagination.
A more feasible alternative would be a registered trademark to differentiate between Cuna creations and non-Cuna products that are similar or identical. Examples of existing registered trademarks, usually portrayed by a symbol, include Coca Cola and 7-Up. A trademark can promote sales because it authenticates the origin of a specific product. Furthermore, the registration procedure for a single trademark is not excessively expensive.
A trademark would enable consumers to ascertain that the molas they are about to purchase have actually been made by Panamanian Cuna and not imitated. A trademark could therefore make the general public aware that the imitation of indigenous art is a problem and would prompt people to buy genuine Indigenous creations. If a trademark is to be effective against imitations, however, its use must be supported by a public-awareness campaign.
To register a trademark, the Cuna would, of course, require the support of a representative body or organization such as the Congreso General Kuna or the Congreso de la Cultura. If several organizations were to register trademarks, consumers would not know which one was truly representative of the Cuna, and there would be competition for the same market among the different trademarks. We therefore believe that it would be in the best interest of the various Cuna organizations to come together and obtain a single trademark.
2.2 Constitutional Protection
Panama's Political Constitution (1972) contains provisions intended to protect indigenous art. For example, Chapter Four is devoted entirely to national culture. However, in our opinion, only article 86 offers a special kind of protection regarding indigenous art. This article asserts that the State recognizes and respects the ethnic identity of its indigenous communities. The Constitution also states that the government is responsible for conducting programs that develop material, social, and spiritual values. Another important point in the Constitution is that the State exempts artisans from paying taxes. Nonetheless, despite the advantages that it offers people who qualify for the status of artisans, the Constitution does not prohibit the production or sale of copies or imitations.
Chapter Four of the Constitution clearly states that molas are considered a national product of Panama. Of course, this means that they are the property of all Panamanians, not solely of the Cuna. As a result, all Panamanian citizens may produce molas. Some Cuna professionals believe that one way to limit the number of copies and provide better protection would be to recognize molas as part of the Cuna nation's heritage. We believe that this strategy should be supported by Cuna women.
2.3 Legislation Related to National Crafts
Given that the government considers them to be a form of national craft, molas are protected by some pieces of legislation. Article 1 of Ley No. 27 del 24 de julio de 1997 por la cual se establecen la protección, el fomento y el desarrollo artesanal (Act No. 27, July 24, 1997, for the protection, promotion, and development of artisanship) states that the Act's objective is to promote crafts in Panama by establishing special conditions for protecting, developing, and marketing crafts, and by strengthening the competitiveness of artisans by effectively integrating them into the country's social and economic structures.
Article 10 describes how Act 27 covers the protection of molas and other kinds of national artisanship:
"For the purpose of protecting national traditions and culture, the present law prohibits the importation of artisanal finished products or parts of the same and of merchandise imitating any piece of traditional or Indigenous Panamanian clothing such as Panamanian polleras, (7) molas, naguas (naun), (8) or montunos." (9)
In other words, the Act prohibits the sale of imitations made in other countries but does not forbid the exportation of those made in Panama nor the sale of Panamanian-made imitations within the country.
The Act also states that the Department of Commerce and Industry, via the Directorate of National Artisanship (Dirección General de Artesanías Nacionales), must ensure the enforcement of article 10.
Order no. 61 of the Municipal Government of Panama City prohibits peddlers from selling foreign handicrafts in public squares, parks and streets. This order limits the sales of foreign products that compete with molas, but it does not restrict the sale of copied molas.
2.4 Legislation Specifically Related to Molas
Ley No. 26 del 22 de octubre de 1984 por la cual se prohíbe la importación de copias de molas y se dictan otras disposiciones (Act No. 26, October 22, 1984, prohibiting the importation of copied molas and enacting other provisions) is intended to limit the number of imitation of molas entering Panama and prevent the market from being inundated with inexpensive counterfeit products. Article 1 of the Act reads as follows:
"It is forbidden to import molas on cloth, engravings imitating molas on cloth, other imitations of mola designs, and any other cloth or article that in any way imitates or tends to compete with the Cuna artisanship called mola."
The National Customs Directorate is theoretically responsible for enforcement of the Act, but the Customs officials with whom we met did not know that the Act existed. The Act was passed in 1984 but has never actually been enforced. It is therefore clear that, without political pressure from Cuna organizations, the authorities will not enforce the Act. Those in charge of the National Customs Directorate were obviously incapable of providing any exact explanation of what duties they had performed by way of Act No. 26.
Legislation can be helpful, but concrete results will not be obtained without direct participation on the part of Cuna women, who continue to struggle in an effort to restrict sales of imitations. We believe that several channels are open to the Cuna. For instance, they can provide the Customs Directorate's Intellectual Property Division with information on stores that import copied molas, as they did in 1995 following visits to business-sector tourist shops.
We do not know how the Customs Directorate has reacted to the reports, but we do know that the accusations aroused interest in the country's media and probably caused many shops to put a temporary stop to the sale of copies. Unfortunately, the sale of copies is again thriving.
2.5 A New Bill
During the course of 1998, two indigenous legislators, Cuna Enrique Garrido and Ngobe Enrique Montezuma, introduced a bill intended to establish protective and regulatory measures regarding the use of traditional indigenous costumes. The bill clearly stated that only indigenous peoples have the exclusive right to obtain financial gain from the use of their traditional costumes and other expressions of Panama's indigenous art and culture. Non-indigenous people wishing to use the above would have to request authorization to do so from the General Congress of a specific indigenous community. The bill also prohibits the importation of pieces of clothing that imitate Panama's traditional indigenous dress. It is believed that the proposed legislation can provide adequate protection for molas.
Some observers believe that the bill's protection should include all forms of indigenous art, not only traditional dress. They contend that other art forms such as music, songs, and dance are also being reproduced without the authorization of indigenous peoples.
We consider that the bill contains the necessary "model provisions for national laws on the protection of expressions of folklore against illicit exploitation and other prejudicial actions," as developed by WIPO and UNESCO. Many of these provisions refer to the need for authorization from a competent authority if an expression of folklore is to be used, and the provisions of the Panamanian bill do this, recognizing both the General Congresses of indigenous communities and Provincial Governors as competent authorities. (10)
We believe that the new bill goes further than the WIPO and UNESCO model provisions because it defines indigenous dress as more than an expression of folklore. This bill, in fact, establishes the value of the mola and all the authentic creations, models, drawings, and designs included in indigenous costumes.
3. Conclusions
In general, Panama's legislation provides only minimal protection of indigenous art. More specifically, the country's intellectual property legislation offers nothing more than partial protection for the rights of mola creators. Furthermore, the Panamanian Copyright Act does not cover indigenous art as such because the latter is considered to be merely folklore.
In the country's intellectual property legislation, however, there are key provisions that could be used to protect molas. The Industrial Property Act would enable the Cuna to register patents through which they could obtain exclusive rights over sewing techniques or mola designs. The provisions of this Act would also make it possible for the Cuna to obtain a trademark. In our opinion, the use of a trademark, coupled with a public awareness campaign designed to promote the value of genuine molas, could constitute an effective first step in the direction of full respect for indigenous art.
In Panama's legislation there are also provisions that protect national artisanship and include the mola by restricting the importation and sale of copies. These provisions are to be found in acts 26 and 27 as well as in Order No. 61 of the Municipal Government of Panama City, all of which are analyzed above. The Republic of Panama's Political Constitution of 1972 also contains provisions intended to protect indigenous art but, in fact, offers nothing concretely substantial.
The new bill to be introduced this year in the legislature establishes measures aimed at protecting traditional indigenous costumes and regulating their use and exploitation. If it is passed, this bill will certainly help to prevent the imitation of molas.
We believe that three important strategies must be considered if the imitation of Cuna art is to be restricted. First, there is a need to resolve the question of the mola's "nationality." The Cuna people and the government of Panama must decide if molas can be better protected if they are defined as belonging to the Cuna nation or to Panama.
Second, the use of a trademark in combination with a public awareness campaign would be a step in the right direction because it would allow consumers to determine which molas are hand-made by Panamanian Cuna. Those interested in quality and authenticity would therefore refrain from purchasing molas not identified by a specific trademark.
Third, passage of the new bill would help to draw the attention of the media and to inform the general public regarding the consequences of continued imitation of Indigenous art forms. If the bill does pass and is then properly enforced, positive improvements can be expected, given that the right to use or authorize the use of traditional costumes will belong exclusively to the respective indigenous authorities. For the time being, we can only hope that Cuna women will be able to make themselves heard in the national debate and to take part in the public hearings on the new bill.
NOTES
1) Mola: a colourfully handcrafted fabric panel used for decorative purposes. Return
2) Ley No. 15 del 8 de agosto de 1994 por la cual se aprueba la Ley sobre el Derecho de Autor y Derechos Conexos y se dictan otras disposiciones (Act N. 15, August 8, 1994, enacting the Copyright Act, related rights, and other provisions), article 2 (14). Return
3) Vicente Garibaldi Camacho, Protección de obras antes y después de la nueva ley (Panama: Bufete Garibaldi y Asociados and Ediciones Gamar, S.A., 1994), p. 23. Return
4) Ministerio de Comercio e Industrias, Dirección General del Registro de la Propiedad Industrial, Información y Divulgación de Nueva Tecnología (Red de Panamá, 1994), p. 5. Return
5) Ley No. 35 del 10 de mayo de 1996 por la cual se dictan disposiciones sobre la propiedad industrial, article 5. Return
6) Ibid, article 1. Return
7) A Panamanian pollera is a long, colourful, cone-shaped skirt that fits closely at the waist and flares at the feet. Return
8) Naguas (naun in Cuna) are brightly coloured costumes worn by women. Return
9) Montunos are traditional costumes worn by men. Return
10) Only governors of those provinces encompassing the territories of indigenous communities would be competent to grant such authorization. Return
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