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Design law in context of local creativity

In this instalment, we postulate that with proper vision and strategy, our nation has vast potential to transform from utility modelling to innovativeness.

Report by Richard Pasipanodya

Legislative context

Like the patent, copyright and trademark laws, our Industrial Designs Act CAP.26:02 has its origins in our British colonial legacy stretching back to the Registered Designs Act of 1958.

In similar fashion, though design protection has thus been around for years, it promoted foreign design interests more than local interests for reasons ranging from the law remaining elitist for a privileged minority. For its concepts were and still are esoteric (understood only by a privileged elite few), to lack of appreciation of the diversity of our local design creative potential.

Despite our commendable efforts in updating our law to harmonise with the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement) and in approximation with ARIPO- governed regional Harare Protocol on Patents and Industrial Designs of 1982 (Harare Protocol), the status quo remains intrinsically the same.

And yet though these two regional and international instruments are obligatory in principles they are not without flexibility in their national implementation. They permit member states to craft laws reflective of their national needs and aspirations.

Protectability requirements

Though we may be applauded for having one of the clearly written and comprehensive design law within the region, it remains hollow so long as its requirements or criteria for protection are stringent, restrictive and devoid of local design concepts. In mind we have in particular the definitional deficiencies in what constitutes the subject matter of design protection and the requirements or conditions thereto.

It is instructive to state that elsewhere the world over, design protection is for the aesthetic qualities of products or articles of manufacture in any field and sphere of human endeavour, irrespective of the artistic merit thereof. In other words design protection concerns itself with the ornamental visual appearance of our day to day products be they industrial, commercial, agricultural, touristic, cultural or educational. It is their artistic appeal to the beholder class of consumers or end users that is the essence of design protection. In this regard we thus enquire what our design law has on offer.

Artistic work
Our design law in section 2 defines “artistic work” as meaning , irrespective of artistic quality , paintings,, sculptures, drawings,engravings, photographs,a of architecture for either buildings or models of buildings and other works of artistic craftsmanship in so far as it limits its definitional scope to modern science artistic works.

Given our diverse cultural heritage this definition should have been expansive enough to embrace all categories of artistic prowess and potency. We argue so because designing of products is not only pervasively multi-disciplinary but is motivated and steeped in social, cultural and economic needs and expectations , as influenced thereto by political, legal and environmental factors.

As such , cognisant of these factors , our law should have specifically recognised our localised artistic endeavours in all fields and spheres such as tradition-based artistic works in textiles, pottery, woodwork, basketry, handicrafts, metal ware, costumes, etc. That way the desiderata to encourage and reward concerted local designing would have found legal recognition and affirmation as valuable and at parity with foreign concepts of designs.

Since designs are a reflection of the heart and soul of a nation culturally, socially, economically, politically, legally and environmentally, then we should proudly promote and preserve our design spirit through appropriate legislative innovation which captures this. For in designs we would wholesomely preserve and showcase our cultural and national identity and pride as do other nations, such as Indians,Brazilians, Chinese, Malaysians .

Design as definition
The Act defines design as meaning features of shape, configuration pattern or ornamentation affixed to finished articles which appeal and are judged by their appeal to the eye. We extrapolate from this definition as stating that to be protected, the design must be artistically visual, pleasing to the eye as it appears affixed on the finished product of manufacture, whatever method and manner of affixation the ornamentation, pattern, shape or configuration..

In which regard it cannot be sustainably denied that our local artistic design concepts would also qualify to be protected alongside foreign or borrowed concepts. This accommodation would permit the neat blending of concepts and thus promote increased local design creativity to the benefit of our abundantly-resourced country.

Disregarding the clumsiness and the seemingly definitional puzzlement associated with the last portion qualifying the definition of design, of importance is that it states that design concepts do not extend to methods or principles of manufacture of the design article. So too are designs solely dictated or influenced by the function for which the finished article is to perform is excluded. In this context our design law does not protect functional aspects but aesthetic features only.

We have no bones to chew here as this augurs well with our local design processes. After all, methods of construction are properly the subject matter of patent protection, either for inventions or technological improvements on existing knowhow.

Substantive requirements
The Act requires that to be accorded statutory protection a design must be new or original. These two terms mean nothing more than novelty. The scope of novelty required is pegged to that equivalent to patents insofar as the design ought not to have been disclosed or used anywhere in the world by whatever means, whether written or oral, except under confidential or secret circumstances. Thus, novelty is looked at in light of the state of the art or body of knowledge existing in the respective field of design as at the filing date of the application for design registration, and not subsequently thereafter.

This absolute novelty requirement does not bode well with local design talent. Our view is that it should be restricted to within the Zimbabwe borders and not to be extra-territorial. After all, the ARIPO Harare Protocol leaves the determination of whether protection would be accorded to foreign designs to the member states’ domestic laws. This in itself recognises the territorial sovereignty of national laws and member states. By implication the TRIPS Agreement provides so.

Thus, since we are not under any obligation to provide for absolute novelty for design protection why not localise or at most regionalise our novelty requirements to ARIPO and SADC member states.
There is logic in this as we share certain social, cultural, economic, political, legislative and environmental commonalities.After all, at no time have our design efforts been at parity with international design prowesses of the developed world–not even in the near foreseeable time.

In sum, our design law fosters stringent design protection thresholds which are far- fetched, unrealistic and unattainable for our local designers. These are minimum standards which are not found either in the TRIPS Agreement or Harare Protocol, but myopically copied and superimposed in our statutes from provisions of developed countries’ statutes. For which we argue for embracing the local marketplace realities in our laws, or progressive and meaningful legislative indigenisation in these and other vital aspects.

Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775 053 007 or e-mail: henripasi@gmail.com

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