Authored By: CHIMWEMWE BANDA
THE UNIVERSITY OF ZAMBIA
ABSTRACT
Traditional cultural expressions (TCEs) form an important part of the cultural identity of many communities in Zambia. In the fashion sector, these expressions appear in the form of traditional patterns, textiles, beadwork, and ceremonial attire that have developed over generations. However, increasing global interest in African fashion has created risks of misappropriation and unauthorised commercial use of these cultural designs.
This article examines whether Zambia’s intellectual property framework adequately protects traditional cultural expressions used in fashion. The analysis focuses on the Copyright and Performance Rights Act 1994, the Industrial Designs Act 2016, the Trade Marks Act 2023, and particularly the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act 2016. Through doctrinal analysis of legislation, case law, and international instruments, the article argues that although Zambia has enacted progressive legislation aimed at protecting traditional knowledge and cultural expressions, the framework remains largely ineffective because of implementation gaps.
The article concludes that Zambia already possesses a strong legal foundation for protecting TCEs. The main challenge lies not in creating new legislation but in operationalising the legal framework that already exists. Practical reforms are therefore proposed, including the publication of regulations, the establishment of institutional mechanisms, and stronger community participation in cultural governance.
INTRODUCTION
Fashion in Zambia reflects far more than aesthetic expression. Traditional garments, textiles, and decorative patterns often embody cultural history, identity, and social meaning within communities. Many designs used in Zambian fashion originate from long-standing cultural practices such as weaving traditions, ceremonial clothing, and symbolic motifs passed down across generations.
These cultural expressions are increasingly attracting global attention. In recent years the international fashion industry has shown growing interest in African-inspired designs. While this trend creates economic opportunities, it also raises concerns about the unauthorised use of traditional patterns and cultural symbols by commercial actors who may not acknowledge or compensate the communities from which these expressions originate.
This raises a central legal question: does Zambia’s intellectual property framework adequately protect traditional cultural expressions used in fashion?
Conventional intellectual property law was developed largely within Western legal systems and generally protects identifiable individual creators. Traditional cultural expressions, however, are often created collectively and preserved by communities over long periods of time. As a result, many traditional designs do not easily fit within existing categories such as copyright, industrial design protection, or trade mark law.
This article examines how Zambia’s intellectual property framework addresses this challenge. Particular attention is given to the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act 2016, which introduced a sui generis regime designed specifically to protect traditional knowledge and cultural expressions.
TRADITIONAL CULTURAL EXPRESSIONS AND INTELLECTUAL PROPERTY LAW
Understanding Traditional Cultural ExpressionsTraditional cultural expressions (TCEs) encompass the forms in which traditional culture and knowledge are manifested[1]. These include music, dance, art, designs, clothing, and other creative expressions developed within communities and transmitted across generations[2].
The World Intellectual Property Organization (WIPO) describes TCEs as cultural expressions that reflect a community’s traditions and are passed from generation to generation, forming an integral part of cultural heritage and collective identity[3]. Unlike conventional intellectual property works, TCEs typically lack identifiable individual authors, emerging instead from collective cultural practices sustained over time. This collective character creates fundamental difficulties when applying conventional intellectual property frameworks[4].
In Zambia, TCEs are visible in textiles, beadwork, ceremonial dress, and decorative motifs used in clothing[5]. These expressions are closely linked to the cultural practices of Zambia’s diverse ethnic communities, including the Bemba, Tonga, Lozi, Lunda, and Luvale peoples[6]. Among the Lozi of Western Province, for example, traditional attire carries profound cultural significance: men wear the siziba a distinctive tunic-like garment while women wear the musisi, a wrapped dress that signifies respect and cultural identity. These garments are not merely aesthetic choices but embody social status, marital standing, and cultural belonging.
The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act 2016 defines expressions of folklore broadly in section 2 to include verbal, musical, and artistic expressions as well as tangible cultural creations such as textiles, handicrafts, and costumes[7].
LIMITATIONS OF CONVENTIONAL INTELLECTUAL PROPERTY LAW
Conventional intellectual property systems are designed primarily to protect individual creators. Copyright law requires originality, industrial design protection requires novelty, and trade marks protect commercial indicators of origin.
Traditional cultural expressions frequently fail to satisfy these requirements. Designs that have existed for generations cannot satisfy novelty requirements under section 17 of the Industrial Designs Act 2016[8]. While collective creation makes it difficult to identify an author for copyright purposes under section 3 of the Copyright and Performance Rights Act 1994[9].
Another limitation concerns the duration of protection. Under section 12 of the Copyright and Performance Rights Act 1994, copyright protection generally lasts for the life of the author plus fifty years[10]. Traditional cultural expressions, however, are intended to endure indefinitely as part of community heritage.
Scholars therefore argue that conventional intellectual property systems provide only limited protection for TCEs[11]. As a result, many jurisdictions have adopted sui generis legal frameworks specifically designed to protect traditional knowledge and cultural heritage[12].
THE ZAMBIAN LEGAL FRAMEWORK
COPYRIGHT PROTECTION
The Copyright and Performance Rights Act 1994 protects literary and artistic works[13]. Section 2 defines artistic works to include drawings, paintings, and “works of artistic craftsmanship,” including fabric designs[14].
However, section 3 requires that copyright subsist only in original works. Traditional patterns developed gradually within communities may not satisfy this requirement[15].
Furthermore, section 12 limits copyright protection to the life of the author plus fifty years[16]. Because many traditional cultural expressions lack identifiable authors and have existed for generations, they often fall outside the scope of copyright protection[17].
Dickson Jere’s analysis of the AFCON 2012 jersey illustrates this limitation. Jere explains that several intellectual property rights may apply to a single fashion item such as copyright in graphic designs, trade marks identifying the team, and industrial design protection for garment patterns. However, these frameworks assume identifiable rights holders. Traditional patterns incorporated into such designs therefore remain legally unprotected[18].
3.2 Industrial Design Protection
The Industrial Designs Act 2016 protects aesthetic features of products. Section 2 defines a design as features of pattern or ornament applied to an article through an industrial process[19].
To qualify for protection a design must satisfy two requirements. Under section 17, the design must be new, meaning no identical design has previously been made available to the public[20]. Under section 18, it must possess individual character[21].
Traditional cultural expressions usually fail these requirements because they have existed within communities for generations and are therefore already publicly known.
Additionally, protection under section 21 lasts for a maximum of ten years[22]. Such limited protection is inconsistent with the long-term preservation of cultural heritage.
TRADE MARK PROTECTION
The Trade Marks Act 2023 provides limited mechanisms that may benefit communities. Sections 59 and 60 establish collective marks and certification marks, which may allow communities to distinguish authentic cultural products from imitations[23].
However, trade marks protect signs identifying commercial origin rather than the underlying cultural expressions themselves. Communities may therefore control the use of a mark but cannot prevent others from reproducing traditional motifs[24].
PROTECTION OF TRADITIONAL KNOWLEDGE ACT 2016
The most significant development in Zambia’s legal framework is the Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act 2016[25].
The Act recognises that traditional cultural expressions may belong to communities rather than individuals. Section 2 defines a holder as a traditional community, group, or individual recognised under customary law as the custodian of traditional knowledge[26].
EXCLUSIVE RIGHTS
Under section 22, holders possess the exclusive right to authorise the exploitation of traditional knowledge and expressions of folklore[27]. Section 23 prohibits reproduction, distribution, or commercial use without prior informed consent[28].
Perpetual Protection
A particularly significant feature appears in section 24, which provides that traditional knowledge remains protected for as long as it satisfies the protection criteria[29]. This effectively establishes perpetual protection, a revolutionary departure from conventional intellectual property regimes that impose fixed time limits.
Defensive Protection
The Act also performs an important defensive protection function. By recognising communities as rights holders and establishing a register under section 11, the legislation prevents third parties from obtaining intellectual property rights over misappropriated traditional knowledge or cultural expressions[30].
CUSTOMARY LAW AND COMMUNITY CONSENT
The Act also implicitly recognises the role of customary law. Because communities act as holders of traditional knowledge, decisions regarding consent may involve traditional leaders or customary institutions. Integrating customary governance structures into statutory implementation may therefore be essential for ensuring legitimate community representation[31].
IMPLEMENTATION GAP
Despite these progressive features, the Act has not yet been fully operationalised. Reports indicate that implementing regulations necessary for the operation of the Act have not been issued. Without these regulations, communities cannot effectively register or enforce their rights[32].
Case Law and Enforcement Disparities
ATTORNEY GENERAL V MEER CARE & DESAI
In Attorney General of Zambia v Meer Care & Desai & Others [2008] EWCA Civ 754, the court considered claims relating to public funds used to purchase luxury clothing from Boutique Basile in Geneva. The evidence revealed that over $1.2 million had been spent on clothing for former President Frederick Chiluba and officials[33].Although the case concerned corruption and asset recovery rather than intellectual property, it demonstrates the significant economic value associated with fashion.
The Huang Counterfeiting Case
A more directly relevant example is the prosecution of Simon Huang, who was fined K1,200 by the Lusaka Magistrate’s Court for selling counterfeit Puma shoes[34].
This case highlights the effectiveness of intellectual property enforcement where registered rights exist. Puma was able to initiate legal proceedings based on trade mark infringement and rely on criminal enforcement mechanisms. This enforcement effectiveness is not limited to criminal prosecution. In the United States, extensive civil litigation between fashion houses demonstrates the full range of enforcement mechanisms available under well-developed legal systems. In Gucci America, Inc. v Guess?, Inc. [2012] 858 F Supp 2d 250 (SDNY), Gucci successfully enforced its trademark rights against Guess for copying its signature designs, including the green-red-green stripe, the “Square G” design, and the “Quattro G” interlocking G pattern. After a three-week trial, the court found infringement of three designs and issued a permanent injunction, awarding $4.66 million in damages[35]. The case produced a 104-page opinion, demonstrating the depth of judicial resources available to protect commercial brands in developed legal systems.
However, the case also reveals a striking enforcement disparity. International companies benefit from clear statutory rights and well-established enforcement procedures. In contrast, communities seeking to protect traditional cultural expressions cannot easily enforce the protections provided by the 2016 Act because implementing regulations remain absent. As a result, Zambian law currently protects international commercial brands more effectively than indigenous cultural heritage.
EMERGING GLOBAL PRECEDENTS: THE HERMÈS METABIRKINS CASE
A significant recent development in fashion and luxury law is the landmark United States case of Hermès International v Mason Rothschild [2023] 678 F Supp 3d 475 (SDNY)[36]. This case concerned the creation and sale of non-fungible tokens (NFTs) depicting fur-covered versions of Hermès’ iconic Birkin handbag, marketed under the name “MetaBirkins.”
The defendant argued that his creations were artistic expressions protected by the First Amendment to the United States Constitution, drawing a parallel to Andy Warhol’s Campbell’s soup can paintings.However, the jury found that Rothschild’s use of the Birkin mark was intentionally designed to mislead consumers into believing Hermès was associated with the MetaBirkins project. The court awarded Hermès $133,000 in damages and subsequently issued a permanent injunction preventing Rothschild from continuing to sell the NFTs.
This case is instructive for Zambia for two reasons. First, it demonstrates that intellectual property enforcement is possible in emerging digital markets, provided that clear statutory rights exist. Hermès successfully protected its trademarks because it held registered rights and could invoke well-established enforcement mechanisms under the Lanham Act. Second, the case illustrates the increasing globalisation of fashion and the need for jurisdictions like Zambia to ensure their legal frameworks are equipped to handle new forms of commercial exploitation of cultural symbols.
The contrast with Zambia’s position is stark. While Hermès could rely on registered trademark rights and a functioning judicial system to protect its brand, Zambian communities seeking to protect traditional cultural expressions lack equivalent enforcement mechanisms because the 2016 Act remains unoperationalised.⁸
Comparative Perspectives
Other African jurisdictions have adopted similar legislation but with more developed implementation mechanisms.
South Africa’s Intellectual Property Laws Amendment Act 2013 introduced protection for indigenous knowledge by recognising communities as rights holders and establishing a National Council for Indigenous Knowledge[37]. Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act 2016 created systems for registration, benefit-sharing, and enforcement[38].
These examples demonstrate that successful protection requires not only legislation but also institutional structures, registration procedures, and community participation mechanisms.
RECOMMENDATIONS
Several practical measures could strengthen the protection of traditional cultural expressions in Zambia.
First, the Ministry of Commerce should publish implementing regulations within twelve months under the Protection of Traditional Knowledge Act 2016. These regulations should specify procedures for registration, benefit-sharing agreements, and consent mechanisms involving traditional authorities.
Second, the Patents and Companies Registration Agency (PACRA) should establish a Traditional Knowledge Unit within two years to administer the register created under section 11, monitor commercial use of cultural expressions, and assist communities with documentation.
Third, national awareness and capacity-building programmes should be implemented within eighteen months to inform communities of their rights and support participation in cultural governance.
Finally, Zambia should strengthen cooperation with ARIPO, particularly under the Swakopmund Protocol, to facilitate regional protection of traditional cultural expressions[39].
CONCLUSION
Traditional cultural expressions represent an important aspect of Zambia’s cultural identity and heritage. In the fashion sector these expressions appear in the form of textiles, designs, and garments reflecting the traditions of many communities.
While conventional intellectual property laws provide some protection for creative works, they are poorly suited to protecting expressions created collectively and preserved across generations.
The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act 2016 represents a significant step forward. By recognising communal ownership, requiring prior informed consent, and providing perpetual protection under section 24, the Act introduces a legal framework capable of safeguarding cultural heritage.
However, without implementing regulations and institutional support, these protections remain largely theoretical. Effective protection therefore requires not only legislation but also practical implementation and meaningful participation by the communities whose cultural heritage is at stake.
BIBLIOGRAPHTY
Table of Cases
Attorney General of Zambia v Meer Care & Desai & Others [2008] EWCA Civ 754
Gucci America, Inc v Guess?, Inc, 868 F Supp 2d 207 (SDNY 2012)
Hermes International v Mason Rothschild, No 22-cv-384 (SDNY 2023)
Huang v The People (Lusaka Magistrate’s Court, 2015) (unreported)
TABLE OF LEGISLATION
Zambia
Copyright and Performance Rights Act 1994, cap 406
Industrial Designs Act 2016, Act No 21 of 2016
Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act 2016, Act No 17 of 2016
Trade Marks Act 2023, Act No 11 of 2023
South Africa
Intellectual Property Laws Amendment Act 2013, Act No 28 of 2013
Kenya
Protection of Traditional Knowledge and Cultural Expressions Act 2016, Act No 33 of 2016
INTERNATIONAL INSTRUMENTS
Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (Swakopmund, 9 August 2010)
JOURNAL ARTICLES
Cornish W, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet and Maxwell 2019)
Dogan S and Lemley M, ‘The Merchandising Right: Fragile Theory or Fait Accompli?’ (2004) 54 Emory Law Journal 461
Dutfield G and Suthersanen U, Global Intellectual Property Law (2nd edn, Edward Elgar 2020)
Jere D, Fashion Law: Protecting Creativity in the Zambian Fashion Industry (University of Zambia Press 2023)
Kur A and Dreier T, European Intellectual Property Law: Text, Cases and Materials (Edward Elgar 2013)
Mgbeoji I, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (University of British Columbia Press 2006)
Ncube C, ‘The Protection of Traditional Knowledge and Expressions of Folklore in Africa’ (2019) 2(1) African Journal of Intellectual Property 45
Oguamanam C, ‘Genetic Resources and Traditional Knowledge: Towards a New Commons?’ (2018) 13(2) Journal of Intellectual Property Law and Practice 120
Scafidi S, ‘Intellectual Property and Fashion Design’ (2006) 1(1) Intellectual Property and Information Wealth 115
Scafidi S, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005)
Wendland W, ‘Intellectual Property and the Protection of Traditional Cultural Expressions’ in C Graber and M Burri-Nenova (eds), Intellectual Property and Traditional Cultural Expressions (Edward Elgar 2008)
World Intellectual Property Organization, Understanding Copyright (WIPO 2023) https://www.wipo.int/copyright/en accessed 5 March 2026
World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Glossary of Key Terms (WIPO 2021) https://www.wipo.int/tk/en/resources/glossary.html accessed 4 March 2026
Zambia Daily Mail, ‘Chinese National Fined for Selling Counterfeit Shoes’ Zambia Daily Mail (Lusaka, 15 June 2015) 3
[1] World Intellectual Property Organization, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore: Glossary of Key Terms (WIPO 2021) https://www.wipo.int/tk/en/resources/glossary.html accessed 4 March 2026.
[2]ibid.
[3] WIPO (n 2).
[4] Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (2nd edn, Edward Elgar 2020) 318
[5] Caroline Ncube, ‘The Protection of Traditional Knowledge and Expressions of Folklore in Africa’ (2019) 2(1) African Journal of Intellectual Property 45, 52
[6] ibid
[7] Protection of Traditional Knowledge Act 2016, s 2.
[8] Industrial Designs Act 2016, s 17.
[9] Copyright and Performance Rights Act 1994, s 3.
[10] Ibid, s 12.
[11] Susan Scafidi, Who Owns Culture? Appropriation and Authenticity in American Law (Rutgers University Press 2005) 45.
[12] Annette Kur and Thomas Dreier, European Intellectual Property Law: Text, Cases and Materials (Edward Elgar 2013) 178.
[13] Copyright and Performance Rights Act 1994, s 3.
[14] Ibid, s 2
[15] Ibid, s 3
[16] Copyright and Performance Rights Act 1994, s 12.
[17] Dutfield and Suthersanen (n 7) 320.
[18] Dickson Jere, Fashion Law: Protecting Creativity in the Zambian Fashion Industry (University of Zambia Press 2023) 67-70
[19] Industrial Designs Act 2016, s 2.
[20] Ibid, s 17
[21] Ibid, s 18
[22] Ibid, s 21
[23] Industrial Designs Act 2016, s 21.
[24] Jere (n 18) 85.
[25]Protection of Traditional Knowledge Act 2016.
[26] Ibid, s 2
[27] Ibid, s 22
[28] Ibid, s 23
[29] Ibid, s 24
[30] Protection of Traditional Knowledge Act 2016, s 11.
[31] Ncube (n 4) 65.
[32] Jere (n 18) 92
[33] Attorney General of Zambia v Meer Care & Desai & Others [2008] EWCA Civ 754, [12].
[34] Zambia Daily Mail, ‘Chinese National Fined for Selling Counterfeit Shoes’ Zambia Daily Mail (Lusaka, 15 June 2015) 3.
[35]Gucci America, Inc. v Guess?, Inc. [2012] 858 F Supp 2d 250 (SDNY) 255.
[36] Hermès International v Mason Rothschild [2023] 678 F Supp 3d 475 (SDNY) 480.
[37] Intellectual Property Laws Amendment Act 2013 (South Africa), s 3.
[38] Protection of Traditional Knowledge and Cultural Expressions Act 2016 (Kenya), ss 15-20.
[39] Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (2010), art 5.
