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    WIPO Folklore Talks Stalling; Work Continues On New Draft Text

    Published on 18 July 2013 @ 8:40 am

    By , Intellectual Property Watch

    Negotiators at the World Intellectual Property Organization this week are struggling to make headway on a draft text of an international instrument for the protection of traditional cultural expressions, or folklore. And accusations began to fly that certain developed countries are not engaging in good faith to move negotiations along.

    “We take two steps forward and five steps back,” the South African delegate told a plenary meeting today. “Why do we come all this way to not be able to negotiate? This is not engagement.”

    He called on the chair for protection against uncooperative negotiators. “We cannot continue in this spirit.” For his part, committee Chair Wayne McCook, the Jamaican ambassador, has been relatively forceful in trying to move the negotiations forward. But the issue is very complex as this would be a first-ever treaty/instrument of its kind.

    The 25th WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 14-28 July. The first five days are on traditional cultural expressions (TCEs) and the final three days are on overall stocktaking of draft texts of instruments on each of the three committee topics.

    The two-year mandate of the committee is up for renewal at the annual General Assembly in late September.

    Member states previously agreed to negotiate a legal instrument on the protection of traditional cultural expressions (TCEs) and are under mandate this year – and this week in particular – to make progress toward a diplomatic conference (high-level negotiation). But a number of European delegations and others say they need time to analyse proposals or to consult with their capitals in order to negotiate on proposals emerging in the room this week.

    Two neutral facilitators, from New Zealand [corrected] and South Africa, are involved in helping draft two revisions of the text this week. The first revision [pdf] was completed at midnight on 16 July, circulated on the morning of 17 July and was the subject of discussion all day. A second revision is expected on Friday morning. This first revision is only a draft and already has received many prospective changes based on yesterday’s discussions.

    But when the first new revision was released yesterday it became quickly apparent that delegations from the European Union, Japan and the United States were not interested in moving forward with much of it, flatly rejecting several of the changes proposed by the facilitators. Through the day, these countries added brackets [signifying lack of consensus] around numerous sections of the text. Developing countries and indigenous groups also resisted some of the changes but tended to come up with alternatives to address their concerns.

    This led an African delegate to remark half-seriously afterward that it would have been easier if they had put the whole text in brackets from the start. These negotiations were initiated by developing countries seeking protection from what they perceive as plundering of their cultural resources. Developed countries, generally speaking, have been in a receiving mode all along, hearing proposals and acknowledging which they can live with and which they cannot. They steadfastly oppose a legally binding treaty.

    The changes in the first revision from the original version (WIPO/GRTKF/IC/25/4) are in the creation of a Preamble, pulling out broader concepts from the Objectives; Article 1 (subject matter of protection); Art. 2 (beneficiaries of protection); Art. 3 (scope of protection); and Art. 5 (exceptions and limitations). In Art. 1, the facilitators created a table that puts a new African Group proposal on the left side-by-side with the existing text on the right. They also moved the non-exhaustive list of the types of TCEs into a footnote.

    The WIPO secretariat has been working to move the negotiations to a resolution. But some speculated that the pending renewal of the IGC mandate could be contributing indirectly to delays, as those who do not want a treaty or binding instrument could see advantage in two more years of simply talking. That would build on more than 10 years on the topic already.

    “They are trying to make the document so murky,” said an African delegate. “This is what happens when the mandate comes up for renewal.”

    The aim of the treaty is to find a way to protect expressions and practices that are common to a certain grouping of people, so that if others borrow an idea or expression, like a traditional song – the community from which it evolved can be rewarded or at least acknowledged as rightful owners of the original expression. The negotiation could be said to an attempt to apply the intellectual property rights system – or a similar type of right – to communal cultural property.

    Western pop singers are known for occasionally hitting it big with songs they based on traditional ones. The songs they produce are copyrighted.

    Despite the many years of negotiations, some rather fundamental issues remain unresolved this week. Negotiations are centred on the definition of TCEs, who the beneficiaries of protection will be, the scope of protection, and limitations and exceptions.

    Some issues have been sticky for a long time and continue to present challenges, especially as different countries have different national policies on many of these issues. For instance, on who the beneficiaries of this protection would be, countries differ sharply on whether it should include indigenous “people” or “peoples,” or “traditional communities,” or “nations.”

    “Peoples” would have a stronger legal impact than “people,” a participant explained. Traditional communities may be too broad for some but it works for others for whom essentially everyone in society is considered indigenous. And “nations” is a way of including the governments themselves who are at the table this week.

    Some countries can live with one or another of these terms, some with all three.

    The resistance by Europe to the use of the word “peoples” sent some indigenous representatives into a frenzy of charges of neo-colonialism. They argue that this debate was already resolved at the UN level with the agreement of the UN Declaration on the Rights of Indigenous Peoples.

    Key issues are what types of expressions should be covered, and some are concerned that it not be made too narrow. Generally, the focus cuts across storytelling, music, dance and other rituals and handicrafts. Negotiators are trying to work out a balance between encouraging innovative uses of existing TCEs, and protection of them. Should the instrument only cover TCEs from antiquity, or could it also apply to newly emerging ones?

    Another issue is whether TCEs should be said to be passed on from “generation to generation,” as some countries, such as El Salvador and Colombia, consider that they lost a generation to war, but are still able to carry forward the traditions to the next generation.

    The irony of these talks is that the developed country governments and copyright industries find themselves using the precise arguments that developing countries use in other WIPO negotiations – pushing for a strong public domain, preserving access to knowledge, avoiding overly restrictive measures, ensuring exceptions and limitations.

    Today, negotiators go back into closed-door informal session of a smaller group to try to make more progress before returning to plenary tomorrow.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. WIPO Committee To Decide Fate Of Treaties To Protect TK, Genetic Resources, Folklore | Intellectual Property Watch says:

      [...] This IGC session has a double purpose. One was to advance work on a draft instrument protecting specifically traditional cultural expressions (TCEs) during the first five days (IPW, WIPO, 18 July 2013). [...]

    2. The Term ‘Indigenous Peoples’ Key For Identity, Rights, UN Experts Say | Intellectual Property Watch says:

      […] This issue is also recurrent at the World Intellectual Property Organization Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) (IPW, WIPO, 18 July 2013). […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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