Protection Of Folklore In Draft International Instrument Under Discussion At WIPO

World Intellectual Property Organization delegates this week are trying to refine draft articles relating to the protection of traditional cultural expressions (folklore) that could form the basis for an international instrument. Delegates also are considering the connection of the issue to traditional knowledge.

The negotiations come on the heels of a week spent on a set of draft articles on the protection of traditional knowledge. Both sets of articles are expected to become international legal instruments aimed at preventing misappropriation, along with articles on the protection of genetic resources discussed last month (IPW, WIPO, 10 February 2014).

The draft articles on traditional knowledge (TK) were approved on 28 March to be transmitted to the General Assembly in September 2014.

The 27th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is meeting from 24 March to 4 April.

On traditional cultural expressions (TCEs), a first revision [pdf] (Rev1) of the draft articles was issued on 1 April. It was drafted by four facilitators: Nicolas Lesieur from Canada, Margo Bagley from Mozambique, Justin Sobion from Trinidad and Tobago, and Tom Suchanandan from South Africa. The facilitators drew on an earlier version of the draft articles [pdf] on TCEs that was submitted at the last WIPO General Assembly in September.

Most of the articles were edited from the earlier version to Rev1. Main areas of discussion on TCEs have been: subject matter, beneficiaries and scope of protection, plus exceptions and limitations, as well as sanctions, remedies and exercise of rights.

Language on TK added

Rev1 of the TCEs articles, as presented by Ian Goss from Australia, in the role of “friend of the chair” and working with the facilitators, bears resemblance with the Rev2 of the TK text, as some language has been duplicated from the TK text to the Rev1 on TCEs.

For instance, a “Use of terms” section has been added, and the Article 1 (subject matter of protection) follows the approach for the TK text by embedding the criteria for protection in the text of the article, rather than having a dedicated separate paragraph.

In Article 2 (beneficiaries of protection), like in the TK text, a footnote attempts to resolve the issue of nations being beneficiaries of the treaty. This is one of the core issue of the text, said IGC Chair Wayne McCook, the Jamaican ambassador.

Article 3 (scope of protection) reflects wide changes, Goss said. It now mimics the structure of the TK text, with a tiered approach to protection.

Nations as Beneficiaries, Line of Divide

A hotly debated issue is the inclusion of nations in the possible beneficiaries of the treaty. Some countries oppose the concept. Others contend that because they do not have indigenous groups in their population, nations should be listed as beneficiaires in the instrument.

Egyptian Ambassador Walid Abdelnasser delivered a statement on 1 April on reasons why Egypt requests the inclusion of nations as beneficiaries.

The notion of an indigenous population is not relevant in our historical context, he said. There is no geographic exclusiveness of TCEs in Egypt, he said, adding that Egypt, as in many other countries in Africa and elsewhere, “have millennia of unbroken history.” The development of TCEs, he said “is a nation-wide process.” TCEs have spread to the whole country and developed further, he said.

This was supported by Oman, China, and Armenia. Switzerland said it disagreed with the inclusion of nations as beneficiaries.

New Section on Technical Assistance

The Rev1 of the TCEs articles includes a new section on technical assistance and awareness raising. This follows a request from the indigenous peoples.

On 31 March, the representative of the Tulalip Tribe, speaking on behalf of the Indigenous Forum, asked that one or two articles on awareness-raising and capacity building be added to the text, contending that this issue was of importance across the three set of articles (genetic resources, TK and TCEs).  Those elements, he said, “are mostly missing in the existing documents.”

“Promoting awareness of and respect for the provisions of these instruments will be important in both preventing harms in the first place and reducing burdens on the legal system for handling these issues,” he said.

He pointed to the existence to two articles in the The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, which he said could provide some guidance (Article 21 – Awareness Raising, and Article 22 – Capacity).

Proposals by Indigenous Peoples have to be supported by at least one member state to be taken into account. Thailand supported the proposal of the Tulalip Tribe and said awareness-raising and capacity building are important elements at the international policy level. The proposal was also supported by Australia and Bolivia.

Another indigenous peoples representative, speaking on behalf of the Indigenous Consultative Forum, asked that a preambular provision on non-diminishment of rights be added to the draft instrument. She suggested the following language “Nothing in this instrument may be construed as diminishing or extinguishing the rights that the indigenous peoples may have now or may acquire in the future.”

This proposal was supported by Bolivia, Australia, and New Zealand. 

The language proposed by the Indigenous Consultative Forum now appears in the second paragraph of Article 10 (relationship with [other] international agreements) of Rev1 on TCEs.

Final Revised TK Text from Last Week

Meanwhile, a revised version of the Rev2 document on TK presented in the committee on 28 March was issued on 31 March. WIPO called it a “cleaner and more focused revision.”  This version, which is the document that will be transmitted to the annual WIPO General Assembly, is “subject to any agreed modifications on cross-cutting issues the IGC may make at its July 2014 session.”

At the July session of the IGC, member states will have to decide on recommending to the September General Assembly whether or not to convene a diplomatic conference within this budgetary biennium (2013-2015).

Compared to the Rev2 document, changes are noticeable, for example in Article 3, titled [criteria for and] scope of protection, instead of scope of protection, in Article 3.1, and Article 3.3 (c). Some additions were made to Article 3bis (complementary measures) (3bis4. 3bis5, 3bis6 and 3bis7), and to Article 6 (Sanctions, remedies and exercise of rights/application) (Article 6.4 (c), 6.6 and 6.7.

This is to reflect omissions or errors in Rev2 pointed out by delegations after it was released on 28 March.

Cross-Cutting Issues

On 31 March, delegates in plenary session and then in smaller groups tried to define cross-cutting issues between the protection of TCEs and TK, and similarities between articles to facilitate discussion and drafting on TCEs.

IGC Chair McCook had identified a number of cross-cutting issues in a document [pdf] available at the start of the session on TK last week (IPW, WIPO, 24 March 2014). The committee has been attempting to identify areas of overlap between the TK and TCEs.

The cross-cutting issues identified by the chair were: the meaning of “traditional,” the beneficiaries of protection, in particular, the role of states or “national entities,” the nature of the rights, including the meanings of “misappropriation” and “misuse,” and the treatment of publicly available and/or widely diffused TK and TCEs.

EU Opposes Blending Two Texts

At the outset of the meeting this week, the European Union underlined differences between the issues relating to TK and TCEs. In particular, they said that content of TCEs may already be protected by copyright and related rights while with TK some aspects might not fall fully in the current IP regime.

The delegate also had warned against any attempts at merging the TK with the TCEs text, and had asked that any text from the TK text incorporated into the TCEs text be made in a transparent manner, and included as a separate bracketed option for consideration. In the 1 April plenary, the EU remarked on the absence of such measures in Rev1 and asked that the text clearly identify the difference between the original and the imported text from Rev2 of TK.

McCook decided that a version with track changes would be issued to regional coordinators and broke the session to let delegates study the document with tracked changes. The plenary reconvened after that, and McCook confirmed that there was no intention to synchronise the two texts.

The United States remarked that new language in the TCEs text coming from the TK text had not been discussed in this context and requested that a number of brackets be added.