WIPO Committee On Protection Of Folklore: Shall We Dance?

It is generally held that traditional cultural expressions reflect communities’ cultural and social background and include elements of their heritage. For indigenous and local communities, those expressions of their traditional culture are vital. Next week, World Intellectual Property Organization committee members are expected to advance on a draft treaty text to protect those expressions, and look for ways to agree on basic principles, such as what the treaty should protect, how, and who it should protect.

The United States tabled a document for discussion next week, listing a number of what they consider examples of traditional cultural expressions (TCEs). The European Union proposed a study on the protection of TCEs in WIPO members, and if and how TCEs benefit from intellectual property protection in those countries. The United States and the European Union countries are generally opposed to a binding instrument to protect TCEs.

The 33^rd session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 27 February to 3 March.

The work programme of the IGC for the biennium 2016/2017 has been divided into the three topics of the committee (genetic resources, traditional knowledge, and TCEs). Next week, delegates are expected to address the protection of TCEs (folklore), and work on the draft treaty text [pdf].

According to WIPO, TCEs may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicraft and narratives.

Next week is the first meeting on TCEs of the biennium. The last formal meeting on TCEs dates back to April 2014, due to a one-year hiatus in the work of the committee and the order in which the topics of the IGC have been addressed in this biennium.

IGC Chair Ian Goss of Australia prepared a factual information note [pdf] for the session. He drew comparisons between topics common to TCEs that were already discussed in 2016 on traditional knowledge (IPW, WIPO, 5 December 2016) and genetic resources (IPW, WIPO, 6 June 2016).

The IGC has been undertaking text-based negotiations since 2010, with the aim of reaching agreement on a text or texts of an international legal instrument, or instruments, ensuring the effective protection of TCEs, genetic resources, and traditional knowledge.

In his note, Goss suggests prioritising the following issues for discussion next week: objectives, subject matter, beneficiaries, scope of protection, exceptions and limitations, the relationship with the public domain and the definition of misappropriation.

The 33rd session is also expected to elaborate an indicative list of outstanding/pending issues to be tackled/solved at the next session on TCEs, from 12-16 June.

The note details past discussions on each issue, such as what should constitute the eligibility criteria for TCEs to be protected (subject matter); who should benefit from the protection, whether those beneficiaries should include nations, and whether a national authority should act as custodian.

Options on the scope of protection are also expected to be discussed. One option is differentiated protection, also called the “tiered approach,” while another option gives states maximum flexibility to determine the scope of protection. The tiered approach would give different kinds of levels of rights or measures depending on the nature and characteristics of the TCE, the level of control retained by beneficiaries, and its degree of diffusion.

According to the note, “This approach suggests that exclusive economic rights could be appropriate for some forms of TCEs (for instance, secret and sacred TCEs), whereas a moral rights-based model could, for example, be appropriate for TCEs that are publicly available or widely known but still attributable to specific indigenous peoples and local communities.”

US: Santa Claus, Waltz, Cowboy Boots and Bagpipes Are TCEs

The United States introduced a discussion paper [pdf] for this session of the IGC, much as they did at the last session on traditional knowledge (IPW, WIPO, 1 December 2016).

According to the discussion paper, the document is intended to advance the work of the EGC by identifying examples found in the US and in different cultures that may be regarded as TCEs, and follows the expectation that the IGC use an “evidence-based” approach. “The goal of the paper is to facilitate an informed discussion in the context of reaching a common understanding regarding the treatment of TCEs,” it said.

The paper lists TCEs in various areas, such as dances (tango, polka, and waltz), sports (lacrosse), musical instruments (bagpipes, banjo), handicrafts (sand painting, dreamcatcher, Panama hat, and cowboy boots), food (pizza, crêpes, sushi, and tamales), hair styles and body adornments (dreadlocks and tattoos), music (Scottish ballads and yodelling), fairy tales (Grimm’s fairy tales, One Thousand and One Nights (also known as Arabian Nights), and legends (Santa Claus and Bigfoot/Sasquatch).

EU Proposal for a Study

For this session of the IGC, the EU has tabled a proposal for a study [pdf]. Also following the “evidence based approach” of the 2016/2017 IGC mandate, the EU proposed a study building on existing materials and studies already conducted by the WIPO secretariat.

According to the proposal, the study should set out, “in an objective manner,” domestic legislation and specific regimes for the safeguarding of TCEs, and provide concrete examples of subject matter covered.

The study should also set out intellectual property laws, regulations, measures and procedures in relation to the safeguarding of TCEs, in particular if existing IP regimes (trademarks, design, copyright, trade secrets and geographical indications) are used to safeguard TCEs.

Further, the study should identify and summarise the specific regimes in force, and how the policy objectives have been defined, how key definitions such as “TCEs/subject matter, ‘traditional’, misappropriation, scope, duration, exceptions and beneficiaries been defined.”

In the case of a tiered approach, the study should explain how the different levels have been defined, and how they can be distinguished from each other, and how legal certainty for different stakeholders is ensured, the paper said.

Separately, still on the table of this meeting is a “Technical Review [pdf] of Key Intellectual Property-Related Issues of the WIPO Draft Instruments on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions,” by Professor James Anaya.

Anaya is a Regents professor and the James J. Lenoir professor of Human Rights Law and Policy at the University of Arizona James E. Rogers College of Law (USA). He also served as the United Nations Special Rapporteur on the rights of indigenous peoples from 2008 to 2014.

The review provides comments on the three draft treaty texts of the IGC through a human rights lens, and the UN Declaration on the Rights of Indigenous Peoples.

 

Image Credits: Flickr – Marlo Chavez