WIPO Committee On Protection Of Folklore: New Inspiration From Developing Countries

There seems to be something in the air at the World Intellectual Property Organization committee working to find solutions to protect indigenous traditional cultural expressions (folklore) from misappropriation. After 16 years of snail’s pace and mostly unfruitful efforts, the landscape appears to be moving, as developing countries seek a common proactive position, with new treaty language, while the European Union and the United States seem to be increasingly lonely, according to sources.

“This is a sea change,” a participating observer said afterward, referring to this week’s shift toward more unity among most countries and indigenous groups.

This morning a new draft text [pdf] was issued at the committee, with introduction of language largely supported by a number of countries, in particular on the scope of a potential treaty.

The 33^rd session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 28 February to 3 March.

The new draft text, characterised by IGC Chair Ian Goss of Australia as a work in progress, only to be noted, is going to be considered further at the next session of the committee, from 12-16 June, as reflected in this week’s decisions [pdf]. The text reflects different positions of delegations on a set of draft articles.

The two facilitators appointed by the IGC to streamline and clarify a draft treaty text on 1 March produced a first revision of a set of draft articles, last revisited in 2014 (IPW, WIPO, 2 March 2017). The second revision with track changes is here.

Also issued today is a list of pending issues [pdf] to be tackled at the next session of the IGC in June, including policy objectives, subject matter, scope of protection, beneficiaries, and limitations and exceptions.

The second revision of the draft articles proposed today by the facilitators, Margo Bagley of Mozambique and Marcela Paiva of Chile, was drafted on the basis of the first revision, they said.

Scope of Protection, LMCs Proposal Charms Indigenous Peoples

Described as the heart of the potential treaty is Article 5 (Scope of protection), which defines what should be protected by the treaty.

Among the changes from the first revision of the text, Article 5 has four alternatives, two of which are new. Most textual negotiations are carried out in closed informal meetings.

The first new alternative (Alternative 2) was proposed in the IGC plenary meeting yesterday by the “group of Like-Minded Countries” (LMCs). The group is composed of countries from the Asia and Pacific Group, the Group of Latin American and Caribbean countries (GRULAC), and the African Group. The LMCs are coordinated by Indonesia.

Alternative 2 of Article 5, proposed by LMCs, seeks to propose a shortened version of the article, leaves room both to national law and to indigenous customary laws, and includes consultation with indigenous people. It also gives exclusive right to indigenous peoples to authorise the use of their traditional cultural expressions (TCEs) by third parties. Further it gives the right to indigenous people, independently of economic rights, to object to distortion, mutilation or other modification of their TCEs which would jeopardise the integrity of their TCEs.

Yesterday, in plenary session, a number of countries supported the language put forward by the LMCs, such as Senegal on behalf of the African Group, Iran, Colombia, Thailand, Indonesia, Egypt, Peru, Malaysia, Nigeria, and Paraguay.

Indonesia, speaking on its national capacity, said the instrument protecting TCEs should set a minimum international standard and provide legal obligations, which would be implemented at the national level.

The Indigenous Caucus also supported the proposal as addressing their concerns, and allowing details of the instrument to be developed at the national level, with the participation of indigenous peoples.

Some countries, such as South Africa underlined the support of the indigenous peoples representatives, and said countries supporting the proposal now hope for some support from the North.

Also new in Article 5 is alternative 3, drafted by the facilitators (in italics), as textual proposal. Alternative 3 includes some language from the LMCs alternative and seeks to keep a concept that was introduced in 2014, known as a “tiered approach.” 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 (IPW, WIPO, 24 February 2017).

Yesterday in plenary session, Georgia, speaking on behalf of the Group of Central European and Baltic States (CEBS), usually in line with the European Union position, said they would be interested to hear about more experiences and have evidence-based discussions. Canada also underlined the need to have a discussion based on precise examples drawn from reality, which could lead to a community of views on what is pursued by the instrument.

The US said more discussion would be useful on the tiered approach, which it said is a valuable concept.

Australia said the LMCs’ proposal had value in particular because it suggested that TCEs be used in a respectful manner. The Australian delegate said the country looks forward to exploring the proposal further.

South Africa remarked that the LMCs’ proposed language for Article 5 is drawn upon treaties signed under WIPO, in particular Article 6bis (Moral rights) of the Berne Convention for the Protection of Literary and Artistic Works, Article 5 (Moral rights) of the Beijing Treaty on Audiovisual Performances, and the WIPO Performances and Phonograms Treaty.

Exceptions; Developed Countries Eager

Knowledge holders are usually wary of exceptions and limitations. That is the case for copyright holders for example, and it is usually the case that developed countries are generally reluctant to open the door too wide on exceptions and limitations to intellectual property rights.

At the IGC, the situation is reversed. The treaty proponents, mainly developing countries, are seeking to limit the possibility of exceptions and limitations to the rights provided by the treaty to protect TCEs against misappropriation.

Some developed countries, such as in the European Union, are wary that if no exceptions and limitations are included in the potential treaty, activities such as innovation by companies, and preservation of TCEs by archives and museums would be impeded.

Article 7 on exceptions and limitations has three alternatives. The first one is very short, and supported mainly by developing countries, such as Brazil, Senegal for the African Group, Malaysia, Colombia, Iran, Egypt, Ghana, and indigenous peoples. It is inspired, according to the proponents, by Article 9.2 (Possible exceptions) of the Berne Convention, and Article 13 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (Limitations and exceptions), which is referred to as the “three step test.”

Article 9.2 of the Berne Convention reads: “(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”

Alternative 1 of Article 7 reads: “in complying with the obligations set forth in this instrument, Member States may in special cases, adopt justifiable exceptions and limitations necessary to protect the public interest, provided such exceptions and limitations shall not unreasonably conflict with the interests of beneficiaries [and the customary law of indigenous peoples and local communities], nor unduly prejudice the implementation of this instrument.”

The US said the proposed alternative introduced an “entirely novel element in international law” by requesting that exceptions and limitations do not unduly prejudice the implementation of the treaty.

The US, the EU, and the CEBS group are in favour of Alternative 3, which provides for general exceptions and specific exceptions.

Yesterday in plenary, the US introduced a new alternative, which is now numbered alternative 2, which says member states may adopt exceptions and limitations as may be determined under national legislation including incorporated customary law.

The alternative also provides that subject matter protected by intellectual property law, such as trademarks, would not be prohibited by the protection of TCEs, and in any case, exception should be awarded for activities such as learning, teaching, research, preservation, display, libraries, museums or other cultural institutions. Also permitted under this exception would be the creation of artistic or creative works inspired by, based on, or borrowed from TCEs.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) has been discussing exceptions and limitations for museums, archives, education, research, and persons with other disabilities than reading impairment for a number of years, without agreement, notably because of resistance of some developed countries.

Use of Terms, Public Domain Still Dividing Issue

Article 2 of the draft articles gives a definition of TCEs. In the second revision of the text, an alternative definition was proposed by the LMCs, which is a short text describing TCEs as “the various dynamic forms which are created, expressed or manifested in traditional cultures and are integral to the collective cultural and social identities of the indigenous local communities and other beneficiaries.”

A number of developing countries supported that language.

Also in the Use of Terms is a much-criticised definition of the public domain, for which according to some developing countries, there is no definition in existing international IP instruments. Peru proposed a simple definition saying the public domain means the public domain as defined by national law, but many countries simply opposed the principle of having a definition in the treaty.

Non-derogation

Also proposed by the LMCs, the draft text has a new Article 16 on non-derogation, which reads: “Nothing in this instrument may be construed as diminishing or extinguishing the rights that indigenous peoples or local communities have now or may acquire in the future.”

This language was previously in Article 12 (relationship with other international agreements) but the LMCs asked that it be a standalone article. This was supported by a number of developing countries this afternoon.

As requested by many countries this week, the new revision of the text bears no brackets around the word “traditional” in traditional cultural expressions. However, the EU objected this afternoon saying that there is a need to reflect on the use of the word traditional.

 

Image Credits: WIPO