By Molly Torsen

A more and more robust literature on traditional cultural expressions is being written, discussed and even filtered into legislation. Most academic thinking on the topic agrees that Western intellectual property (IP) laws do not offer adequate or appropriate protection for certain types of creations. One example is the poor fit Western copyright law provides for traditional cultural expressions.¹ A traditional cultural expression (TCE) can be described as forming “part of cultural heritage and identity, and their protection and preservation are linked to the promotion of cultural diversity and human creativity.”²

Western copyright law applies best to an individual author (or legal entity that qualifies as an author) and inheres in a work that is generally fixed in a tangible format for a finite number of years. For works falling in the TCE category, such as sacred symbols, cultural legends and special genres of handicrafts, there is generally no single author or artist that can be pointed to who created the expression; no single fixation of the expression that comprises the sole or defining format; and the length of protection or acknowledgement for such an expression would ideally be infinite.

Because of ideological gaps like these, many scholars and some governments have been proponents of sui generis laws or solutions that could ostensibly deal with the awkward relationship between IP and TCEs. In some national legislation, TCEs, usually under the heading “folklore” are referred to in copyright law and prescribed some measure of special treatment.³ In other national legislation, TCEs are either not included in copyright laws⁴ or are explicitly exempt from copyright protection in favor, perhaps, of a sui generis scheme.⁵ Jurisdictions that are endowed with sizeable Indigenous populations have needed to adapt their laws or create alternative mechanisms through which Indigenous populations receive equitable treatment for their TCEs.

Australia has long been on the forefront of dealing with issues relating to intellectual property, author’s rights and traditional knowledge. In 2000, moral rights legislation was passed in the Australian Senate and, around the same time, the government agreed to consider looking into how moral rights could be expanded for Indigenous communities as well as individual authors. Moral rights law for individual creators, at its strongest,⁶ incorporates four main assets:

1. The right of publication whereby the author alone may decide when the work may be first made available to the public.
2. The right of attribution whereby the author has the right to insist that his name is attached to or inserted in his work. This right also includes the right against misattribution.
3. The right to the respect and integrity of the work whereby the author can prevent any modification of his work.
4. The right of withdrawal whereby the author can prevent further reproduction, distribution or representation of his work in return for compensation paid to the distributor of the work for any monetary losses he suffers.

In 2003, the Australian government unveiled a Copyright Amendment Bill with a goal of developing Indigenous Communal Moral Rights (ICMR) to protect the unique cultural interests of Indigenous communities. The moral rights addressed under this bill include the rights of integrity and attribution. While the ICMR idea is not entirely novel,⁷ Australia is the first to introduce an actual bill that could implant Indigenous concepts into codified Western law. Other jurisdictions have implemented anti-passing off statutes⁸ in an effort to curtail the sale of counterfeit Indigenous art but Australia’s bill would be the first to deal with the intellectual property component of Indigenous cultural goods.

ICMR would be a tool for Indigenous people to prevent unauthorised or derogatory treatment of works drawing on their traditions, customs and beliefs. The bill has undergone a period of criticism with regard to rendering it more practical and finding an appropriate calibration between the rights of potential third parties and Indigenous people, but the bill is still being considered.⁹ In March 2006, the Federal Attorney General confirmed the government’s commitment to introduce a new version of the bill in upcoming parliamentary sittings.

Most jurisdictions recognising a substantial degree of moral rights have ostensibly laid some of the groundwork for implementing a communal moral right. Moral rights ideology can be readily linked to personhood and human rights and, in some jurisdictions, they are inalienable and perpetual.¹⁰ As such, extrapolating these concepts to a cultural or Indigenous group of people is certainly an academic possibility and it seems possible that it could become a legislative possibility in more than one jurisdiction. Canada, another country with a large Indigenous population, discusses ICMRs on a recent policy page,¹¹ scholars in New Zealand are reviewing the applicability of ICMRs to their own jurisdiction,¹² and Australia has introduced the concept on the international platform at World Intellectual Property Organization (WIPO) discussions.¹³

While ICMR is not yet a legal reality, it is gaining recognition both in Australia and internationally. WIPO’s Intergovernmental Committee (IGC) on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore is meeting right now in Geneva. If some of the logistic implementation issues of ideas like ICMR could be addressed and worked through, it would be an important success for indigenous cultures.

Molly Torsen is a Program Attorney at the International Intellectual Property Institute (IIPI) in Washington, DC and is involved in the World Intellectual Property Organization’s Heritage project (description available at http://www.wipo.int/tk/en/folklore/culturalheritage/index.html). This writing does not reflect the viewpoint of either IIPI or WIPO but are the author’s own ideas based on her research.

Footnotes

¹ Traditional cultural expressions / expressions of folklore (TCEs/EoF) are interchangeable terms in international discussions and papers. The World Intellectual Property Organization (WIPO) has published several working papers on the topic of TCEs/EoF under the general traditional knowledge heading. See, e.g., WIPO Publication WIPO/GRTKF/INF/1.

² Traditional Cultural Expressions (Folklore), WIPO, available at http://www.wipo.int/tk/en/folklore/

³ See, e.g., Côte d’Ivoire, Law. No. 96-564 of July 25, 1996, on the Protection of Intellectual Works and the Rights of Authors, Performers and Phonogram and Videogram Producers, Art. 8. « Le folklore appartient à un titre originaire au patrimoine national. Aux fins de la présente loi : Le folklore s’entend de l’ensemble des productions littéraires et artistiques, transmises de génération, faisant partie du patrimoine culturel traditionnel ivoirien dont l’identité de l’auteur est inconnue, mais pour lesquelles il y a tout lieu de présumer que cet auteur est un ressortissant de Côte d’Ivoire ; L’œuvre inspirée du folklore s’entend de toute œuvre composée à partir d’éléments empruntés au patrimoine cultural traditionnel ivoirien…. »

⁴ Several large jurisdictions, such as the United States, do not mention traditional knowledge, traditional cultural expressions or expressions of folklore in intellectual property legislation. The United States uses an array of other types of law to address some of these issues, including intellectual property law, anti-counterfeiting statutes, certification marks and bilateral agreements.

⁵ Panamanian copyright law states: “The protection recognized by this Law shall not extend to the texts of laws, decrees, official regulations, public treaties, judicial rulings and other official enactments, or to objective expressions of folklore, daily news or simple facts and data.” Law on Copyright and Neighboring Rights and Enacting Other Provisions (Law No. 15 of August 8, 1994), Title 3, Art. 9. Panama has also implemented Law 20 of 2000, however, granting specific rights to a range of TCEs and other cultural products. See Régimen Especial de Propiedad Intelectual sobre los Derechos Colectivos de los Pueblos Indígenas.

⁶ French copyright law, embodied in the Code de la Propriété Intellectuelle, available at:

http://www.legifrance.gouv.fr/WAspad/UnCode?code=CPROINTL.rcv

, has the oldest and strongest tradition of moral rights law.

⁷ See, e.g., discussions about the nature of communal rights in D. Hartney, Confusions Concerning Collective Rights in W. Kymlicka (ed.), The Rights of Minority Cultures. (Oxford, 1995).

⁸ See, e.g., the U.S. Indian Arts and Crafts Act of 1990, § 104. (P.L. 101-644).

⁹ For an example of constructive criticism of the Bill, see Arts Law Centre of Australia, Submission to Attorney General’s department on the draft Copyright Amendment (Indigenous Communal Moral Rights) Bill, 2003.

¹⁰ Article L. 121-1 of the French Intellectual Property Code states in part that moral rights are perpetual, inalienable and imprescriptible.

¹¹ Protecting Traditional Cultural Expressions: Policy Issues and Considerations from a Copyright Perspective, Dec. 15, 2004, available at http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/culturalexpressions/8_e.cfm.

¹² See, e.g., Anna Kingsbury, Protecting Indigenous Knowledge and Culture through Indigenous Communal Moral Rights in Copyright Law: Is Australia Leading the Way?, New Zealand Business Law Quarterly, 2006.

¹³ See, e.g., Comments from Australia:

http://www.wipo.int/tk/en/consultations/draft_provisions/pdf/pdf-tce/australia.pdf