WIPO Sees First Real Progress In 10 Years On Text For Protection Of Folklore

Experts meeting last week at the World Intellectual Property Organization made the first real strides in over a decade at developing a concrete rules to protect the cultural expressions and folklore of indigenous and local communities.

At the same time, it is clear that creating a sui generis system for the protection of these areas of knowledge is not going to be a simple process. As attending delegates worked to refine text, disagreements were revealed on several of the articles in the form of different options, comments to the text, and questions on the state of play of protection and related institutions.

A group of experts mandated by the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) met from 19-23 July to discuss possible text for an eventual international legal instrument on the protection of traditional cultural expressions and expressions of folklore.

They worked from a WIPO secretariat-prepared document, available here, but after some discussion broke into drafting groups to improve the text. The compiled result of these drafting groups is available here [pdf]. The compilation text was discussed in plenary sessions on Friday, with delegates having the opportunity to make comments and suggestions on the text. The compilation text, along with a document listing comments, available here[pdf], will be sent to the next meeting of the IGC, scheduled from 6-10 December 2010. The IGC, a political body, will decide how to proceed with the texts.

This meeting was a special, dedicated “intersessional” meeting intended to help speed the process of the IGC itself, which has been mandated to negotiate an “international legal instrument” for the protection of traditional knowledge, traditional cultural expressions and genetic resources. Two additional intersessionals are planned on traditional knowledge and genetic resources.

A draft summary of the weeklong intersessional meeting is available here [pdf].

Delegates who have been a part of the IGC process said they were pleased that substantive issues were tackled last week. In recent years, the IGC had been stymied by disagreements on meeting procedure.

The meeting was a “big step forward in the sense that we finished [a text] for the first time,” said the chair of the meeting, Savitri Suwansathit of Thailand at the close of the meeting. “People of different regions [were] sitting together, exchanging views, and learning the options and then drafting [text] together,” she said. This is not something which is often seen at the IGC.

The meeting was useful as “we came as experts and were able to relate on a human level [and have] frank discussion,” agreed Debra Harry, executive director of the Indigenous Peoples Council on Biocolonialism. “Clear language is now available for the IGC to consider,” which represents positive movement towards a viable alternative to IP for protection of traditional cultural expressions, she added.

Each country was allowed to nominate one expert to be in the room; the nominees were meant to be independent subject-area experts, representing themselves as an independent capacity and not arguing on behalf of their country’s political interests. Some countries did, however, send their regular diplomatic representatives.

There has been a “big advance,” the way such protection is understood and discussed since talks began a decade ago, said Weerawit Weeraworawit, deputy secretary-general at Thailand’s National Human Rights Commission, who was present at the beginning of the IGC process in 2001.

However, before it is completed, “countries will have to do some soul-searching,” about how the eventual instrument will impact different groups within their countries – not only the holders of traditional cultural expressions (TCEs) but also the different users, Weerawrorawit told Intellectual Property Watch.

There are currently 11 articles in the compilation text, some of which have been more controversial than others; a possible article 12 on transboundary cooperation was also proposed in the comments to the compilation text.

Articles 2 and 4, on defining the beneficiaries and managers of TCE rights, caused some disagreement in last week’s negotiations, and may prove one of the harder issues to resolve. The Friday morning text’s second article, which outlines beneficiaries, says that TCE protection should benefit either “indigenous peoples, local communities and cultural communities” or “peoples and communities, for example indigenous peoples, local communities, cultural communities and/or nations.” The latter option is being supported primarily by experts from the African Group, according to several participants. Some experts expressed concern that “nations” could encompass non-indigenous people.

Other issues that came up were how to reference prior informed consent, and where in the text to do so, and who should manage rights. Several African nations said that states should be in charge of managing rights on behalf of the beneficiaries.

“We don’t want those who wish to have access [to TCEs] to go directly to the communities involved” without first going through the relevant national authorities, explained the delegate of South Africa, a position supported by other African countries, participants said. Others felt that beneficiaries should manage their own rights if possible. If they can manage the rights themselves, the government should leave them to do so, said Indonesia, according to participants.

Also causing much discussion was terms of protection. A suggestion by Belgium that economic benefits from TCEs have a limited time of protection, several states and indigenous representatives said that they believed protection should be infinite, including Angola, Ghana, Guatemala, Egypt, India, and South Africa, among others, participants told Intellectual Property Watch.

“Expressions of folklore are different than other expressions and what is stipulated under copyright law,” said Egypt’s expert, explaining why they should be seen differently than normal copyright protections, participants said.

A representative of the Tulalip tribe from North America said there was precedent for indefinite IP protections in the form of geographical indications. A representative of the International Chamber of Commerce said a GI protects primarily a name and with TCEs a lot more rights were at stake. The United States said the protection that is being sought under TCE rules is varied, and said that “some of these we’re comfortable with perpetual protection and some we are not,” but added perpetual protection should only be awarded to TCEs actively being used, according to participants.

Also at issue are matters of: how to determine rights when an indigenous or local community crosses a national border or has several distinct groups; how to handle customary laws of indigenous and local groups on TCEs, especially in relation to national laws; what sanctions will be available when rights are violated; the relationship with the sui generis system with the intellectual property system; how to define a TCE (the United States suggested a TCE must be passed from “generation to generation”); and how to balance the TCE of rights holders with users of TCEs.

The group also decided that there should definitions of key terms in the agreement, and asked the secretariat to prepare one for the next IGC.

Funding Indigenous Representatives

At the last IGC meeting, one unresolved question was how indigenous representatives would be funded to come to this meeting. There is a “Voluntary Fund” through which indigenous groups are normally funded for the twice-annual IGC, but because this expert group meeting is considered “intersessional” – that is, falling between the normal sessions of the IGC – there was no funding immediately available for use. Amending the rules for using the Voluntary Fund must go through the WIPO General Assembly, which will take place until September 2010.

In the meantime, the secretariat “on an exceptional basis… [to use] the WIPO regular budget to fund the participation of one indigenous expert from each of the seven geo-cultural regions,” a secretariat member explained to Intellectual Property Watch, adding “this was in recognition of the value of indigenous participation in the work of the IGC.”

Leslee Friedman contributed to this story.