Text Protecting Indigenous Cultural Expressions Streamlined At WIPO, But Divergence Persists

Renewed discussions on the protection of traditional cultural expressions at the World Intellectual Property Organization have produced a new draft text that provides a clearer view of the different ways in which countries see a that treaty could help against misappropriation of indigenous cultural heritage. Divergences remain on core questions such as what and who should benefit from the protection of an international treaty, in which terms, and to what extent.

The 33rd 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.

After a three-year hiatus, WIPO delegates revisited a draft text which could become a treaty protecting cultural traditional expressions (TCEs, folklore). On 1 March, after a day spent in informal discussions trying to bridge gaps between the different positions, the two facilitators, Margo Bagley of Mozambique and Marcela Paiva of Chile, provided a text [pdf] to be discussed by countries.

The facilitators worked from a set of draft articles [pdf] which were last discussed in 2014, and attempting to reflect the different positions of member states. A version [pdf] of the draft text provided today showing track changes reflects the work of the facilitators and the modifications done.

IGC members were asked to consider the new text and provide comments on the changes on 1 March.

Policy Objectives, Misappropriation – A Banned Word for Some

Article 1 (Policy Objectives, former Objectives), now has three alternatives. The first includes the prevention of misappropriation, and equitable compensation and sharing of benefits arising from the use of TCEs. The second alternative does not use the word misappropriation, but misuse or unlawful appropriation. It also encourages innovation and creation, and recognises rights already acquired by third parties and provides for legal certainty and a rich public domain.

The third alternative take a positive protection approach, asking for the “appropriate use” and the protection of TCEs within the intellectual property system.

The European Union, the Central European and Baltic States group, and the US favour alternative 2 [corrected], while Switzerland supports alternative 3, and the “like-minded countries”, composed of developing countries, would prefer alternative 1 [corrected].

Use of Terms, Public Domain Definition Contested

Article 2 (Use of Terms) contains definitions for traditional cultural expression, public domain, publicly available, and use.

A number of developing countries, such as Brazil, said they are not in favour of adding the definition of public domain in the instrument. Even in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the public domain is mentioned without being defined, the Brazilian delegate said. Countries such as Colombia, Senegal, Iran, Thailand, South Africa, Egypt, Chile and Nigeria supported this position, as well as the Indigenous Caucus.

South Africa asked why the word “traditional” is in brackets. Paraguay voiced concerns about those brackets, asked which country asked that they be inserted, and asked that they be removed. Nobody volunteered to answer the question. But no action was taken.

The EU was of the opinion that the definition of the public domain should remain in the text. This was supported by the US, which said there is no consensus on the definition of TCEs.

Protection or Safeguarding?

Article 3 (previous Article 1) (Subject Matter) now has three alternatives. The first is kept to the minimum and simply states that the instrument applies to TCEs. This was proposed by the like-minded countries. The second alternative has a list of eligibility criteria against which the TCE would be measured against, and the third alternative provides broader eligibility criteria.

Alternative 2, and its 5 set of eligibility criteria is favoured by countries such as the members of the European Union, and the United States. Some developing countries, as well as indigenous peoples representatives, voiced concerns about some of those criteria, such as the criteria setting a timeframe for eligibility (d), or the one (e) which asks that TCEs are the result of creative and literary or artistic intellectual activity.

Peru said (e) refers to individual rights rather than collective rights, which are the object of the instrument.

Some developing countries also asked that the word “safeguarding” in the title of the article be removed, to leave only the word “protection.” This was countered by the EU which said that since there is no consensus on those terms, they should both be retained throughout the document.

Egypt remarked that the instrument should use legal terms. The term “protection” is used throughout IP instruments, he said, while safeguarding usually refers to archives and museums.

The indigenous caucus warned against the use of “safeguarding” alluding at an effort to nullify the effort against misappropriation. The Indigenous Caucus representative said if safeguarding was kept in the text, it would open the way for further and more widespread misappropriation of TCEs.

Who Would Be Protected; Peoples Not Recognised by Some

Article 4 (previously Article 2) (Beneficiaries) now has three streamlined alternatives. The first one designates indigenous peoples and local communities who hold protected TCEs, the second opens the beneficiaries to other beneficiaries if there is no notion of indigenous peoples and local communities in some countries, and the last one gives a broader approach, leaving national law to decide if other beneficiaries should be considered under the instrument.

The word indigenous peoples is bracketed in the document, as some countries, such as France, said they could not go along with “peoples” for “constitutional reasons.” In 2007, a United Nations Declaration on the rights of indigenous peoples was adopted by the UN with 143 members in favour, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russia, Samoa and Ukraine).

Indigenous peoples representatives as well as a number of countries, such as Colombia on behalf of the Group of Latin American and Caribbean countries, asked that the brackets around “peoples” be removed.

Some countries, such as the members of the EU and the US, said the instrument should only protect indigenous peoples and local communities.

Article 5 of the draft document: Scope of Protection and Safeguarding, is expected to be discussed on 2 March morning.

Delegates are expected to be invited then to go back to informal discussions so that the facilitators can provide a second revision of their draft text tomorrow, the last day of the session.

 

Image Credits: WIPO