WIPO Seminar Looks At Protection Of Folklore

The World Intellectual Property Organization committee in charge of seeking solutions to protect traditional cultural expressions (folklore) from misuse meets this week. On the eve of the meeting, a preambular seminar looked at key policy issues of such protection and if current international instruments could provide for such solutions.

The 34^th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) is taking place from 12-16 June.

A seminar on Intellectual Property and Traditional Cultural Expressions was held at WIPO from 7-9 June.

On 7 June, the programme [pdf] opened with a keynote address by Peter Jaszi, professor of law emeritus, American University Law School, looking at existing international IP instruments and traditional cultural expressions (TCEs), and gaps in those existing instruments.

Jaszi said that in general the international legal norms for intellectual property do two different things. The first, crucially and historically the most important, is to establish principles for recognition of rights across borders, he said, explaining further that the second one is the increasing function, over the last century, of IP agreements is to set minimum standards of protection in national laws.

Any future international instrument on TCEs would mean that upon becoming a party to it, many states would have to modify existing provisions in national law or add significant new ones, he said.

Some apparent gaps in the international regime might be addressed through existing IP agreements, said Jaszi, for example the 1996 WIPO Performances and Phonograms Treaty, which protects against the transborder exploitation of recordings of traditional cultural performances, such as dances and music.

Solutions might be found in unexpected places, and might not be only through the possibility of new specialised international instruments, he added. The just demands for international recognition of the old arts might be satisfied through existing copyright treaties, he said, “perhaps as is, perhaps with some minor modifications.”

The important question is whether any existing regime can be modified or employed in its existing form to meet demands with respect to TCEs, he said.

Jaszi said one general rule about gaps in legislation is that not every identified gap in protection ought to be filled necessarily.

There are three different ways of identifying the existing gaps in current international IP law relating to the protection of TCEs, he said. The first is structural gaps, which are the consequence of historical differences in the international ideology or in economic interests, or both, he said.

There are also functional gaps, he said, which refer to things the law does not accomplish, and they usually relate to issues of attribution, remuneration, and control.

Finally, he said there are doctrinal gaps, for example there is a doctrinal gap between copyright and comprehensive protection for TCEs that “is simply too wide to be bridged,” he said in his presentation [pdf].

He wondered if the potential for partial protection of TCEs under copyright has been sufficiently explored.

Current IP Laws Inadequate

According to Professor Paul Kuruk, current IP laws which could be used, such as trademarks and geographical indications, do not adequately answer issues linked to the protection of TCEs, he said, in particular on issues such as ownership, originality, and duration.

Kuruk is from Cumberland School of Law, Samford University, Birmingham, Alabama, United States, and the executive director at the Institute for African Development (INADEV), Accra, Ghana, underlined issues being discussed at the IGC, such as whether to use the term protection or safeguarding, whether to refer to misappropriation, and whether there should be time limits to the protection.

Indigenous and traditional communities have expressed a number of concerns regarding commercial uses of TCEs without their consent, he said.

Indigenous peoples and communities have different rules in ownership, he said, and the creation process involves constant modifications, to which formal IP instruments answer poorly. Kuruk’s presentation is here [pdf].

China Establishing TCE Protection

Shuang Hu, section chief, International Affairs Division, Copyright Department, National Copyright Administration of China (NCAC), described China’s policy to protect TCEs.

Article 6 of China’s copyright law asks that separate measures be established for the copyright protection of folk literary and artistic works, she said. According to Hu’s presentation [pdf], the copyright law authorises the State Council to formulate regulations separately on five items, four of which have been promulgated or been implemented.

Folk literary and artistic works protected by the regulation refer to works that are created and transmitted from generation to generation, in a collective context, by unspecified members of a particular nation, ethnic group or community, she said.

According to her presentation, folk literary and artistic works include folk tales, legends, poems, ballads, folk dances, folk paintings, patterns, and sculptures.

Until Binding Treaty, National Efforts Necessary

Gihan Indraguptha, head, Technical Support Facility of the Group of Fifteen (G15) in Geneva, said the countries of the Group of Fifteen (Algeria, Argentina, Brazil, Chile, Egypt, India, Indonesia, Iran, Jamaica, Kenya, Malaysia, Mexico, Nigeria, Senegal, Sri Lanka, Venezuela, and Zimbabwe) have not lost hope of getting a binding international instrument protecting TCEs.

However, the countries realise that this might take considerable time, particularly in a period in which the desire and appetite for binding international instruments is diminishing – especially if they can have trade consequences.

In the meantime, Sri Lanka has worked to build its institutional capacity but chose to address TCEs, genetic resources, and traditional knowledge separately. For genetic resources, Indraguptha said Sri Lanka as a reasonable comprehension of the issues because of its obligations under the Convention on Biological Diversity, and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.

He underlined the help of WIPO in the capacity building process for TK and TCEs, and encouraged countries to work on their institutional capacity building while waiting for an international instrument, which remains necessary.

Misuse Ongoing, Need Indigenous National Authorities

Terri Janke, solicitor in Sydney, Australia, said TCEs are at the heart of the identity of indigenous peoples. She gave several examples of misuse of TCEs, such as a Polish hotel (Hotel Eclipse) which allegedly copied an aboriginal design for a carpet. The defender, she added, said that the aboriginal design was merely an inspiration.

She suggested that national indigenous cultural authorities be established in countries, which could identify right holders, and could set protocols for prior informed consent. Janke’s presentation is here [pdf].

Film Industry: Need Legal Certainty, Empowerment Indigenous Peoples

Bertrand Moullier, senior expert in charge of International Affairs, International Federation of Film Producers Associations (FIAPF), London, United Kingdom, He talked about the issue of raising money for film makers, and the need for them to have legal certainty and predictability, which is made more difficult when there are different layers of right to address.

A new instrument created by the IGC should not end up creating a degree of legal uncertainty, which at the end would undermine creativity, he said. “Legal security is the name of the game,” he added.

Moullier also underlined the importance of empowerment of indigenous people to their own film making.

 

Image Credits: WIPO