Revised Articles Protecting Folklore Head To WIPO General Assembly, For Better Or Worse

Delegations this week agreed on a revised set of draft articles aiming to protect traditional cultural expressions (folklore) from misappropriation, typically for commercial interests. However, several proposals made by the United States, some of which were supported by the European Union, were seen by others as defying the purpose of the potential treaty.

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

A second revision of draft articles (Rev2 [pdf]) of a text was issued on 15 June. Some members, in particular developing countries, hope it will become a legally binding international instrument. This version was approved by the committee.

Rev2, which was agreed upon as representing all points of views on 15 June, includes proposed changes that led some countries to say those changes would run contrary to the concept of a treaty, thus prejudging the outcome of the IGC negotiations on TCEs.

Draft revisions were provided by two facilitators, Margo Bagley from Mozambique and Ema Hao’uli from New Zealand, who attempted to include modifications requested by member states in public plenary sessions and in closed informal discussions, so that the text reflects all positions.

There was an original set of draft articles [pdf] on the protection of traditional cultural expressions (TCEs) from which delegates started working at the beginning of the week. Rev2 follows a first tentative draft revision (Rev1 [pdf]) presented on 14 June.

Rev1 showing track changes is here [pdf], Rev2 with track changes is here [pdf].

Prejudging the Outcome, Who’s to Blame?

Among the changes in Rev2 is a proposal by the United States, supported by the European Union, to simply remove five articles altogether.

The proposed deletions concern Article 8 (Term of protection/Safeguarding), Article 9 (Formalities), Article 10 (Sanctions, Remedies and Exercise of rights/interests), Article 11 (Transitional measures), and Article 13 (National treatment).

The US further requested an additional alternative to Article 10, after having asked that it be deleted, which yielded a remark about inconsistency from IGC Chair Ian Goss. The proposed alternative reads: “member states should undertake to adopt appropriate, effective and proportionate legal and/or administrative measures, in accordance with their legal systems, to ensure the application of this instrument.”

Indonesia, for the Group of Like-Minded Countries, argued that the deletion of the five articles translates into a prejudgment of the outcome of the IGC discussion. Iran expressed “deep concerns regarding the position of some member states” that contradict the mandate of the IGC and the principle of international negotiations.

Brazil also expressed concerns about the removing of articles, and said it goes against the spirit of the work being undertaken by the IGC, which is made in “good faith, without prejudging the outcome” of the discussions.

The EU, the US, Japan and South Korea have regularly voiced their reluctance to discuss a treaty on the three branches of the IGC. The EU and the US have underlined many times that the draft text should not prejudge the outcome of the negotiations.

Those countries have hinted in the past that demandeurs of a treaty, such as the African Group, the Asia and Pacific Group, and members of the Group of Latin American and Caribbean countries, proposed text that assumed the text would become a legal instrument.

Policy Objectives, Beneficiaries, Scope of Protection

Some other changes in Rev2 include: in Article 1 (Policy Objectives) establishing what the instrument is supposed to accomplish. Compared to the original text, Rev2 has a new paragraph in alternative 2 (e) relating to the prevention of erroneous grant over TCEs.

Article 4 (Beneficiaries) has a new alternative (4) which gives details of what could characterise “other beneficiaries,” in an attempt to reduce the breath of what can be considered as other beneficiaries, as suggested by Australia. The notion of other beneficiaries has been inserted in the TCE text to replace the word “nation,” which did not agree with many IGC members. Countries such as China, Iran, Algeria, and Indonesia have said they have no indigenous peoples or local communities.

The title of Article 5 (scope of protection/safeguarding) has been criticised by some countries, such as Egypt and Iran, for its inclusion of the word “safeguarding”. Egypt remarked that safeguarding could not be applied to TCEs, but rather items such as archives. For the moment, like many provisions of Rev2, the title is in brackets, indicating no agreement.

As indicated by the facilitators, the Group of Like-Minded Countries supported alternative 2 in the original text, and moved their preference to alternative 3, which had been drafted by the facilitators at the last session of the IGC. As a consequence, alternative 2 of the original text has been removed.

Exceptions and Limitations

In Article 7 (Exceptions and Limitations), the United States requested the addition of a paragraph in alternative 2 (3) opening the possibility for member states to provide for exceptions and limitations other than those permitted under the second paragraph of this alternative, such as learning, teaching, preservation, display, research, libraries, museums, and creative works “inspired by, based on, or borrowed from” TCEs.

A developing country remarked that this 3^rd paragraph would result in allowing member states to develop exceptions on basically anything.

Another paragraph (4) in the same alternative (2) was also added, introducing the concept of exceptions and limitations in cases of incidental use of TCEs.

Article 7 also has a new alternative 3, which according to facilitators is a more traditional version of the so-called “three-step test,” as derived from the Berne Convention for the Protection of Literary and Artistic Works (Article 9.2), than provided in the alternative on “general exceptions.”

The three-step test is a clause in the Berne Convention, and also the World Trade Organization Agreement on Trade-Related Aspects for Intellectual Property Rights (TRIPS), that establishes three cumulative conditions for exceptions and limitations.

 

Image Credits: WIPO