WIPO Publishes Cases Studies On Use Of Intellectual Property By Indigenous Communities

Geneva, March 15, 2004
Press Releases PR/2004/377

The World Intellectual Property Organization (WIPO) published on Monday, March 15, 2004, a collection of practical case studies on the use of the intellectual property system by indigenous communities in Australia.

The publication, entitled, ‘"Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions" , was written for WIPO by Ms. Terri Janke, an Australian lawyer and a descendant of the Meriam people of the Torres Strait Islands, Australia.

The publication was planned to guide the work of WIPO on how the intellectual property system can respond to the needs and expectations of the custodians of traditional cultures and knowledge. It therefore contributes to a process of exploration, dialogue and policy development aimed at enhancing the protection, promotion and preservation of traditional creativity and expressions of traditional cultures (or ‘expressions of folklore'). The case studies provide traditional communities, as well as policymakers, legislators and other stakeholders, with realistic, empirically-based options and new ideas for future policy development.

WIPO's work in this area goes back several decades, but received fresh impetus in 1998 when a series of fact-finding missions met with many indigenous communities and other stakeholders to learn from them about their needs and expectations in relation to the intellectual property system. Many indigenous communities called for more practical information, based on actual cases, on the usefulness and the limitations of intellectual property in relation to traditional knowledge and cultural expressions/expressions of folklore, particularly information reflecting the perspectives and experiences of indigenous peoples. This publication responds directly to that request.

‘Minding Culture' gives actual examples of how industrial designs, copyright and trademarks have been used by indigenous Australian communities to protect and promote their artworks, cultures and identities, as well as their economic interests. The case studies point out where traditional communities found existing systems useful and where they were found inadequate. The studies convey the suggestions of these communities for policy and practical measures that could improve the protection of traditional cultural expressions by intellectual property. For example, many communally owned traditional artistic productions are not protected under copyright law, and the limited period of protection under most forms of intellectual property poses a problem for indigenous communities, since the customary conception of custodianship is not time-bound.

Yet the case studies show that current intellectual property laws can operate to meet the needs of indigenous communities and individuals, and shows how legal concepts have been adapted and extended to respond to these needs. For instance, trademark and unfair competition laws have been used by indigenous communities to safeguard the authenticity of arts and crafts; copyright protection is available for contemporary tradition-based art; indigenous designers have received industrial design protection; and the courts have accommodated claims for the recognition of communal rights and cultural interests, the application of customary laws and the development of culturally-sensitive remedies. The studies point out that non-intellectual property measures (such as customary laws, contracts and protocols, cultural heritage preservation programs and marketing and trade practices laws) also play a role in securing comprehensive and effective protection, so that the intellectual property system need not operate in isolation.

The publication feeds directly into the ongoing deliberations of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which is holding its sixth session from March 15 to 19, 2004. Along with the experience of many other countries and communities, the practical examples, options and suggestions it contains have already begun to be integrated into the working documents on legal and policy options for the protection of traditional cultural expressions/expressions of folklore prepared for the IGC's consideration. The case studies provide a solid, empirical platform for the IGC's further policy development.

For further information, please contact the Media Relations and Public Affairs Section at WIPO:

• Tel: (+41 22) - 338 81 61 or 338 95 47
• Fax: (+41 22) - 338 88 10
• Email: publicinf@wipo.int.