E
WIPO
DATE: March 25, 2002
GENEVA
INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE
FINAL REPORT ON NATIONAL EXPERIENCES WITH THE LEGAL PROTECTION OF EXPRESSIONS OF FOLKLORE
prepared by the Secretariat
TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY 5
II. CONTEXTUALIZING THE FINAL REPORT 8
II.A. Overview of Intellectual Property Needs and Issues Related to Expressions of Folklore 8
(a) Provision of international protection for “unpublished works” in the Berne Convention for the Protection of Literary and Artistic Works in 1967 9
(b) Adoption of the Tunis Model Law on Copyright for Developing Countries, 1976 9
(c) The Model Provisions, 1982 10
(d) Attempts to establish an international treaty, 1982 to 1985 11
(e) The adoption of the WIPO Performances and Phonograms Treaty (WPPT), 1996 11
(f) WIPO-UNESCO World Forum on the Protection of Folklore, 1997 12
(g) WIPO fact-finding missions, 1998-1999 12
(h) WIPO-UNESCO Regional Consultations on the Protection of Expressions of Folklore, 1999 14
(i) First session of the Intergovernmental Committee 16
(j) Second session of the Intergovernmental Committee 18
II.B. Other Relevant Activities of WIPO 19
(a) Domain names 19
(b) Non-original database protection 20
(c) Related rights 21
II.C. Relevant Work of Other Intergovernmental Organizations and Agencies 22
(a) United Nations Educational, Scientific and Cultural Organization 22 (UNESCO)
(b) International Trade Center (ITC) 24
(c) Office of the High Commissioner for Human Rights (OHCHR) 25
(i) Working Group on Indigenous Populations (WGIP) 25
(ii) Permanent Forum on Indigenous Issues 26
(d) International Labour Organization (ILO) 26
(e) World Trade Organization (WTO) 26
II.D. Relevant Work of Regional Organizations 27
(a) The African Intellectual Property Organization (OAPI) 27
(b) Secretariat of the Pacific Community (SPC) 28
(c) The Andean Community 27
III. GENERAL SUMMARY, CONCLUSIONS AND SUGGESTED TASKS 28
A. Conceptual and Operational Issues 29
(a) Subject matter 30
(b) Objectives for protection 32
(c) Subjects of protection 33
(d) Scope of protection – exceptions and limitations 33
(e) Effective participation by indigenous peoples and local communities 34
B. General Summary 35
(a) States which provide specific legal protection for expressions of folklore 35
(b) States which do not provide specific protection for expressions of folklore 39
(c) Non-intellectual property forms of protection 43
(d) The Model Provisions, 1982 45
(e) Extra-territorial protection 46
(f) Proposals for modifications to existing intellectual property standards and for sui generis standards 47
(g) Documentation 49
WIPO/GRTKF/IC/3/10 page 4 | ||
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C. | Conclusions and Suggested Tasks | 52 |
(a) (b) (c) | Establishment, strengthening and effective implementation of national systems of protection Extra-territorial protection Relationship between customary laws and protocols and the formal intellectual property system | 52 57 59 |
Annex I: | Detailed Statistics and Summary of Responses Received to the Questionnaire | |
Annex II: | List of Member States Submitting Responses to the Questionnaire as at January 31, 2002 | |
Annex III: | WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1982 | |
Annex IV: | Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1985 | |
Annex V: | List of Suggested Tasks |
EXECUTIVE SUMMARY
This document is a final report on responses received from States to the “Questionnaire on National Experiences with the Legal Protection of Expressions of Folklore” (WIPO/GRTKF/IC/2/7) issued by the Secretariat of the World Intellectual Property Organization (WIPO) in June 2001. Such a questionnaire had been suggested at the first session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore which took place from April 30 to May 3, 2001.
By January 31, 2002, which was the final deadline for completion of the Questionnaire as determined by members of the Intergovernmental Committee at its second session from December 10 to 14, 2001, the WIPO Secretariat had received 64 responses to the Questionnaire. This final report summarizes, draws conclusions on and suggests tasks that the Intergovernmental Committee may wish to approve or undertake based on the 64 responses received.
Subsequent to the Introduction (section I), section II “Contextualizing the Final Report” provides information on previous activities in which intellectual property needs and issues related to expressions of folklore have been identified. In addition, this section briefly describes other relevant WIPO activities, and the relevant work of other intergovernmental and regional organizations.
Section III “General Summary, Conclusions and Suggested Tasks” suggests four tasks that the Intergovernmental Committee may wish to approve or undertake. The first two tasks relate to the perceived need for the establishment, strengthening and effective implementation of national systems for the protection of expressions of folklore. In this respect, two tasks are suggested. The first (referred to as Possible Task 1) is for enhanced legal-technical assistance, to be provided by the WIPO Secretariat upon request, for the establishment, strengthening and effective implementation of existing systems and measures for the legal protection of expressions of folklore at the national level. The second suggested task (referred to as Possible Task 2) is the updating and modification of the WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1982, as has been suggested by States and other stakeholders in previous WIPO activities, the first two sessions of the Intergovernmental Committee and in responses to the Questionnaire.
Many States and other stakeholders have also identified a strong need for States and/or indigenous peoples and local communities to be able to exercise rights in respect of expressions of folklore in foreign countries, in other words, a need for the extra-territorial (or, international) protection of expressions of folklore. Thus, the third suggested task (referred to as Possible Task 3) concerns the Intergovernmental Committee examining elements of possible measures, mechanisms or frameworks for the functional extra-territorial protection of expressions of folklore.
Finally, in previous WIPO activities, at previous sessions of the Intergovernmental Committee and in responses to the Questionnaire, States and other stakeholders have suggested that the relationship between customary laws and protocols and the formal intellectual property system, insofar as they relate to the legal protection of expressions of folklore, be further examined. Possible Task 4, therefore, proposes that the WIPO Secretariat commission a practical study on this matter, for further consideration by the Intergovernmental Committee.
1 See WIPO/GRTKF/IC/1/13 (Report of first session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore), paras. 156 to 175. 2 The questionnaire was distributed to all WIPO’s Member States and other Members of the Intergovernmental Committee, and is also available on WIPO’s web site at <https://www.wipo.int/globalissues/igc/documents/index.html> 3 See paragraphs 7, 8, and 51 of the Preliminary Report (WIPO/GRTKF/IC/2/8).
II. Contextualizing the Final Report
This section provides a context within which the work of the
Intergovernmental Committee in respect of expressions of folklore and in particular
this Final Report can be viewed. The first part traces previous WIPO and other
activities directly relevant to the legal protection of expressions of folklore; the
second part describes certain other developments in WIPO that are or may be related
to this question; and the latter two parts scope the relevant activities of certain other
intergovernmental and regional organizations. Accordingly, this section follows this
structure:
II.A. Overview of intellectual property needs and issues related to expressions of folklore
II.B. Other relevant ongoing activities of WIPO
II.C. Relevant work of other intergovernmental organizations and agencies
II.D. Relevant work of regional organizations
III. General summary, conclusions and suggested tasks
While Annex I contains a detailed and statistical account of the responses, question by question, to the Questionnaire, this section provides a general summary,
4 See paragraphs 183 and 184, WIPO/GRTKF/IC/2/16 (Report of the Second Session).
draws conclusions and suggests tasks that the Intergovernmental Committee may wish to undertake.
IV. Annexes
II. CONTEXTUALIZING THE FINAL REPORT
II.A. Overview of Intellectual Property Needs and Issues Related to Expressions of Folklore
(vii) the WIPO fact-finding missions on traditional knowledge, 1998-1999;
(viii) the WIPO-UNESCO Regional Consultations on the Protection of Expressions of Folklore, 1999;
12. The 1967 Stockholm Diplomatic Conference for Revision of the Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”) made an attempt to introduce copyright protection for folklore at the international level. As a result, Article 15(4) of the Stockholm (1967) and Paris (1971) Acts of the Berne Convention contains the following provision:
“(4)(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.”
“(b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General [of WIPO] by means of a written declaration giving full information concerning the authority thus designated. The Director General shall at once communicate this declaration to all other countries of the Union.”
13. This Article of the Berne Convention, according to the intentions of the revision Conference, implies the possibility of granting protection for expressions of folklore. Its inclusion in the Berne Convention responds to calls made at that time for specific international protection of expressions of folklore. 5
(b) Adoption of the Tunis Model Law on Copyright for Developing Countries, 1976
5See Ficsor, M., “Attempts to Provide International Protection for Folklore by Intellectual Property Rights”, paper presented at the WIPO-UNESCO World Forum on the Protection of Folklore, Phuket, Thailand, April 8 to 10, 1997, p.17; Ricketson, S., The Berne Convention for the Protection of Literary and Artistic Works: 18861986 (London, 1987) pp. 313-315. Only one country, India, has made the designation referred to in the Article. 6 See particularly section 1 (5bis) and section 6, Tunis Model Law.
(c) The Model Provisions, 1982
7 See generally Ficsor, M., op. cit. 8 See documents WIPO-UNESCO/FOLK/AFR/99/1, WIPO-UNESCO/FOLK/ASIA/99/1, WIPO-UNESCO/FOLK/ARAB /99/1 and WIPO-UNESCO/FOLK/LAC /99/1. See also Kutty, P. V., “Study on the Protection of Expressions of Folklore,” 1999, study prepared for the World Intellectual Property Organization (WIPO), unpublished. 9 See Kutty, op. cit.
In addition, the possibility that the Model Provisions may be out of date, given technological, legal, social, cultural and commercial developments since 1982, has also been cited. 10
(d) Attempts to establish an international treaty, 1982 to 1985
10 See in particular WIPO-UNESCO/FOLK/AFR/99/1, WIPO-UNESCO/FOLK/ASIA/99/1 and WIPOUNESCO/FOLK/ARAB/99/1.
literary or artistic works” (emphasis added). As expressions of folklore do not correspond to the concept of literary and artistic works proper, the definition of “performers” in the Rome Convention does not seem to extend to performers who perform expressions of folklore.
(i) the need for a new international standard for the legal protection of folklore; and
(ii) the importance of striking a balance between the community owning the folklore and the users of expressions of folklore.
30. In order to make progress towards addressing these needs and issues, the Plan of Action suggested inter alia that “(r)egional consultative fora should take place….” 14
(g) WIPO fact-finding missions, 1998-1999
31. During 1998 and 1999, WIPO conducted fact-finding missions to identify as far as possible the intellectual property-related needs and expectations of traditional knowledge holders (the “FFMs”). Indigenous and local communities, non-governmental organizations, governmental representatives, academics, researchers and private sector representatives were among the groups of persons consulted on these missions.
11 For the purpose of WPPT performers who are accorded protection include “‘performers’ who are actors, singers, musicians, dancers, and other persons who act, sing, deliver, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.” 12 See BCP/CE/VI/16-INR/CE/V/14, par. 269. 13 See WIPO Publication Number 758 (E/F/S). 14 The Plan of Action records that “(t)he participants from the Governments of the United States of America and the United Kingdom expressly stated that they could not associate themselves with the plan of action.”
35. These two main sets of needs and concerns translate into several questions for intellectual property. The FFM Report identifies the main intellectual property needs and expectations that were expressed to WIPO during these missions. Certain of these were legal or conceptual in nature; others were more operational and administrative. Those that either apply specifically to expressions of folklore, or that were expressed in respect of traditional knowledge systems in general, would include:
(iii) the study of customary laws and protocols relating to the use, development, transmission and protection of expressions of folklore, and their relationship with intellectual property standards;
(iv) in the shorter term, testing the applicability and use of existing intellectual property standards for the legal protection of expressions of folklore in practical case-studies and pilot projects;
15 WIPO Publication 768E/F/S. The Report is also available at <https://www.wipo.int/globalissues/tk/report/final/index>16 See chapter on “Terminology” in the FFM Report.
(vii) the development and testing of specific intellectual property laws and systems for the protection of expressions of folklore at the national level, using inter alia the Model Provisions as a possible foundation;
(viii) in the longer term, the elaboration of regional and international frameworks for the legal protection of expressions of folklore using inter alia the Model Provisions as a possible foundation;
36. Pursuant to the suggestion included in the Plan of Action adopted at the WIPOUNESCO World Forum on the Protection of Folklore, 1997, WIPO and UNESCO organized four Regional Consultations on the Protection of Expressions of Folklore in 1999. 17 Each of the Regional Consultations adopted resolutions or recommendations which identify intellectual property needs and issues, as well as proposals for future work, related to expressions of folklore. They were addressed to States, and to WIPO and UNESCO. The main intellectual property needs, issues and proposals referred to in the resolutions and recommendations are the following:
To States, the:
(i) protection of expressions of folklore at the national level; 18
(ii) establishment of national structures to ensure the regulation, coordination and protection of expressions of culture; 19
(iii) involvement of relevant communities, civil society, experts, academics and other interested groups; 20
17 The regional consultations were held for African countries in Pretoria, South Africa (March 1999); for countries of Asia and the Pacific region in Hanoi, Viet Nam (April 1999); for Arab countries in Tunis, Tunisia (May 1999); and for Latin America and the Caribbean in Quito, Ecuador (June 1999). The four regional consultations were attended by 63 Governments of WIPO’s Member States, 11 intergovernmental organizations, and five non-governmental organizations. 18 WIPO-UNESCO/FOLK/AFR/99/1. 19 WIPO-UNESCO/FOLK/AFR/99/1.
(vii) development of a regional framework for the preservation, protection and maintenance of expressions of folklore; 24
(viii) formulation of a legal mechanism for the protection of expressions of folklore at the international level; 25
20 WIPO-UNESCO/FOLK/AFR/99/1; WIPO-UNESCO/FOLK/ASIA/99/1. 21 WIPO-UNESCO/FOLK/ASIA/99/1. 22 WIPO-UNESCO/FOLK/AFR/99/1;WIPO-UNESCO/FOLK/ARAB/99/1. WIPO-UNESCO/FOLK/LAC/99/1.23 WIPO-UNESCO/FOLK/AFR/99/1;WIPO-UNESCO/FOLK/ARAB/99/1. 24 WIPO-UNESCO/FOLK/AFR/99/1; WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/LAC/99/1.25 WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/LAC/99/1. 26 WIPO-UNESCO/FOLK/AFR/99/1;WIPO-UNESCO/FOLK/ARAB/99/1. 27 WIPO-UNESCO/FOLK/ARAB/99/1. 28 WIPO-UNESCO/FOLK/AFR/99/1; WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/ARAB /99/1; WIPO-UNESCO/FOLK/LAC/99/1.29 WIPO-UNESCO/FOLK/LAC/99/1. 30 WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/LAC/99/1. 31 WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/LAC/99/1.
(vii) increased efforts to develop a broad consensus among States in favor of an adequate and effective international regime for the protection of expressions of folklore; 34 initiate steps for the development of a sui generis form of binding legal protection at national and international levels, taking into account the technological, legal, social, cultural and commercial developments which have taken place since the Model Provisions were concluded; 35 elaboration of an international convention on the protection of expressions of folklore; 36 continuation of work for nurturing expressions of folklore and their protection at the international level; 37
(viii) establish a Standing Committee on Traditional Knowledge and Folklore to facilitate the process of establishing legal protection of folklore and traditional knowledge; 38 and,
(ix) assist in the establishment of national centers, and creation of a pilot regional center, for the conservation, documentation and promotion of expressions of folklore.
(i) First session of the Intergovernmental Committee
32 WIPO-UNESCO/FOLK/AFR/99/1. 33 WIPO-UNESCO/FOLK/AFR/99/1; WIPO-UNESCO/FOLK/ASIA/99/1. 34 WIPO-UNESCO/FOLK/AFR/99/1. 35 WIPO-UNESCO/FOLK/ASIA/99/1. 36 WIPO-UNESCO/FOLK/ARAB/99/1. 37 WIPO-UNESCO/FOLK/LAC/99/1. 38 WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/ARAB/99/1; WIPO-UNESCO/FOLK/LAC/99/1. 39 WIPO/GRTKF/IC/I/3. 40 WIPO/GRTKF/IC/1/3, paras. 92 to 101. 41 WIPO/GRTKF/IC/1/3, paras. 102 to 106. 42 At the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO, held from September 20 to 29, 1999, one Group of WIPO Member States expressed the view “that the need for a suitable mechanism and agreed norms for the protection of handicraft was shared by the developing countries” (A/34/16, paragraph 29). This need was further elaborated by another Group of WIPO Member States at the Twenty-Sixth
(iii) efforts to establish an international system of sui generis protection for expressions of folklore (identified as task C.3). 43
(iii) work to address and understand what is the subject matter for which protection is sought, and, put differently, which elements of expressions of folklore deserve protection; 46
(vii) the assessment of the use of existing intellectual property and common law tools, including in respect of handicrafts; 50
(viii) further work on terminological issues; 51 and,
(ix) the adoption of a sui generis regime to protect expressions of folklore. 52
Session of the WIPO General Assembly, held in Geneva from September 26 to October 3, 2000 (WO/GA/26/9, Annex II) with a view to specific proposals for the work of the Intergovernmental Committee. Document WO/GA/26/9 was subsequently also issued as a document for the First Session of the Intergovernmental Committee (WIPO/GRTKF/IC/1/5). 43 WIPO/GRTKF/IC/1/3, paras. 107 to 114. 44 WIPO/GRTKF/IC/1/13, par. 156. 45 WIPO/GRTKF/IC/1/13, paras. 159, 161 46 WIPO/GRTKF/IC/1/13, paras. 159, 163, 165. 47 WIPO/GRTKF/IC/1/13, par. 165. 48 WIPO/GRTKF/IC/1/13, par. 165. 49 WIPO/GRTKF/IC/1/13, paras. 160, 163, 165, 166, 168, and 169. 50 WIPO/GRTKF/IC/1/13, paras. 160, 168. 51 WIPO/GRTKF/IC/1/13, paras. 171, 172. 52 WIPO/GRTKF/IC/1/13, par. 161.
53 WIPO/GRTKF/IC/1/13, par. 175. 54 WIPO/GRTKF/IC/2/8 - paragraph 7: “This document is a preliminary report on the questionnaires received on or before September 30, 2001. As a preliminary report, this document contextualizes and summarizes the responses received, but does not analyze them, nor draw any conclusions or suggest further activities or tasks that the Member States and other Members of the Intergovernmental Committee may wish to set themselves or undertake. The Intergovernmental Committee is invited to note and make general comments on this preliminary report (see paragraph 51, below).”55 WIPO/GRTKF/IC/2/8 - paragraph 8: “Those Member States of WIPO and other Members of the Intergovernmental Committee which have not yet completed the questionnaire are invited to do so before December 31, 2001. Thereafter, a final report on all the questionnaires received before that date will be prepared and issued by the Secretariat. The final report will summarize and analyze the responses received, draw conclusions and suggest tasks and activities that the Intergovernmental Committee may wish to undertake. The final report will be issued before February 28, 2002.”
II.B. Other Relevant Activities of WIPO
48. Certain other ongoing developments at WIPO are or may be related to the legal protection of expressions of folklore. They are briefly described in this section.
(a) Domain names
49. Domain names are a simple form of Internet address, designed to enable users to locate sites on the Internet in an easy manner. There are essential differences between trademarks and domain names. Trademarks are always business identifiers, are of territorial character and relate to specific goods or services, are registered by a public authority on the basis of an industrial property law and are protected by special industrial property rights after an examination procedure. In June 1998, WIPO undertook an international process to develop recommendations concerning the intellectual property issues associated with Internet domain names, including domain name dispute resolution. The WIPO Internet Domain Name Process was finalized on April 30, 1999 with the publication of a report entitled “The Management of Internet Names and Addresses: Intellectual Property Issues.” 56 The Uniform Dispute Resolution Policy (UDRP) subsequently adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) has established a uniform and mandatory administrative dispute-resolution system to address cases of bad faith and abusive registration of trademarks as domain names, also known as “cybersquatting.” It addresses also the reverse domain name hijacking cases, namely the attempt in bad faith to deprive a registered domain-name holder of a domain name. These streamlined procedures for resolving cases of clear abuse of trademark holders’ rights have so far proved to be very efficient and cost-effective. One of the four Domain Name Dispute Resolution Service Providers approved by ICANN is
56 WIPO Publication No. 439.
WIPO. The panelists of the WIPO Arbitration and Mediation Center generally have expertise in trademark law and/or dispute resolution.
57 <http://wipo2.wipo.int> (September 3, 2001). 58 See Annex XIV of the Second WIPO Internet Domain Name Process. 59 CRNR/DC/6
proposals for this Treaty focused on the creation of a sui generis right similar to that created in the European Database Directive. Although agreement could not be reached on this Treaty, the conference adopted a Recommendation concerning Databases. 60
56. Most recently, five studies on the Economic Impact of the Intellectual Property Protection of Non-Original Databases have been prepared and will be submitted to the SCCRR at its seventh session which will be held in May 2002.
(c) Related rights
60 CRNR/DC/100 61 WIPO/IPTK/MCT/02/INF.5 62 Article 2 (a): “‘performers’ who are actors, singers, musicians, dancers, and other persons who act, sing, deliver, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.” 63 See also Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, signed at Brussels, May 21, 1974, which notes within its articles the importance of the interests of authors, performers, producers of phonograms and broadcasting organizations.
61. With regard to the protection of audiovisual performances, States were unable to conclude a treaty in December 2000. The WPPT does not extend the protection of performers to their performances fixed in audiovisual fixations, such as film and video. A resolution had been adopted in 1996 which called for the WPPT to be complemented by a Protocol on the protection of audiovisual performances. The possible Treaty is to be discussed further at the WIPO General Assembly in September 2002.
II.C. Relevant work of other intergovernmental organizations and agencies
62. The programs and activities of certain other intergovernmental organizations and agencies are or may be relevant to the protection of expressions of folklore. They have been, and will continue to be, taken into account in WIPO’s activities.
(a) United Nations Educational, Scientific and Cultural Organization (UNESCO)
64 <http://www.unesco.org/culture/laws/cooperation/html_eng/page1.shtml> 65 “Cultural property” as defined in Article 1 of Convention “…means property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:
party to the Convention are bound to return to other State Parties cultural property that has been stolen from a museum or similar institution and is inventoried, to take measures to control the acquisition of illicitly traded cultural objects by persons and institutions in their country, to co-operate with other States having severe problems of protection of their heritage by applying import controls based on the export controls of other States Parties, and to take steps to educate the public. In furtherance of the Convention, UNESCO requested the International Institute for the Unification of Private Law (UNIDROIT) to draw up a new treaty to complement the 1970 UNESCO Convention by providing minimal rules of uniform law. This resulted in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1995. 66 UNESCO’s International Code of Ethics for Dealers in Cultural Property is a voluntary code designed to harmonize practice in the art trade along the principles of its international standard setting instruments to prevent illicit traffic in cultural goods;
(iii) the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (“the World Heritage Convention”) was adopted by the General Conference of UNESCO in 1972. The Convention defines the kind of natural 67 or cultural 68 sites which can be considered for inscription on the World Heritage List, and sets out the duties of States Parties in identifying potential sites and their role in protecting and preserving them. By signing the Convention, each country pledges to conserve not only the World Heritage sites situated on its territory, but also to protect its national heritage. The Convention further explains how the World Heritage Fund is to be used and managed and under what conditions international financial assistance may be provided;
66 <http://www.unesco.org/culture/legalprotection/> 67 The Convention defines “natural heritage” as follows: Article 2 “… natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.” <http://www.unesco.org/whc/nwhc/pages/doc/main.htm>68 The Convention defines “cultural heritage” as follows: Article 1 “… monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science; groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science; sites: works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.” <http://www.unesco.org/whc/nwhc/pages/doc/main.htm> 69 UNESCO and the Smithsonian Institution co-organized an international Conference entitled “A Global Assessment of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore: Local Empowerment and International Cooperation”, held in Washington D.C., June 27-30, 1990.
necessary for the production of selected aspects of the cultural life of a people and the continued existence of their material cultural heritage;”
(vi) in 1998, a program on Masterpieces of the Oral and Intangible Heritage of Humanity was created to honor the most remarkable examples of cultural spaces (defined as places in which popular and traditional cultural activities are concentrated or as the time usually chosen for some regularly occurring event) or forms of popular and traditional expression such as languages, oral literature, music, dance, games, mythology, rituals, costumes, craftwork, architecture and other arts as well as traditional forms of communication and information. 70 In addition, it is to encourage governments, NGOs and local communities to take the lead in identifying, preserving and drawing attention to their oral and intangible heritage;
(vii) the UNESCO Programme for the Preservation and Revitalization of Intangible Cultural Heritage has launched a publication series to help specialists catalogue and compile inventories of cultural forms, since they are constantly changing and may disappear forever on the death of their creators. The first volume in this series is a Handbook for the Study of Traditional Music and Musical Instruments. 71 A handbook for the study of vernacular architectural styles is in preparation.
65. Most recently, at UNESCO’s General Conference, 31st Session, a Resolution was adopted according to which a new standard-setting instrument on the protection of traditional culture and folklore will be developed. 72 The Resolution invited the Director-General to submit to the General Conference at its 32nd session, scheduled to take place in late 2003, a report on the possible scope of such an instrument, together with a preliminary draft international convention. 73
(b) International Trade Centre (ITC)
70 <http://www.unesco.org/culture/heritage/intangible/index.shtml> 71 Dournon, Geneviève. Handbook for the Study of Traditional Music and Musical Instruments. Paris: UNESCO, 1999. 72 31 C/Resolution 30. 17 Member States formally expressed in written form their reservations in relation to the adoption of the resolution on this item: Argentina, Barbados, Denmark, Finland, France, Germany, Grenada, Greece, Mexico, Netherlands, Norway, Portugal, Saint Lucia, Spain, St. Vincent and the Grenadines, Sweden, Switzerland. 73 See <http://unesdoc.unesco.org/images/0012/001246/124687e.pdf> - Records of the General Conference - 31st Session - Paris, 15 October to 3 November -“Resolutions” 74 CLT-96/WS/5, 1996.
interests of its members. 75 In addition, the protection of intellectual property rights in the crafts should be under the responsibility of a national society for original craft items (NSOCI). It would supervise and guide the guild chamber and provide the link between the bodies in question. 76 More recently, in July 2000, the ITC published a report “Legal and Other Measures to Protect Crafts”, based upon work undertaken, in collaboration with WIPO, in Bolivia, Colombia and Peru.
75 ITC/UNESCO. op.cit. 76 Ibid. 77 ITC/AG(XXXIV)/185, February 27, 2001. 78 WIPO-ITC/DA/HAV/01/03, January 30- February 1, 2001. 79 Now named the Sub-Commission on the Promotion and Protection of Human Rights. 80 <http://www.unhchr.ch/indigenous/ind_wgip.htm> 81 E/CN.4/Sub.2/1994/2/Add.1. 82 E/CN.4/Sub.2/1991/32, August 29, 1991. 83 E/CN.4/Sub.2/1993/28, July 28, 1993.
Guidelines for the Protection of the Heritage of Indigenous People was included in the final report. 84 The Principles and Guidelines focus on the effective protection of the heritage of indigenous peoples, which is broadly defined. 85
(ii) Permanent Forum on Indigenous Issues
73. The Permanent Forum is a subsidiary organ of the Economic and Social Council (ECOSOC), consisting of sixteen members. Its establishment was one of the central objectives of the International Decade of the World’s Indigenous People (1995-2004). The Forum serves as an advisory body to the Council with the mandate to discuss indigenous issues within the mandate of the Council. In addition, the Forum provides expert advice and recommendations to the Council on indigenous issues and raises awareness with the promoting of the integration and coordination of activities relating to indigenous issues within the UN system. “Indigenous issues” includes economic and social development, culture, environment, education, health and human rights. The first session of the Forum will take place in May 2002.
(d) International Labour Organization (ILO)
74. The ILO formulates international Labour standards setting minimum standards of basic Labour rights and provides technical assistance, training and advisory services to independent employers’ and workers’ organizations. 86 The ILO is responsible for two international instruments relating to indigenous peoples and local communities: the Indigenous and Tribal Populations Convention, 1957 (No. 107) and the Indigenous and Tribal Peoples Convention, 1989 (No. 169). The latter Convention notes that traditional activities of the indigenous peoples are considered important in the maintenance and development of their cultures and economies (Article 23), and the importance of protecting indigenous knowledge. The Convention has been ratified by 14 countries. 87 Currently, the Small Enterprise Development (SEED) division of the ILO is conducting a project on small enterprise development and job creation in the cultural sector. The project has commenced with studies in five cultural sub-sectors, namely, film and TV, music, ethno-tourism, crafts, and performing arts and dance, in the Southern African region. The International Programme to Support Self-Reliance of Indigenous and Tribal Peoples through Cooperatives and Self-Help Organizations (INDISCO) was launched in 1993 under a DANIDA/ILO Framework Agreement. The objective of the programme is to contribute to the improvement of the socioeconomic conditions of indigenous and tribal peoples through demonstrative pilot projects and dissemination of best practices for policy improvement.
(e) World Trade Organization (WTO)
75. Certain WTO Members have requested various bodies of that organization, such as the Committee on Trade and Environment (CTE), the Council for TRIPS and the General Council, to address the protection of traditional knowledge. In the lead-up to the Third Ministerial Conference of WTO Members in Seattle on November 30 to December 3, 1999, a number of WTO Members submitted proposals, both in the context of the review of Article
84 E/CN.4/Sub.2/1995/26, June 21, 1995. 85 See Brown, Michael F. “Can Culture be Copyrighted?”, Current Anthropology, Volume 39, Number 2, April 1998, p.202. 86 <http://www.ilo.org/public/english/about/mandate.htm> 87 Argentina; Bolivia; Colombia; Costa Rica; Denmark; Ecuador; Fiji; Guatemala; Honduras; Mexico; Netherlands; Norway; Paraguay; Peru.
27.3(b) of the TRIPS Agreement and of an eventual new round of negotiations, that the TRIPS Agreement should contain provisions on the protection of traditional knowledge.
II.D. RELEVANT WORK OF REGIONAL ORGANIZATIONS
78. The agreements, instruments and processes of certain regional organizations refer explicitly to expressions of folklore, or forms thereof. By way of example, some are briefly described in the following paragraphs.
(a) The African Intellectual Property Organisation (OAPI)
79. OAPI was established by the adoption of a new convention signed in Bangui on March 2, 1977. 89 The “Bangui Agreement” legislates patents, utility models, products and service marks, industrial designs and models, trade names, geographical indications and copyright. In Chapter I of Annex VII, which deals with copyright and related rights, specific protection is provided for expressions of folklore and for works inspired by expressions of folklore. The form of protection is based on the domaine public payant model. 90 The Agreement deals also with the protection for expressions of folklore in Chapter II on the Protection and Promotion of Cultural Heritage. The Agreement serves as national law for each of the 15 member states which now make up OAPI. 91 The Bangui Agreement provides for national treatment. Therefore, all 15 States that are members of OAPI are bound to protect each other’s expressions of folklore as intellectual property under the national treatment principle.
88 WTO Briefing Notes, No. 19, March 2002 (II). 89 Formerly “The African and Malagasy Patent Rights Authority (OAMPI) (13th September 1962) by the agreement known as the “Libreville Agreement.” 90 See Article 59. 91 Benin, Burkina Faso, Cameroon, Central Africa, Chad, Congo, Cote d'Ivoire, Gabon, Guinea Bissau, Guinea, Mali, Mauritania, Niger, Senegal, Togo.
(b) Secretariat of the Pacific Community
80. The Secretariat of the Pacific Community, jointly with the Pacific Islands Forum Secretariat, is developing a Pacific Regional Model Framework on the Protection of Traditional Knowledge and Expressions of Culture. The framework comprises draft regional guidelines and a draft sui generis Model Law. 92
(c) The Andean Community
81. The Andean Community, established in 1969, comprises five Member Countries, namely Bolivia, Colombia, Ecuador, Peru and Venezuela. The highest body of the Andean Community is the Commission. It is mandated to adopt legislation, that is binding on the Member Countries, on matters relating to the development and coherence of the Andean common market. Andean common legislation issues are mainly in the form of Commission “Decisions.” A Common Regime on Copyright and Neighbouring Rights was established by Decision No. 351. The Decision provides protection to works of applied art, including handicrafts, 93 and provides for national treatment. 94
III. GENERAL SUMMARY, CONCLUSIONS AND SUGGESTED TASKS
92 See WIPO/GRTKF/IC/2/16, paras. 41 and 42. 93 Article 3(14): “work of applied art” means an artistic creation with utilitarian functions or incorporated in a useful article, whether a work of handicraft or one produced on an industrial scale. 94 Article 2.
expressions of folklore, whether using intellectual property rights or other systems. At the outset, therefore, these conceptual and operational issues are briefly described.
86. Accordingly, it is proposed to summarize, draw conclusions and suggest tasks within the following framework:
A. Conceptual and Operational Issues
B. General Summary
C. Conclusions and Suggested Tasks
87. The suggested tasks are also listed separately in Annex V to this document.
A. Conceptual and Operational Issues
88. At the first and second sessions of the Intergovernmental Committee, certain States identified a number of “cross-cutting” questions which they believe require further consideration. These may best be summarized as: What should be protected?; Why protect expressions of folklore?; Who should be protected?; What should be the means of protection?; What should be the scope of protection? (in other words, what exceptions and limitation should there be?). 95 States and other stakeholders have also referred to the need for effective participation of indigenous peoples and local communities in the deliberations of the Intergovernmental Committee and WIPO activities.
95 See for example WIPO/GRTKF/IC/1/13, paras. 159, 163 and 165; WIPO/GRTKF/IC/2/16, par. 169.
89. While these issues are not necessarily susceptible of conclusions, or distinct tasks and activities, at this stage, they confront all efforts to develop or improve measures for the legal protection of expressions of folklore, whether using intellectual property rights or other systems.
(a) Subject matter
96 The regional consultations were held for African countries in Pretoria, South Africa (March 1999), for countries of Asia and the Pacific region in Hanoi, Viet Nam (April 1999); for Arab countries in Tunis, Tunisia (May 1999); and for Latin America and the Caribbean in Quito, Ecuador (June 1999). See documents WIPOUNESCO/FOLK/AFR/99/1); WIPO-UNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/ARAB /99/1; WIPO-UNESCO/FOLK/LAC /99/1. 97 Chiangrai, Thailand Meeting Action Plan and Meeting Statement. See <https://www.wipo.int/eng/meetings/2000/tk/index.htm> (August 31, 2001) 98 See, for example, Janke, T., Our Culture, Our Future (Report prepared for the Australian Institute of Aboriginal and Torres Strait Islander Studies and the Aboriginal and Torres Strait Islander Commission, 1999), pp. 2 to 12; Simpson, T., The Cultural and Intellectual Property Rights of Indigenous Peoples (IWGIA, 1997), pp. 18 to 22; Blakeney, M., “The Protection of Traditional Knowledge under Intellectual Property Law”,
E.I.P.R. 6 [2000], p. 251; Mould-Idrussu, B. “The Experience of Africa”, paper presented at WIPO-UNESCO World Forum on the Protection of Folklore”, held in Phuket, Thailand, in April 1997, published in WIPO Publication Number 758; McDonald, I., Protecting Indigenous Intellectual Property (Australian Copyright Council, Sydney, 1997, 1998); Kuruk, P., “Protecting Folklore Under Modern Intellectual Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States”, 48 American University Law Review 769 (1999); Mugabe, J., “Intellectual Property Protection and Traditional Knowledge”, Intellectual Property and Human Rights (WIPO, 1999), p. 97.
99 See WIPO/GRTKF/IC/2/16 (Final Report of Second Session), par. 167. 100 See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). 101 See documents WIPO-UNESCO/FOLK/AFR/99/1; WIPO-UNESCO/FOLK/ASIA/99/1; WIPOUNESCO/FOLK/ARAB/99/1; and, WIPO-UNESCO/FOLK/LAC/99/1. 102 Daes, Erica-Irene, “Study on the protection of the cultural and intellectual property of indigenous peoples”, 1993, UN document E/CN.4/Sub. 2/1993/28, par. 31. 103 See also Draft Final Report and other documents from the “Inuit Women’s Traditional Knowledge Workshop on the Amauti and Intellectual Property Rights”, Rankin Inlet, Nunavut, May 24 to 27, 2001. 104 WIPO/GRTKF/IC/1/3, par. 90.
separate theme, and this is why the Intergovernmental Committee presently treats
“expressions of folklore” as a distinct theme. The sheer breadth and diversity of what may be included within the notion “traditional knowledge” suggest too that a more limited focus for “expressions of folklore” may be desirable and more productive, at least for the present. The rights, too, that would be relevant in respect of artistic/cultural materials are different from those relevant to technical/scientific materials. In the case of materials of an artistic and literary nature, right holders could be entitled to prevent others from adapting, reproducing, fixing, performing and making available the materials. But when unauthorized use is made of technical components of traditional knowledge, right holders should be capable of preventing their use (meaning the making, using, offering for sale, selling, or importing of the protected traditional product, or, where the subject matter of protection is a traditional process, of the product obtained directly by the traditional process).
(b) Objectives for protection
It should not be overlooked that, in the case of folklore and indigenous knowledge, the prime interest of their creators lies not in deriving some economic benefit from them but rather in having their creations recognized as being part of their community, their culture, their identity.
100. Relevant objectives have also been classified as: a defensive commercial interest, an active commercial interest and ethical concerns. A defensive commercial interest is relevant where cultural communities wish to protect their folklore from being exploited commercially by others. An active commercial interest would be relevant where communities wish to benefit from the economic advantage attached to treating their expressions of folklore as a commodity. Ethical concerns arise when cultural communities wish to protect their folklore so that its evolution faithfully respected their traditions and modes of life. 106
105 See response of Costa Rica, for example; WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). 106 Statement of the European Commission at the second session of the Intergovernmental Committee (WIPO/GRTKF/IC/2/16, par. 169). The Commission indicated in its intervention that discussions within the framework of intellectual property should concentrate on the more transactional, commercial aspects of folklore rather than on ethical issues.
101. The various objectives articulated in respect of folklore demonstrate too that intellectual property approaches may not meet all objectives, or establish the only appropriate incentive measures for continued tradition-based creativity. Intellectual property-type solutions may meet some objectives, but frustrate others. The development and strengthening of national, regional and international systems for the legal protection of expressions of folklore would need to take into account these diverse objectives.
(c) Subjects of protection
107 Santova, Mila, “Problems of the Protection of Folklore as Intellectual Property at the Dawn of the 21st Century”, paper presented at WIPO International Conference on Intellectual Property, the Internet, Electronic Commerce and Traditional Knowledge, Sofia, Bulgaria, May 29 – 31, 2001, pp. 4-5 108 For example, Canada; China; Ecuador; Kyrgystan; Malaysia; Mexico; Republic of Korea; Romania; Switzerland; United States of America. 109 Section 4 (1) (iii), Model Provisions, 1982.
107. In this respect, it is suggested by some that the existing intellectual property system already meets similar balancing needs. For example, in its response the United States of America stated that:
“The United States believes that proper balance must be maintained between the needs of particular communities and the promotion of individual creation, development of a living culture and freedom of expression. Flexibility must be maintained so that the needs and concerns of various communities may be addressed. The principal means of protecting expressions of folklore should be conventional intellectual property legislation, supplemented, as necessitated by the conditions/needs of local communities, by specific laws that address specific problems. The balance inherent in intellectual property laws may be thus incorporated into the protection of expressions of folklore.”
110 See Farley, Christine Haight, “Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?” Connecticut Law Review, Fall, 1997.111 See WIPO/GRTKF/IC/1/13, paragraph 87; WIPO/GRTKF/IC/2/16, paras. 75, 91, 117; Position Paper of the Asian Group and China (WIPO/GRTKF/IC/2/10). See also WIPO-UNESCO African Regional Consultation on the Protection of Expressions of Folklore, Pretoria, March 23 to 25, 1999 (WIPO-UNESCO/Folk/AFR/99/1) p.3; See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) pp. 80, 128, and 142.
111. For example, as the representative of the First Nations Development Institute stated at the second session of the Intergovernmental Committee:
(The representative) urged that the necessary resources and logistical support be made available to ensure the full and effective participation of Indigenous expertise throughout these discussions. She emphasized that Indigenous elders, lawyers, and activists had been working for decades to articulate the intellectual property rights needs of Indigenous peoples and provide guidance on how these needs could be met. They knew the formal intellectual property rights system and its limitations. They knew customary law and traditions. Indigenous peoples knew what they wanted, they knew what worked and what did not, and to ignore this expertise would be not only to the detriment of Indigenous peoples, but also to the detriment of the Committee in developing solutions that would work on the ground. 112
112. Certain States have supported such calls. For example, at the second session of the Intergovernmental Committee, the delegation of Belgium, speaking on behalf of the European Community, stated that the active participation of indigenous and local communities was necessary to encompass views of all stakeholders who were relevant to the work of the Committee. However, the Delegation added, a prerequisite for such participation was the availability of financial assistance. It pointed out that such assistance could in many cases be properly ensured by Member States. It stated that nevertheless the appropriateness of setting up a general mechanism for financial assistance through funds should also be considered. 113
B. General Summary
(a) States which provide specific protection for expressions of folklore
(iii) the country has established specific measures or mechanisms for legally protecting certain aspects of expressions of folklore (such as indigenous and traditional insignia, symbols and marks).
112 WIPO/GRTKF/IC/2/26, par. 152. 113 WIPO/GRTKF/IC/2/16, par. 186
(i) in its response to the Questionnaire, Croatia responded that it provides specific protection for expressions of folklore and referred to its Law on the Protection and Preservation of Cultural Goods, which came into force in 1999. The Law protects inter alia
114 Paragraph 5 of the Questionnaire (WIPO/GRTKF/IC/2/7) stated as follows: “The questionnaire concerns national experiences with the legal protection of expressions of folklore as intellectual property. This means specific legal protection of an intellectual property nature for expressions of folklore. Such protection may, but need not be, provided for in a State’s intellectual property laws. It may be provided for by sui generis (of its own kind) legislation, or as part of a law dealing with national cultural heritage, for example. The questionnaire is, therefore, not concerned with indirect, or incidental, protection for expressions of folklore, such as may be provided in certain cases by copyright, related rights or industrial property laws. It is also not concerned with the identification, preservation, promotion and dissemination of folklore, save to the extent that these may be relevant to the legal protection of expressions of folklore as intellectual property.”
“non-material cultural goods”, which are defined as goods comprising various forms and phenomena of spiritual creativity transmitted traditionally or in another way, especially folklore creativity, in the field of music, dance, tradition, games, rituals, customs, and other traditional national values;
(ii) Panama 115 has given a detailed explanation of its “Special Intellectual Property Regime on Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity as their Traditional Knowledge,” established by Law No. 20, of June 26, 2000 and regulated by Executive Decree No. 12, of March 20, 2001. The Law creates the Department of Collective Rights and Expressions of Folklore within the relevant intellectual property office. Panama’s sui generis regime covers indigenous peoples’ creations, such as inventions, designs and innovations, cultural historical elements, music, art and traditional artistic expressions. Panama’s response advises that the general aims and principles of the Model Provisions, 1982 are followed in the new Law. However, the exceptions provided for in section 4 of the Model Provisions are not followed. The Department of Collective Rights and Expressions of Folklore has started a program for the archiving of expressions of folklore, and the functions and powers of this new authority are set out in some detail. The possibility to register collective exclusive rights is also provided for. The Kuna Yala territory has expressed interest in the registration of the handicraft known as the mola but no expression of folklore has been registered to date. The authority to attribute rights is vested upon the Congress(es) or the Traditional Indigenous Authority(ies). Some elements of knowledge may be co-owned by various communities, in which case benefits will be jointly shared. The Law also provides for exceptions to rights conferred as well as measures of enforcement (available provisions to enforce intellectual property rights may be applied as subsidiary mechanisms). Collective indigenous rights may also be a basis for opposing unauthorized third party claims to intellectual property rights, such as copyright, trademarks and geographical indications. The response of Panama also refers to Law No. 27 of July 24, 1997, “Provisions on the Protection, Promotion and Development of Handicraft.” Chapter VIII of this Law establishes protection for national handicrafts by prohibiting the import of craft products or the activity of those who imitate indigenous and traditional Panamanian articles and clothing;
(iii) in the Philippines, 116 the 1987 Philippine Constitution mandates the recognition, respect and protection of the rights of the indigenous cultural communities and indigenous peoples (referred to as “ICCs/IPs”). This mandate was realized with the passage of the Indigenous Peoples Rights Act (Republic Act No. 8371) in October 1997. The law provides protection for “community intellectual property rights” described as:
a) The past, present and future manifestations of their cultures, such as but not limited to, archeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature as well as religious and spiritual properties; b) Science and technology including but not limited to, human and other genetic resources, seeds, medicines, health practices, vital medicinal plants, animals, minerals, indigenous knowledge systems and practices, resource management systems, agricultural technologies, knowledge of the properties of flora and fauna, and scientific discoveries; and
115 Information also obtained from Panama’s response to the WIPO Survey on Existing Forms of Intellectual Property Protection for Traditional Knowledge.116 Information obtained from response of the Philippines and Daoas, D., “Efforts at Protecting Traditional Knowledge: the Experience of the Philippines”, paper presented at WIPO Roundtable on Intellectual Property and Traditional Knowledge, November 1 and 2, 1999.
c) Language, music, dance, script, histories, oral traditions, conflict resolution mechanisms, peace building processes, life philosophy and perspectives and teaching and learning systems. 117
According to the response of the Philippines, community intellectual property rights also includes Filipino historical and cultural heritage and resources, and traditional culture and its various creative.
The right of the indigenous peoples to their indigenous knowledge systems and practices and to develop their own science and technologies is provided by Section 34 of the Act which states that:
“Indigenous cultural communities/indigenous peoples are entitled to the recognition of the full ownership and control and protection of their cultural and intellectual rights. They shall have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, including derivatives of these resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of flora and fauna, oral traditions, literature, designs and visual and performing arts.”
Regarding the protection of “manifestations of indigenous culture”, it is stated that indigenous culture shall not be commercialized or used for tourism and advertisement purposes without the free and prior informed consent of the indigenous peoples concerned. The indigenous peoples shall have control over the indigenous cultural and artistic performances, and to share equitably in the benefits of such presentation or performance. All funds so collected shall be managed directly by the community concerned or shall be held in trust by the National Commission on Indigenous Peoples for the benefits of the relevant community. 118
Customary laws and practices are referred to several times in the Act and the implementing Rules and Regulations, and have primacy in disputes involving indigenous cultural communities and indigenous peoples; 119
(iv) in addition to the Civil Code of 1995, which, in its chapter dealing with copyright, protects folk arts and literature, Viet Nam advised of a new Cultural Heritage Law which was adopted in June 2001, and came into force on January 1, 2002. In terms of this law, prior authorization for the exploitation of expressions of folklore belonging to the national cultural heritage is required; the development and the creation and dissemination of folklore are protected; and, the illicit exploitation and other prejudicial actions in respect of expressions of folklore are prevented.
122. While the previous group of countries have enacted general and comprehensive legislation, one country, the United States of America, has established specific measures or provisions which, according to its response, aim to “protect and preserve cultural heritage and to prevent commercial interests from falsely associating their goods or services with indigenous peoples.” This has been done in accordance with the country’s view that “The United States has found that the most effective means of protection of expressions of folklore
117 Section 10, Rule VI, Rules and Regulations Implementing Republic Act No. 8371. 118 Section 16, Rule VI, Rules and Regulations Implementing the Republic Act No. 8371. 119 Section 65, Indigenous Peoples Rights Act, 1997.
is to address the specific concerns that have arisen in this country. As is the case of all nationals, members of Indian tribes and Alaskan natives have full access to elected representatives who are in the position to propose legislation to meet their particular needs. Accordingly, we have not felt that a one-size-fits-all approach is desirable or appropriate.”
Additionally, in its response, the country advised that:
(b) States which do not provide specific protection for expressions of folklore
123. Approximately a half of respondents to the Questionnaire do not provide specific legal protection for expressions of folklore. 41 respondents, equaling 62% of the respondents, answered that they do not provide specific protection or did not answer the question (Question
I. 3). 33, or 52%, were evaluated as answering ‘No’ to the question.
124. Those States that do not provide specific protection advanced a number of reasons. At the risk of generalizing, one could identify three main clusters of reasons. These are: Adequate protection provided by existing intellectual property rights; Legal protection for expressions of folklore not appropriate or requested; and, Legal protection for expressions of
120 Available at <http://www.uspto.gov/web/menu/current.html> (30Nov99 entry). 121 Ibid., pp. 24-26.
folklore awaiting enactment or still under consideration. These clusters overlap in some respects and a State’s views may be reflected in more than one cluster.
Adequate protection provided by existing intellectual property rights
(i) Australia 126 identified four cases which, in its view, demonstrate the ability of the Australian intellectual property regime to protect traditional knowledge: Foster v Mountford (1976) 29 FLR 233, 127 Milpurrurru v Indofurn Pty Ltd (1995) 30 IPR 209, 128 Bulun Bulun & Milpurrurru v R & T Textiles Pty Ltd (1998) 41 IPR 513 129 and Bulun Bulun v Flash
122 The term “geographical indications” is used in this document in a broad sense to include: “indications of source” as referred to in the Paris Convention for the Protection of Industrial Property, 1883 and the Madrid Agreement for the Repression of False or Deceptive Indications of Source of Goods, 1891; “appellations of origin” as used in the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, 1958; and, “geographical indications” as used in the TRIPS Agreement, 1994. See generally WIPO document WIPO/GEO/MVD/01/1 and WIPO Publication L 450 GI.123 Australia; Canada; Czech Republic; Gambia; Germany; Indonesia; Jamaica; Japan; Kyrgyzstan; Norway; Philippines; Portugal; Republic of Korea; Romania; Switzerland; United States of America. 124 Australia. 125 Canada. 126 Australia’s response to the WIPO Survey on Existing Forms of Intellectual Property Protection for Traditional Knowledge (WIPO/GRTKF/IC/2/5) is also taken into account here. 127 In this case the Court used common law doctrine of confidential information to prevent the publication of a book containing culturally sensitive information.128 This case involved the importation into Australia of carpets manufactured in Viet Nam which reproduced (without permission) either all or parts of well-known works, based on creation stories, created by Indigenous artists. The artists successfully claimed infringement of copyright as well as unfair trade practices, for the labels attached to the carpets claimed that the carpets had been designed by Aboriginal artists and that royalties were paid to the artists on every carpet sold. In awarding damages to the plaintiffs, the judgement recognized the concepts of “cultural harm” and “aggregated damages”.129 This case arose out of the importation and sale in Australia of printed clothing fabric which infringed the copyright of the Aboriginal artist, Mr. John Bulun Bulun. A parallel issue was whether the community of the Ganalbingu people, to which Mr. Bulun Bulun and his co-applicant Mr. Milpurrurru belong, had equitable ownership of the copyright. The court said that, given that relief had been granted to Mr. Bulun Bulun, through a permanent injunction, there was no need to address the issue of community’s ownership. The assertion by the Ganalbingu of rights in equity depended upon there being a trust impressed upon expressions of ritual knowledge, such as the art work in question . The court considered there to be no evidence of an express or implied trust created in respect of Mr. Bulun Bulun’s art. Nonetheless, in a dictum, the court recognized that the artist, as an Indigenous person, had a fiduciary duty to his community. Therefore, there were two instances in which equitable relief in favor of a tribal community might be granted in a court’s discretion, where copyright is infringed in a work embodying ritual knowledge: first, if the copyright owner fails or refuses to take appropriate action to enforce the copyright; and second, if the copyright owner cannot be identified or found.
Screenprinters (discussed in (1989) EIPR Vol 2, pp. 346-355). 130 From these cases, the response suggested, protection under the Australian Copyright Act can be as valuable to Aboriginal and Torres Strait Islander artists as it is to other artists. 131 Furthermore, other intellectual property rights are available for traditional knowledge protection, namely certification marks (see below), the trademark system as a whole, and the designs system. A number of these cases are the subject of studies commissioned by WIPO, which will be published during 2002; 132
(ii) Australia, Canada, New Zealand and Portugal gave examples of the use of trademarks, particularly certification marks, to protect traditional knowledge and expressions of folklore. In Australia, certification marks have been registered by the National Indigenous Arts Advocacy Association (NIAAA)). In Canada, trademarks, including certification marks, are used by Aboriginal people to identify a wide range of goods and services, ranging from traditional art and artwork to food products, clothing, tourist services and enterprises run by First Nations. Many Aboriginal businesses and organizations have registered trademarks relating to traditional symbols and names. In Portugal, the Association of Carpet Producers of Arraiolos has registered a collective trademark in respect of its products. And, in New Zealand, “Te Waka Toi - the Maori Arts Board of Creative New Zealand is making use of trade mark protection through the development of the ‘Maori Made Mark.’ It is intended to be a [trade] mark of authenticity and quality, which will indicate to consumers that the creator of goods is of Maori descent and produces work of a particular quality. It is a response to concerns raised by Maori regarding the protection of cultural and intellectual property rights, the misuse and abuse of Maori concepts, styles and imagery and the lack of commercial benefits accruing back to Maori.” As pointed out by the New Zealand response, the proposed mark is regarded by many as an interim means of providing limited protection to Maori cultural property. The mechanism will not prevent the actual misuse of Maori concepts, styles and imagery but may decrease the market for “copycat” products, the response stated;
(iii) in Canada, 133 copyright protection under the Copyright Act has been widely used by Aboriginal artists, composers and writers of tradition-based creations such as wood carvings of Pacific coast artists, including masks and totem poles, the silver jewelry of Haida artists, songs and sound recordings of Aboriginal artists and Inuit sculptures. Canada also provided the following practical case study: “One practical example of how existing intellectual property laws can safeguard expressions of folklore involves the Snuneymuxw First Nation of Canada, which in 1999 used the Trade-marks Act to protect ten petroglyph (ancient rock painting) images. Because the petroglyphs have special religious significance to the members of the First Nation, the unauthorized reproduction and commodification of the images was considered to be contrary to the cultural interests of the community, and the petroglyph images were registered in order to stop the sale of commercial items, such as T-shirts, jewelry and postcards, which bore those images. Members of the Snuneymuxw First Nation subsequently indicated that local merchants and commercial artisans had indeed
130 Mr. Bulun Bulun brought a copyright infringement action in relation to the unauthorized reproduction of his artistic works on t-shirts by the defendant. The government of Australia informed that this was a clear-cut case of copyright infringement and that the case was settled out of court. 131 The government of Australia has advised that further information regarding these and other cases can be located at <www.austlii.edu.au>. 132 These studies, entitled “Minding Culture: Case-Studies on Intellectual Property and Traditional Knowledge” were written by Ms. Terri Janke, Sydney, Australia, and will be published on WIPO’s website during the course of 2002. 133 Canada’s response to the Survey on Existing Forms of Protection for Traditional Knowledge (WIPO/GRTKF/IC/2/5) is also taken into account here.
stopped using the petroglyph images, and that the use of trade-mark protection, accompanied by an education campaign to make others aware of the significance of the petroglyphs to the Snuneymuxw First Nation, had been very successful.” In contrast, Canada advised, industrial designs protection under the Industrial Design Act had not been widely used by Aboriginal persons or communities. The West Baffin Eskimo Cooperative Ltd. filed over 50 designs in the late 1960s for fabrics using traditional images of animals and Inuit people;
(iv) in Kazakhstan, 134 the external appearance of national outer clothes, head dresses, carpets, decorations of saddles, national dwellings and their structural elements, as well as women’s apparel accessories, like bracelets, national children’s cots-crib-cradles and table wares, are protected as industrial designs. The designations containing elements of Kazakh ornament are registered and protected as trademarks.
134 Kazakhstan’s response to the Survey on Existing Forms of Intellectual Property Protection for Traditional Knowledge (WIPO/GRTKF/IC/2/5) is taken into account here. 135 Australia; Colombia; Costa Rica; United States of America. 136 Available at <http://www.ftc.gov/bcp/conline/pubs/products/indianart.htm> 137 Australia; Belgium; Canada; Colombia; Czech Republic; Italy; Netherlands; Honduras; Japan; Kyrgystan; Republic of Korea; Viet Nam. 138 Russian Federation. 139 Netherlands; Czech Republic; Kyrgyzstan. 140 Colombia; Greece; Hungary. 141 Hungary.
authors” to be in the public domain. 142 Another article of the same law states: “Indigenous art in all its forms, including dances, songs, handicraft, designs and sculptures, shall belong to the cultural heritage.” 143
142 Article 187. 143 Article 189. 144 See for example Belgium; Gambia; Germany; Japan; Latvia; Republic of Korea; and the United Kingdom. 145 Gambia. 146 Germany. 147 Latvia. 148 Information obtained from Guatemala’s response to the Survey on Existing Forms of Intellectual Property Protection for Traditional Knowledge. 149 See, for example, the missions to the Arab States and Central America. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001).
These do not appear to provide legal protection of an intellectual property nature. They are more concerned with the preservation, safeguarding and promotion of folklore (this has been described as the “material protection” of folklore as opposed to “legal protection.” 150 )
(iii) in its response, Hungary provided detailed information on the protection afforded to “cultural goods,” which, in terms of the relevant legislation, would include “expressions of folklore.” The response also provided information on other measures in place to protect cultural goods, such as prizes awarded by the Ministry of National Cultural Heritage for the recognition of outstanding artistic and other cultural activities, the vetting of works of applied folk arts and a lower value-added tax rate in respect of objects of folk art and applied art;
(iv) in Romania, expressions of folklore are protected as a part of national cultural heritage. Relevant institutions include the Institute of Ethnography and Folklore under the authority of the Romanian Academy, and the Centre for Preservation and Capitalization of Folklore Tradition and Creation. A Law on the Protection of Tangible Cultural National Heritage protects also tangible expressions of folklore. In addition, according to the response of Romania, “as a form of protection, there is a fee so-called “folkloric stamp” which is collected as a percent, 5% of the price of the ticket to a folkloric show or 2% of the price of each cassette, CD, printings, etc., containing expressions of folklore. This fee is used to highlight the folkloric and ethnographic heritage of Romania.”
150 UNESCO, “Study of the International Regulation of the ‘Intellectual Property’ Aspects of Folklore Protection”, December 4, 1979, UNESCO/WIPO/WG.1/Folk/3, p. 1.
(d) The Model Provisions, 1982
(i) Question II.12 enquired of those countries which provide specific protection whether or not they have incorporated in their national laws or other measures acknowledgement of source provisions (such as in section 5 of the Model Provisions). It is interesting to note that only six of the 13 countries which responded to the Question have done so. Yet, as is often pointed out in relation to objectives for the protection of expressions of folklore, one of the more important objectives appears to be having the source of an expression of folklore acknowledged;
151 See Statements of States at the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO/GRTKF/IC/1/13, WIPO/GRTKF/IC/2/16), and Responses to Questionnaire on National Experiences with the Legal Protection of Expressions of Folklore (for example, Burundi; Chad; Côte d'Ivoire; Colombia; Ecuador; Iran (Islamic Republic of); Jamaica; Kyrgyzstan; Malaysia; Mexico; Namibia; New Zealand; Pakistan; Panama; Philippines; Poland; Romania; Sri Lanka; Togo; Tunisia; Venezuela; Viet Nam and, the African Group). See also WIPO-UNESCO Regional Consultation on the Protection of Expressions of Folklore for countries of Asia and the Pacific, Hanoi, April 21 to 23, 1999 (WIPO-UNESCO/FOLK/ASIA/99/1); WIPO-UNESCO African Regional Consultation on the Protection of Expressions of Folklore, Pretoria, March 23 to 25, 1999 (WIPO-UNESCO/FOLK/AFR/99/1); See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). pp.77 and 93.
(ii) a further aspect of the Model Provisions that some States commented on is the principle referred to in section 3, namely that utilizations of expressions of folklore require authorization when they are “made both with gainful intent and outside their traditional or customary context.” 152 According to the Commentary to the Model Provisions, this means that a utilization–even with gainful intent–within the traditional or customary context should not be subject to authorization. On the other hand, a utilization, even by members of the community where the expression has been developed and maintained, requires authorization if it is made outside such a context and with gainful intent. As pointed out by some, the distinction between “traditional context” and “customary context” is perhaps not clear. According to the Commentary to the Model Provisions, an expression of folklore is used in its “traditional context” if it remains in its proper artistic framework based on continuous usage of the community. For instance, to use a ritual dance in its “traditional context” means to perform it in the actual framework of the respective rite. On the other hand, the term “customary context” refers rather to the utilization of expressions of folklore in accordance with the practices of everyday life of the community, such as selling copies of tangible expressions of folklore by local craftsmen. A customary context may develop and change more rapidly than a traditional one, according to the Commentary;
(iii) the exception provided for in section 4(1)(iii) in the Model Provisions is another aspect that may require further consideration. As pointed out elsewhere in this document, this exception allows for the creation of works based upon expressions of folklore, in short, derivative works. This, as pointed out, was specifically crafted to allow free development of individual creativity inspired by cultural expressions. The Model Provisions, 1982 were not intended to hinder in any way the creation of original works based on cultural expressions. In addition, Section 13 of the Model Provisions, 1982 provides as follows: “The protection granted under this [law] shall in no way be interpreted in a manner which could hinder the normal use and development of expressions of folklore.” On the other hand, it is precisely the “borrowing from” expressions of folklore that is often complained of.
(e) Extra-territorial protection
140. The Questionnaire contained four questions specifically addressing the international protection of expressions of folklore. These were questions II. 25 (which requested information on actual cases in which folklore has been exploited or otherwise utilized in a foreign country); II. 26 (which asked whether it was believed that an international agreement for the protection of expressions of folklore is necessary; II. 27 (which asked whether the Model Provisions, 1982 might serve as an adequate starting point for the development of such an international agreement); II. 28 (which called for practical proposals regarding the two main problems that prevented the development of an international treaty in 1984 ((i) the lack of appropriate sources for the identification of the expressions of folklore to be protected and
(ii) the lack of workable mechanisms for settling the questions of expressions of folklore that can be found not only in one country, but in several countries of a region); and, II. 29 (which requested any further comments or practical experiences regarding the protection of expressions of folklore of foreign countries). The responses to these questions are detailed in Annex I to this document.
141. In summary:
(i) several countries provided practical examples of cases in which expressions of folklore originating in their countries have been exploited or utilized in a foreign country.
152 Australia; Panama; Sierra Leone.
See, for example, the responses of Barbados; Burkina Faso; Burundi; Chad; Costa Rica; Ghana; Guinea; Iran (Islamic Republic of); Namibia; Panama; Russian Federation; Senegal; and, the United Republic of Tanzania;
(ii) 39 responses (or 61%) answered “Yes” to the question whether or not an international agreement for the protection of expressions of folklore is necessary. There were 13 countries that did not respond “Yes” or “No” but appear to be open to the possibility of an international agreement, subject to clarity on certain legal and conceptual question such as definition of subject matter, ownership, allocation and exercise of rights, “regional folklore” and the like. And, it can be noted that only four of the 64 responses (6%) to the Questionnaire answered clearly “No” to this question. Taking these statistics together, it may be said that the majority of States are either expressly in favor of an international agreement, or are at least open to considering the matter further. This conclusion bears out the many previous calls for the effective international protection of expressions of folklore in previous WIPO and other activities as described in this document. It has been observed that it is mostly appropriation (or “borrowing”) of cultural expressions between traditions and cultures, rather than within them, that causes the most offence; 153
(iii) many countries did not reply to the question whether or not the Model Provisions could serve as an adequate starting point for the development of an international agreement. However, of the 41 countries which did reply, 38 answered “Yes;”
(i) specific suggestions have been made in relation to the protection of handicrafts and other tangible expressions of folklore. 156 It has been proposed that the Intergovernmental
153 See, for example, Sandler, Felicia, “Music of the Village in the Global Marketplace – Self-Expression, Inspiration, Appropriation, or Exploitation?”, Ph.D. Dissertation, University of Michigan, 2001, p. 6.154 See for example the responses of Canada; Colombia; Egypt; Gambia; Indonesia; Jamaica; Kyrgystan; Malaysia; Mexico; Romania; Russian Federation 155 See WIPO/GRTKF/IC/1/5, WIPO/GRTKF/IC/1/13, paras. 20, 21, 28, 40, 50, 71; responses of Australia and Canada; Chang Rai, Thailand Meeting Action Plan and Meeting Statement. See <https://www.wipo.int/eng/meetings/2000/tk/index.htm>.156 At the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO, held from September 20 to 29, 1999, one Group of WIPO Member States expressed the view “that the need for a suitable mechanism and agreed norms for the protection of handicraft was shared by the developing countries” (A/34/16, paragraph 29). This need was further elaborated by another Group of WIPO Member States at the Twenty-Sixth
Committee could consider the extent to which they could receive greater protection against unauthorized copying, use and commercial exploitation, and specific reference has been made to protecting the style, production methods and other specific characteristics of works of art and textile and three-dimensional craft. In this respect, the possibilities offered by copyright, industrial designs, trademarks, trade names and geographical indications have been mentioned. Second, the Committee could study and recommend ways of streamlining the industrial design protection systems embodied in national and regional laws, inclining them towards procedures involving a deposit or registration without any novelty examination or anticipation search. In this regard, a relevant provision in that connection is Article 25.2 of the TRIPS Agreement, concerning the simplification of procedures for textile designs. It has been proposed that the same kind of solution could be promoted for any kind of design originating in indigenous communities; 157
(ii) during previous WIPO activities, Member States and representatives of traditional knowledge holders have indicated that many traditional societies have developed highly sophisticated and effective customary intellectual property systems. Some examples of these in relation to traditional designs, songs, dances and art are contained in the WIPO Report on the fact-finding missions conducted in 1998 and 1999. 158 To a large extent these systems have, until now, remained invisible from the point of view of the formal intellectual property system. However, customary legal systems, including those pertaining to traditional knowledge, are referred to in many traditional knowledge-related declarations 159 and international instruments. 160 Certain sui generis systems, such as that of the Philippines, refer to customary law. Hence, Member States have identified a need to further study the relationship between customary protection of traditional knowledge and the intellectual property system. Some have presented the recognition of informal regimes and customary law as “a third approach” to addressing the intellectual property needs of TK holders: “What is now advocated by Indigenous communities is protection of traditional cultural expression by the application of customary intellectual property law on its own terms, as of right.” 161 It has been suggested that, for example, traditional forms of ownership be recognized and used within the context of the formal intellectual property system to determine who is the “author” or a cultural expression, or at least who is an owner and entitled to exercise control over it. This perhaps ties in with a suggestion made in a response to the Questionnaire that consideration be given to “appropriate modifications of existing regimes to be more culturally sensitive;” 162
Session of the WIPO General Assembly, held in Geneva from September 26 to October 3, 2000 in the form of specific proposals for the work of the Intergovernmental Committee (WO/GA/26/9, Annex II). 157 WIPO/GRTKF/IC/1/5. 158 WIPO, FFM Report. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (19981999), (WIPO, 2001). 159 See, for example, the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1992) and the Julayinbul Statement on Indigenous Intellectual Property Rights (1993). 160 See, Article 8, ILO Convention 169; Articles 12 and 33, Draft United Nations Declaration on the Rights of Indigenous Peoples (1994); and Principle 4, ‘Principles and Guidelines for the Protection of the Heritage of Indigenous People,’ United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. 161 Australian Copyright Council (ACC). Protecting Indigenous Intellectual Property. A Discussion Paper. Redfern: ACC (September 1998), p. 11. 162 Response of Australia to the Questionnaire.
(iii) a further issue concerns the collectivity of creation, ownership and custodianship which prevails in certain communities and traditional knowledge systems. 163 It is felt that cultural expressions are communally developed, transmitted, and shared, and that the current intellectual property system does not fully address the need of traditional communities for collective or community rights. While collectivity of creation and ownership may not be characteristic of traditional knowledge systems in all cases, 164 Member States have still identified the need to develop legal solutions which address the needs of the communities for a recognition of their collective rights to their collective knowledge. A concrete suggestion in this regard, which is in relation to handicrafts, is one made by the International Trade Centre and UNESCO -a proposed “Structural Framework for the Protection of Crafts” 165 has been developed that proposes a tripartite structure, in which existing guild chambers of crafts people and a “National Society for Original Crafts Items” (NSOCI) would answer to a “National Crafts Directorate.” Within this institutional arrangement, the NSOCI would be located under the national intellectual property office and would have the task of administering and enforcing intellectual property rights of craftspeople. 166 Such a role could be undertaken by the same institutions which act as the “competent authority” in respect of granting authorizations for the utilization of expressions of folklore, as proposed in the Model Provisions, 1982.
144. In addition to the above specific proposals for modifications to existing intellectual property standards, several States in their responses to the Questionnaire, 167 at sessions of the Intergovernmental Committee 168 and elsewhere 169 have called for the development of new sui generis rights to protect expressions of culture (and traditional knowledge more generally). Most recently and in particular, at the second session of the Intergovernmental Committee, the Secretariat of WIPO was requested to prepare a document on “elements of sui generis protection for traditional knowledge.” 170
(g) Documentation
145. The need to identify, document, classify, and register expressions of folklore (and the concomitant establishment of inventories, databases and archives) has been identified many times, both in responses to the Questionnaire and in previous WIPO activities, such as the
163 See, for example, Colombia, Ecuador, Gambia, Namibia, New Zealand, Panama, Philippines, Portugal, Russian Federation, Viet Nam. 164 See Mould-Iddrussu, “The Experience of Africa”, WIPO-UNESCO World Forum on the Protection of Folklore”, April 8 to 10, 1997, p. 18 (WIPO Publication No. 758 E/F/S) 165 See, Part III, International Trade Center (ITC) and UNESCO. Overview of Legal and Other Measures to Protect Original Craft Items. ITC/UNESCO, 1996 (document no. CLT-96/WS/5). 166 See, ibid., 10-11. 167 Argentina, Burundi, Colombia, Costa Rica, Ethiopia, Gambia, Iran (Islamic Republic of), Romania, Tanzania, Togo. 168 WIPO/GRTKF/IC/1/13, paras. 22, 33, 37, 38, 50, 56, 63, 65, 70 74, 75, 85, 159, 161; WIPO/GRTKF/IC/2/16, paras. 17, 166, 171, 172, 178, 188, 189, 190, 191. 169 See documents WIPO-UNESCO/FOLK/AFR/99/1; WIPO-UNESCO/FOLK/ASIA/99/1; WIPOUNESCO/FOLK/ARAB/99/1; and, WIPO-UNESCO/FOLK/LAC/99/1; See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001), pp. 54, 72, 76, 97, 155, 198, 217, 223, 232; Chiang Rai, Thailand Meeting Action Plan and Meeting Statement. See <https://www.wipo.int/eng/meetings/2000/tk/index.htm>. 170 WIPO/GRTKF/IC/2/16, par. 194.
fact-finding missions conducted by WIPO in 1998 and 1999, 171 as well as the Regional Consultations on Folklore organized by WIPO and UNESCO in 1999. 172
146. Responses to the Questionnaire (for example, the responses of Antigua and Barbuda, Barbados, Burkina Faso, Gambia, Ghana, Honduras, the Islamic Republic of Iran, Namibia, Panama, Senegal and the United States of America), the results of other WIPO activities and the WIPO Report on the fact-finding missions are replete with examples of what will broadly be referred to as “documentation initiatives.” A few examples from different regions are cited here:
(iii) in China, national folk literature and arts are being recorded in the Ten Collections of the Chinese National Folk Literature and Arts (referred to as the “Great Wall of Civilization”). These Ten Collections comprise some 300 volumes of collections of Chinese songs, proverbs, operas, instrumental music, ballads, dances, and tales; 174
171 See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). 172 The regional consultations were held for African countries in Pretoria, South Africa (March 1999); for countries of Asia and the Pacific region in Hanoi, Viet Nam (April 1999); for Arab countries in Tunis, Tunisia (May 1999); and for Latin America and the Caribbean in Quito, Ecuador (June 1999). The four regional consultations were attended by 63 Governments of WIPO’s Member States, 11 intergovernmental organizations, and five non-governmental organizations. See documents WIPO-UNESCO/FOLK/AFR/99/1; WIPOUNESCO/FOLK/ASIA/99/1; WIPO-UNESCO/FOLK/ARAB/99/1; and, WIPO-UNESCO/FOLK/LAC/99/1. 173 Meeting with officials of the Oman Center of Traditional Music, Muscat, February 27, 1999. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). 174 International Symposium on the Protection and Legislation of Folk/Traditional Culture (Beijing, December 18-20, 2001).
(vii) the Centre of Arab and Mediterranean music “Ennejma Ezzahra”, Sidi Bou Said, Tunisia was established in 1991with the objectives of: documentation and conservation of expressions of traditional Arabic and Mediterranean music; establishment of a database comprising an extensive and almost exhaustive set of recordings of traditional Tunisian music; publication and making available of such music to the public; publication of studies and research on traditional Tunisian, Arabic and Mediterranean music; and, organization of concerts. The Centre has compiled an impressive collection of documents through a systematic approach for such purpose. These documents are classified and made available to
175 Response of the United States of America. See also Bulger, P., “Preserving American Folk Culture at the Library of Congress”, paper delivered at International Symposium on the Protection and Legislation of Folk/Traditional Culture (Beijing, December 18-20, 2001). 176 ICAMD Newsletter, September, 1998 and at meeting with Professor J.H. Kwabena Nketia, Director, ICAMD, January 25, 1999. See WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). On documentation of expressions of folklore in Africa, see also Mould-Idrussu, B., “The Experience of Africa”, WIPO-UNESCO World Forum, Phuket, 1997, p. 17 ff. 177 Meeting with representatives of the Ministry of Culture, Guatemala, January 18, 1999. See WIPO,
Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001).
the public. It includes at its premises a Research Center, which offers research facilities for students and scholars in the field of musicology. 178
C. Conclusions and Suggested Tasks
(a) Establishment, strengthening and effective implementation of national systems of protection
149. While a number of countries provide specific legal protection for expressions of folklore (23, or 36%, of the 64 that responded to the Questionnaire), it appears that there are few countries in which it may be said that such provisions are actively utilized and functioning effectively in practice. There appears to be little practical experience with the implementation of existing systems and measures which countries have established in law.
178 See also intervention of Tunisia at First Session of the Intergovernmental Committee (WIPO/GRTKF/IC/1/13, par. 36) and WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001). 179 UNESCO/ICA, Crafts: methodological guide to the collection of data (by Jocelyn Etienne-Nugue) Paris: UNECO/ICA, 1990. 180 Dournon, Geneviève. Handbook for the Study of Traditional Music and Musical Instruments. Paris: UNESCO, 1999. 181 Agrawal, A., “Indigenous and scientific knowledge: some critical comments”, http://www.nuffic.nl/ciran/ikdm/3-3/articles/agrawal.html (February 27, 2002). 182 See for example fact-finding mission to West Africa in WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001), p. 151.
(i) from the concrete examples provided by some States, it can be seen that existing intellectual property rights can play a role in the protection of expressions of folklore, and strengthened national systems of protection should also include greater understanding of and use of existing intellectual property rights. In this regard, particular attention could be paid to copyright (including moral rights and the domaine public payant system) and related rights, trademarks, designs, geographical indications, unfair competition (particularly passing off and trade secrets protection) and other common law remedies. It follows that the protection of expressions of folklore should not be considered only within the frame of copyright law.
Perhaps a striking feature of the information provided by the responses to the Questionnaire is the certain flexibility inherent in the intellectual property system. For example, several States which protect expressions of folklore within their copyright legislation provide for an indefinite term of protection. This does not appear to cause any conceptual or legal difficulty (as noted, however, there are few practical experiences with such provision so their application in practice is difficult to evaluate). Further, while the fixation requirement in many national copyright laws is often cited as an impediment to the protection of expressions of folklore, there is no such requirement in international law, and several countries, particularly the civil law countries of Europe, protect original works as copyright whether or not fixed in material form – such as France, Spain and Germany. The originality requirement “problem” may also not be as formidable as first meets the eye in all cases, as the level of creativity required in many national systems is not that high. And, of course, the Model Provisions, 1982, adopted by Member States of WIPO and UNESCO two decades ago, establish a sui generis intellectual property system which does not require originality per se, provides for an indefinite term of protection and accommodates the rights and interests of communities. The Tunis Model Law on Copyright, adopted in 1976, protects folklore and works derived therefrom as original works, for an indefinite period, whether or not the expression of folklore is fixed in a material form; 183
(ii) a further lesson from the responses to the Questionnaire is the need for awareness-raising programs and specialized training for indigenous peoples and local communities in accessing, understanding and using formal intellectual property systems and other legal tools available to them. This set of need was identified as “operational issues” during the fact-finding missions conducted by WIPO in 1998 and 1999. Persons consulted on the fact-finding missions suggested a variety of measures in this respect, such as wider dissemination of intellectual property information to indigenous and local communities, public information activities aimed specifically at indigenous peoples and local communities, and other activities carried out by national intellectual property offices and other agencies designed to explain intellectual property rules and systems clearly, and to facilitate access to the national intellectual property offices and the intellectual property system. In certain countries, applications for certain national trademark offices offer reduced application fees to individuals and small and medium-sized enterprises. If such schemes do not already apply to members of indigenous and local communities, the possibility of extending them to such persons and communities could be explored by national offices. For example, in the United States of America, the Indian Arts and Crafts Board is not charged a fee to register Government trademarks of genuineness and quality for Indian arts and crafts products or for arts and crafts products of federally recognized Indian tribes and their members; 184
(iii) the workable and effective implementation of national systems depends also upon the establishment and strengthening of the institutional structures necessary to implement legislative provisions and other measures, and WIPO’s activities could include assistance and advice in this respect. In relation to this, the possible relevance of current collective management systems in the copyright area to the management of interests in expressions of folklore has also been suggested and requires further practical testing as part of such legal-technical assistance programs. States have also suggested national consultations among producers of handicrafts and other expression of folklore, and the establishment of national focal points; 185
(iv) non-intellectual property measures (such as cultural heritage, marketing and labeling laws) also have an important role to play in complementing and buttressing intellectual property measures. In fact, it would appear that in some cases non-intellectual property measures meet, or could meet, many of the objectives often expressed in relation to expressions of folklore. The type of protection provided by intellectual property is, however, distinct (in essence, intellectual property provides for private property rights) and an
183 See discussion in Kuruk, P., “Protecting Folklore Under Modern Intellectual Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States”, 48 American University Law Review 769 (1999), pp. 814-815. 184 USPTO, Official Insignia of Native American Tribes: Statutorily Required Study, p. 31. The study is available at <http://www.uspto.gov/web/menu/current.html> (30Nov99 entry). 185 Position Paper of the Asian Group and China (WIPO/GRTKF/IC/2/10), p.4.
important exercise in strengthening national systems of protection would be to determine in what circumstances non-intellectual property measures, on the one hand, and intellectual property measures, on the other, are appropriate and relevant in meeting needs and objectives;
(v) regarding the many calls for the identification, documentation, classification and registration of expressions of folklore, it seems that while many institutions, communities and others have developed or wish to develop compilations and databases, intellectual property options or strategies to protect the expressions of folklore themselves or compilations thereof have not been elaborated. Intellectual property needs may also be identified in relation to the establishment of registers and databases of cultural expressions, and procedures for their registration, in order to identify, promote and protect them. For example, such registers, databases and procedures are provided for in the laws of Panama and the Philippines. In the response of Costa Rica, detailed proposals are set out for how such registers could be establ ished and managed. (Certain other countries also provide for registries, such as Cuba.186). Where requested, the legal-technical assistance program referred to could provide intellectual property and advice and assistance on such questions.
186 The Cuban Copyright Law, Law No. 14, in effect since 1977, provides specific protection for folklore including handicrafts. By Resolution No. 2, of 1993, the National Copyright Centre (CENDA) makes provision for the registration and optional legal deposit of protected works. A document received upon registering a work may be used as proof in dealing with third parties in the event of violation of copyright. See Dolores Isabel Aguero Boza, “Artisanal Works and Copyright”, paper presented at WIPO/ITC Workshop on Legal Protection of Original Craft Items, Havana, January 30 to February 1, 2001, WIPO-ITC/DA/HAV/01/6.187 These studies, entitled “Minding Culture: Case-Studies on Intellectual Property and Traditional Knowledge” were written by Ms. Terri Janke, Sydney, Australia, and will be published on WIPO’s website during the course of 2002.
existing systems and measures for the legal protection of expressions of folklore, as described in paragraphs 151 to 155 above.
188 See Statements of States at the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO/GRTKF/IC/1/13, WIPO/GRTKF/IC/2/16), and Responses to Questionnaire (for example, Burundi; Chad; Côte d'Ivoire; Colombia; Ecuador; Iran (Islamic Republic of); Jamaica; Kyrgyzstan; Malaysia; Mexico; Namibia; New Zealand; Pakistan; Panama; Philippines; Poland; Romania; Sri Lanka; Togo; Tunisia; Venezuela; Viet Nam and, the African Group). See also WIPOUNESCO Regional Consultation on the Protection of Expressions of Folklore for countries of Asia and the Pacific, Hanoi, April 21 to 23, 1999 (WIPO-UNESCO/FOLK/ASIA/99/1); WIPO-UNESCO African Regional Consultation on the Protection of Expressions of Folklore, Pretoria, March 23 to 25, 1999 (WIPOUNESCO/FOLK/AFR/99/1); See for example fact-finding mission to West Africa in WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), (WIPO, 2001), p. 151. 189 As mentioned, New Zealand is considering certain measures. In addition, as described elsewhere in this document, certain regional organizations have developed or are developing sui generis laws, such as the Organization of African Unity and the Secretariat of the Pacific Community.
(b) Extra-territorial protection
190 Article 7.8, Berne Convention.
However, the comparison of terms and other provisions may again limit the practical relevance of this observation;
(iii) under the intellectual property treaties of certain regional organizations, expressions of folklore are protected in the territories of the States signatories to those agreements according to the principle of national treatment. For example:
(iv) certain national laws, such as that of Panama, provide for a form of national treatment, but as the law is new, this aspect may not yet have been tested in practice.
191 See Article 59.
registration and notification, alternative dispute resolution, databases, collective management and the establishment of dispute-resolution organizations, as a means of dealing with these issues.
168. Possible Task 3: Extra-territorial protection. The Intergovernmental Committee may wish to examine elements of possible measures, mechanisms or frameworks for the functional extra-territorial protection of expressions of folklore.
(c) Relationship between customary laws and protocols and the formal intellectual property system
192 The WIPO Program and Budget for 2000-2001 provided for “a study on customary law and regulatory systems that apply to the protection of knowledge, innovations and creativity in local and traditional communities, including conclusions relevant for the formal intellectual property system” (Main Program 11).193 See Ellinson, Dean “Unauthorised Reproduction of Traditional Aboriginal Art”, UNSW Law Journal, 1994,
p. 327.
171. Possible Task 4: Practical case study on relationship between customary laws and protocols and the formal intellectual property system. It is proposed that the WIPO Secretariat commission a case study on customary laws and protocols of an indigenous or local community relevant to the protection of expressions of folklore, specifically addressing their relationship with and conclusions relevant for the formal intellectual property system. This study would be presented to the Intergovernmental Committee for consideration.
172. The Intergovernmental Committee is invited to take note of the foregoing final report on the legal protection of expressions of folklore, and to approve or adopt as the case may be the Possible Tasks 1 to 4 identified in paragraphs 156, 162, 168 and 171 above.
[Annex I follows]
ANNEX I
DETAILED STATISTICS AND SUMMARY OF RESPONSES RECEIVED TO THE QUESTIONNAIRE
The structure of this part of the document follows the structure of the questionnaire. Questions are in italics and are followed by a summary of the responses.
I. Application of the Model Provisions as a whole
Question I. 1: Which Government ministry(ies), department(s), agency(ies) and office(s) in your country deals with questions concerning the legal protection of expressions of folklore?
Summary of responses to Question I. 1
In many countries, more than one ministry, department, agency or office deals with questions concerning expressions of folklore. In most cases, the national intellectual property office, generally the copyright office, is one of the relevant offices.
The other ministries, departments, agencies and offices are those working within a diverse range of policy areas, such as education, industry, environment, commerce, technology, culture, natural resources, tourism, the arts, indigenous peoples, foreign affairs, broadcasting, information, justice, and museums.
Question I. 2: Are the Model Provisions available in (one of) the official languages of your country?
Summary of responses to Question I. 2 Yes No53% No Response
According to the 64 responses under consideration in this document, the Model Provisions are available in one of the official languages in 34 of those countries. This equals 53 per cent. 22 States answered “No” to this question.
Annex I, page 2
Question I. 3: Do “expressions of folklore”, either as described in the Model Provisions, or as the term is understood in your country, receive specific legal protection as intellectual property in your national laws or regulations (whether the laws or regulations are related to intellectual property or not)?
Summary of responses to Question I. 3
36% Yes No No Response
Of the 64 responses under consideration in this document, 23 countries provide specific legal protection for expressions of folklore as intellectual property in their national laws or regulations. 194 This equals 36 per cent.
Of the remaining responses, six of the countries were either still in the process of drafting laws which provided specific protection for expressions of folklore, or were awaiting the enactment of laws already drafted. These are not included within the 23 countries evaluated as providing specific protection. 195
194 Barbados; Burkina Faso; Côte d’Ivoire; Croatia; Ecuador; Ghana; Guinea; Indonesia; Iran (Islamic Republic of); Kenya; Mexico; Mozambique; Namibia; Panama; Philippines; Senegal; Sri Lanka; Togo; Tunisia; United Kingdom; United Republic of Tanzania; United States of America; Viet Nam. As indicated in the questionnaire, this question concerns specific legal protection of an intellectual property nature for expressions of folklore, and not indirect, or incidental, protection for expressions of folklore, such as may be provided in certain cases by copyright, related rights or industrial property laws. Thus, in the following cases the responses were evaluated as indicating that a country does provide such protection, if:
(iii) the country has established specific measures or mechanisms for legally protecting certain aspects of expressions of folklore (such as indigenous and traditional names, symbols and marks).
Draft laws and provisions have not been evaluated as if already in force. In other words, countries that advised of draft laws and provisions are not included in the figure of 23 countries providing specific protection. These countries include Chad, China, Egypt, New Zealand, Venezuela and Zimbabwe. 195 Chad; China; Egypt; New Zealand; Venezuela; Zimbabwe.
Annex I, page 3
If yes:
(i) Please provide information on the relevant laws and regulations, such as their full titles, the relevant sections or paragraphs, dates of coming into force and the name and details of the Ministry, department, agency or office responsible for administering the laws and regulations. Please provide the WIPO Secretariat with copies of the laws and regulations.
Summary of responses to Question I. 3 (If yes) (i)
Most States which responded provided information on the relevant laws and regulations.
The names and details of the relevant laws and regulations, and in some cases copies of the relevant provisions, are contained in the completed questionnaires. Copies of the completed questionnaires, in the languages in which they were received, are available from the Secretariat of WIPO, and also electronically at <https://www.wipo.int/globalissues/igc/questionnaire/index.html>.
(ii) Are the relevant laws and regulations based, at least to some degree, upon the Model Provisions?
Summary of responses to Question I. 3 (If yes) (ii)
Yes No No Response
65%
Of the 23 responses to this question, 15 countries responded “Yes”, three responded “No”, and five did not answer this question.
Annex I, page 4
(iii) Please indicate below which aspect(s), if any, of the Model Provisions are not followed in your national laws and regulations:
This aspect of the
Model Provisions has not been followed in our national laws and regulations
The basic principles underlying the Model Provisions (see the Preamble)
The scope of “expressions of folklore” protected by the Model Provisions (section 2) The acts against which expressions of folklore are protected
and the exceptions thereto (sections 3, 4, 6 and 6)
The provisions dealing with authorization of utilization of expressions of folklore (sections 9 and 10) The sanctions and remedies provided for (sections 7 and 8) The solutions offered by the Model Provisions for the protection
of expressions of folklore of foreign countries (section 14) If you have marked any of the boxes, please provide further information.
(iv) Please indicate any other reason(s) why certain aspects of the Model Provisions may not have been implemented in your country.
Annex I, page 5
Summary of responses to Questions I. 3 (If yes) (iii) and (iv)
These questions were addressed to those countries providing specific legal protection for expressions of folklore. The questions aimed at identifying to what extent the Model Provisions had served as a basis for those countries’ laws or regulations.
Nine of the 23 countries that provide specific protection did not give a response to this question.
The number of times that a response identified each aspect of the Model Provisions is set out below in the following graph:
(section 2)
12
3. The acts against which expressions of
10
folklore are protected and the exceptions
8
thereto (sections 3, 4, 5 and 6)
Responses 4. The provisions dealing with authorization of utilizations of expressions of folklore
6
4
(sections 9 and 10)
2
5. The sanctions and remedies provided for
(sections 7 and 8)
0
6. The solutions offered by the Model Provisions for the protection of expressions of folklore of foreign countries (section 14)
For example, the provisions dealing with authorization of utilizations of expressions of folklore (aspect 4), was identified by 9 countries as not having been followed in their national laws.
Certain countries stated that they were preparing government regulations concerning folklore, which might cover further aspects of the Model Provisions. 196 A few countries advised that certain aspects of the Model Provisions are not reflected in the relevant national law because the law had been adopted before the adoption of the Model Provisions in 1982 and had not been amended since, 197 or because the Government had not yet received the Model Provisions when enacting the law. 198
Some responses stated that while their laws were not based directly on the Model Provisions, they nevertheless coincided with the principles of the Model Provisions. 199 Several responses noted that their law provides expressly for the protection of folklore but not
196 Antigua and Barbuda; Egypt; Indonesia. 197 Iran (Islamic Republic of); Sri Lanka. 198 Namibia. 199 Ghana; United States of America; Venezuela.
Responses of States
Annex I, page 6
for folklore of foreign countries. 200 Another noted that it was difficult for them to implement the Model Provisions. 201 One responded that the acts against which protection is afforded are contemplated (Section 3 of the Model Provision), but not the exceptions provided for in Section 4 of the Model Provisions. 202
If no,
Yes, this aspect may have prevented implementation of the Model Provisions
The basic principles underlying the Model Provisions (see the Preamble)
The scope of “expressions of folklore” protected by the Model Provisions (section 2) The acts against which expressions of folklore are protected
and the exceptions thereto (sections 3, 4, 5 and 6)
The provisions dealing with authorization of utilizations of expressions of folklore (sections 9 and 10) The sanctions and remedies provided for (sections 7 and 8) The solutions offered by the Model Provisions for the protection
of expressions of folklore of foreign countries (section 14)
If you have marked any of the boxes, please provide further information.
(iii) Please indicate any other reason(s) why the Model Provisions have not been implemented in your country.
200 Croatia; Ghana; Guinea; Iran (Islamic Republic of); Mexico; Namibia; Senegal; Togo; United Republic of Tanzania; United States of America. 201 Kenya. 202 Panama.
Annex I, page 7
Summary of responses to Questions I. 3 (If no) (i) – (iii)
This group of questions was addressed to those States that do not provide specific legal protection for expressions of folklore. The questions aimed at establishing (i) general reasons why protection for folklore has not been established and (ii) any specific reasons why the Model Provisions, or aspects of them, have not been implemented.
The number of times that a response identified each aspect of the Model Provisions is set out below in the relevant graph:
7
2)
3. The acts against which expressions of folklore are protected and the exceptions
6
5
thereto (sections 3, 4, 5 and 6)
4
4. The provisions dealing with authorization
Responses 3
of utilizations of expressions of folklore (sections 9 and 10)
2
5. The sanctions and remedies provided for
1
(sections 7 and 8)
6. The solutions offered by the Model Provisions for the protection of expressions of folklore of foreign countries (section 14)
0
For example, the sanctions and remedies provided in the Model Provisions (aspect 5) were identified by 2 responses as having perhaps prevented the implementation of the Model Provisions in their national laws.
(a) General comments and information provided by responses
Several general comments and information on why specific protection for expressions of folklore had not been established were provided:
(i) many of the responses stated that expressions of folklore were adequately protected by conventional intellectual property systems such as copyright, trademarks and designs law. 203 One added that the “current direction of domestic policy development therefore is to protect Indigenous arts and cultural expression within exisiting legal frameworks rather than the implementation of sui generis laws.” 204 Expressions of folklore also receive protection by laws in other policy areas, such as cultural heritage laws. 205 In one response, artists had not requested specific protection for expressions of folklore because they
203 Australia; Canada; Kenya; Mozambique; New Zealand; Switzerland; United Kingdom. 204 Australia. 205 Australia; Czech Republic.
Responses of States
Annex I, page 8
considered the protection provided by the existing forms of intellectual property protection, especially copyright, to be sufficient; 206
(ii) countries also responded that expressions of folklore were not protected under the existing intellectual property framework because they were in the public domain, available without restrictions and served to enrich the fabric of the country’s multicultural society. 207 One country referred to national courts having provided a flexible interpretation of conventional intellectual property systems and common law principles, to provide further protection for folklore. 208 “Cultural heritage is universal property, therefore prohibition of its use is inappropriate since elements of traditional knowledge and culture are interwoven into everyday life in all places.” 209 Certain countries stated that legal protection of an intellectual property nature can be too rigid and possibly withdraw folklore from the public domain, and referred to the importance of free access to information and cultural heritage, such as folklore. 210 They stated that expressions for folklore could never be works of authorship since their main characteristic was not a reflection of the unique personality of the author but the unchanged representation of the features of cultural public domain and therefore the limited term of protection did not apply to them; 211
(iii) numerous countries provide as yet no specific protection for expressions of folklore but are in the process of drafting legislation or are currently awaiting the necessary legislation to be enacted. 212 The Model Provisions may be adopted, but with modification to take into account the Internet and a more marketable licensing/authorization regime. 213 Another stated that a new Trade Marks Bill was currently being considered by Parliament and if enacted would allow the Commissioner of Trade Marks to refuse to register a trade mark where its use or registration would be likely to offend a significant section of the community thus providing additional protection to some traditional or cultural expressions. It added that the possibility of developing sui generis models was also being considered; 214
(iv) several responses stated that there was no specific protection for expressions of folklore because none had been requested. 215 One stated: “There is lack of awareness and serious national clamor for folklore protection by interest groups.” 216 According to another: “. . . (N)o interest group or other body in [the country concerned] has ever expressed a wish to implement [the Model Provisions] into national law.” 217 In a similar vein, one response stated that since there is no group of people in the country concerned practicing traditional knowledge in everyday life and the country has not faced any illicit exploitation of its traditional knowledge, no system of legal protection of traditional knowledge and folklore has been established. Folklore is considered in the country as an expression of art. In answer to another question, the same response stated that “we have not thought of folklore as a subject
206 Switzerland. 207 Belgium; Canada; Italy; Viet Nam. 208 Australia. 209 Russian Federation. 210 Czech Republic; Kyrgyzstan; Netherlands. 211 Colombia; Hungary. 212 Chad; China; Egypt; New Zealand; Venezuela; Zimbabwe. 213 Jamaica; Venezuela; Zimbabwe. 214 New Zealand. 215 Belgium; Gambia; Japan; Latvia; Republic of Korea; Russian Federation; United Kingdom. 216 Gambia. 217 Germany.
Annex I, page 9
matter of any property rights. We have not had any discussion among interested circles concerning this matter.” 218
(v) another replied that the reason why the Model Provisions had not been implemented was in addition to expressions of folklore being part of the public domain, they could not be protected under copyright laws but rather by applying the rules of cultural administration. They further stated that there would be a problem should a legal instrument be introduced, mainly the fact that ethnic groups and frontiers of countries do not coincide and that cannot identify the “migration” of motifs. 219 Greater protection for folklore could be provided through encouraging public education relating to folklore, codes of conduct, assistance to Indigenous peoples in accessing and understanding formal intellectual property systems, and appropriate modifications of existing regimes to be more culturally sensitive. 220 Another response stated that the State shall guarantee the collective rights of authorship of the ethnic groups, support ethnic education processes and promote the dissemination of their heritage by means of communication media. 221 One country stated that their laws expressly provide that expressions of folklore are excluded from the protection afforded by copyright laws, but can however can still obtain protection as derivative works but expressions of folklore must still meet the requirement of originality. 222
In addition to the above, the following factors were mentioned: the concept of proprietary rights and exclusive ownership of intellectual properties was a fairly new concept in the country concerned. In addition, the influence of Buddhism and the country’s relative isolation could account for a belief that culture would or could not be appropriated or misused by others for wrongful and gainful purposes; 223 lack of awareness of the need to protect intellectual property in general, and expressions of folklore in particular; 224 expressions of folklore is a new subject matter requiring further study; 225 expressions of folklore are protected when they are promoted and disseminated; 226 lack of expertise on cultural legislation, the inadequate coordination between State law and cultural organizations, 227 and the absence of a government agency to perform the functions envisaged by the Model Provisions; 228 implementation of the Model Provisions depends upon the preservation of expressions of folklore. A response stated that there are a number of goods that belong to their cultural heritage but which cannot be protected, as designs or models, even though they are considered works of handicraft, for lack of novelty. 229
218 Latvia. See also the Russian Federation. 219 Hungary. 220 Australia. 221 Colombia 222 Greece; Hungary. 223 Bhutan. 224 Ethiopia. 225 Malaysia. 226 Philippines. 227 Pakistan. 228 Philippines. 229 Portugal.
Annex I, page 10
(b) Specific comments and information on the Model Provisions provided by responses
The following specific comments were made on the main aspects of the Model Provisions:
(iii) regarding the scope of “expressions of folklore,” one response stated that the Model Provisions provide a scope that extends beyond what the country concerned would normally protect under its intellectual property system. The country stated that it would prefer a definition that focused on the expression of folklore as an artistic, literary, dramatic, musical work, or a performance, rather than protection of the actual idea itself comprising the folklore, which is not protected under systems such as copyright; 232
230 Australia. 231 Romania. 232 Australia. 233 Sierra Leone. See also Croatia. 234 Republic of Korea. 235 Viet Nam. 236 Australia.
Annex I, page 11
(vi) regarding the provisions dealing with authorization of utilisations of expressions of folklore, a response stated that Section 10 of the Model Provisions may be problematic as it could require the payment of an additional royalty for the utilisation of an expression of folklore in addition to the normal royalty payment under the intellectual property system. Furthermore, the specific limitation that the “fees collected shall be used for the purpose of promoting or safeguarding national culture/folklore” may be problematic as the relevant national intellectual property systems do not normally provide such limitations. 237 Another response stated that the conclusion that utilization with gainful intent within the traditional or customary context would not be subject to authorization from the competent authorities could (in most cases) lead to abuse of the expressions of folklore. 238
II. Application of the Principal Provisions of the Model Provisions
(a) Basic principles taken into account for the elaboration of the Model Provisions
Question II. 1: What are the principles underlying the protection of folklore in your national laws or regulations?
Question II. 2: Do you have any comments on the principles taken into account in elaborating the Model Provisions? Do you believe that the principles are still viable? Are there any additional principles that should be taken into account in the any further development of the Model Provisions?
Question II. 3: Please provide any additional information, comments or practical experiences on the basic principles taken into account for the elaboration of the Model Provisions.
Summary of responses to Questions II. 1, II. 2 and II. 3
Although not all of the responses addressed these questions, countries generally indicated (i) the principles that their national laws take into account, and (ii) additional principles that laws should take into account, as well as views concerning the currency and viability of the principles underlying the Model Provisions.
In so far as (i) is concerned, the following principles that underpin current national laws were mentioned:
(a) prior authorization for the exploitation of expressions of folklore belonging to the national cultural heritage and royalty payments; 239
encouragement of further development and dissemination of folklore; 242
(b) | development and protection of the creation and dissemination of folklore;240 |
(c) | prevention of the illicit exploitation and other prejudicial actions;241 |
(d) | maintenance of a proper balance between protection against abuses of folklore and |
237 Australia. 238 Sierra Leone. 239 Burkina Faso. 240 China; Togo. 241 China.
Annex I, page 12
(e) the protection of works of popular culture are protected. These are original manifestations of the languages, customs and traditions of the plural society concerned, where no identifiable author can be found. They are protected against distortion and prejudice to the reputation or image of the relevant community; 243
(f) protection under copyright law but without time limit. 244
Regarding (ii), several additional principles that should underlie the protection of folklore, and views on the currency and viability of the principles underlying the Model Provisions, were suggested. Certain of these responses are already summarized above in respect of Question I. 3. In addition:
(iii) A number of problems with the current principles were identified in one response. These included: certain definitions were not precise enough; governmental authority over the use of folklore may be considered to be a form of censorship, and in multicultural societies, this could lead to conflicts; the relationship with copyright protection was unclear; and the authorization for the use of expressions of folklore would not be able to be exclusive. It might also be necessary to distinguish between what kind of protection is needed with regard to national folklore and the recognition of foreign systems of protection made necessary by the cultural and social situation in those countries. 252
242 China; Ecuador; Gambia; Kyrgyzstan; Malaysia; Mexico; Romania. 243 Mexico. 244 Sri Lanka. 245 Burkina Faso. 246 Togo. 247 Argentina. 248 Croatia. 249 Iran (Islamic Republic of). 250 Jamaica. 251 Philippines. 252 Switzerland.
Annex I, page 13
One response stated that it believes that a proper balance should be maintained between the needs of particular communities and the promotion of individual creation, development of a living culture and freedom of expression. Flexibility must also be maintained so that the needs and concerns of various communities can be addressed. The principal means of protecting expressions of folklore should be conventional intellectual property legislation, supplemented, as necessitated by the conditions/needs of local communities, by specific laws that address specific problems. The balance inherent in intellectual property laws may be thus incorporated into the protection of expressions of folklore, 253 as well as the balance between protection against abuses and freedom and encouragement of further development and dissemination of folklore. 254 The risk to hinder further development and evolution of folklore should be examined more carefully (Section 13 of the Model Provisions was stated to be too general). 255 Several responses added that the Model Provisions should “…specifically take digital use and digital dissemination of folklore into account as a more urgent reason for providing international protection of expressions of folklore;” 256 and preserve the balance between protection and the possibility of a free development of folklore. 257
Another country responded that expressions of folklore are regarded constitutionally as part of the cultural heritage of the nation, but are not subject to a special protection regime or eligible for protection by intellectual property legislation. That said, the constitutional provisions do not prevent them from being made subject to such a regime, it was stated. 258
While not many of the responses addressed directly whether or not the principles underlying the Model Provisions were still current and viable, 19 of the responses believed that the principles were still current and/or viable, even though the Model Provisions may require some modification 259 and some had based their legislation on the Provisions.
(b) Protected expressions of folklore
Question II. 4: Is a term other than “expressions of folklore” used in your national laws or regulations to describe the kind of subject matter referred to in Section 2 of the Model Provisions?
If yes:
(iii) Why was that term selected?
(iv) What subject matter would the term “expressions of folklore” cover in your country?
253 United States of America. 254 Republic of Korea. 255 Switzerland. 256 Ecuador; Gambia; Malaysia; Romania. 257 Kyrgystan; Mexico. 258 Honduras. 259 Argentina; Barbados; China; Croatia; Egypt; Ecuador; Gambia; Ghana; Indonesia; Jamaica; Kenya; Kyrgyzstan; Mexico; Panama; Republic of Korea; Romania; Sierra Leone; Viet Nam; Zimbabwe.
Annex I, page 14
Question II. 5: In the practical application of your national laws and regulations, has identification of the folklore to be protected presented any difficulties?
Yes
No
Please provide further information and, if possible, examples. How are expressions of folklore identified in your country (for example, are they registered as such? Are there folklore inventories, archives and databases?)
Summary of responses to Questions II. 4 and II. 5
These questions, II. 4 and II. 5, were addressed to those 23 countries providing specific legal protection for expressions of folklore.
In respect of Question II. 4, several responses include the relevant definition from the applicable national law.
In addition, responses contained the following observations and comments:
(iii) “works of folklore” is used to cover, regardless of whether the works have been fixed in tangible form, certain literary, artistic and scientific works (i.e., verbal expressions, musical expressions, expressions by action (such as folk dance) and tangible expressions (such as folk art)) where the author is unknown, but where there is every ground to presume that the author is a national of the country; 265
(iv) “works of unknown authors” is used in the country concerned to cover prehistoric remains, historical and other national cultural objects such as stories, legends, folktales, epics, songs, handicraft, choreography, dances and other artistic works; 266
260 Ghana. 261 Panama; Senegal; Venezuela. 262 Viet Nam. 263 United States of America. 264 Burkina Faso. 265 China; Togo. 266 Indonesia.
Annex I, page 15
(vii) The legislation of one country covers the following subject matter: 269
1. ‘Community intellectual rights.’ This refers to the rights of indigenous cultural communities and indigenous peoples to own, control, develop and protect:
In respect of Question II. 5, six responses answered “No”, in other words, identification of the folklore to be protected has not presented any difficulties as yet. 270 Four responses answered “Yes” to this question. 271
One response identified difficulties in cases where there are communities in neighboring countries that share the same cultures and traditions, and the response provided certain
267 Mexico. 268 Panama. 269 Philippines. 270 Barbados; Iran (Islamic Republic of); Mexico. 271 Burkina Faso; Namibia; Russian Federation.
Annex I, page 16
examples of such cases. 272 Several responses provided information on folklore inventories, archives and databases. 273
Another stated that the protection and promotion of expressions of folklore were taken care of in their country by a number of governmental agencies, namely the National Institute of Culture (INAC) and more specifically for handicraft the Ministry of Commerce and Industries. The subject matter is registered as such, but no inventories or archives are kept. With regard to traditional and folklore dances, INAC has started an inventory; a nongovernmental agency, the National Folklore Commission, is sponsoring an inventory of manifestations of folklore. In pursuance of their law, the Department of Collective Rights and Expressions of Folklore has started a program for the implementation of an archive. 274
Question II. 6: Is a term other than “expressions of folklore” usually used in your country to describe the subject matter referred to in Section 2 of the Model Provisions?
If yes:
Summary of responses to Question II. 6
This question was addressed to countries that do not provide specific protection for expressions of folklore. The following information was provided in response to this question:
(iii) the terms in the country’s intellectual property legislation such as “artistic work”, “performance”, “choreographic work”, “dramatic work” and “collective work”, which are defined in the copyright legislation, all have applicability to the protection of aspects of folkloric expressions; 277
(iv) “creations of folklore, traditional custom” covers the protection and preservation of cultural goods; 278
272 Namibia (see also response to Question II.3). 273 Antigua and Barbuda; Barbados; Burkina Faso; Gambia; Ghana; Honduras; Iran (Islamic Republic of); Namibia; Senegal; United States of America. 274 Panama Law No. 20 of June 26, 2000, regulated by Decree No. 12 of March 20, 2001: “Special Intellectual Property Regime governing the collective rights of indigenous peoples with respect to the protection and defense of their cultural identity and their traditional knowledge and other provisions.” 275 Australia. 276 Bhutan. 277 Canada; Japan. 278 Croatia
Annex I, page 17
(vii) the definition of folklore used in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, 1989 was referred to in one response; 281
(viii) “popular creation”, “folklore industries” and “creative professions” are used rather than “expressions of folklore.” The subject matter protected is material expressions of folklore; 282
279 Czech Republic. 280 Kyrgyzstan. 281 Latvia. The UNESCO definition is as follows: “Folklore (or traditional and popular culture) is the totality of tradition based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.” 282 Russian Federation. 283 Japan. (see response to Question II.23) 284 New Zealand.
Annex I, page 18
(xi) “cultural goods” 285 , “goods with ethnological value” 286 , “expressions of folklore”, “cultural heritage” and “traditional culture/knowledge” 287 , “manifestations” or “expressions” 288 , and “folklore and traditional works of unknown authors”, “indigenous art” 289 also featured.
Question II. 7: Are there “expressions of folklore” or other examples or forms of traditional culture and knowledge which the Model Provisions do not protect, and which you believe ought to be protected?
Question II.8: Please provide any additional information, comments or practical experiences on the scope of protected expressions of folklore.
Summary of responses to Question II. 7 and II. 8
These questions were addressed to all States.
The following items were suggested as other examples or forms of expressions of folklore or traditional culture and knowledge that ought to be protected:
(i) processes and methods for the making of tangible expressions of folklore (example, musical instruments); 290
(ii) historical and archaeological sites, the alphabet, ceremonies and games; 291
(iii) traditional medicines, medicinal practices, healthcare and methods of healing. 292 One response added that it was not fair to leave traditional herbal medicine to be protected under the patenting system mainly because the patenting system has provisions which makes it impossible to protect herbal medicines. The response stated that things like novelty, and the need to analyze the chemical composition of medicines for disclosure purpose excludes traditional herbal medicines from being patentable and the owner of a patent also excludes others from using the medicines; 293
(iv) | traditional knowledge of a secret character;294 |
(v) | scientific views in fields such as physics and molecular-biology;295 |
(vi) | architectural forms;296 |
285 Hungary. 286 Romania. |
287 United Kingdom; Republic of Korea. 288 Panama. 289 Colombia. 290 Argentina. 291 Argentina; Togo; Viet Nam. 292 Argentina; Burkina Faso; Bhutan; Honduras; Indonesia; Iran (Islamic Republic of); Mexico; Panama; United Republic of Tanzania. 293 Zimbabwe. 294 Burkina Faso. 295 Croatia. 296 Czech Republic.
Annex I, page 19
(vii) culinary recipes and processes; 297
(viii) indigenous knowledge; 298
(ix) traditional astrology; 299
(x) the concept of cultural space, an anthropological concept, described as a place where popular and traditional cultural activities are concentrated; 300
(xi) traditional beliefs; 301
(xii) proverbs, myths, epics, jokes and rumors, childbirth songs, death songs and songs sung during hunting, fishing etc. 302 and;
(xiii) headdresses, hairdressing, clothing and jewelry. 303
In addition, one country advised it has recently provided appellation of origin protection for a specific regional pastry. 304 Another responded that folklore is evolving and one cannot legislate protection of folklore “similar to the context of the Model Provisions.” 305
One country treats the expressions of folklore as a part of the cultural heritage under the relevant legislation and not as works to be protected under copyright law. 306
Another country believed that free use, though exploitative on the communities concerned, has helped to preserve folklore in the absence of any legal provisions and that folklore has not died down because of this use. 307 They were protected as a part of national cultural heritage and their experience regarding the folklore protection consist of identification, inventory, evidence, preservation, and conservation. 308
Another replied to these questions that expressions of folklore can be protected against some prejudicial actions, and also against some illicit exploitation, when compromising or damaging the authenticity of the tradition or the heritage itself. In these cases, the object of the protection is not the exclusive right of the owner (or the stakeholder) of the expressions of folklore, but the integrity of the tradition itself, or the individuality of the community (for example, the holy religious image, as a significant design typical of a religious community, or the national flag etc.). It was stated that it was a question of liability if somebody uses an expressions of folklore distorting or offending the cultural interests or the heritage of the community concerned. 309
297 Jamaica; Togo. 298 Indonesia. 299 Iran (Islamic Republic of). 300 Philippines. 301 Philippines. 302 Sierra Leone; Togo. 303 Senegal. 304 Czech Republic. 305 Philippines. 306 Hungary. 307 Zimbabwe. 308 Romania. 309 Italy.
Annex I, page 20
In one country, a proposed trademark may be refused registration or cancelled (at any time) if the mark consists of or comprises matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. 310
(c) Acts against which expressions of folklore are protected
Question II. 9: Please provide information on the nature of the protection granted in respect of expressions of folklore in your laws or regulations. For example, which acts require authorization? Are the rights granted exclusive rights?
Summary of responses to Question II. 9
Several of the responses indicated that the rights granted in respect of expressions of folklore are all or some of the economic and moral rights granted in respect of copyright works. The rights granted in respect of expressions of folklore are generally also exclusive rights, 311 although in certain cases they may be rights to remuneration – for example, in one case the broadcast of a work by wireless or cable and the distribution of a published work that has been produced in the form of a phonogram did not require authorization but were subject to remuneration. 312 In one country, the rights are exclusive if the authors of the expressions are known. 313 In another country, protection is granted whether or not the author is known, and irrespective of whether the term of protection of the author has expired. 314 One country which has not yet promulgated the regulations necessary to implement the relevant legislation stated that if promulgated, regulations would protect folklore from commercial unauthorized use as well as illicit exploitation just as the Copyright Act protects against unauthorized use and grants moral rights. 315
Another response stated that under their Copyright laws the owner is granted exclusive rights “to do and to authorize” reproduction, adaptation, distribution, performance and display. Under trademark laws a third party may not, without authorization from a trademark owner, use a confusingly similar mark on similar goods. 316
One country responded that the rights granted were also exclusive and that the acts were those specified in their law, as well as the inclusion of traditional knowledge for the purposes of commercial and industrial application. 317
On the contrary, one country responded that their rights were not exclusive and that certain acts required authorization by the country’s Institute of Anthropology and History. Acts which required authorization in the country were the excavation work, the ploughing of land, the clearing of forests, the making of replicas, and alterations to monuments or the demolition or structural redesign of property that forms part of the cultural heritage with
310 United States of America. 311 Barbados; Sri Lanka; United Republic of Tanzania; Viet Nam. 312 China. 313 Burkina Faso. 314 Mexico. 315 Kenya. 316 United States of America. 317 Panama.
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respect to ownership rights. 318 Another response stated that the rights are non-exclusive and the use of folklore work beyond the permitted use also required prior authorization and was subject to the payment of fees. 319 Another response stated that no prior authorization was necessary in their country provided that the law’s principles were not infringed. 320
Question II. 10: Which principles are used in your laws and regulations to determine which utilizations require authorization (for example, in Section 3 of the Model Provisions, the principles are whether or not there is gainful intent, and whether or not the utilization occurs outside the traditional or customary context.)
Summary of responses to Question II. 10
Almost all the responses that answered this question advised that authorization is required when the expressions of folklore are used for commercial purposes and/or outside their traditional and customary context. 321 In other words, these responses indicated that their laws use the principles reflected in the Model Provisions.
One country advised that with respect to the trademark regime, only the owner of a trademark may assert rights in a trademark and that trademark principles would apply with respect to use in commerce of a proposed mark. The response added that mens rea 322 might be relevant to the issue of damages or a finding of willful infringement as opposed to unintentional infringement, but is not relevant to the issue of ownership. With respect to Indian arts and crafts the country stated that the principle was that of truth-in-advertising. Only an enrolled member of federally recognized tribe may offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the country. 323
Another responded that there should be protection against gainful intent whether or not utilization occured outside the traditional or customary contexts, including when there is the distortion of the socio-cultural values of indigenous cultures and local communities, and the pirating of traditions. 324
318 Honduras. 319 Ghana. 320 Mexico. 321 Barbados; Burkina Faso; China; Costa Rica; Ghana; Iran (Islamic Republic of); Namibia; Togo; United Republic of Tanzania; Viet Nam. 322 The term ‘mens rea’ is derived from Latin meaning a guilty mind and refers to the state of mind required to constitute a particular crime. Therefore there must be intention to bring about a particular consequence. 323 United States of America. 324 Panama.
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Question II. 11: Based upon your experiences with implementing your national laws and regulations, against which forms of exploitation, uses and actions in respect of expressions of folklore should protection be granted? Please provide practical examples. Are there any practical experiences with implementing the relevant provisions in your laws and regulations that would be helpful for a wider audience?
Summary of responses to Question II. 11
Specific examples were provided of uses of expressions of folklore and other forms of traditional knowledge and culture for which it is suggested protection should be available. These included the exploitation of indigenous plants; the use of a country’s name in connection with unauthorized reproductions of the country’s works; piracy of expressions of folklore by foreign film producers, and piracy of rock paintings, publication of folktales, poetry and short stories told by forefathers to missionaries; the transformation of musical instruments into modern instruments and their being renamed; the unauthorized use of folk dances and rituals; and photography of traditional people and their dress for use on postcards. 325 Reference was also made to reproduction; communications to the public by performance; broadcasting; distribution by cable or other means and adaptations; translations or other transformation and unauthorized reproductions. 326
One response referred to its Indian Arts and Craft Act (IACA) which prohibits misrepresentation in the marketing of Indian arts and crafts products within the country. The response stated that it was also the experience of Native American tribes that many commercial enterprises attempted to counterfeit Native American arts and crafts and/or falsely indicate some association between the non-Indian product and a Native American tribe. 327
Question II. 12: If your laws or regulations provide rights in respect of acknowledgment of source (such as those envisaged in Section 5 of the Model Provisions), please indicate, referring to practical examples where possible, whether such rights have been useful, effective and workable in practice.
For example, how is the requirement that the expression of folklore be “identifiable” (as being derived from a known community or place) implemented in your country? How is this requirement implemented if in your country there may be various communities sharing similar expressions of folklore? Or perhaps communities in your country also live in neighboring countries, and/or communities in your country may have adopted and developed an expression of folklore that originated in another country?
Summary of responses to Question II. 12
Of the 13 responses that answered this question, six countries stated that their laws provide rights in respect of acknowledgement of source. 328 Seven of the responses made no such provision. 329
325 Barbados; Burkina Faso; Burundi; Chad; Namibia (see also responses to Questions II. 23 and II. 24); Senegal; Togo; Viet Nam. 326 Ghana; Guinea; Viet Nam. 327 United States of America. 328 Burkina Faso; Kenya; Namibia; Panama; United Republic of Tanzania; Viet Nam. 329 Barbados; Ghana; Guinea; Mexico; Senegal; Togo; United States of America.
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While responses did not provide further information or examples, some made the following comments:
(iii) another country stated that there are various communities that share expressions of folklore and this is provided for under their Regulations, but the registration of expressions of folklore is the responsibility of the representatives of the indigenous congresses or authorities that file the application. The response stated that the traditional knowledge of indigenous peoples consisted of creations shared among the members of various communities, and the benefits were intended to accrue to them all collectively. In its response the country made the following distinction:
(a) where non-indigenous communities share expressions of folklore that are similar to indigenous ones (replicas) and market them, the law of their country provides that non-indigenous communities can continue that practice, but they cannot claim the collective rights accorded to the indigenous peoples;
330 Burkina Faso (response to Question II.8); Namibia. 331 United States of America. 332 Panama.
Annex I, page 24 Question II. 13: Is the protection afforded by your laws and regulations limited in time?
Yes
No
If yes, for how long? How is the starting point of protection determined? What happens to the expression of folklore after the expiry of the period of protection (for example, does it fall into the public domain so that it may be freely copied and used by anyone without restriction?)
If no, are there any national experiences in this respect that may be helpful for a wider audience?
Summary of responses to Question II. 13
Of the 23 countries that provide specific protection for expressions of folklore, one responded “Yes” as to providing protection that is limited in time, 333 11 responded “No,” 334 and one responded both “Yes” and “No.” 335
In one response, works of folklore exist in perpetuity, and as such they do not fall into the public domain. 336 However, another response stated that protection provided under copyright law was limited in time and the duration of protection runs for the life of the author plus 70 years, for 95 years from the date of publication or for 120 years from creation. Protection provided under trademark law continues as long as the mark is properly used as a trademark. It should be noted that a trademark may be cancelled at any time if it is demonstrated that the mark is disparaging or falsely suggests a connection. 337 Another response stated that it is important that people be able to arrange folklore to be handed down from generation to generation while at the same time ensuring that its identity is preserved. 338
Question II. 14: Please provide information on the exceptions, if any, to the rights referred to immediately above in your laws or regulations. Are they regarded as adequate from the view point of both the custodians of folklore and users in your country?
Summary of responses to Question II. 14
Of the 23 countries that provide specific protection for expressions of folklore, many provide for exceptions that are the same as or similar to those applicable to copyright works. Certain of the responses list the relevant exceptions. 339
333 Iran (Islamic Republic of). 334 Barbados; Ghana; Kenya; Mexico; Mozambique; Namibia; Senegal; Sri Lanka; Togo; Tunisia; United Republic of Tanzania. 335 Guinea. 336 Ghana. 337 United States of America. 338 Senegal. 339 See for example Burkina Faso; China; Namibia; United States of America; Viet Nam.
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One response specifically stated that the exceptions in their draft law are regarded as adequate from the viewpoint of both the custodians of folklore and users in the country. 340 Another stated that no comments or complaints had been received from the public during the revision of the law. 341
Two responses provided examples on the exceptions to the rights referred to in their law:
Question II. 15: Taking into account the expressions of folklore in your country, against which forms of exploitation, uses and actions may protection for expressions of folklore be necessary? Please provide practical examples.
Question II. 16: Please provide any other comments or practical experiences regarding the nature of the protection afforded to expressions of folklore in your country.
Summary of responses to Questions II. 15 and II. 16
In respect of forms of exploitation, uses and actions for which protection is necessary, many responses stated that expressions of folklore should be protected against the acts protected in copyright law, such as reproduction, adaptation, public performance, publication, communication to the public, as well as the acts protected by moral rights. According to the law of one country, creations of traditional folklore culture may be used only in a manner which “does not depreciate their value.” 344
In addition, some specific examples were provided:
(i) | reproduction of artworks on t-shirts, imported carpets345 and garments;346 |
(ii) | the duplication and adaptation of traditional remedies;347 |
(iii) | copying and use of hand woven, traditional textile designs and patterns on factory |
made fabrics, which stifles local weaving practice mostly prevalent among women in the villages; 348
340 China. 341 Namibia. 342 Kenya. 343 Panama. 344 Czech Republic. 345 Australia. 346 Barbados. 347 Barbados.
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(vi) the use of shadow plays, and folk poetry, songs, music and dances; 351
(vii) the trade and exportation of ethnographic material and artifacts, which are difficult to categorize and date; 352
(viii) use and exploitation of folklore for financial benefits, the distorting of expressions of folklore, and the deception of the public; 353
(xii) abusive forms of exploitation, uses and actions which do not respect the dignity of the community concerned, or are offensive against their respectability or their honor. 356
Another response stated, in answer to these questions, that there was no protection as there appeared to be no need therefore. It added that granting intellectual property rights could impede the promotion and further development of folklore as culture must continuously change to develop and survive. 357
One responded that it agreed with the scope of Section 3 of the text of the Model Provisions, as far as uses subject to authorization were concerned, and Section 6 of the same
348 Bhutan. 349 Canada. 350 Kyrgyzstan. 351 Malaysia. 352 Philippines. 353 Sierra Leone. 354 Egypt; Honduras; Romania; Zimbabwe. 355 New Zealand. 356 Italy. 357 Republic of Korea.
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text regarding practices that would be considered contrary to the rights in expressions of folklore. 358
In so far as additional general information is concerned, as requested in Question II.16, one response advised that the country’s courts have applied a flexible interpretation to intellectual property laws and common law principles to provide greater protection to expressions of folklore, and referred to the use of the doctrine of confidential information and finding of fiduciary obligations. 359 Another country stated that “cultural diversity is strengthened and promoted when the folkloric expressions of many different cultures are shared . . . in a manner that protects various aspects of the folkloric expressions without unduly restricting or limiting the dissemination thereof.” 360 One response referred to protection provided also in cultural heritage legislation. 361 Another responded that its law is not clear on which forms of expressions are to be protected, and, therefore, the Model Provisions should be inserted as is. 362
A response stated that the promotion of an expression of folklore, by including a traditional epic in a film for example, is a form of protection even if other people may benefit financially because “the showing of the film will ‘protect’ the existence of such epic as it will be passed on to the next generations.” 363
In one country, the Supreme Court had decided on the issue whether the known “author” of a “folk tale” had created an individual and original work. The Court held that as regards folk tales, originality and authorship must be judged taking into account the special rules of folk poetry. In this respect, the variability of folk tales are important: folk tales are handed down and maintained orally, therefore they are exposed to continuous changes. A taleteller is not entitled to copyright protection if his role in the formation of tales does not go beyond the traditional frames of telling tales. 364
However, according to another response, the country’s Law on the Protection of Tangible Cultural National Heritage ensures the protection of the goods belonging to the national cultural heritage including “goods with ethnological value” as defined. The response stated that it also ensures the material base and financial resources to discover, book keep, examine, classify, research, store, conserve, restore, and protect. According to the same law, if a good is classified as belonging to the national cultural heritage, nobody could make any kind of copy of it without the permission of the right holder even if it is public or private property. 365
Another responses stated that it has found that the most effective means of protection of expressions of folklore was to address the specific concerns that have arisen in their country. The response added that “(a)s is the case of all nationals, members of Indian tribes and
358 Colombia. 359 Australia. 360 Canada. 361 Czech Republic. 362 Namibia. 363 Philippines. 364 Hungary. 365 Romania.
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Alaskan natives have full access to elected representatives who are in the position to propose legislation to meet their particular needs.” 366
Cultural properties designated as ‘national or local properties’ are protected from destruction and maintained for purposes of good preservation and not in terms of intellectual property. 367
The protection of folklore and expressions of folklore, as far as their integrity, promotion and dissemination were concerned, are among the policy objectives for the preservation of the nation’s cultural heritage. Such protection is the responsibility of the authorities entrusted with the implementation of the policies. 368
(d) Authorization of utilizations of expressions of folklore Question II. 17: Are expressions of folklore regarded in your country as:
(iii) | As the “property” of individual artists whose works are based upon folkloric |
traditions? | |
(iv) | Neither (i), (ii) or (iii). Please provide further information. |
Summary of responses to Questions II. 17 The responses are reflected in the table below:
1. The “property” of the country as a whole
40
(as part of the national cultural heritage)?
2. As the “property” of indigenous or other local communities within your
35
30
country?
25
3. As the “property” of individual artists
20 Responses whose works are based upon folkloric traditions?
15
4. Neither (i), (ii) or (iii). Please provide
10
further information.
5
For example, 34 responses described
0
expressions of folklore as being the “property” of the country as a whole (as part of the national cultural heritage).
Responses by States
366 United States of America. 367 Republic of Korea. 368 Colombia.
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Responses also provided the following additional information:
(iii) in one sense, expressions of folklore may be regarded as the “property” of the country as a whole. However, among Aboriginal peoples in the country, a sense of “ownership” of traditional artistic heritage often exists in the concerned communities. Under the national legal system, there are mechanisms available for collectivities (both Aboriginal and non-Aboriginal) to assert legal “property” rights in expressions of folklore (for example, contracts relating to trade secrets, corporations holding copyrights and patents); 371
(iv) one response stated that folklore belongs to the country only when the author is unknown. 372 Others stated that expressions of folklore are the property of the individual artist, 373 whereas one stated that it was the property of the local of indigenous communities. 374 Further responses stated that ownership fell usually under one of three parties, namely country, community or individual depending on the particular expression of folklore and the circumstances. 375
Question II. 18: Please provide any other comments or practical experiences regarding the authorization of utilization of expressions of folklore in your country.
Summary of responses to Questions II.18
Regarding practical experiences with the authorization of utilization of expressions of folklore, responses provided the following information:
(i) the Canadian Museum of Civilization is a federal Crown corporation which serves as the national museum of human history of Canada. The Museum’s Cultural Studies program collects tangible folkloric art as well as tapes of songs, languages, oral histories and personal narratives. To reflect the wishes of members of some Aboriginal groups regarding authorization of access to their expressions of folklore, the Museum’s Ethnology section restricts access to some collections of sacred Aboriginal materials to members of culturally affiliated groups, and does not make them available to members of the general public; 376
369 Australia. 370 Burkina Faso. 371 Canada. 372 United Kingdom; Viet Nam. 373 New Zealand; Viet Nam; Zimbabwe. 374 Panama. 375 Honduras; Republic of Korea. 376 Canada.
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(ii) in another country, there is a system for the collective management of copyright and related rights and licensing is provided for the use of copyright subject matter. The organization for copyright management collects the fees for the use of works which are in the public domain. The fees are then transferred to the State Fund of Intellectual Property; 377
(iii) one response stated that the utilization of an expression of folklore depends upon the relevant community having been informed and permission from the elders or Paramount Chief obtained. 378 Another response regarded the free and prior informed consent of the relevant Indigenous Cultural Community (ICC) and Indigenous Peoples (IP) as being required. A Memorandum of Agreement must be executed by and between the proponent, the host ICC/IP community, and the country’s National Commission on Indigenous People (NCIP), written in the dialect or language of the concerned ICCs/IPs, with corresponding English and Filipino translation; 379
(iv) the institution of vetting the works of ‘professional’ artists also exists with respect to the works of applied folk arts, it was stated. In this case, the work is protected under copyright law, since the requirements of legal protection exist. There are sometimes disputes of plagiarism between folk artists (who created earlier the given motif or object). In this case the only possible solution is – beside a settlement – to come up for trial; 380
(v) one country gave the following practical scenarios:
377 Kyrgyzstan. 378 Sierra Leone. 379 Philippines. 380 Hungary.
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The response added that in the country concerned, an informant may mandate the destruction of a recording some years after it was made. This was because the informant may have a feeling of unease on issues of ownership and use after he/she died, or may “will” the recording or the information on it to someone else, it was stated. The response added that in the first case, the collector or repository would have to decide between honoring the wishes of someone within the culture that produced the folklore or honoring the mandate to “collect and preserve” demanded by the state, and in the second case renegotiate permissions with the heir to the folklore; 381
(vi) in one country, authorizations for the use of expressions of folklore are given by indigenous peoples and local communities in the form of license contracts for third-party
use.
Question II. 19: Does your law establish a “competent authority” and/or “supervisory authority” as referred to in Sections 9 and 10 of the Model Provisions?
Please provide information on the powers, funding, mandates, composition, responsibilities, functions and activities of such bodies in your country.
Please describe the procedure for obtaining authorizations to use expressions of folklore.
Are any fees payable for utilizations of folklore, and, if so, how are they determined and to which purposes are the fees applied (for example, for promotion of national culture)?
In general, what practical lessons and examples would benefit a wider audience?
Summary of responses to Question II. 19
Certain countries, which provided specific legal protection for expressions of folklore, stated that:
381 United States of America. 382 Panama. 383 Barbados; Iran (Islamic Republic of); Mozambique; Namibia (response to Question II. 20); Panama; Viet Nam. 384 Burkina Faso; Mexico. 385 Burkina Faso. 386 Mexico.
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proceeds from the royalty were also managed by the organization and set aside for cultural and social purposes; 387
(iii) a specific competent and supervisory authority was either established or in the process of being established. 388 One response that in their draft law fees for the utilization of works of folklore must be no less than 7% of the profit made from the utilization, and must be used mainly for the following purposes: first, to support and assist the work of national folklore organizations, folklore artists, folklore research institutions, folklore museums, exhibition halls and archives; second, to subsidize the community creating and spreading folklore to carry out meaningful activities on traditional folklore; and, third, to protect and disseminate national folklore works. 389 Another response required persons wishing to use folklore works for use other than permitted under the law, to apply to the Secretary responsible for culture and to pay the prescribed fee. The response added that their new Copyright Bills required persons wishing to use works of folklore for a commercial purpose to apply to the National Folklore Board of Trustees for permission in a prescribed form and to pay the requisite fees. 390 One country stated that they have an Arts and Crafts Board which operates as an agency within the Department of the Interior and administers their relevant Act. The response stated that under copyright and trademark laws it is the rights holder that is the relevant authority. 391
Question II. 20: If indigenous or other local communities within your country are regarded by your law as “owners” of their respective forms of traditional artistic heritage, how in practice do the communities concerned exercise, manage and enforce their rights under the law? What practical lessons and examples would benefit a wider audience?
Summary of responses to Question II. 20
One country advised that when certain works of folklore produced by a community are being distorted to discredit or prejudice the reputation of the community, or the source of a literary or artistic work is not attributed to the relevant community, the communities may have recourse to the copyright office. However, there has been no experience of such a situation to date. 392
In one country the State accords the local communities and indigenous peoples a right that allows them to refuse their consent to the collection of biological and genetic material, access to traditional knowledge and plans and projects of biotechnological character on their territory if they have not previously been given sufficient information on the uses and related benefits. 393
Another response stated that complaints about protected products alleged to be offered or displayed for sale or sold in a manner that falsely suggests that they are Indian products may be made to the Indian Arts and Crafts Board for action under the Indian Arts and Crafts Act. Civil suit may also be pursued and the government also takes steps to educate
387 Togo. 388 China; United Republic of Tanzania. 389 China. 390 Ghana. 391 United States of America. 392 Mexico. 393 Venezuela.
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consumers to help them avoid counterfeit arts and crafts products. 394 However, as referred to previously in Question II.17, one country responded that the local communities were considered no more than custodians as the original ownership of expressions of folklore was vested in the national heritage. 395
(e) Sanctions, remedies and jurisdiction
Question II. 21: Which remedies and sanctions are provided for in your national laws and regulations?
Question II. 22: Please provide any other comments or practical experiences regarding remedies, sanctions and jurisdiction.
Summary of responses to Questions II. 21 and II. 22
The sanctions and remedies referred to by the responses were mainly the statutory penalties established for copyright infringement or criminal infringement. 396 One responded that in the event of a second offence the fine was double the previous amount. The response added that sanctions were imposed in addition to confiscation and destruction of the means that were used to commit the offence. 397
Many countries stated that the sanctions and remedies were either fines or imprisonment or both, and were similar to those provided for in their legal system including actions for damages and prejudice or other appropriate civil remedies depending on the property and the extent of the infringement. 398
One country also added that of the fines imposed, half accrued to the National Treasury and the other half went towards the investment cost of the indigenous territories or peoples concerned or the local communities. 399
No further information on practical experiences was provided.
(f) Relation to other forms of protection
Question II. 23: Are there instances in which expressions of folklore have received protection in your country by indirect means, such as under related rights? Yes
No
394 United States of America. 395 Togo. 396 Ghana; Panama; United States of America. 397 Chad; Panama. 398 Barbados; Chad; China; Iran (Islamic Republic of); Namibia; Russian Federation; Sri Lanka; United Republic of Tanzania; United States of America; Venezuela; Viet Nam. 399 Panama.
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Please provide further information, and, where possible, practical examples to illustrate your response.
Question II. 24: Please provide any other comments or practical experiences regarding other forms of protection afforded to expressions of folklore in your country.
Summary of responses to Questions II. 23 and II. 24
Of the 49 responses that answered Question II. 23, 24 answered “Yes” and 25 “No.”
Those countries that responded “Yes” referred to:
(d) expressions of folklore being protected at common law. 403
Certain countries also referred to cultural heritage and indigenous peoples’ rights legislation. 404
Many of the countries responded that it had instances where expressions of folklore received protection by indirect means, such as related rights. 405 One response stated that expressions of folklore can obtain protection as derivative works, such as translations, adaptations, arrangements and other alterations. The response added that collections of expressions of folklore are also protected provided that the selection or the arrangement of their content is original. 406 In one response protection was also given to performers, who perform the work of folklore as well as producers or works which embody folklore. 407
According to the judicial practice of another country, the result of the valuable and useful activity of researchers of folk songs is protected by copyright as a collection of works. The panel of the Body of Experts on Copyright of the country gave the following answer in 1985: “Remuneration is due to the performer even in the case of performing works of folk music, if the performer is professional artist. On the other hand, if an amateur takes part in the recording of folk music (or of any other genre), in principle no remuneration is due to him/her in return for his/her consent to the fixation of the performance, however, in practice
400 Australia; Canada; Czech Republic; Gambia; Germany; Indonesia; Jamaica; Netherlands; Philippines. 401 Canada. 402 Croatia. 403 Gambia. 404 Ghana; Netherlands; Philippines; Russian Federation; Senegal; Togo. 405 Ghana; Greece; Hungary; Italy; New Zealand; Norway; Republic of Korea; Romania; United Kingdom; Viet Nam; Zimbabwe 406 Greece. 407 Ghana.
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the country’s phonogram producer company remunerates amateurs as well.” Since the amendment of their copyright law from 1994 there is no distinction anymore between amateur and professional artists, so from that time the related rights protection is due to all kind of performer’s performance. 408
One response stated that tax allowance and exemption from tax was the other form of protection afforded to expressions of folklore. The response added that “(c)oncerning value added tax, single objects of folk art and applied art, or those manufactured in a limited number of copies by non-industrial technology and which are given a number by the jury, belong to the preferential tax rate of 12%.” The normal tax rate is 25% and only pharmaceutical products and therapeutic equipment belong to the rate of 0%, it was stated. 409
One response is currently undertaking a review of its performers rights regime. The review will consider whether the current definition of performance should specifically refer to “cultural performances.” The review is also considering the issue of whether some form of collective ownership might be more appropriate for rights that arise from “cultural performances.” 410 Another responded that their law does not make a distinction between copyright and neighboring rights. 411
(g) Protection of expressions of folklore of foreign countries
Question II. 25: Have there been instances in which folklore originating in your country has been exploited or otherwise utilized in a foreign country?
Yes
No
If yes: | (i) | Please provide details of these cases. |
(ii) | Was it possible for any legal action to be taken by the relevant authorities and/or the affected nationals of your country to prevent, or seek redress for, such exploitation or utilization? If yes, please provide details, including the legal basis for such action was taken (for example, on the basis of reciprocity established in your national laws and regulations). |
Summary of responses to Question II. 25
To this Question II. 25, 13 countries responded “Yes”. Three of the responses indicated that they had experienced exploitation of their expressions of folklore mainly on a commercial basis across the globe. 412 Two responded “No” and one response stated that the country was unaware if any of its expressions of folklore had been or were being exploited abroad. 413
408 Hungary. 409 Hungary. 410 New Zealand. 411 United States of America. 412 Costa Rica; Ghana; Panama. 413 Mexico.
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A few responses provided cases where expressions of folklore had been utilized abroad, and commercially exploited in foreign, as well as local, markets. In addition, these responses called for proper legal procedures and mechanisms to prevent such utilization and exploitation of expressions of folklore in foreign countries. 414
Question II. 26: Do you believe that an international agreement for the protection of expressions of folklore is necessary?
Yes
No
Please provide further information on your answer.
Summary of responses to Question II. 26
To this Question, there were 39 “Yes” responses, four “No” responses 415 and eight responses did not answer this question. In addition, 13 responses did not respond either “Yes” or “No” but provided further information. 416
Yes No No Response
61%
Neither Yes or No but with further information
Those countries answering “Yes” provided various reasons for their answer:
(i) an international agreement would help discover and act against the illegal exploitation of folklore since it will give a chance to detect the foreign abuse; 417
414 Barbados; Burkina Faso; Burundi; Chad; Costa Rica; Ghana; Guinea; Iran (Islamic Republic of); Namibia; Panama; Russian Federation; Senegal; United Republic of Tanzania. 415 Australia; Hungary; Switzerland; United States of America. 416 Antigua and Barbuda; Belgium; Canada; Germany; Greece; Italy; Latvia; Netherlands; New Zealand; Norway, Portugal; Republic of Korea; United Kingdom. 417 Chad; Colombia; Costa Rica; Mozambique; Zimbabwe.
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(ii) two responded that it would lead to a better protection because it was an issue that involved not only a single country, but also several countries of a region; 418
(iii) another responded that greater respect for the intellectual property rights in the traditional knowledge and expressions of folklore of indigenous peoples and local communities, especially at the international level, would preserve and maintain them and protect them against wrongful exploitation through appropriation. The response added that such respect does preserve them, because without respect they would be bound to disappear. The country stated that in addition to mere protection, it would also become a means of defending national cultures; 419
Those countries answering “No” stated that the endorsement of an international agreement would be premature at this stage. 422 For example, one country stated that it was unclear whether it was possible or even desirable to establish a comprehensive, uniform set of rules at the international level to govern the protection of expressions of folklore. The response added that it appeared premature to begin such activity before individual countries have, in collaboration with the communities within their borders, established their own fledgling national regimes for protection within their borders and have gained useful experience in the application and effect of that protection. 423
Of the 13 countries that responded neither “Yes” or “No”, one stated that the country concerned was still soliciting the views of concerned parties on which national and international mechanisms might be the most appropriate to balance the different considerations involved. 424 Another country stated that no need for an international instrument had been expressed in the country and whether there is such a need remains to be seen. 425 In addition:
(i) one country stated that, in Europe, culture is a national affair, therefore, an international agreement is not the most obvious solution. The protection of the cultural heritage of developing countries is, however, important; 426
418 Costa Rica; Romania. 419 Panama. 420 Colombia. 421 Argentina. 422 Australia; New Zealand; Switzerland; United States of America. 423 United States of America. 424 Canada. 425 Germany. 426 Netherlands.
Annex I, page 38
(ii) one country stated that it remained positive to the work being undertaken at international level at present. It added that it was important to focus on identifying any insufficiencies of various intellectual property rights of existing international regimes and improving information on existing international regimes and improving information on existing rights and sanction possibilities to communities concerned; 427
(iii) another responded that the discussion for international legal framework of protection of folklore might not be unnecessary in the future. The response added that it might, however, be too premature to initiate the discussion because there were quite a few fundamental questions that had to be answered. The country stated that discussions should be focused upon basic issues such as definition, ownership, allocation and exercise of rights, treatment of folklore existing beyond borders. And that it might be much more important to develop common understandings on these issues among WIPO member countries, rather than initiating the discussion for international legal framework; 428
427 Belgium; Norway. 428 Japan. 429 United Kingdom. 430 New Zealand.
Annex I, page 39
Question II. 27: If yes, do you believe that the Model Provisions could serve as an adequate starting point for the development of such an agreement?
Yes
No
Please provide further information on your answer.
Summary of responses to Question II. 27
To this question, there were 38 “Yes” responses and 2 “No” responses. 23 of the completed questionnaires did not answer this question while one answered neither yes nor no.
Yes No No Response 60%
Countries provided additional information in their responses:
(iii) one responded that the Model Provisions were the result of substantial work done by experts in the field, and this was why the document had served to make countries more aware of the situation at present and also strengthened the protection afforded to expressions of folklore. The response added that 17 years had already elapsed since the Model Provisions were issued, and due account must be taken of new technology and a
431 Jamaica. 432 Colombia; Italy; Zimbabwe.
Annex I, page 40
globalized world in which knowledge of biodiversity is of interest to a great many people, and yet does not benefit the actual holders of the knowledge; 433
(iv) another response stated that the Model Provisions alone would not provide a suitable starting point but should be considered along with other source documents and submissions. 434
Question II. 28: What practical proposals do you have regarding the two main problems that prevented the development of an international treaty in 1984 ((i) the lack of appropriate sources for the identification of the expressions of folklore to be protected and (ii) the lack of workable mechanisms for settling the questions of expressions of folklore that can be found not only in one country, but in several countries of a region.)
Summary of responses to Question II. 28
Several countries made proposals and/or suggestions with regard to the two main problems that prevented the development of an international treaty, these included:
(iii) a proposal that an international institute be established to identify sources of expressions of folklore. 439 One response stated that an international institute should include representatives of all state concerned, possible specialists from the national agencies that are responsible with folklore protection. It was stated that its responsibilities could include the setting up of an international database of expressions of folklore, intermediating conflicts generated by the expressions of folklore that belongs to several countries of a region; 440
433 Panama; Togo. 434 New Zealand. 435 Barbados. 436 Egypt; Indonesia; Malaysia; Mexico; Romania; Russian Federation. 437 Canada. 438 Colombia. 439 Croatia; Togo. 440 Romania.
Annex I, page 41
(vii) regarding the criteria for determination (identification) of expressions of folklore, it might be useful to consider genre features. For example, epochs, fairy tales, legends have the people’s heritage as origin, while, on the contrary, novels, essays have authors) and such a criteria might be the absence of an author. Regarding regional folklore, the foundation of Regional Centers for protection and examination of expressions of folklore was suggested. These Centers could deal with the protection of expressions of folklore of countries with similar traditional culture and make competent conclusions on the belonging of a particular expression of folklore to the nation of one or other country; 444
(viii) the competent and supervisory authorities envisaged in the Model Provisions should identify the expressions of folklore to be protected. Regarding regional folklore, expressions of folklore could be identified and licensed individually where two communities on either side of a border share the same cultures and traditions; 445
(ix) the issues should be tackled by two international committees and thereafter be referred to a WIPO Diplomatic Conference; 446
441 Gambia. 442 Iran (Islamic Republic of). 443 Jamaica. 444 Kyrgyzstan. 445 Namibia. 446 United Republic of Tanzania.
Annex I, page 42
(xii) one response stated that cases in which an expression of folklore might be common to two or more countries, or specific to ethnic communities settled on the territory of two or more states, could be a problem bearing in mind that it is governments that exercise the rights in expressions of folklore. It added that if it was to be considered that the peoples or ethnic communities were the owners of the rights in expressions of folklore, and not the governments, the difficulty that arises is obvious, as the recognition and exercise of the rights on behalf of such communities would not be subject to their originating in one particular country or another. 450 One response stated that on the question of lack of workable mechanism for settling questions of folklore found in more than one country, the proceeds could be ploughed into projects of common interest by both countries instead of trying to share them. 451
Question II. 29: Please provide any other comments or practical experiences regarding the protection of expressions of folklore of foreign countries.
Summary of responses to Question II. 29
A few responses included some additional suggestions, such as:
447 Romania; Zimbabwe. 448 Zimbabwe. 449 Italy. 450 Colombia. 451 Zimbabwe. 452 Namibia. 453 Philippines. 454 Ghana.
Annex I, page 43
III. Modifications or Adaptations to the Model Provisions
Question III. 1: Please provide any suggestions for modifications or adaptations that could be made to the Model Provisions in order that they may be more useful as a model for national, regional or international laws and standards.
Summary of responses to Question III. 1
Several suggestions for modifications to or adaptations of the Model Provisions were made, such as:
(i) the Model Provisions should define the terminology used to delimit clearly the ambit and meaning of the desired protection; 455
(ii) the Model Provisions should be made available to all States; 456
(iii) the inclusion within the scope of the Model Provisions of traditional medicinal practices and methods of healing, textile designs, scientific views and practical traditions, intangible heritage and cultural space; 457
(iii) solutions must be found for cases where more than one community holds the same expression of folklore; 465
455 Argentina. 456 Burkina Faso. 457 Bhutan; Croatia; Philippines; Viet Nam; Zimbabwe. 458 Iran (Islamic Republic of). 459 Iran (Islamic Republic of). 460 Jamaica. 461 Kyrgyzstan. 462 Malaysia. 463 Argentina. 464 Argentina. 465 Argentina; Italy.
Annex I, page 44
(vii) protection is to be afforded to expressions of folklore that are also used in the digital environment, on the global information network, the concepts of reproduction and communication to the public, contained in Section 3 of the Model Provisions, should be brought up to date in a manner comparable to what has been done in the WIPO Performances and Phonograms Treaty; 472
(viii) the creation of a sui generis protection concept within intellectual property. 473 One response called for the design of policies, amendments or adaptations in that field so that folklore and indigenous knowledge were specifically mentioned. It stated that one sui generis concept would be a kind of protection that is special in relation to what already exists, but was not necessarily different; 474
(ix) sanctions should be uniform and extend beyond national boundaries. 475
[Annex II follows]
466 Gambia. 467 Kyrgystan; United Republic of Tanzania. 468 Namibia. 469 Croatia. 470 Jamaica. 471 Jamaica. 472 Colombia. 473 Costa Rica; Lithuania. 474 Costa Rica. 475 Sierra Leone.
LIST OF MEMBER STATES SUBMITTING RESPONSES TO THE QUESTIONNAIRE – WIPO/GRTKF/IC/2/7 - AS AT JANUARY 31, 2002
NAME OF REPRESENTATIVE | TITLE | |
MEMBER STATE | ||
Antigua and Barbuda | - | Ministry of Justice and Legal Affairs, Office of the Attorney General |
Argentina | María Georgina Gerde | Asesoría Legal de Patentes, Instituto Nacional de Propiedad Intelectual |
Australia | Fiona Ey | Senior Legal Officer, AttorneyGeneral’s Department |
Barbados | Christopher Birch | Deputy Registrar, Corporate Affairs and Intellectual Property Office |
Belgium | Alain Tacq | Conseiller adjoint, Ministère de la Justice – Service droit d’auteur |
Bhutan | Kinley Wangchuk | Deputy Director, Intellectual Property Division, Ministry of Trade and Industry |
Bosnia and | Melika Filipan | International Trademark Examiner, Institute for Standards, Metrology and Intellectual Property |
Herzegovina | ||
Brunei Darussalam | Sharifah Sarinah binti Wan Ibrahim | Legal Counsel, Attorney General’s Chambers |
Burkina Faso | Assétou Toure Oussiené Compaore | Directrice, Bureau burkinabé du droit d’auteur Juriste, Direction nationale de la propriété industrielle |
Burundi | Gabriel Ntagabo | Chef de service des Arts, des spectacles et du droit d’auteur, Ministère de la jeunesse, des sports et de la culture. |
Canada | Michèle Gervais | Director, Intellectual Property Policy, Department of Industry |
Chad | Oumar Nene Tassy | Directeur, Bureau tchadien du droit d’auteur (BUTDRA) |
China | Shi Zongyuan | Commissioner, National Copyright Administration of China |
Colombia | Fernando Zapata López | Director General, Dirección Nacional de Derecho de Autor |
Costa Rica | Virginia Marín N. | Directora a.i., Registro de la Propiedad Industrial |
Côte d’Ivoire | Yao Norbert Etranny | Directeur, Centre national des arts et de la culture |
Croatia | Sc. Nikola Kopčić | Director General, State Intellectual Property Office of the Republic of Croatia |
The Czech Republic | Michal Beneš Hana Masopustová | Secretary of Cultural Affairs of UNESCO, Ministry of Culture Head of Copyright Section, Ministry of Culture |
Ecuador | Nelson Velasco Izquierdo | Presidente del Instituto Ecuatorino de la Propiedad Intelectual (IEPI) |
Egypt | Dr. Ahmed Aly Morsi | Professor of Folk Traditions, Cairo University and Advisor to the Minister of Culture |
Ethiopia | Getachew Mengistie | Head, Patent Technology Transfer and Development Department |
The Gambia | Fola H. Allen | Registrar General, Department of State for Justice |
Germany | Irene Pakuscher | Head of the Copyright and Publishing Law Section, Federal Ministry of Justice |
Ghana | Kamei Anyimadu-Antwi | Assistant Copyright Administrator, Copyright Office |
Greece | D. Kallinikou | Director, Copyright Organization Ministry of Culture |
Guinea | Challoub Riad | Directeur général, Bureau guinéen du droit d’auteur |
Honduras | Camilo Bendeck | Director General de Propiedad Intelectual, Dirección General de Propiedad Intelectual |
Hungary | Dr. Zoltán Kiss | Head of Division, Hungarian Patent Office, Department of Law and International Affairs, Division of Copyright and Harmonisation |
Indonesia | A. Zen Umar Purba | Director General of Intellectual Property Rights, Directorate General of Intellectual Property Rights |
Iran (Islamic Republic | Mohammad Hassan Kiani | Director General, Office for Companies and Industrial Property, Registration Organization for Deeds and Properties |
of) | ||
Italy | Raffaele Foglia | Legal Counsellor, Ministry of Foreign Office |
Jamaica | Natalie Wilmot | Manager of Copyright and Related Rights, Jamaica Intellectual Property Office |
Japan | Ken-Ichiro Natsume | Assistant Director, Ministry of Foreign Affairs, First International Organization Division. |
Kenya | Paul Omondi Mbago | Registrar General, Attorney General’s Office |
Kyrgyzstan | Roman O. Omorov | Director, State Agency of Science and Intellectual Property under the Government of the Kyrgyz Republic (Kyrgyzpatent) |
Latvia | Mara Rozenblate | Head of PCT Section, Latvian Patent Office |
Lithuania | - | State Patent Bureau |
Malaysia | Ismail Jusoh | Director, Intellectual Property Division, Ministry of Domestic Trade and Consumer Affairs |
Mexico | Javier Tapia Ramírez | Director de Protección contra la Violación del Derecho de Autor, Instituto Nacional del Derecho de Autor |
Monaco | - | Direction de l’expansion économique |
Mozambique | Boaventura Afonso | Director, Instituto Nacional Du Livro e Du Disco |
Namibia | Tarah Shinavene | Director, Audiovisual Media and Namibia Communications Commission, Ministry of Foreign Affairs, Information and Broadcasting |
The Netherlands | H. Y. Kramer | Director of Media, Literature and Libraries, Ministry of Education, Culture and Science |
New Zealand | Kim Connolly-Stone | Senior Advisor, Intellectual Property, Ministry of Economic Development |
Norway | Maria Duna | Assistant Director General, Norwegian Ministry of Cultural Affairs |
Pakistan | Dr. Shamim M. Zaidi | Director, Lok Virsa, Ministry of Culture |
Panama | Luz Celeste Ríos de Davis | Directora general del Registro de la Propiedad Industrial (DIGERPI) |
The Philippines | Emma C. Francisco | Director General, Intellectual Property Office of the Philippines |
Portugal | Jaime Andrez | President du CA, Instituto Nacional da Propriedad Industrial (INPI), Ministero da Economia |
The Republic of | Young-Ah Lee | Deputy Director, Copyright Division, Ministry of Culture and Tourism |
Korea | ||
Romania | Ionela Naftanaila | Expert, Romanian Copyright Office |
The Russian | L.N. Simonova Yu. G. Smirnov N.G. Ponomareva | Head of Division, Russian Agency for Patents and Trademarks (Rospatent) |
Federation | ||
Senegal | Ndèye Abibatou Youm Diabe Siby | Directeur général, Bureau sénégalais du droit d’auteur |
Sierra Leone | Joseph Fofanah | Trade Marks and Patents Officer, Administrator and RegistrarGeneral’s Office |
Sri Lanka | Kanaganayagam Kanag-Isvaran | Chairman, Advisory Commission, National Intellectual Property Office of Sri Lanka |
Switzerland | Martin A. Girsberger | Co-Head, Legal Services, Patent and Design Law Division of Legal and International Affairs, Swiss Federal Institute of Intellectual Property |
Togo | Komi Amétépé Ayi | Directeur général, Bureau togolais du droit d’auteur (BUTODRA) |
Tunisia | Latifa Mokaddem | Chargée de Mission, Ministère de la Culture |
The United Kingdom | Dr. Brian Simpson | Assistant Director, Copyright Directorate, The Patent Office |
The United Republic | Stephen Dominic Mtetewaunga | Copyright Administrator, Copyright Society of Tanzania |
of Tanzania | ||
The United States of | Robert L. Stoll | Administrator for External Affairs, United States Patent and Trademark Office |
America | ||
Venezuela | Thaimy M. Marquez | Directora del SAPI, Servicio Autónomo de la Propiedad Intelectual (SAPI) |
Viet Nam | Do Thanh Bih | Patent Examiner, National Office of Industrial Property of Vietnam |
Zimbabwe | E. Munaiwa | The Controller of Patents, Trade Marks and Industrial Designs, Ministry of Justice |
[Annex III follows]
ANNEX III
MODEL PROVISIONS FOR NATIONAL LAWS ON THE PROTECTION OF EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATION AND OTHER PREJUDICIAL ACTIONS
prepared by the Secretariats of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Intellectual Property Organization (WIPO)
Annex III, page 2
Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions
[Considering that folklore represents an important part of the living cultural heritage of the nation, developed and maintained by the communities within the nation, or by individuals reflecting the expectations of those communities;
Considering that the dissemination of various expressions of folklore may lead to improper exploitation of the cultural heritage of the nation;
Considering that any abuse of commercial or other nature or any distortion of expressions of folklore are prejudicial to the cultural and economic interests of the nation;
Considering that expressions of folklore constituting manifestations of intellectual creativity deserve to be protected in a manner inspired by the protection provided for intellectual productions;
Considering that such a protection of expressions of folklore has become indispensable as a means of promoting further development, maintenance and dissemination of those expressions, both within and outside the country, without prejudice to related legitimate interests;
The following provisions shall be given effect:]
SECTION 1
Principle of Protection
Expressions of folklore developed and maintained in [insert the name of the country] shall be protected by this [law] against illicit exploitation and other prejudicial actions as defined in this [law].
SECTION 2
Protected Expressions of Folklore
For the purposes of this [law], “expressions of folklore” means productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of the country] or by individuals reflecting the traditional artistic expectations of such a community, in particular:
(iii) expressions by action, such as folk dances, plays and artistic forms or rituals;
whether or not reduced to a material form; and
Annex III, page 3
(iv) tangible expressions, such as:
(a) productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes;
SECTION 4 Exceptions
1. The provisions of Section 3 shall not apply in the following cases:
(i) utilization for purposes of education;
(ii) utilization by way of illustration in the original work of an author or authors, provided that the extent of such utilization is compatible with fair practice;
(iii) borrowing of expressions of folklore for creating an original work of an author or authors;
2. The provisions of Section 3 shall not apply also where the utilization of the expressions of folklore is incidental. Incidental utilization includes, in particular:
SECTION 5
Acknowledgement of Source
SECTION 6
Offences
SECTION 7
Seizure or Other Actions
Any object which was made in violation of this [law] and any receipts of the person violating it and corresponding to such violations, shall be subject to [seizure] [applicable actions and remedies].
Annex III, page 5
SECTION 8 Civil Remedies The sanctions provided for in [Section 6] [Sections 6 and 7] shall be applied without prejudice
to damages or other civil remedies as the case may be.
SECTION 9 Authorities
[1.] For the purpose of this [law], the expression “competent authority” means ...
[2. For the purpose of this [law], the expression “supervisory authority” means ...]
SECTION 10
Authorization
[3. Appeals against the decisions of the competent authority may be made by the person applying for the authorization and/or the representative of the interested community.]
SECTION 11
Jurisdiction
[1. Appeals against the decisions of the [competent authority] [supervisory authority] are admissible to the Court of ...]
[2.] In case of any offence under Section 6, the Court of ... has jurisdiction.
Annex III, page 6
SECTION 12
Relation to Other Forms of Protection
This [law] shall in no way limit or prejudice any protection applicable to expressions of folklore under the copyright law, the law protecting performers, producers of phonograms and broadcasting organizations, the laws protecting industrial property, or any other law or international treaty to which the country is party; nor shall it in any way prejudice other forms of protection provided for the safeguard and preservation of folklore.
SECTION 13 Interpretation The protection granted under this [law] shall in no way be interpreted in a manner which could hinder the normal use and development of expressions of folklore.
SECTION 14
Protection of Expression of Folklore of Foreign Countries
Expressions of folklore developed and maintained in a foreign country are protected under this [law]
[Annex IV follows]
ANNEX IV
DRAFT TREATY FOR THE PROTECTION OF EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATION AND OTHER PREJUDICIAL ACTIONS 476 The Preamble
The Contracting States,
Considering that expressions of folklore, developed and maintained by communities of various countries or by individuals reflecting the expectations of those communities, represent an important part of the living cultural heritage of mankind,
Considering that modern technology facilitates the commercialization of expressions of folklore beyond the frontiers of the countries in which they originate,
Considering that such commercialization of expressions of folklore may lead to the improper exploitation and distortion of the cultural heritage involved,
Considering that the international regulation of the protection of expressions of folklore against illicit exploitation and other prejudicial actions has thus become indispensable as a means of promoting their further development, authentic maintenance and dissemination, without prejudice to legitimate interests in having access to them,
Considering that expressions of folklore constituting manifestations of intellectual creativity deserve legal protection in a manner analogous to that provided for works protected by copyright,
have agreed as follows:
ARTICLE 1
Protected Expressions of Folklore
For the purposes of this Treaty, “expressions of folklore” mean productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community, or by individuals reflecting the traditional artistic expectations of their community, in particular:
(iii) expressions by action, such as folk dances, plays and artistic forms or rituals, whether or not reduced to a material form; and
(iv) tangible expressions, such as
476 UNESCO/WIPO/FOLK/GEI.1/2, 2off.
Annex IV, page 2
ARTICLE 2
National Treatment
Each Contracting State shall accord the same protection to expressions of folklore originating in other Contracting States as it accords to expressions of folklore originating in its own territory, subject to the protection specifically guaranteed, and the exceptions specifically provided for, by this Treaty.
ARTICLE 3
Competent Authorities
ARTICLE 4
Utilizations Subject to Authorization
1. The following utilization of the expressions of folklore shall require written authorization by the competent authority of the Contracting State in which the expression of folklore originated, if the utilization is intended to be made for profit in another Contracting State:
Annex IV, page 3
2. Each Contracting State shall, at any time of depositing its instrument of ratification, acceptance or accession, notify the Secretary-General of the United Nations, by means of a written declaration, of the kinds the main characteristics and the source of the artistic expressions of folklore originating in its territory the utilization of which is subject to the written authorization of its competent authority. Subsequent changes shall be notified in like manner.
ARTICLE 5
Request and Grant of Authorization
ARTICLE 6
Exceptions
1. The provisions of Article 4 shall not apply where the utilization is:
2. Furthermore, the provisions of Article 4 shall not apply where the utilization is incidental. Incidental utilization includes, in particular:
Annex IV, page 4 ARTICLE 7 Acknowledgement of Source
Article 8 Offenses Each Contracting State shall punish by penal sanctions any act of
(iii) willful deception of others in respect of the origin of expressions of folklore;
(iv) willful distortion, in any direct or indirect manner, of an expression of folklore in a way prejudicial to the honour, dignity or cultural interests of the community in which it originates.
ARTICLE 9
Seizure
Each Contracting State shall provide for the possibility of the seizure of any object which was made or imported in a way constituting an offence under this Treaty and any returns from such offenses.
ARTICLE 10
Civil remedies
Each Contracting State shall provide for the possibility of claiming damages or other civil remedies where the utilization was made without the required authorization or payment or in any other manner causing economic harm to the State or community in which the utilized expression of folklore has originated.
Annex IV, page 5
ARTICLE 11
Relations to Other Forms of Protection
This Treaty shall in no way limit or prejudice any protection applicable to expressions of folklore under national laws or any international treaty protecting copyright, the rights of performers, producers of phonograms and broadcasting organizations, or industrial property, nor shall it in any way prejudice other forms of protection provided for the safeguard and preservation of folklore.
ARTICLE 12
Deposit and Signature of the Treaty
This Treaty shall be deposited with the Secretary-General of the United Nations and shall be open until... for signature by any State that is [a member of the United Nations, any of the Specialized Agencies brought into relationship with the United Nations, or the International Atomic Energy Agency, or is a party to the Statute of the International Court of Justice] [a party to the Berne Convention for the Protection of Literary and Artistic Works or the Universal Copyright Convention].
ARTICLE 13
Entry into Force of the Treaty
ARTICLE 14
Denunciation of the Treaty
Any Contracting State may denounce this Treaty. Denunciation shall take effect 12 months after the date on which the Secretary-General of the United Nations has received the relevant declaration.
Annex IV, page 6 ARTICLE 15 Notifications by the Secretary-General of the United Nations
1. The Secretary-General of the United Nations shall promptly notify the Director-General of the United Nations Educational, Scientific and Cultural Organization and the Director-General of the World Intellectual Property Organization of:
2. The Directors General of the United Nations Educational, Scientific and Cultural Organization and the World Intellectual Property Organization shall promptly communicate to the Contracting States any notification received from the Secretary-General of the United Nations.
ARTICLE 16
Languages of the Treaty
[Annex V follows]
LIST OF SUGGESTED TASKS
Possible Task 1: Enhanced legal-technical assistance for the establishment, strengthening and effective implementation of existing systems and measures for the legal protection of expressions of folklore at the national level.
Possible Task 2: Updating the Model Provisions, 1982.
Possible Task 3: Extra-territorial protection.
Possible Task 4: Practical case study on relationship between customary laws and protocols and the formal intellectual property system.
[End of Annex V and of document]