- MODEL PROVISIONS FOR NATIONAL LAWS ON THE PROTECTION OF EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATIONAND OTHER PREJUDICIAL ACTIONS
- INTRODUCTORY OBSERVATIONS
- THE MODEL PROVISIONS
- SECTION 1 Principle of Protection
- SECTION 2 Protected Expressions of Folklore
- SECTION 3 Utilizations Subject to Authorization
- SECTION 4 Exceptions
- SECTION 5 Acknowledgement of Source
- SECTION 6 Offences
- SECTION 7 Seizure or Other Actions
- SECTION 8 Civil Remedies
- SECTION 9 Authorities
- SECTION 10 Authorization
- SECTION 11 Jurisdiction
- SECTION 12 Relation to Other Forms of Protection
- SECTION 13 Interpretation
- SECTION 14 Protection of Expression of Folkloreof Foreign Countries
- COMMENTARY ON THE MODEL PROVISIONS
- The Legal Nature of the Model Provisions
- Title of the Model Provisions
- The Preamble
- Summary of the Provisions
- Principle of Protection (Section 1)
- Protected Expressions of Folklore (Section 2)
- Utilizations Subject to Authorization (Section 3)
- Exceptions (Section 4)
- Acknowledgement of Source (Section 5)
- Offenses (Section 6)
- Seizure and Other Actions (Section 7)
- Civil Remedies (Section 8)
- Authorities (Section 9)
- Authorization (Section 10)
- Jurisdiction (Section 11)
- Relation to Other Forms of Protection (Section 12)
- Interpretation (Section 13)
- Protection of Expressions of Folklore of Foreign Countries (Section 14)
- Transitional Provisions
United Nations Educational, Scientific and Cultural Organization
Organisation des Nations Unies pour I'education, 1a science et Ia culture
Organizacion de las Naciones Unidas para Ia Educacion,]a Ciencia y ]a Cultura
World httellectual Property Organization
Organisation Mondiale de 1a Propri"t" httellectuelle
OrgarJz:lcion Mundial de Ia Propiedad httelectual
MODEL PROVISIONS FOR NATIONAL LAWS ON THE PROTECTION OF EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATION AND OTHER PREJUDICIAL ACTIONS
DISPOSITIONS TYPES DE LEGISLATION NATIONALE SUR LA PROTECTION DES EXPRESSIONS DU FOLKLORE CONTRE LEUR EXPLOITATION ILLICITE ET AUTRES ACTIONS DOMMAGEABLES
DISPOSICIONES TIPO PARA LEYES NACIONALES SOBRE LA PROTECCION DE LAS EXPRESIONES DEL FOLKLORE CONTRA LA EXPLOTACION ILICITA Y OTRAS ACCIONES LESIVAS
1985
Published by the united Nations Educational, Scientific and Cultural Organization (Unesco), Paris and by the World Intellectual Proper.ty Organization (WIPO) , Geneva
Publie par l'Organisation des Nations Unies pour l'education,
la science et la culture (Unesco), Paris et par 1 'Organisation Mondiale de la Propriete Intellectuelle (OMPI), Geneve
Publicado por la Organizacion de las Naciones unidas para la
educaci6n, la ciencia y la cultura (Unesco), Paris
y por la Organizacion Mundial de la Propiedad Intelectual (OMPI) , Ginebra
@ Unesco, OMPI/wIPO 1985
MODEL PROVISIONS
FOR NATIONAL LAWS
OF EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATION
AND OTHER PREJUDICIAL ACTIONS
3.
MODEL PROVISIONS FOR NATIONAL LAWS ON THE PROTECTION OF EXPRESSIONS OF FOLKLORE AGAINST ILLICIT EXPLOITATION AND OTHER PREJUDICIAL ACTIONS
with a
COMMENTARY
prepared by the Secretariats of the United Nations Educational, Scientific and Cultural Organization (Unesco) and the World Intellectual Property Organization (WIPO)
I.
INTRODUCTORY OBSERVATIONS
Need for the Legal Protection of Expressions of Folklore 4. Attempts to Protect Expressions of Folklore Under Copyright Law 5.
Main Committee for the reV1S10n of the substantive provisions of the Berne Convention set up a special Working Group to elaborate relevant suggestions and to decide "what would be the most suitable place in the Convention for a provision dealing with works of folklore." The proposal of the Working Group was adopted unanimously, with six abstentions (Records of the Intellectual Property Conference of Stockholm (1967), Vol.II. Summary Minutes, Main Committee I, 964 to 981 and 1505 to 1515). As a result, Article 15(4) of the Stockholm (1967) and Paris (1971) Acts of the Berne Convention contains the following provision: "(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 declaration to all other countries of the Union." It is interesting to note that the provision, as adopted, does not refer to folklore and that it certainly embraces also works which are not part of folklore. It is only the legislative history of the provision that indicates that folklore was (also) intended to be covered.
10. In any case and at least so far, legal protection of folklore by copyright laws and treaties does not appear to have been particularly effective or expedient. In particular as regards the provisions in the Berne Convention, no notification has been deposited with the Director General of WIPO as yet concerning deSignation of a national authority to protect in countries of the Berne Union the rights in works of authors of unknown identity. Thus it would seem that the measures taken so far in the field of copyright are not sufficient to control the commercial use of folklore, and one has the impression that copyright law is, after all, not the right kind of law for protecting expressions of folklore. This might be so because whereas an expression of folklore is the result of an impersonal, continuous and slow process of creative activity exercised in a given community by consecutive imitation, works protected by copyright must, traditionally, bear a decisive mark of individual originality. Traditional creations of a community, such as the so-called folk tales, songs, music, dances, designs or patterns, are generally much older than the duration of copyright so that, for this reason alone, a copyright-type protection, limited to the life of the author and a relatively short period thereafter, does not offer to folklore a long enough protection.
Indirect Protection by Means of Neighboring Rights 6.
casting organizations. Adherence to the Rome Convention of 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations and to the Convention of 1971 for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonoqrams serves similar purpose. In order to avoid any misunderstanding as regards the protection of performers who perform or recite, respectively, expressions of folklore such as folk songs, folk tales, folk music, folk dances or folk plays, it is advisable to make it clear by means of an explicit provision in any law protecting performers of literary or artistic works that the performance of expressions of folklore shall be regarded as a performance of a literary or artistic work. Search for an Adequate System of the Intellectual Property Aspects of the Protection of Expressions of Folklore 7.
historical and other aspects. All these aspects are interdependent and call for a global study on the protection of folklore which is being dealt with on an interdisciplinary basis within the framework of an overall and integrated approach, by Unesco. Nevertheless, special efforts should be made to find solutions to the problem of the intellectual property aspects of the legal protection of expressions of folklore, as proposed by the International Bureau of WIPO and decided by the Executive Committee of the Berne Union and the Intergovernmental Committee of the Universal Copyright Convention at their sessions in February 1979.
lB. In accordance with the decisions of the respective Governing Bodies of
Unesco and WIPO, the Secretariat of Unesco and the International Bureau of
WIPO convened a Working Group (referred to hereinafter as "the Working Group")
at Geneva, from January 7 to 9, 1980, to study a draft of Model Provisions
intended for national legislation as well as international measures for the
protection of works of folklore. The Working Group was attended by 16 experts
from different countries invited in a personal capacity by the Directors
General of Unesco and WIPO.
19. The working papers available to the Working Group consisted of the following documents:
(i) "Model Provisions for National Laws on the Protection of Creations of Folklore and a Commentary on those Model Provisions" (document UNESCO/WIPO/ WG.I/FOLK/2 and 2 Add.) prepared by the International Bureau of WIPO;
(ii) "Study on the International Regulations of Intellectual Property Aspects of Folklore Protection" (document UNESCO/WIPO/WG.IIFOLK/3) prepared by the Secretariat of Unesco. 8.
Expressions of Folklore" (Annex I to document UNESCO/WIPO/WG.II/FOLK/4 ). in order to be presented for further consideration to a Committee of Governmental Experts. along with a Commentary to be prepared by the Secretariats. 9.
II.
THE MODEL PROVISIONS
25. The Model Provisions read as follows:
"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 distor tion of expressions of folklore is prejudicial to the cultural and economi ON THE PROTECTION