Definition of traditional cultural expressions (TCEs)/ expressions of folklore (EoF) that should be protected. − Rakyat Biologi

European Community

Further to the above general principles, the European Community and its Member States would also like to support the endeavour of the IGC to further clarify the intended object of protection. A clear definition of the object of protection is a prerequisite to engaging further in discussions in this area.

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International Publishers Association (IPA)

For publishers to be able to publish works related to TCEs/EoF with economic and legal certainty, a clear and concise definition of the protected subject-matter is required, leaving no room for ambiguity. In particular, any framework for the protection of TCEs should not afford protection simply to a mere idea or concept, but should be tied to a particular manifestation or expression. Otherwise, the right to freedom of expression could be infringed (see e.g. Article 19, Universal Declaration of Human Rights).

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China

We think that the definition of TCEs/EoF in the current draft is a feasible one but suggest that TCEs/EoF and traditional knowledge (TK) should be more clearly differentiated in the following discussions of the Intergovernmental Committee of WIPO.

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Kyrgyzstan

Traditional cultural expressions (folklore) to be protected – working and ritual traditional expressions (relatec to verbal folk arts and used in verbal form) of folklore, myths, legends, tales, heritage (sanjyra), eposes, folk dramas, proverbs, by-words, riddles, expressions of folk poetry, folk and funeral songs (koshok), dance melodies, folk and professional music, folk dances, games, events, celebrations and other expressions of movement, musical expressions of national folklore and verbal expressions as well as expressions of national symbolism, ornament, pattern, contained in items reflecting the idea of semantic purpose.

Protection also cover identified as folk artistic crafts created in the material form and through the folk arts and crafts containing varieties of artistic crafts, including graphic professional pictures, paintings, subject images, shadow pictures, coinage, wooden implements, national clothes, interior decorations, habitations, horses, scultures, ceramics, earthenware and pottery, bone, stone items, cast items made of steel and bronze, metal works (metallic processing), carved woods, mosaics, embroideries, ornamental paintings, sericulture, patterned hand waiving, felt products, laces, gobelins, pile and piless carpet weaving representation of ornaments, patterns, jewelry, leather works, basketry, ornamental matting (chiy), clothes as expression of folk arts, musical instruments, timbering, architecture, smaller architectural form etc.

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United States of America

The IGC has made considerable progress in identifying the broad contours of the subject matter of TCEs/EoF. This progress has drawn on the pioneering work of the WIPO-UNESCO Model Provisions for National Laws for the Protection of Expressions Against Illicit Exploitation and Other Prejudicial Actions. It also has benefited from the excellent work of the International Bureau (IB) in compiling a wealth of materials and distilling key elements of definitions for TCEs/EoF from regional frameworks, national copyright laws, and other laws.

Nonetheless, to date, the members of the IGC have not had the opportunity to undertake a focused discussion of the subject matter of TCEs/EoF. Building on its prior work, the IGC is now in the position to examine in greater detail the subject matter of TCEs/EoF. Such a discussion should draw deeply on both national experiences (for example, under national copyright laws, sui generis laws, customary laws, and other laws) and the experiences of indigenous peoples and traditional and other cultural communities (footnote in submission: The United States uses the phrase “indigenous peoples and traditional and other cultural communities,” which appears in a number of WIPO IGC documents, but notes that the Committee has not reached agreement on the use of this phrase).

By casting its net broadly, the IGC could advance its understanding of many recurring conceptual and practical issues regarding the subject matter of TCEs/EoF. For example, the recurring issue of whether the subject matter of TCEs/EoF is limited to community-oriented artistic and literary productions requires further examination. An important related issue is delineating with greater precision, if possible, the boundaries between TCEs/EoF and traditional knowledge (TK). IGC discussion of the subject matter of TCEs/EoF should be informed by the most recent national experiences, including the approaches of WIPO Members in defining TCEs/EoF, whether for purposes of protection or exclusion.

The IGC would benefit greatly from learning more about the experiences of indigenous peoples and traditional and other cultural communities in defining the subject matter of TCEs/EoF. Such a discussion should be informed by both legal measures (such as the definition of TCEs/EoF under customary law, whether codified or not) and non-legal measures (such as the use of tribal registries and electronic databases). A focused discussion should also address the question of how to identify an association between a particular TCEs/EoF and a particular indigenous people or traditional or other cultural community.

The issue of defining TCEs/EoF also includes the difficult question of identifying TCEs/EoF, or elements thereof, that “should be protected.” As noted in our general comments, the United States understands the use of the term “protection” to include a broad range of measures (including legal and non-legal measures) to address specific issues and concerns related to TCEs/EoF and TK. It would be productive for the IGC to examine in greater detail what TCEs/EoF, or related elements, are capable of protection under existing legal and non-legal mechanisms.

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Ghana

1.1 The WIPO Glossary defines folklore as works belonging to the cultural heritage of a nation created, preserved and developed in indigenous communities by unidentified persons from generation to generation.

Examples of such works are folk tales, folk songs, instrumental music or dances and the different rites of people. In the broad sense, folklore comprises all literary and artistic works mostly created by authors of unknown identity but presumed to be nationals of a given country, evolving from characteristic forms traditional with ethnic groups of the country.

1.2 The Copyright act 2005 (Act 690) defines folklore as the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana designs, where the author of the designs are not known and any work designated under the Act as works of folklore.

1.3 Definition 3: The UNESCO Bulletin Volume 32 NO. 4 defines folklore as follows:- Folklore is a mode by which culture is expressed. Folklore encompasses all aspects of cultural heritage, including art works, songs, dances, stores, customs, traditional medical knowledge, etc.

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Brazil

The subject matter should be all that consists in the elements belonging to the traditional cultural heritage, developed and maintained by a community or a people within a country or by individuals, and that reflect the traditional cultural expressions of said community or people.

The provisions defining the subject matter of the international instrument should reflect the idea that ECTs/EoFs have a dynamic and iterative (in the sense that it represents a process) nature. Accordingly, expressions that may characterize more recently established communities or identities should not be left unprotected, as they equally qualify as TCEs/EoFs.

With respect to musical expressions, musical styles in particular, the protection sought after is aimed at the particular rather than the general, i.e., there is little sense in ascribing entitlement to a musical style as a tradition that, by the very cultural dynamics of mankind, is transmitted and shared among many groups and societies.

In this context, the definition proposed in Article 1 of the Annex to document WIPO/GRTKF/IC/10/4, transcribed below, represents an adequate basis to discuss the issue:

“(a) “Traditional cultural expressions” or “expressions of folklore” are any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:

(i) verbal expressions, such as: stories, epics, legends, poetry, riddles and other narratives; words, signs, names, and symbols;

(ii) musical expressions, such as songs and instrumental music;

(iii) expressions by action, such as dances, plays, ceremonies, rituals and other performances; whether or not reduced to a material form; and

(iv) tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms; which are:

(aa) the products of creative intellectual activity, including individual and communal creativity;

(bb) characteristic of a community’s cultural and social identity and cultural heritage; and

(cc) maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community.

(b) The specific choice of terms to denote the protected subject matter should be determined at the national and regional levels.”

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Japan

The expression “traditional cultural expressions/expression of folklore” gives us a rough idea of its general meaning, but from a legal perspective, the expression still remains very vague. Below we will point out the problems we see in current existing attempts to define TCEs/EoF. This is for the purpose of illustrating issues necessary to deepen understanding.

WIPO/GRTKF/IC/6/3 (Traditional Cultural Expressions/Expressions of Folklore Legal and Policy Options) paragraph 50 lists the common elements that appear in definitions of TCEs/EoF in national laws of member States as below:

(i) are handed down from one generation to another, either orally or by imitation,

(ii) reflect a community’s cultural and social identity,

(iii) consist of characteristic elements of a community’s heritage,

(iv) are made by ‘authors unknown’ and/or by communities and/or by individuals communally recognized as having the right, responsibility or permission to do so,

(v) are constantly evolving, developing and being recreated within the community.

With regard to these common elements, problems and difficulties as below have been pointed out from time to time, but the international community has never been able to come to a common understanding to this date.

(1) The range of the meaning of certain words and the scope of public domain: It is not clear how words such as “traditional”, “handed down from one generation to another”, “heritage” and “characteristic” are rigidly interpreted and applied. Rather the meanings of these words cover a wide range of spectrum. There are traditional cultural expressions that are handed down only to certain individuals within a small community through strict rituals, and there are also traditional cultural expressions in a wider sense, such as those that have taken root as part of the national traditional culture of a country among its citizens in general, and are used by city dwellers and may be at times even be used commercially. Among these, the criteria that divide those that are protected from those that are not are unclear. Applying these words too loosely would bring about a fear of according intellectual property protection to traditional culture in general. Such consequence is not appropriate, as it would unfairly limit the public domain. On the other hand, if we were to rigidly interpret the meaning of these words and limit the scope of protection, we would need a justifiable explanation as to why certain types of expressions are protected while others are not.

(2) Criteria to fall under public domain due to uses outside the community: It is understood that TCEs/EoF falls under public domain once it has lost its link with a certain community. However it is unclear what extent of uses outside the community would be sufficient to render a TCE/EoF to be in the public domain. Geographically, it is unclear how much the use should expand outside the community for a TCEs/EoF to be in the public domain. Time-wise, it is unclear as to how long the TCEs/EoF should be used by non-community members for it to fall in the public domain. It is inappropriate to deny public domain status to TCEs/EoF that have been used outside the community for centuries in the past, as this would lead to the denial of the fruit of cultural development through cultural exchange.

(3) Non-traditional cultural expressions: It is unclear why non-traditional cultural expressions that have fallen under the public domain should not be protected while traditional cultural expressions are. WIPO/GRTKF/IC/5/3 paragraph 42(c) lists examples such as works by Shakespeare, heritage of Greek, Egyptian and Roman cultures and poses a question “Should ‘traditional’ creations enjoy a privileged status vis-à-vis other public domain ‘non-traditional’ creations?” This question is still unanswered.

(4) TCEs/EoF “that should be protected”: There is a view that the meaning of the expression TCEs/EoF can be made clear if requirements for protecting TCEs/EoF are clearly established, even if the meaning of the expression TCEs/EoF itself is vague. However it should be noted that no consensus about “protection” has yet been reached. The following opinions about the List of Issues are just for the purpose of discussion and this does not mean that Japan agrees to start discussing the listed issues for any other purpose than for clarifying issues.

The criteria for TCEs/EoF “that should be protected” is inextricably linked with the criteria for judging what benefits society can enjoy by the protection of TCEs/EoF. Will the TCEs/EoF be made widely available to the public (as are patents and copyrights) with the aim of enhancing technology and culture for succeeding generations? Or, will the maintenance of TCEs/EoF itself be regarded as serving the public interest? Taking into all these questions into account, discussions should focus on public interest and the return of benefits to the society. Without discussing such public interest, it will not be made clear if any protection is necessary or what should be protected.

The subject matter of protection may vary by the form/level of protection. The level of protection required to ensure that TCEs/EoF is respected can cover a substantially wide range of cultural expressions. If the level of protection is that of granting an exclusive right, the scope of the subject matter will be greatly narrowed. In addition, levels such as granting a right to remuneration or providing government subsidies for its conservation are also conceivable.

To clarify the expression “TCEs/EoF that should be protected,” the discussion about public interest, identification of existing problems, and practical needs for protection is indispensable.

(5) Definition of “Community”: This will be discussed under the next item 2.

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Norway

Traditional cultural expressions and expressions of folklore may include any artistic or traditional expressions, tangible or intangible, that are the results of individual or communal creativity, and that are characteristics of a community’s cultural and social identity and cultural heritage, and that is maintained, used or developed by such a community. There should be considerable room for further specifics to be determined at the national level.

In our opinion the discussions in the IGC as well as the IGC documents provide an extensive basis for the understanding of what expressions should be protected.

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Qatar

Traditional Knowledge (TK) is the totality of tradition – based creations of a community, expressed by a group of individuals and recognized as reflecting the Knowledge of a community in so far as they reflect its social experience. Its life practices, standard and values are transmitted orally, by imitation or other means.

Its forms among other:

· TKs and practices concerning nature and universe

· TKs concern traditional arts and crafts

· TKs concern agriculture, traditional medicine, culinary cosmetics and dressings etc…

· TKs concern decorations and symbols

· TKs concern constructing and architecture

· Traditional Law

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Ogiek Peoples Development Program (OPDP)

Many terms may be used in defining TCE in relation to cultural identity and solidarity in livelihoods. For instance among the Ogiek People, TCE is experience during circumcisions (rites of passage), marriage, burial and while hunting. Traditional cultural expression therefore is a source of identifying traditional way of life which human is born and brought up. Folklore has been applied in tradition informal education to provide stories, tales to the young generations so as to shapen their understanding in relation to their parents and strangers. An expression of folklore has been vital in warning young generations against of the community norms.

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South Africa

Whilst we agree with the definition provided in Article 3 of document WIPO/GRTKF/10/5, South Africa recommends the inclusion that “Indigenous Knowledge (IK) will be passed from generation to generation and between generations.”

In addition to the current definition South Africa proposes the following:

• to include under the term “traditional knowledge” technical know-how and spirituality (Article 3.2);

• to include ‘memory’ amongst resources section under article 3; and,

• Under Article 4 (iii), to add “traditional and local”

South Africa will continue to use the term Indigenous Knowledge (IK) as opposed to the use of Traditional Knowledge (TK). The use of this terminology is in sync with our IKS policy, proposed amendments to our IP legislations, and draft Access and Benefit regulations etc. This might support the use of IK as opposed to TK.

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Russian Association of Indigenous Peoples of the North (RAIPON)

All works whose source is traditional culture, performed by folklore groups or authors from a number of indigenous peoples, including:

Works of popular creation may include:

(1) works of oral popular creation, such as popular tales, epics, legends, fairy tales, popular poetry, proverbs and riddles;

(2) musical works such as popular songs and instrumental music;

(3) choreographic works such as popular dances;

(4) dramatic works such as games, performances and rituals;

(5) works of painting, sculpture, graphic art and other works of fine art;

(6) works of decorative applied art;

(7) works of architecture etc.

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Colombia

The definition contained in the proposed Article 1 of the substantive provisions detailed in documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/10/4 refers to the “creativity of the individual”. We consider that there is no need to refer to the creativity of an individual when speaking of a collective task. However, the problem lies not so much in the applicability of the criterion of creativity to a group but in the practical definition of the criterion as such. Furthermore, the list included in the above Article should scarcely be a list and must not be restrictive.

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Federación Ibero-Latinoamericana de Artistas, Intérpretes y Ejecutantes (FILAIE)

We consider that this question can be divided into two parts, the first relating to the specific definition of traditional cultural expressions, which must reflect the concept of the devising of an original creation by a group of individuals constituting a community and which has developed these indigenous creations since ancestral times, and the fact that said creations, including changes thereto, have been handed down from generation to generation, have been perpetuated in time up to the present and continue in force. The subject of the traditional cultural expression must belong to and be recognized as the work of the specific community which has devised and transmitted it.

The second issue refers to expressions of folklore that should be protected: in our opinion these must be all the original creations of the community in question and which must have as its sphere of application the whole series of creations reflected to a greater or lesser extent in the intellectual property laws in force in very different countries. We believe, however, that musical compositions, with or without words, dramatic and dramatico-musical works, including choreographs, pantomimes, and in general any artistic performance similar thereto, including theatrical works, as well as sculptures, works of painting, drawing, engraving, lithographs and graphic arts on any carrier, as well as applied or non-applied three-dimensional works, should be protected as subject matter for consideration. Indigenous craft designs and preparation of original items, including logotypes, denominations, and specific linguistic expressions used to denominate a region or people should also be included.

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Tunisia

Terminology:

Traditional knowledge includes the processes acquired by peoples through the know-how, skills and creativity which they inherit. It is the handing-down of culture, from one generation to another.

Traditional knowledge should be preserved because it contains indicators of the identity and specific nature of a nation. In Tunisia, the fields of application of such traditional knowledge are as follows :

ü crafts,

ü culinary aspects,

ü the art of living,

ü the art of building,

ü agriculture and nature,

ü medicinal knowledge.

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Guatemala

Convention on the Protection and Promotion of the Diversity of Cultural Expressions, ratified by the Government of Guatemala, on August 21, 2006, published in the Journal of Central America on March 23, 2007.

Cultural expressions: these are expressions resulting from the creativity of persons, groups and societies, which possess cultural content.

Protection means the adoption of measures aimed at preserving, safeguarding and enriching the diversity of cultural expressions.

Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (WIPO/GRTKF/IC/2).

Expressions of folklore: products incorporating elements characteristic of the traditional artistic heritage developed and perpetuated by a community or by individuals, which reflect the traditional artistic expectations of that community.

Protects:

Verbal expressions: popular tales, popular poetry and riddles.

Musical expressions: songs and popular instrumental music.

Physical expressions: popular stage dances and performances, and artistic forms of rituals.

Tangible expressions: other forms of popular and traditional art, drawings, paintings, sculptures, pottery, terracotta, mosaics, carpentry, foundry goods, jewelry, basket making, textile work, tapestries, dresses, musical instruments and architectural works.

Decree No. 26-97, revised by Decree No. 81-98 of the Congress of the Republic of Guatemala. Law for the Protection of the National Cultural Heritage.

Cultural heritage: the national cultural heritage consists of the property and institutions which, in accordance with the law or by declaration of authority, are included therein and constitute movable or immovable property, both public and private, relating to palaeontology, archaeology, history, anthropology, art, science and technology, and culture in general, including the intangible heritage, which together help to strengthen the national identity.

Tangible cultural heritage: immovable cultural property: architecture and its elements, including applied decoration, groups of architectural elements and units and of vernacular architecture, historical centers and units, including areas serving as the natural environment and landscape, the urban layout of cities and villages, palaeontological and archaeological sites, historical sites, particular areas or units, man-made works or combinations thereof with the natural landscape, recognized or identified by their character or landscape of exceptional value, prehistoric and prehispanic inscriptions and representations.

Movable cultural property: property which for religious or secular reasons is of genuine importance for the country and is related to the palaeontology, archaeology, anthropology, history, literature, art, science or technology of Guatemala, which comes from the sources listed below. The collections and objects or copies which, owing to their interest and scientific importance for the country, are of value for zoology, botany, mineralogy or archaeology, planned by chance. The elements resulting from the dismantling of artistic and historical monuments and archaeological sites. Artistic and cultural property related to the country’s history, special events, and illustrious personalities from social, political and intellectual life, which are of value for the Guatemalan cultural heritage.

Protects:

(a) Original paintings, drawings and sculptures.

(b) Photographs, engravings, silk screen paintings and lithographs.

(c) The sacred art of unique and significant character, made of noble and permanent materials and whose creation is relevant from a historical and artistic standpoint.

(d) Incunable manuscripts and old books, maps, documents and publications.

(e) Archives, including photographic, cinematographic and electronic archives of any type.

(f) Musical instruments.

(g) Antique furniture.

Decree No. 25-2006 of the National Congress, Convention for the Safeguarding of the Intangible Cultural Heritage, states:

Intangible cultural heritage: these are the uses, representations, expressions, knowledge and technologies together with the instruments, objects, artifacts and cultural areas inherent in communities, groups and, in some cases, individuals, so that they may be recognized as an integral part of their cultural heritage.

Protects:

Show arts, social uses, rituals and festive acts, knowledge and uses relating to nature and the universe, traditional craft techniques.

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Russian Federation

There is no definition of “traditional cultural expression/expression of folklore” in Russian legislation, the most commonly used notion is the “work of folk arts” used as a synonym. However, “work of folk arts” this notion is not defined in Russian legislation either.

Works of folk arts may include:

1) works of oral folk arts, such as sagas, legends, fairy tales, folk poetry, proverbs, riddles;

2) musical works, such as folk songs and instrumental music;

3) choreographic works, such as folk dances;

4) dramatic works, such as games, performances, ceremonies;

5) works of art, sculptures, graphics and others;

6) works decorative and applied arts,

7) architectural works, etc.

Providing the exhaustive list of objects that should be considered works of folk arts is impossible. As we can see from the above works of folk arts may and may not be expressed in a material form.

In general, taking into consideration the studies of the ethnographers expressions of folklore (works of folk arts) are characterized by the following features:

- impossibility to define the author with a sufficient level of certainty;

- regional peculiarities caused by habitation of certain people on certain territories;

- impossibility to define with a sufficient level of certainty the moment of creation of works of folk arts.

Works of folk arts can be considered as an object comprising typical elements of traditional artistic heritage created and preserved by a nationality of its individuals, which embodies traditional artistic aspiration of that nationality.