Should there be any exceptions or limitations to rights attaching to protectable TCEs/EoF?
International Publishers Association (IPA)
IPA opposes a hasty and
premature protection of TCEs/EoF through an IP related framework and therefore
does not at this stage want to comment on limitations and exceptions to balance
a possible framework of TCE protection.
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China
We think that, first, the protection of TCEs/EoF should not
affect the use of TCEs/EoF by members of the communities according to their
customary laws or norms; second, the use of TCEs/EoF without permission should
be allowed, provided that the source is indicated, in the following cases: (1)
use for scientific research or education purpose; (2) use for personal study,
research or appreciation; (3) use for reporting news or current events; (4) use
by governmental organs for carrying out their duties; (5) use for archive or
inventory purpose; (6) use for national security; third, non-voluntary licences
may be applied to the use of TCEs/EoF in the form of adaptation or broadcast.
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Kyrgyzstan
Exceptions and limitations shall be provided in respect of
use of traditional cultural expressions (folklore).
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United States of America
The United States believes that it is premature for the IGC
to undertake a focused discussion of “exceptions and limitations attaching to
rights to protectable TCEs/EoF.” First, as currently framed, the issue may tilt
in a particular policy direction that is not warranted at this stage of the
Committee’s deliberations. Second, such a discussion may have the unintended
consequence of polarizing the discussion, thereby impeding rather than
advancing the work of the IGC.
As a general matter, and consistent with comments in
response to Issue 7, the IGC should continue its work in identifying the extent
of existing mechanisms to address specific issues and concerns that have been
raised in the Committee and identifying any perceived gaps, including
appropriate and applicable exceptions and limitations.
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Ghana
This instrument shall not affect the following
i)
Traditional systems of access, use or exchange of
folklore knowledge.
ii)
Access, use and exchange of knowledge and technologies
by and between local communities.
The sharing of benefits based upon customary practices of the
concerned local communities, provided that the exception shall not be taken to
apply to any person or persons not living in the traditional and customary way
of life relevant to the conservation and sustainable use of folklore
iii)
the continued availability of traditional knowledge for
the customary practice, exchange, use and transmission of folklore by
traditional knowledge holders
iv)
the use of traditional medicine for household purposes;
use in government hospitals, especially by traditional knowledge holders
attached to such hospitals; or use for other public health purposes
v)
Regime of storage categorization of traditional medical
practices
vi)
Any use of the traditional knowledge or TCE for the
benefit of the public.
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Brazil
A provision on exceptions and limitations is welcome as long as it is
based on the need to allow uses of public interest. The draft provision of
Article 5 of document WIPO/GRTKF/IC/10/4, transcribed below, represents an
adequate basis to discuss the issue:
“(a) Measures for the protection of
TCEs/EoF should:
(i) not restrict or hinder the
normal use, transmission, exchange and development of TCEs/EoF within the
traditional and customary context by members of the relevant community as determined
by customary laws and practices;
(ii) extend only to utilizations of
TCEs/EoF taking place outside the traditional or customary context, whether or
not for commercial gain; and,
(iii) not apply to utilizations of
TCEs/EoF in the following cases:
- by way of illustration for
teaching and learning;
- non-commercial research or
private study;
- criticism or review;
- reporting news or current events;
- use in the course of legal
proceedings;
- the making of
recordings and other reproductions of TCEs/EoF for purposes of their inclusion
in an archive or inventory for non-commercial cultural heritage safeguarding
purposes; and
- incidental uses, provided in each
case that such uses are compatible with fair practice, the relevant community
is acknowledged as the source of the TCEs/EoF where practicable and possible,
and such uses would not be offensive to the relevant community.
(b) Measures for the protection of
TCEs/EoF could allow, in accordance with custom and traditional practice,
unrestricted use of the TCEs/EoF, or certain of them so specified, by all
members of a community, including all nationals of a country.”
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Japan
As mentioned in the above item 3, any justifiable reasons for IP
right protection to be extended to TCEs/EoF are not clearly identified and
sufficiently explained. In this respect, Japan has a serious concern. Japan is
not in a position to enter into discussion based on right or protection, but in
discussing exceptions and limitations, consideration should be given to the
balance between the interests of right holders and public interests although
such balance may vary by the form of protection and the scope of illegal acts.
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Norway
Taking inspiration from traditional intellectual property
law, limitiations on the protection of TCEs/EoF should be examined. In
particular the possibility of non-commercial and respectful use including use
in education and research, should be considered. Measures aiming to safeguard
the protection and
preservation of cultural and traditional heritage should also be developed. Any
such public interest measures should ensure that the TCE/EoF in question are
treated with respect.
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Qatar
For cultural, educational,
research and information purposes and otherwise.
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South Africa
South
Africa has not yet developed a detailed proposal dealing with issues to these
provisions, but we would be happy to provide such a proposal to the Committee
when completed.
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Russian Association of
Indigenous Peoples of the North (RAIPON)
The right of priority to use traditional knowledge for
commercial purposes, granted by representatives of indigenous peoples and
encouragement of persons related to indigenous peoples, to make commercial use
of traditional knowledge through the provision of essential capital and
conditions for such use by persons and organizations of indigenous peoples.
Documentation by specialists of traditional knowledge
(including their whole range as listed above) of persons and communities
related to indigenous peoples, which they wish to use for commercial purposes,
or in cases of the unauthorized use of such knowledge by persons not related to
indigenous peoples.
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Colombia
We agree to the existence of exceptions or limitations to
rights attaching to protectable traditional knowledge, provided that the
measures for the protection of TCEs/EoF cannot restrict the use of such
knowledge in the habitual and traditional community context. In general, we
support the contents of the proposed Article 5 of the substantive provisions
contained in documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/10/4.
In general, we consider that exceptions must be formulated
openly, provided that minimum conditions are satisfied. This corresponds to the
three steps rule in copyright and that of Article 30 of the TRIPS Agreement on
patents.
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Federación Ibero-Latinoamericana de Artistas, Intérpretes
y Ejecutantes (FILAIE)
Yes, in this area consideration should be given to physical
handicaps which may affect persons and at times make access to traditional
culture impossible; everything related to teaching and education should also be
envisaged and, in general, those limitations contained in current international
treaties and national legislation relating to copyright, performers and
producers, are included in the aforementioned provisions.
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Tunisia
The rights attaching to protectable traditional knowledge
should not be subject either to exceptions or to limitations (an inventory list
should be drawn up).
Tunisia is now equipped with a body within the Ministry of
Culture and Heritage Protection, responsible for producing a list of and
devising technical specifications for references in this area.
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Guatemala
Law for the Protection of the National Cultural Heritage,
Decree No. 26-97, revised by Decree No. 81-98.
Article 37 – Reproduction of cultural property. Cultural
property may be reproduced by all the available technical means. Where this
involves direct contact between the object to be reproduced and the means that
will be used to reproduce it, the authorization of the Directorate General of
the Cultural and Natural Heritage shall be required, subject to the owner or
holder’s authorization. Any method of reproduction causing harm to or a change
in the original cultural property shall be prohibited for use. Any copy or
reproduction shall have a visible sign engraved or printed on it and
identifying it as such.
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.
Article 8: Measures
to protect cultural expressions:
(a) Determining
whether there are special situations in which cultural expressions in their
territory run the risk of lapse, or are the subject of a serious threat, or
require any kind of urgent safeguard measure.
Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other Prejudicial
Actions (WIPO/GRTKF/IC/2).
Use for pedagogical activity purposes.
Use for the purposes of illustrating an author’s original
work, provided that the scope of such use is compatible with good use.
Taking of expressions of folklore for the purposes of
creating an original work of one or more authors.
The provisions of Article 3 will not apply either where the
use of expressions of folklore is fortuitous, including inter alia the use of any expression of folklore that can be seen
or heard in the course of an event for information purposes concerning said
event by means of photography, broadcasting, sound or visual recording,
provided that the scope of said use is justified for information purposes.
Use of objects incorporating the expressions of folklore
which are permanently located in a place in which they can be seen by the
public, if the use consists in including their image in a photograph, film or television
program.
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Russian Federation
Taking into consideration points 3 and 4, any exceptions or
limitations would not be expedient.
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