To what extent do existing IPRs already afford protection? What gaps need to be filled?

European Community

As far as the question to what extent existing IPRs already afford protection, the European Community and its Member States would like to quote the remarks included in our previous submission WIPO/GRTKF/IC/3/11:

“Some, albeit limited, protection can be offered already by existing intellectual property rules. However, it should be clear that when talking about protecting expressions of folklore by intellectual property, the latter is, and in fact can only be usefully applied with respect to the economic and not the purely ethnic or religious aspects of folklore. Indeed, endeavouring to protect ethnic or religious issues by intellectual property would stretch intellectual property beyond its recognized objectives of fostering creativity and investments.

To some extent, trademark law can be used to protect certain expressions of folklore, such as designs or symbols. The advantage of this protection is that it makes no novelty requirement and that it can be renewed without limitation, but protection relates only to actual or intended use for certain categories of products or services.

The laws on industrial designs provide protection for certain expressions of folklore such as graphical marks on any surface and three-dimensional plastic forms. However, the novelty and originality criteria, ownership and the limited duration of protection are difficult to reconcile with the nature of expressions of folklore.

The laws on geographical indications could be applied to certain tangible folklore products (such as carpets, textiles or figures) as protection can be assigned to a territory rather than a natural or legal person. However, this protection does not grant exclusive rights as regards the actual good or service itself and will only prevent others from using the indicator: the same folklore could still be reproduced or performed under a different name. The concepts of unfair competition or unfair trade practice may provide, where they exist, protection against wrongful commercial use and their scope could be used against industries, which profit from folklore but disregard its traditional nature.

Moreover, some intellectual property protection is already offered to performers of expressions of folklore via Article 2(a) of the WIPO Performances and Phonograms Treaty of 1996. This same Treaty extends moral rights, economic rights in their unfixed performances, a right of reproduction, of distribution, of rental and a right of making available to the same performers. The fact that expressions of folklore are included in the WPPT confirms the fact that expressions of folklore are not works however, and protection is given to performers of expressions of folklore under the concept of neighbouring rights.”

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International Publishers Association (IPA)

Copyright and trademarks and the protections for designs provide ample protection of economic rights. Moreover, other areas of law may equally afford protection (geographic indications; confidentiality/trade secrets). IPA is not aware of any acute gaps in the area of publishing of TCEs/EoF.

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China

We think that the current intellectual property system only provides partial protection to TCEs/EoF. In addition to the intellectual property law, the thorough protection of TCEs/EoF requires the protection provided by other laws, e.g. sui generis, the administrative law, and even the criminal law.

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Kyrgyzstan

There is no appropriate normative and legal base directly traditional cultural expressions (folklore) protection – this is a gap in the legislation of the Kyrgyz Republic. At the same tiem it should be noted that we have elaborated the draft law “On the Preservation and Legal Protection of Traditional Cultural Expressions”, which is currently reviewed by stakeholder Ministries of the Kyrgyz Republic.

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United States of America

Consistent with the mandate of the WIPO to “promote the protection of intellectual property rights,” thereby stimulating innovation and creativity, the IGC has made considerable progress in identifying the role of existing IPRs in addressing specific issues and concerns related to TCEs/EoF, including the role of national copyright, trademark, and trade secret laws, among other laws.

Many provisions of existing IPRs already are available for the protection of TCEs/EoF. For example, an original work of visual art created by an individual community artist inspired by or interpreting a traditional design would be eligible for copyright protection. Other principles and doctrines from existing IPRs could be adapted to address specific issues and concerns of indigenous and local communities. For instance, moral rights, which are provide for under the Berne Convention, could be adapted to address specific non-economic issues and concerns related to TCE/EoF. Existing IPR principles and doctrines also may be integrated with customary law.

The IGC should build on the national experiences of WIPO member states as well as experiences of indigenous peoples in using or adapting existing IPRs to address issues and concerns related to TCEs/EoF. The Secretariat should provide an update on recent efforts to use existing IPRs to address TCEs/EoF. With a new factual baseline, the IGC may wish to consider activities and programs (including regional programs and tool kits) designed to facilitate the exchange of best practices on the use of existing IPRs to address specific local, national or regional issues and concerns related to TCEs/EoF. 

The IGC should not stop with canvassing the use of existing IPRs to address TCEs/EoF issues. The United States believes that discussion of selected principles and doctrines of unfair competition, contract, cultural heritage, and customary law, where well-suited to address specific issues or concerns, are fully within the mandate of the IGC. For example, the IGC may wish to consider more closely examining the use of unfair competition law by WIPO Member States to address specific issues related to TCEs/EoF. The exchange of information on current national legal and policy developments and identification of successful national practices would advance the work of the IGC.

Some Members may raise concerns or specific examples where intellectual property systems are perceived or considered not to be sufficient to preserve, protect or promote TCEs/EoF in a particular context. Such an exchange would help the IGC to identify gaps, if any, in the existing international framework. These perceived gaps could then be considered and addressed.

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Ghana

Ghana currently protects the literary, scientific and artistic aspects of Traditional Cultural Expressions, Adinkra and Kente designs, i.e. traditional motifs are protected under the Copyright Act 2005, Act 690.

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The gaps that needed to be filled are the remaining aspects of folklore such as modes and methods of preparation of traditional foods, medicine.

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Brazil

Without prejudice to the decision Members may take to protect TCEs/EoFs via “sui generis” systems, the Committee should consider the adequacy of IP mechanisms to provide for the protection of TCEs/EoFs by examining, for example, (i) the extent to which rules relating to public domain should be adapted to accommodate appropriate protection of TCEs/EoFs; (ii) changes that might be necessary to accord TCEs/EoFs a term of protection commensurate to their duration in time; (iii) possible modifications in rules governing the validity of IPRs with a view to provide for deterrent mechanisms against misappropriation of TCEs/EoFs.

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Japan

To date, there has been no IP system around the world which extends direct protection to TCEs/EoF. In certain limited cases, however, TCEs/EoF can be protected under such existing systems as copyright law, trademark law, or unfair competition prevention law systems. Still, the following problems will remain.

Protection under copyright law

In order to be protected by copyright, a certain level of originality is necessary. Also, the holder of right is basically presumed to be an individual, and although there are systems of joint ownership of copyright or copyright owned by legal entities, it is not presumed that the a community directly becomes a copyright holder. Performance of TCEs/EoF can be subject to protection by neighboring rights, even if the performed TCEs/EoF itself does not qualify as a copyrighted work. Term of protection is limited both for copyright and neighboring rights.

Protection under trademark law

A trademark right is aimed at protecting signs used for goods and services by entrepreneur but not cultural expressions such as TCEs/EoF. Indirect protection of protection of TCEs/EoF under a trademark right might be possible. More specifically, if a trademark right might be able to be granted to a mark of group to which the TCEs/EoF belongs, a brand can be established using the mark of the group.

In addition, with regard to protection of moral rights, copyright law can provide moral rights protection where the TCEs/EoF qualifies as copyrighted work, and civil code or other general laws may also provide protection in cases of serious moral right infringements.

In conclusion, a fair balance has been kept between the protection of TCEs/EoF and the protection of public domain under the IP system and other laws. At this stage there is no perceivable gap between the current system and the necessary forms/level of protection.

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Norway

Existing IPRs (as i.e. regulated in treaties under the auspices of WIPO) already provides varying degrees of protection, depending on the circumstances. For instance the 1996 WPPT protects performers of expressions of folklore.

However, the traditional IPRs are not targeted to protect TCE/EoF. Therefore, the specific characteristics and needs are not necessarily appropriately addressed. Furthermore, the protection accorded is fragmented, varies between different jurisdictions and types of TCE/EoF and does not necessarily recognize TCE/EoF as eligible for protection.

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Qatar

Existing IPRs are not sufficient according to the nature of TK, It’s better to have a sui-generic system for the protection of TK.

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South Africa

South Africa believes IPR applications that include or are based on IK should be specifically excluded from existing IPR protection. In IP terms for example patent claims would fail to meet the test of innovation, novelty or inventiveness. But more importantly for local and indigenous communities, such patent claims should be automatically denied because IK is in the community domain; that is, it is already under the jurisdiction of customary practice systems, which protect the IK in perpetuity as the inherent and inalienable cultural property of local and indigenous communities. Given this cross generation, communal nature of IK an international instrument is thus most likely to adequately protect – but will have to include elements that goes beyond traditional IPR.

We support the inclusion of “Protection to individuals” under this sub-section. It is possible for an owner who is an individual to pass on knowledge, etc. to his own group (i.e., family, village, community).

In perusing the literature on indigenous knowledge we observe that provisions acknowledge an individual can own knowledge, not merely as trustee on behalf of others, but outright. By extension this would apply to innovations and practices.

·         Already written and recorded information – does not recognise origin (Community). Under the current provision there are no obligations to the source community, such as obligations to acknowledge the origin of their inspiration, share benefits or respect the cultural and spiritual values and meanings associated with the underlying expression of folklore.  The South African Legal Deposit Act, 1997, provides for the protection of the national documentary heritage of the country.  As IKS becomes more available in written form and as it stored in electronic databases, provision should be made for the National Library of South Africa and other places of legal deposit to receive copies of such documents when published commercially.  Provision should also be made for places of legal deposit to gain access to the relevant information stored in such databases (being mindful of the protection of intellectual property rights).  The designated places of legal deposit would help preserve published IKS documents and would promote access to heritage information.  IKS should therefore be provided for in the Legal Deposit Act, 1997, which is now being amended.  This holds true for other countries with legal deposit legislation.

•         Community rights: - Definition of novelty and obviousness (patents) are not recognized: We note the difficulty in meeting these requirements such as novelty or originality, and inventive step or non-obviousness (this may be due at least in part to the fact that IK often dates back prior to the time periods associated with conventional IP systems, or are developed in a more diffuse, cumulative and in a collective manner, making invention or authorship difficult to establish at a fixed time);

•         We draw attention to the fact that issue of oral history/orature is conspicuously omitted. We propose that any provision must include oral history which is generally unwritten, and is based on oral traditions tracing back to the customs, habits, and usages of local and indigenous communities from generation to generation.

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Russian Association of Indigenous Peoples of the North (RAIPON)

No response.

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Colombia

Intellectual property legislation does not envisage any type of protection for traditional cultural expressions.

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

International treaties contain virtually zero protection for traditional cultural expressions and such protection is omitted from national legislation, apart from specific provisions which are to be found in Panamanian, Tunisian, Moroccan, etc. legislation.

A reference to folklore exists only in the international WIPO Performances and Phonograms Treaty (WPPT) of December 20, 1996, where a performer is defined as the person who acts, sings, declaims, etc. …. literary or artistic works or expressions of folklore.

In order to resolve this extremely important question, it appears appropriate to draw up an international treaty which contains minimal but effective protection and for said treaty, after its entry into force, to be applied to the nations that sign up to it.

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Tunisia

Traditional knowledge is considered to be a nebulous concept which cannot be protected with a single system of laws, in this case those relating to intellectual property.

The intellectual property system cannot recognize the collective ownership of practices and knowledge handed down from generation to generation.

It may, however, be considered that if intellectual property can help in one way or the other to protect traditional knowledge and to lead to the recognition of its lawful owners, it will already have the merit of recognizing their collective creativity.

Protection must not prevent the sharing and transmission of traditional knowledge, and geographical indications represent an important element in the same way as territorial specificity.

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Guatemala

Decree No. 33-98 and reforms thereto, Decree No. 56-2000 and the Law on Copyright and Related Rights, establish protection for literary, scientific and artistic works, whatever their mode or form of expression.

The Law for the Protection of the National Cultural Heritage, Decree No. 26-97, revised by Decree No. 81-98, establishes rules for the protection, defense, research, conservation and recovery of the property included in the National Cultural Heritage.

Among the existing legal gaps mention can be made of the absence of a relevant treaty or agreement, promoted by the World Intellectual Property Organization.

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Russian Federation

In Russian at present the legal protection of the works of folk arts (expressions of folklore) within the IP system is not granted: not in copyright, not in patent law, not in any sui generis law.

           

A position has been expressed in scientific literature that there is a possibility of special payments for the use of works of folk arts with a reference to p.3 of article 28 of the Copyright law. According to this article the Government of the Russian Federation can define the cases when special payments must be made for the use on the territory of the Russian Federation of the works in the public domain. Such payments go to the professional funds of authors and the organizations dealing with collective management of authors’ rights, and can no exceed one percent of the profit from the use of such works. This article only deals with works that have fallen into public domain.

           

We should also note that relations in the area of artistic crafts are governed by the Federal Law of January 1, 1999 “On the Public Artistic Crafts”.

           

According to the mentioned law the federal executive bodies should provide economic, social and other conditions for the preservation, renaissance and development of organizations of public artistic crafts, the list of which is approved by the Government of the Russian Federation.

           

In particular, according to the Tax Code of the Russian Federation of July 31, 1998 No. 146-FL tax privileges are provided for the organizations of public artistic crafts. Besides, such organizations are subject for subsidies approved by the Decree of the Ministry of Industry and Energy of April 21, 2006 No. 90.

However, works of folk arts can be not only the creations of public artistic crafts. The notion “creation of public artistic craft” which is an artistic article of utilitarian of decorative designation created according to the traditions of such craft covers the articles of decorative and applied arts, such as carvings, embroidery, braided and weaved articles, clothing, ornaments (the list of the types of production and groups of articles of crafts, according to which the articles are attributed to articles of public artistic crafts is approved by the decree of the Ministry of Economic Development and Trade of the Russian Federation of December 28, 1999 No. 555) and does not cover the works of oral creativity, such as national sagas, legends, fairy tales, folk poetry, proverbs, riddles; musical works, such as folk songs and instrumental music; choreographic works, such as folk dances; dramatic works, such as games, performances, ceremonies and other works of folk arts.