What forms of behavior in relation to the protectable TCEs/EoF should be considered unacceptable/illegal?
International Publishers Association (IPA)
IPA is concerned by the
introduction of the notion of “unacceptability” in the ongoing discussions.
“Unacceptability” is not a legal term and means different things to different
people. IPA recommends the use of clear and unambiguous terms throughout the
ongoing discussions.
IPA could envisage a
requirement that the publication or other use of TCEs/EoF should be done only
with appropriate acknowledgement of the source.
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China
We think the following forms of behavior are
unacceptable/illegal: (1) unauthorized reproduction, adaptation, broadcasting,
public performance, distribution, rental, or communication to the public, of
TCEs/EoF or their derivative forms; (2) use of TCEs/EoF or their derivative
forms without indicating their source; and (3) distortion, mutilation or other
modification of, or other derogatory action in relation to, TCEs/EoF.
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Kyrgyzstan
Illegal appropriation, falsification and other actions
damaging traditional cultural expressions (folklore) shall be considered
illegal actions.
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United States of America
Over the last several years, the IGC has made considerable
progress in identifying specific forms of behavior regarded as unacceptable or
illegal by indigenous peoples and traditional and other cultural communities.
The work of the IB in conducting regional consultations and in sponsoring
research has been particularly helpful in facilitating this aspect of the work
of the IGC. The members of the IGC also have benefited greatly from hearing
directly from representatives of indigenous peoples and traditional and other
cultural communities on forms of behavior that are considered unacceptable or
illegal.
Despite the wealth of materials that have been generated, it
remains difficult to generalize regarding specific behaviors that are regarded
as unacceptable or illegal, sometimes broadly called “misappropriation.” Part
of the explanation is that views on forms of behavior that may be regarded as
unacceptable or illegal vary widely depending on local social, cultural, and
economic circumstances. Another part of the explanation is that acts of misappropriation
cover a wide range of behaviors. In this regard, the IGC has distilled a broad
range of behaviors regarded indigenous peoples and traditional and other
cultural communities as unacceptable or illegal, including:
Building on this foundation, the IGC should deepen its
understanding of these concerns by examining and discussing in detail the
existing mechanisms, including legal (both IPR and non-IPR) and non-legal
measures, that are available to address these specific issues or concerns. The
IGC would then be able identify gaps, if any, in existing mechanisms at the
domestic and/or international levels to address the specific issues or
concerns.
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Ghana
a. Unauthorized
collection of folklore from the right owners.
b. Non
acknowledge of the rights of the owners or holders of the folklore
c. Exploitation
of the protected folklore without the consent or authorization of the owner of
folklore.
d. Publishing
the protected information without the authorization nor observance of the moral
right in the folklore
e. Unreasonable
withholding of information on folklore by the holders from researchers.
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Brazil
An international instrument for the protection of
TCEs/EoFs negotiated in an IP forum such as WIPO should not overlook the need
to provide for measures aimed at curbing acts of misappropriation, specifically
those acts that take place via the use of IP mechanisms. Among these measures,
the requirement for prior informed consent should apply to all TCEs/EoFs,
registered or not. Registration should not be a condition for the enforcement
of rights by the communities in question.
Furthermore, one important criterium to assess whether
an act constitutes misappropriation is the existence of prior informed consent
by the community in question. The requirement for prior informed consent should
figure as an important tenet in a system of protection of TCEs/EoFs.
With the preceding provisos in mind, the draft provision
put forward in document WIPO/GRTKF/IC/10/4, Article 3, represents adequate basis to discuss the issue:
“(a) In respect of traditional cultural
expressions/expressions of folklore of particular cultural or spiritual value
or significance to a community, and which have been registered or notified
as referred to in Article 7, there shall be adequate and effective legal
and practical measures to ensure that the relevant community can prevent the
following acts taking place without its free, prior and informed consent:
(i) in respect of such traditional
cultural expressions/expressions of folklore other than words, signs, names and
symbols:
the reproduction, publication,
adaptation, broadcasting, public performance, communication to the public,
distribution, rental, making available to the public and fixation (including by
still photography) of the traditional cultural expressions/ expressions of
folklore or derivatives thereof;
any use of the traditional
cultural expressions/expressions of folklore or adaptation thereof which does
not acknowledge in an appropriate way the community as the source of the
traditional cultural expressions/expressions of folklore;
any distortion, mutilation or
other modification of, or other derogatory action in relation to, the
traditional cultural expressions/expressions of folklore; and
the acquisition or exercise of IP
rights over the traditional cultural expressions/ expressions of folklore or
adaptations thereof;
(ii) in respect of words, signs,
names and symbols which are such traditional cultural expressions/expressions
of folklore, any use of the traditional cultural expressions/ expressions of
folklore or derivatives thereof, or the acquisition or exercise of IP rights
over the traditional cultural expressions/expressions of folklore or
derivatives thereof, which disparages, offends or falsely suggests a connection
with the community concerned, or brings the community into contempt or
disrepute;
Other traditional cultural
expressions/expressions of folklore
(i) the relevant community is
identified as the source of any work or other production adapted from the
traditional cultural expression/expression of folklore;
(ii) any distortion, mutilation or
other modification of, or other derogatory action in relation to, a traditional
cultural expression/expression of folklore can be prevented and/or is subject
to civil or criminal sanctions;
(iii) any false, confusing or
misleading indications or allegations which, in relation to goods or services
that refer to, draw upon or evoke the traditional cultural
expression/expression of folklore of a community, suggest any endorsement by or
linkage with that community, can be prevented and/or is subject to civil or
criminal sanctions; and
(iv) where the use or exploitation
is for gainful intent, there should be equitable remuneration or
benefit-sharing on terms determined by the Agency referred to in Article 4 in
consultation with the relevant community; and
Secret traditional cultural
expressions/expressions of folklore
(c) There shall be adequate and
effective legal and practical measures to ensure that communities have the
means to prevent the unauthorized disclosure, subsequent use of and acquisition
and exercise of IP rights over secret traditional cultural
expressions/expressions of folklore.”
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Japan
Unacceptable/illegal
acts may vary depending on the form of protection for TCEs/EoF. As mentioned in
the above item 3, there is no clear justifiable reason why TCEs/EoF is eligible
for IP right protection. Japan is greatly concerned about extending IP right
protection to TCEs/EoF. Use of TCEs/EoF that inflict mental suffering upon a
community should be refrained from, as a matter of moral in general in the same
way that derogatory expressions against certain race, religion or sex should be
refrained from. However one should be careful in attempting to establish any system
of IP rights or similar rights in order to deter such acts, as unnecessarily
rigid regulation against expression could harm freedom of speech or development
of culture. Moreover, when defining unacceptable/illegal acts, a fact finding
survey should be conducted to find out what damage is incurred by what acts.
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Norway
A common understanding on what constitutes misappropriation
is essential to obtain an adequate and effective protection against such misappropriation
and unfair use.
Unacceptable behavior includes at least all:
·
unauthorized exploitation for economic gain
·
exploitation that does not acknowledge the
source of the TCE/EoF
·
offensive use
A common, core understanding of at least these three elements
are necessary.
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Qatar
Misuse, robbery, unethical infringement, illicit
exploitation, prejudicial actions and misappropriation.
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South Africa
•
Misappropriation
South Africa is of the view that any
acquisition or appropriation of indigenous knowledge, traditional cultural
expressions and genetic resources by unfair or illicit means constitutes an act
of misappropriation. We further propose that any commercial benefit derived
from the use of indigenous knowledge, traditional cultural expressions and
genetic resources contrary to any honest practice that gains inequitable
monetary advantage constitutes misappropriation. This is also applicable to
person/s accessing the knowledge that knows or is negligent in failing to know.
Regarding document WIPO/GRTKF/IC/10/4 we query protection against the
misappropriation of indigenous knowledge. Our particular concern regards:
•
What
is fair use and what is misappropriation?
•
Is the
public domain legitimate?
•
Distortion
South Africa is concerned at the rampant
manipulation and distortion of indigenous knowledge, traditional cultural
expressions and genetic resources. Given the nature of indigenous knowledge,
traditional cultural expressions and genetic resources the presentation of
indigenous cultural material in a manner of promoting integrity requires
careful consideration.
•
Contrary to Constitution/ domestic
legislation/ international instruments/ human rights
South Africa has a bundle of legislation that
seeks to protect indigenous knowledge, traditional cultural expressions and
genetic resources hence we are the view that any violation of these pieces of
legislation will constitute behaviour which is unacceptable.
•
Disrespect/denigration
•
In concert with South Africa’s proposal on
access and benefit sharing regulations we support the inclusion of the
following text to this sub-section, “Failure to obtain prior informed consent-
unauthorised usage.”
We are steadfast in our stance that any person
without the prior informed consent of the community uses knowledge, an
innovation or a practice in a manner inconsistent with our proposed (draft)
access and benefit sharing regulations commits an illegal act.
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Russian Association of Indigenous Peoples of the North (RAIPON)
The unlawful or commercial use of
copies of and tunes from works without the consent of the authors and
performers.
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Colombia
Article 3 of the substantive provisions contained in
documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/10/4 considers the protection of
expressions of folklore that are registered separately from those expressions
that are not registered, even though in relation to copyright registration is
declaratory and does not constitute rights. Protection is derived solely from
creation and therefore the Government of Colombia does not agree to consider
registration and notification as a condition for the exercise of the right to
prior informed consent. The moral and economic rights protected should be the
same and have the same enforcement measures (civil, criminal and
administrative).
As regards the TCEs/EoF of cultural and spiritual value, it
is important to consider that some indigenous peoples have expressed the view
that, where different levels and types of knowledge exist, those should be
dealt with differently, but precisely those which are in the spiritual
dimension should be seen from a defensive perspective, since in principle
economic interests do not exist in between, but expectations of a
transcendental and spiritual nature. Consequently, strict protection must exist
and mechanisms distinct from registration or notification be established in
order to regulate and make the right to prior informed consent effective.
A sui generis
system of protection must establish a limit on those TCEs/EoF which, owing to
their spiritual and sacred nature, cannot be commercialized. Peoples and
communities have their own authorities which must protect and keep custody of
such knowledge with their specific legal and justice systems, and the competent
national authority shall be responsible for protecting this right and
strengthening the authorities and organizations of peoples and communities so
that they may exercise the right.
Similarly, the existence of scientific evidence of
collective ownership of TCEs/EoF must be sufficient proof to enjoy the right to
prior informed consent, even where registration or notification does not exist
in the competent government bodies for the protection of intellectual property
rights. Scientific evidence includes ethnographical studies, monographs,
scientific compilations and publications, produced both by social and natural
scientists, and by members of the communities which carry out specific research
as a strategy to recover and revitalize TCEs/EoF.
Furthermore, in complex geopolitical contexts, the major
expectation of cultural communities relates to guaranteeing their physical and
cultural continuity, owing to the different kinds of pressure which they face.
In these contexts, the protection of TCEs/EoF moves on to another level but,
for a different reason, such expressions cease to be legal subjects and
therefore requirements must not be established which in certain cases are
unachievable for communities. In other words, the rights of the most vulnerable
peoples and communities must be guaranteed as a matter of priority and without
condition in contexts of conflict and displacement.
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Federación Ibero-Latinoamericana de Artistas, Intérpretes y Ejecutantes
(FILAIE)
In general, any form of appropriation, in the broad sense of
this concept, which can be reflected in specific civil, administrative or
criminal provisions.
In general, the looting to which peoples and communities are
subject by third parties must be avoided, which logically implies intellectual
property protection and knowledge thereof, with relevant registrations designed
to produce an inventory/register in relation to third parties.
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Tunisia
ü Piracy,
unauthorized use of such knowledge.
ü Copying
(counterfeiting).
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Guatemala
Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other Prejudicial
Actions (WIPO/GRTKF/IC/2).
Commercialization on a global
scale without due respect for the cultural and economic interests of the
communities in which they originated and without the peoples that are authors
of their expressions of folklore receiving any share of the benefits of such
exploitation.
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Russian Federation
Taking into consideration the provisions cited in point 3,
the unacceptable forms of behavior should be:
·
illegal appropriation of authorship;
·
acts of use of works of folk arts harming the
dignity of the representatives of peoples the works of folk arts of which are
used.
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