What objective is sought to be achieved through according intellectual property protection (economic rights, moral rights)?
International Publishers Association (IPA)
IPA believes that with
respect to TCEs/EoF, the primary focus should be put on the protection of moral
rights. Overall, publishing TCEs/EoF is not a highly profitable business,
despite the anecdotal evidence that points to the exceptional cases, rather
than the typical publishing enterprise.
The focus of any policy
in this area must be to incentivise more publishing, not to add costs or
commercial uncertainty
to an already risky publishing venture. Prescribed economic rights would add to
such risks, and disincentivise publishers further from publishing in this area.
_________________________________________________
China
We think it is the objective of intellectual property
protection to realize moral rights and economic rights in TCEs/EoF of the
traditional communities.
_________________________________________________
Kyrgyzstan
The objective of protection of traditional cultural
expressions (folklore) are as follows – protection, contribution to
renaissance, use, distribution and preservation thereof since traditional
cultural expressions (folklore) are a part of cultural heritage of particular
nation.
_________________________________________________
United States of America
The broadest overall objective of providing intellectual
property rights is to promote creativity and innovation. The WIPO Convention
provides that the primary objective of WIPO is to “promote the protection of
intellectual property.” The 1974 Agreement between the UN and the WIPO
recognizes that WIPO is the specialized agency to “promote creative
intellectual activity.” Existing systems of intellectual property protection
may be used or adapted to address the actual needs of communities, including
both economic and non-economic concerns, for qualifying expressions that are or
are related to TCEs/EoF.
Over the last several sessions and with the strong support
of the IB, the IGC has made substantial progress in identifying and
articulating a wide range of specific policy objectives for TCEs/EoF—not merely
their protection, but also the preservation and promotion of TCEs/EoF. To name
just a few of these policy objectives, the IGC has underscored the importance
of promoting an environment of respect for TCEs/EoF, contributing to the
preservation and safeguarding of TCEs/EoF, and encouraging, rewarding, and
protecting authentic tradition-based creativity and innovation.
The United States considers that the framing of these policy
objectives is not just a useful technique for facilitating discussion within
the Committee. Rather, the IGC’s work on the policy framework for the
preservation, promotion and protection is an extremely useful tool for policymakers
at the national, regional, and international levels. The United States notes
that many WIPO Member States, informed by the work of the IGC, already are
taking steps to address specific issues and concerns related to the protection
and promotion of TCEs/EoF.
Nonetheless, more work remains at the international level.
In the view of the United States, the IGC should continue to make a positive
contribution to the policy dimension of preserving, promoting and protecting
TCEs/EoF. As noted earlier, the United States believes that the IGC can make a
significant contribution by reaching agreement on policy objectives and general
principles at the international level.
More specifically, the IGC may productively focus discussion
on the great potential of traditional creativity and innovation to promote
economic and cultural development, especially rural development. Regrettably,
however, in many nations the policy framework for making decisions about the
use (or non-use) of these assets is not in place or fully developed. The IGC
may serve an important role in advancing the development of appropriate
national policy frameworks for the use of TCEs/EoF by WIPO Member States for
economic and cultural development. Consistent with WIPO’s mandate, such work
should focus on the IPR-related aspects of economic and cultural development,
including both economic and moral rights considerations.
_________________________________________________
Ghana
1. To acknowledge ownership of
folklore
2. To
protect the rights of the owners.
3. To
encourage collection, storage, collation, retrieval and use of folklore
4. To
facilitate research extraction and development rights in folklore
5. To make
same available for the benefit of mankind.
6. To
guarantee adequate remuneration to the beneficiaries.
The objective for the protection of Folklore as provided in
document GRTKF/9/INF/5 is too limited. It is true that some researchers,
extractors and innovators who come by folklore, most often misappropriate this
knowledge. The source of the information is not acknowledged and little or no
financial benefit ensure to the owners or holders of the knowledge from the
exploitation of the folklore. Misappropriation should not be the only basis or
objective for the protection of folklore. It is necessary to expand the
objectives for the protection of folklore.
_________________________________________________
Brazil
The growing demand
for protection of TCEs/EoFs stems from the emergence of a market for products
that are environmentally sustainable and that convey ethnic expressions. Such
market appeals to a share of the international public opinion that favors
projects targeted at forestalling the cultural extinction of traditional
populations. A negative byproduct of the emergence of such market,
nevertheless, is the increased number of cases of misappropriation of
TCEs/EoFs.
In view of the
preceding situation, an international instrument should, inter alia, clearly
ensure communities the entitlement of collective rights, moral and economic, related
to their TCEs/EoFs – by means of, for example, the requirement of prior
informed consent – so as to contribute to the improvement of their life
conditions.
Considering that
work of the Committee is circumscribed by WIPO´s mandate, one specific objective
that must be addressed is the setting out of measures aimed at preventing and
curbing the misappropriation of TCEs/EoFs by the granting of IPRs, irrespective
of whether such expressions have been registered.
Also, since the
issue is being discussed within the framework of WIPO, the Committee should
examine possible “positive” measures necessary to accommodate protection of
TCEs/EoFs under existing categories of intellectual property rights that
respect the specific features of the former, and without prejudice to the
possibility that Members may decide to accord protection to TCEs/EoFs via “sui
generis” systems.
In this respect, the
draft objectives proposed in document WIPO/GRTKF/IC/10/4, transcribed
below, represent adequate basis to discuss
the issue, in particular objective number (xii) – Preclude unauthorized
IP rights – that touches more directly upon WIPO´s competences:
“I. OBJECTIVES
The protection of traditional
cultural expressions, or expressions of folklore, should aim to:
Recognize value
(i) recognize that indigenous
peoples and traditional and other cultural communities consider their cultural
heritage to have intrinsic value, including social, cultural, spiritual,
economic, scientific, intellectual, commercial and educational values, and acknowledge
that traditional cultures and folklore constitute frameworks of innovation and
creativity that benefit indigenous peoples and traditional and other cultural
communities, as well as all humanity;
Promote respect
(ii) promote respect for traditional
cultures and folklore, and for the dignity, cultural integrity, and the
philosophical, intellectual and spiritual values of the peoples and communities
that preserve and maintain expressions of these cultures and folklore;
Meet the actual needs of communities
(iii) be guided by the aspirations
and expectations expressed directly by indigenous peoples and by traditional
and other cultural communities, respect their rights under national and
international law, and contribute to the welfare and sustainable economic,
cultural, environmental and social development of such peoples and communities;
Prevent the misappropriation of
traditional cultural expressions/expressions of folklore
(iv) provide indigenous peoples and
traditional and other cultural communities with the legal and practical means,
including effective enforcement measures, to prevent the misappropriation of
their cultural expressions and derivatives therefrom, control ways in which
they are used beyond the customary and traditional context and promote the
equitable sharing of benefits arising from their use;
Empower communities
(v) be achieved in a manner that is
balanced and equitable but yet effectively empowers indigenous peoples and
traditional and other cultural communities to exercise rights and authority
over their own traditional cultural expressions/ expressions of folklore;
Support customary practices and
community cooperation
(vi) respect the continuing
customary use, development, exchange and transmission of traditional cultural
expressions/expressions of folklore by,within and between communities;
Contribute to safeguarding
traditional cultures
(vii) contribute to the
preservation and safeguarding of the environment in which traditional cultural
expressions/expressions of folklore are generated and maintained, for the
direct benefit of indigenous peoples and traditional and other cultural
communities, and for the benefit of humanity in general;
Encourage community innovation and
creativity
(viii) reward and protect
tradition-based creativity and innovation especially by indigenous peoples and
traditional and other cultural communities;
Promote intellectual and artistic
freedom, research and cultural exchange on equitable terms
(ix) promote intellectual and
artistic freedom, research practices and cultural exchange on terms which are
equitable to indigenous peoples and traditional and other cultural communities;
Contribute to cultural diversity
(x) contribute to the promotion and
protection of the diversity of cultural expressions;
Promote community development and
legitimate trading activities
(xi) where so desired by
communities and their members, promote the use of traditional cultural
expressions/expressions of folklore for community-based development,
recognizing them as an asset of the communities that identify with them, such
as through the development and expansion of marketing opportunities for
tradition-based creations and innovations;
Preclude unauthorized IP rights
(xii) preclude the grant, exercise
and enforcement of intellectual property rights acquired by unauthorized
parties over traditional cultural expressions/expressions of folklore and
derivatives thereof;
Enhance certainty, transparency and
mutual confidence
(xiii) enhance certainty,
transparency, mutual respect and understanding in relations between indigenous
peoples and traditional and cultural communities, on the one hand, and
academic, commercial, governmental, educational and other users of TCEs/EoF, on
the other.”
_________________________________________________
Japan
There is an opinion that IP right protection should be extended to
TCEs/EoF to acknowledge its commercial value. This opinion, however, does not
clear in identifying any justifiable reasons why TCEs/EoF should be eligible
for such protection. If the purpose of the IP protection of TCEs/EoF is to
correct the inequities in economic development or to ensure sustainable
development of certain communities by providing a new financial resource, a
discussion should be conducted as to whether or not IP protection of TCEs/EoF
is an appropriate way to achieve these purposes in the first place. Also,
attention should be paid to the fact that protection of TCEs/EoF is not simply
a matter of economic policy and its ramifications in terms of impact on
cultural development are quite large.
Currently, the main purpose of an IP protection system is to give
incentive to creators by protecting their creations and to vitalize culture and
society. In this context, the right for protection should be valid for only a
limited period of time to encourage use by third parties for further
development and to secure the balance between the interests of right holders
and public interests. However it might be problematic to enable only a certain
generation to enjoy the benefits derived from TCEs/EoF that has long been
passed down. Moreover, there will be no financial incentive for the generations
after the expiration of the IP right to maintain and pass down the TCEs/EoF. On
the other hand, from the viewpoint of public interests, it is also
inappropriate to grant an IP right that will stay valid forever as it unfairly
limits the scope of public domain.
There is
another opinion that TCEs/EoF should be protected as moral rights considering
values that have long been fostered in an indigenous population or local
community. If moral rights protection is made applicable to TCEs/EoF, right
holders should be protected against any acts infringing their moral rights.
However, what acts constitute such moral rights infringement has yet to be
clearly defined. 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. For serious
moral right infringements, protection under the Civil Code or other general
laws may be applicable even if no IP right protection is available.
_________________________________________________
Norway
In Norway’s opinion the main objectives of protection in regard
of TCEs/EoF are:
-
to prevent misappropriation
-
to preclude the granting of unauthorized IP rights
Furthermore, protection should seek to:
-
ensure prior informed consent and exchanges based on
mutually agreed terms
-
promote equitable benefit-sharing
- promote conservation and sustainable use
By
providing protection, one also secures recognition and respect of the intrinsic
value of TCE/EoF.
The rationale behind Norway’s view is further elaborated in
document WIPO/GRTKF/IC/9/12 paragraphs 21 – 24.
_________________________________________________
Qatar
Moral, cultural and economic rights against misuse and
robbery or otherwise, either national, international.
_________________________________________________
South Africa
Some, but not all, of our concerns would be met
by the recommendations set out by the below mentioned objectives for IP
protections. Hence we support the introduction of:
•
Sustainable
development;
•
Preservation.
Within this context we draw
attention to the fact IP protection should be distinguished from the concepts
of 'preservation' and 'safeguarding.' By contrast safeguarding in the context
of cultural heritage refers generally to the identification, documentation,
transmission, revitalization and promotion of cultural heritage in order to
ensure its maintenance or viability.
•
Promotion.
South Africa views that the
recognition and promotion of IP protection for contemporary creativity can in
turn support such economic development.
•
South
Africa notes that there now appears to be wide recognition that IP protocols
have the ultimate objective of enhancing social welfare. Hence the potential
socio-economic benefit needs to be emphasized.
•
Social
cohesion.
•
Prevent
misappropriation / abuse
•
Protect
against unauthorised use of existing IPR
•
South
Africa endorses the comments subsumed in draft objectives WIPO document
WIPO/GRTKF/IC/10/5, pages 3 to 5.
The range of the overall protection of the
social and cultural communities from which the IK emerges recognising IK as a knowledge system, the rights of the
holders of such knowledge must be guaranteed - e.g. against appropriation from
outside the community, and to issues of fairness and justice in benefit
sharing. South Africa asserts that for
IP protection to transpire it should be compatible with and supportive of a
wide range of policy objectives related to the protection and conservations of
IK, including:
a.
the establishment of legal certainty regarding
rights in IK,
b.
the
survival of indigenous cultures - which translates into matter of survival as
an Indigenous people and as a community,
c.
the
recognition of customary law and practices governing IK,
d.
the
recognition of customary laws and protocols that govern the creation,
transmission, reproduction and utilisation of IK,
e.
the
repatriation of cultural heritage, and
f.
the
recording, maintenance, protection and promotion of oral traditions
_________________________________________________
Russian Association of Indigenous Peoples of the North
(RAIPON)
Economic rights and moral rights.
_________________________________________________
Colombia
We consider that the fundamental issue is that of informed
consent prior to use or exploitation and reward through benefits for the
community. Similarly, we believe that the right of paternity should be
recognized in favor of the community. This is in accordance with the objectives
contained in documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/10/4, which are
applicable irrespective of whether this is in accordance with the intellectual
property system or a sui generis
instrument, for which reason we support them.
_________________________________________________
Federación Ibero-Latinoamericana de Artistas, Intérpretes y Ejecutantes
(FILAIE)
The proposed objective should include both economic and
moral rights. We favor the legal formula of rights of remuneration relating to
public communication, fixation, reproduction, etc., collectively managed either
through the community itself, as the sole holder of the rights, or through
effective collective rights administration organizations.
_________________________________________________
Tunisia
Traditional knowledge in Tunisia
is the subject of sustained political attention and undergoes change in the
approach applied to its development.
Today traditional knowledge is
perceived as an element with rich potential for human and economic resources
that must be exploited as part of an overall approach.
The Ministry of Culture and
Heritage Protection in Tunisia is the reference partner in this policy of enhancing
ancestral knowledge.
The objectives of the action
undertaken to protect intellectual property are as follows:
A.
The safeguarding of the memory of a nation and its
identity.
B.
The creation of employment at reduced cost.
C.
Promotion and enhancement.
D.
The preservation and protection of traditional
knowledge in order to prevent its exploitation and unlawful commercial and
non-commercial use.
E.
The enhancement of regional and local resources.
F.
The sustainable development of such knowledge as an
indictor of the specific nature of a nation in the process of globalization.
_________________________________________________
Guatemala
Decree No. 25-2006 of the National Congress, Convention for
the Safeguarding of the Intangible Cultural Heritage, states:
Respect for the intangible cultural heritage of communities,
groups and individuals concerning the awareness at the local, national and
international level of the importance of the intangible cultural heritage and
its reciprocal recognition.
Safeguarding means the measures designed to guarantee the
viability of the intangible cultural heritage, including identification,
documentation, research, preservation, protection, promotion, enhancement,
transmission, basically through formal and informal education, and the revitalization
of the various aspects of the heritage.
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 6(g). Measures designed to support artists and other
persons participating in the creation of cultural expressions.
Article 7. Measures to promote cultural expressions: (a)
create, produce, disseminate and distribute their own cultural expressions, and
have access thereto, paying due attention to the special circumstances and
needs of women and different social groups, including persons belonging to
minorities and indigenous peoples. The important contribution made by artists,
all the people participating in the creative process, cultural communities and
organizations supporting them in their work, as well as the fundamental role
they play in supplying the diversity of cultural expressions, also needs to be
recognized.
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 constitute manifestations of intellectual creativity, which merit
protection based on that granted to intellectual productions, for the
development and continuation of those expressions, both in the country and
abroad, without harming the legitimate interests concerned.
_________________________________________________
Russian Federation
We can mark out several components of the protection granted
at present by the intellectual property institutes: the so called “positive”
protection and the “prohibitive” protection.
For example, in copyright, the aim of granting the so called
“positive” protection: promoting by the state the interest in creating the
works (encouraging creative activities of the author, remuneration for the
expenses of the author for the creation of the work, remuneration for the
work); the proprietary rights given to the author are designed to reach this
goal. The author may as use the work himself, as grant these rights to a third
party for remuneration.
Let’s assume that the aim of granting protection to the
works of folk arts is also the encouragement of creativity. However, this aim
is not fully applicable to works of folk arts. If the wok of literature or art
is created at present as a result of a creative activity it is granted the
copyright protection in the Russian Federation. And when we speak of the
compensation of the expenses made in the past, the question of the person who
has born the expenses arises, because it is impossible to define such a person.
The aim of granting the so called “prohibitory” protection
is: impossibility of unauthorized use, prohibition of certain actions, which
may lead to unfavorable consequences for the author.
However, the institutes of intellectual property create such
a prohibition for a certain period of time, after the lapse of which the
proprietary right are terminated and the object (e.g. the work) falls into
public domain (in particular, p.1 article 28 of the Law of the Russian
federation of July 9, 1993 No. 5351-I “On Copyright and Related Rights”), and
the works in the public domain can be used freely (p. 2 article 28 of the Copyright
law).
Attention should also be paid to the personal
non-proprietary rights: the right to be recognized as the author, the rights
for the name, the protection of the work from any distortion or any other acts
that could harm honor and dignity of the author.
Did the initial author want to be identified, show his
attribution to a certain community, because the works of folk arts (expressions
of folklore) expressed in a material form a marking could be made: names,
symbols, stigmas, signs.
Or did the creator initially aim to remain anonymous to show
that the work created is an aspiration of a whole nationality and the aim of
the work is not the profit (material or not): fame or remuneration, but
possibly another aim was followed: domestic, educational, informational, etc,
because the work of folk arts as a folks wisdom may often contain the rules of
conduction, moral norms.
The above said proves that the aim of the legal regulation
of relations connected with the use of works of folk arts is the preservation and development of the
originality of the peoples, protection of honor and dignity of the
representatives of peoples, creative labor of which led to the creation of
works of folk arts. Legal regulation of relations on the exploitation of works
of folk arts can not be conducted by creating norm providing for exclusive
rights, because they are aimed at creating monopoly for the rightholder of the
works. Intellectual property institutes are tightly connected with the
personality of the creator of the work. Only the rightholder can define how his
work should be used. Intellectual property institutes, in particular copyright
law, is aimed at the promotion of creativity though encouragement of the
creators of work and do not deal with issues of preservation and development of
works, thus, this institutes are aimed to solve social and economic problems,
which are different from the protection of works of folk arts.
Thus, in
respect of works of folk arts the moral (non-proprietary) rights seem to be
important, including the protection of works from any distortion or other acts
capable of harming the honor or dignity.
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