What sanctions or penalties should apply to behavior or acts considered to unacceptable/illegal? − Rakyat Biologi

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 opposes a hasty protection of TCEs/EoF and therefore does not at this stage want to comment on the question of sanctions or penalties.

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China

We think that civil, administrative and even criminal sanctions or penalties should apply to behavior or acts considered to be unacceptable/illegal.

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Kyrgyzstan

There are no sanctions or penalties in the legislation of the Kyrgyz Republic for violation of use of traditional cultural expressions (folklore).

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United States of America

For the reasons set forth in our response to Issue five, the United States believes that a discussion of “sanctions and penalties” will not advance the work of the IGC at this time. As noted in the same response, however, the United States believes that the IGC should undertake a focused discussion of specific behaviors and acts regarded as unacceptable or illegal by indigenous peoples and traditional and other cultural communities. Once the IGC reaches a more informed understanding of the specific harms at issue, the IGC will be a better position to canvas remedies under existing law (including copyright, trademark, patent, unfair competition, trade secret, criminal, and customary law) to determine whether there are gaps in the existing remedial schemes of WIPO Member States.

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Ghana

We suggest that the following provisions in the African Union model law be considered.

1) Without prejudice to the existing agencies and authorities, the state shall establish appropriate agencies with the power to ensure compliance with the provisions of the instrument.

2) Without prejudice to the exercise of civil and penal actions which may arise from violations of the provisions of the instrument and subsequent regulation, sanctions and penalties to be provided may include:

i) written warning

ii) fines

iii) automatic cancellation / revocation of the permission for access

iv) confiscation of collected biological specimens recorded information and equipment

v) permanent ban from access to folklore / traditional knowledge such as biological resources / community knowledge and technologies in the country.

3) The violation committed shall be publicized in the national and international media and shall be reported by the national competent authority to the secretariats of relevant international conventions and regional bodies.

4) When the collector innovator conducts his / her operation outside of national jurisdiction, any alleged violations by such a collector may be prosecuted through the co-operation of the government under whose jurisdiction the collector operates based on the guarantee that the latter has provided.

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Brazil

As a general rule, sanctions foreseen in IP rules should apply in the cases of misappropriation. The draft provision of Article 8 (a) in the Annex of document WIPO/GRTKF/IC/10/4, transcribed below, represents adequate basis to discuss the issue:

“(a) Accessible, appropriate and adequate enforcement and dispute-resolution mechanisms, border-measures, sanctions and remedies, including criminal and civil remedies, should be available in cases of breach of the protection for traditional cultural expressions/expressions of folklore.”

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Japan

Sanctions/penalties against unacceptable/illegal acts may vary depending on the level of protection for TCEs/EoF and the level of illegality. 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. A fair balance has been kept between the protection of TCEs/EoF and the protection of public domain under the IP systems and other laws. Japan is not convinced that there is a need to introduce any other sanctions/penalties than those that have been already adopted under the existing systems. Japan does not believe that such a discussion is unnecessary, but when discussing what sanctions/penalties should be introduced, consideration should be given to the form of protection for TCEs/EoF and the scope of illegal acts. Discussion based on factual information about what damage has been caused by what illegal acts is essential.

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Norway

Appropriate and effective sanctions should be provided for in national law depending upon the infringement in question. Part III of the TRIPS Agreement provides guidance in this respect.

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Qatar

It is accepted to benefit from the existing IPRs norms in this matter.

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South Africa

• Internationally legally binding instrument

• Bilateral / MOU’s /Cooperation agreements

• Domestic law within which the transgression took place

• Article on sanctions

• Conciliation, Mediation and arbitration – by independent 3rd parties

South Africa is of the view that penalties could be set in order to recognise the particular gravity of the breach, as well as the financial means of the party involved. Civil procedures would be followed, including use of the civil standard of proof. A suitable appeal mechanism would need to be available to review the exercise of the regulator's or issuing officer’s discretion. Following evaluation document WIPO/GRTKF/IC/10/4, it could potentially be extended to other areas of environmental regulation and other regulatory agencies. Our proposed regulations on access and benefit could be used to bench mark standards.

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Russian Association of Indigenous Peoples of the North (RAIPON)

The unlawful use, without the voluntary and conscious consent of authors, of traditional cultural expressions for commercial purposes shall be punishable by the complete removal of profit and circulation of such expressions for the benefit of authors.

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Colombia

Dispute resolution mechanisms, civil and criminal sanctions, both economic (compensation for damage, fines) and also those which deprive offenders of their freedom.

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

In general, criminal protection should be granted against infringers and appropriators of traditional cultural expressions, although reserved for the most serious cases.

We consider that administrative measures and border control, with the imposition of heavy fines for offenders, could give excellent results where infringements affect important elements of different nationalities.

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Tunisia

The same sanctions adopted in the field of archeological heritage (the looting of sites) and the sanctions relating to copyright (piracy).

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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).

Confiscation.

Prohibition of storage, import and export.

Guatemalan Penal Code

Establishes offenses against the public faith and national heritage, as well as the looting of that heritage.

Article 332A, added by Article 23 of Decree No. 33-96, which reads: theft and robbery of national treasures. A prison sentence of two to 10 years shall be imposed in the case of Article 246 and a sentence of four to 15 years in the cases of Article 251, where appropriation of the following is undertaken:

(1) collections and rare specimens of fauna, flora or minerals, or items of palaeontological interest;

(2) property of scientific, cultural, historical or religious value;

(3) antiques more than 100 years old, inscriptions, coins, engravings, tax or postal stamps of philatelic value;

(4) objects of ethnological interest;

(5) manuscripts, books, documents and old publications with historical or artistic value;

(6) original artifacts, pictures, paintings and drawings, engravings and lithographs with historical or cultural value;

(7) sound, photographic or cinematographic archives with historical or cultural value;

(8) articles and objects of furnishing more than 200 years old and old musical instruments with historical or cultural value.

The penalty will be raised by one third where an offense is committed by public servants or officials or persons who, owing to their position or function, are responsible for guarding and keeping custody of the property protected by this Article.

Article 332B, added by Article 24 of Decree 33-96, reads as follows: theft and robbery of archaeological property. A prison sentence of two to 10 years shall be imposed in the case of Article 246 and a prison sentence of four to 15 years in the case of Article 251, where appropriation of the following is undertaken:

1. products of lawful or unlawful archaeological excavations, or of archaeological discoveries;

2. ornaments or parts of archaeological monuments;

3. items or objects of archaeological interest, although they are scattered or located in

abandoned areas.

The penalty will be raised by one third where an offense is committed by public servants or officials or by persons who, owing to their position or function, are responsible for guarding and keeping custody of protected property.

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

Article 45. Unlawful export of cultural property. Any person unlawfully exporting property which is part of the National Cultural Heritage shall be sanctioned with a prison sentence of six to 15 years, plus a fine equivalent to twice the value of the cultural property which shall be confiscated. The monetary value of the cultural property shall be determined by the Directorate General of the Cultural and Natural Heritage.

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Russian Federation

It seems worthwhile to provide for a possibility of administrative liability for acts mentioned in point 4, namely:

· warning (administrative measure, expressed in an official reproof of an individual or a legal entity. The warning is usually given in a written form);

· administrative fine (monetary punishment).

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