Which issues should be dealt with internationally and which nationally, or what division should be made between international regulation and national regulation?
International Publishers Association (IPA)
The principle of
subsidiarity requires that only those tasks should be performed at
international level which cannot be performed effectively at a more immediate
or local level. Respect for the same principle also requires that international
harmonisation should be the conclusion, not the precursor of the development of
national regulation.
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China
We think that at the international level the
cross-border protection of TCEs/EoF
should be coordinated.
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Kyrgyzstan
Problems: imperfection of the
national legislation in this field, lack of traditional cultural expressions
(folklore) protection system as such etc.
It is presumed that at
international level there will be unified approach in solution of common tasks
in order to protect traditional cultural expressions (folklore).
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United States of America
The United States believes that a focused discussion of the
preservation, promotion and protection of TCEs/EoF requires a careful
consideration of both the national and international aspects of the complex
issues before the Committee, without excluding any outcome. At this time, the
Committee should concentrate its efforts on engaging in sustained, robust
discussions of the substantive issues before it. Further, it should be recognized
that all issues raised in the IGC are being dealt with internationally even if
the result of the international deliberations would be for agreed actions to be
taken at the national level.
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Ghana
Every issue concerning folklore
should be dealt with at both the national and international levels especially
where, the issue involves two or more different nationals or nations.
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Brazil
One
critical function of an international instrument for the protection of
TCEs/EoFs should be to facilitate the enforcement of national legislation in
third countries. Accordingly, minimum rules should be set out on an
international level, such as: (i) the requirement that use of TCEs/EoFs be
conditioned upon compliance with prior informed consent; (ii) reference of
cases that may represent acts of misappropriation; (iii) recognition of rights
over TCEs/EoFs to the communities they relate to; (iv) ways and means to
protect such rights.
Apart from the decision to decide the underlying features of
the system of protection – IP-related or “sui generis” -, national legislations
should be entitled to provide for, inter alia: (i) specific definition of the
beneficiaries of protection; (ii) rules on benefit-sharing; (iii) management of
rights relating to TCEs/EoFs; (iv) specific sanctions applying in cases of
misappropriation.
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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 have not been clearly identified and sufficiently
explained. Japan has a serious concern about establishing a new type of
intellectual property right or a sui-generis right for protection of TCEs/EoF
as well as about creating a legally binding international instrument that
obligates member States to establish such regime.
Before discussing ways of internationally addressing this issue,
discussions must be conducted on what domestic solutions exist and where their
limits lie, and the extent to which contracts, etc. are incapable of addressing
this issue. Discussion based on factual information about what damage has been
caused by what illegal acts is essential.
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Norway
The core elements should be dealt with internationally, thus
providing a minimum standard of protection. However, the need for flexibility
should also be recognized. One system of protection does not necessarily fit
all and different concerns locally or related to the specific subject matter
should also be taken into account.
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Qatar
(a) Creating
an agreement about the norms of what could be considered as misappropriation,
misuse, etc… of TK.
(b) The
difficulties of defining the subject matter, the strength and weakness of
existing categories of protection.
(c) The
issue of enforcement of norms relating to TK.
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Ogiek Peoples Development Program (OPDP):
The issues to be dealt both nationally and internationally
should be based on identification and promotion of good traditional practices
and prohibits harmful behaviours that may expose these practices to danger. The
policy development internationally should be regulated/ domesticated
nationally, hence foreign right holders have to adhere within different
jurisdictions.
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South Africa
As
mentioned in earlier our submission, our starting point is that there needs to
be coordination and clarification of linkages with the other elements of other
international protocols and conventions. We propose that mechanisms for
enabling or facilitating notification or registration as the basis for
recognising an IP right under national law and regional policy be taken into
consideration. Hence we are of the view that the OAU Model law be tabled as a
possible mechanism. We propose that the model law could be harmonised with the
provisions in the IGC, so as to provide a more integrated scheme for
recognition and protection of Indigenous and local communities’ intellectual
property. If a system for community decision-making and financial returns is
devised, it could also pave the way for greater economic, as well as cultural
self reliance for these communities.
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Russian Association of Indigenous Peoples of the North (RAIPON)
At international level general
principles should be examined (see paragraph 5) and at national level –
protection mechanisms.
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Colombia
We support what is stated on this
subject in the proposed Article 11 of the substantive provisions contained in
documents WIPO/GRTKF/IC/9/4 and WIPO/GRTKF/IC/10/4.
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Federación Ibero-Latinoamericana de Artistas, Intérpretes y Ejecutantes
(FILAIE)
We consider that in order to focus appropriately on the
protection under consideration, there is no more effective formula than the
drawing-up of an international treaty to which the majority of Member States
could sign up. Once this international treaty has been prepared, it would be
necessary to complement or establish original legal protection for traditional
cultural expressions.
Since there is virtually no national rule on the subject, it
is difficult to determine it at the national level.
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Tunisia
Currently no legal framework
exists for the protection of traditional knowledge at the national level.
The protection of
traditional knowledge at the national level is essential, and the Code of
Protection for the Archeological, Historical and Traditional Arts Heritage,
enacted under Law No. 94-35 of February 24, 1994, and which relates essentially
to sites and monuments, can be broadened to extend to traditional knowledge.
Agreements and charters between international organizations
and States can be produced for the protection of traditional knowledge, similar
to what is applied in the field of the built heritage or the environment.
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Guatemala
(b) where they
are the subject of scientific research or conservation and restoration duly
supervised by the Directorate General of the Cultural and Natural Heritage.
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Russian Federation
The issues of preservation
and dissemination of folklore should be dealt with at a national level, and the
issues concerning cultural exchange may be treated at the international level.
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