Who should benefit from any such protection or who hold the rights to protectable TCEs/EoF?

International Publishers Association (IPA)

For publishers to be able to publish works related to TCEs/EoF with economic and legal certainty, a clear and concise definition of who could be potential beneficiaries is required, leaving no room for ambiguity. Only the originators or custodians of TCEs should benefit from protection, and they must be clearly identifiable through the application of transparent and agreed principles.

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China

We hold that beneficiaries should be limited to traditional communities in which TCEs/EoF originated, or which maintain, manage or develop TCEs/EoF or make TCEs/EoF their unique cultural and social characteristics.

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Kyrgyzstan

Owners of traditional cultural expressions (folklore) are as follows – nations, national persons and legal entities creating and preserving traditional cultural expressions (folklore).

State shall benefit from use of traditional cultural expressions (folklore), which cultural heritage covers respective traditional cultural expressions (folklore).

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United States of America

The IGC has explored in very broad terms the complex issue of the beneficiaries of measures to protect TCEs/EoF. This topic includes complicated issues related to the web of interests of many stakeholders, including the roles of states and their nationals, immigrant communities, governmental authorities, and the indigenous peoples and traditional and other cultural communities. The inherent problem of defining beneficiaries is made all the more difficult in a world where individuals and groups readily cross national borders and geographic boundaries. 

In the deliberations to date, Committee participants have not had the opportunity to undertake a sustained discussion and reach a clear understanding of these complex issues, much less arrive at a consensus on the scope and meaning of such important terms as “indigenous peoples,” “traditional,” and “other cultural communities.” The Unites States believes that the IGC would benefit from further study, informed by representatives from many stakeholder groups, including indigenous groups, of existing mechanisms to protect TCEs/EoF, with a view toward deepening the understanding of the Committee on the most successful strategies to identify beneficiary groups and to resolve the sometimes competing claims of beneficiaries.

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Ghana

The beneficiaries of the protection of folklore may be divided into two categories viz:-

i.                    Holders or Owners of the folklore viz individuals, traditional communities, casts, families, ethnic groups, nations and sub regions. For instance, in West Africa except with slight differences in species and use, kente, yam, gari, and palm fruits are widely used in the sub region.

ii.                  Derived right owners such as modern researchers, innovators and extractors of folklore.

The beneficiaries of protection under the instrument must include indigenous communities, nations and sub-regions which own and maintain the folklore and secondary owners of rights such as collectors, researchers, extractors and developers.

Researchers, collectors and extractors of information regarding folklore to be given limited recognition. Shared serendipity applications of folklore (that is discoveries made by accident). Provision must be made for shared ownership of the commercial exploitation of knowledge that is developed from folklore.

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Brazil

Although it is not always possible to identify one individual author, TCEs/EoFs of ethnic groups and traditional populations have an identifiable collective authorship, given that they belong to a specified group or population – a reason why it is not possible to defend the expressions belong in the public domain. Therefore, entitlement to rights should be collective and in accordance with the interests and traditions of the groups in question.

The notion of “author” is an element that attests the complexity of the issue, i.e., oftentimes there is not an identifiable author or authors within the traditional communities. Apart from that, the transmission of such heritage is normally done orally across generations; a certain work is recreatead and given renewed meaning over time, which evidences the inherent dynamics of this process of intellectual creation. Other examples highlight the complexity of the issue, such as the fact that many indigenous ethnic groups are not grouped within the same territory and therefore one specific TCE might be shared by different ethnic groups.

Despite the complexity of the issue, determination of the beneficiaries of TCE/EoF protection is a critical point of an international instrument. Although specific definition of eligibility should be left for national legislations, on the international level minimum standards should be set out and, in this respect, the draft provision of Article 2 represents an adequate basis to discuss the issue:

“Measures for the protection of traditional cultural expressions/expressions of folklore should be for the benefit of the indigenous peoples and traditional and other cultural communities:

(i) in whom the custody, care and safeguarding of the TCEs/EoF are entrusted in accordance with their customary law and practices; and

(ii) who maintain, use or develop the traditional cultural expressions/expressions of folklore as being characteristic of their cultural and social identity and cultural heritage.”

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Japan

It is unclear what social prerequisites are necessary for a group to be qualified as a “community”, which will be the beneficiary of protection. Points that lack clarity are as below:

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(1)               Community with regard to TCEs/EoF of indeterminable origin: There are many TCEs/EoF whose origin is indeterminable. There are cases where the community that should enforce its rights to receive benefit cannot be determined or where more than one community claim to be the origin of a traditional cultural expression.

(2)               Community with regard to “regional folklore”: It is unclear how to treat cases of “regional folklore”, where a community spreads across national borders.

(3)               Community with regard to “national folklore”: Usually, the word “community” implies a certain level of actual communal living.  However, when it is interpreted that nationals of an entire country may be deemed a “community” and can claim ownership of a “national folklore”, the condition of actual communal living becomes so relaxed as to be non-existent. This is tantamount to saying that TCEs/EoF can be so broad as to include any expression related to a nation’s custom or tradition. There is a need to clarify the relationship between “community” and the conditions of “communal living” or the condition of “being handed down”.

(4)               Traditional communities that are not founded on kinship: It is not clear if the succession of TCEs/EoF over generations by such a community as a religious community, which is not founded on kinship, can be regarded as a beneficiary community. We cannot see any justifiable grounds for an organization which is firmly united to not be deemed as a beneficiary just because the organization members are not biologically related while a loosely united community such as a country (as in the case of “national folklore”) is regarded as an eligible beneficiary. 

WIPO/GRTKF/IC/5/3 paragraph 42 (d) reads, “Is the creation of a sui generis IP regime for certain communities (such as indigenous or local peoples, as against all other “non-indigenous” or ”non-local” persons) acceptable as a matter of policy?)”. This question remains unanswered.

(5)               Contemporary communities: There are other forms of communities not founded on kinship such as Internet communities. Members of these communities do not live together. The communities have not lasted for more than one generation; the members of these communities gather together for the same purpose or because of sharing the same idea. Certainly, these communities are not traditional communities and are not considered as beneficiary communities under the traditional definition. However, why these communities should be unfairly discriminated against in comparison with traditional communities is not clear.

(6)               Communities of immigrants: The question of how to treat TCEs/EoF of immigrants (as opposed to TCEs/EoFs of the indigenous people) has been occasionally raised. However this question remains unanswered.

There are also problems with the benefit sharing mechanism such as below, and it seems difficult for the mechanism to actually work.

(1)               There would be many cases where the community cannot exercise its rights against outside parties even when it tries to do so, due to lack of a clear decision making mechanism or representative in the community. Especially in the case of “national folklore”, whose owner is the nationals of a whole country, it is unclear who holds the right for authorization.

(2)               Some have proposed that the State may exercise rights in proxy for internal communities. However some groups of indigenous peoples are opposed to this and there is no consensus. When States are allowed to act as beneficiaries in proxy for indigenous peoples, there is a problem of whether the State will act to truly represent the welfare and benefit of the indigenous peoples.

(3)               There is no clear idea of how the benefit will be shared within the community.

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Norway

The beneficiaries should be the custodians (the bearers of the tradition) of the particular TCE/EoF; ie the collective groups – the indigenous peoples or local communities – that has maintained, used and developed the expressions and which still continue to do so. Local customs may provide guidance when identifying the appropriate custodians and their representatives.

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Qatar

(a)   Tradition community as the prime holder of rights and ownership or the group members who hold the rights of protectable TK as representative of society or people.

(b)   The informant as transmitter of traditions.

(c)   The collector who gathered TK and conserved it in archives in goed conditions and a methodical manners.

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Ogiek Peoples Development Program (OPDP)

The beneficiaries of the TCE/EoF deserve to hold the rights of protection to heir cultural values. Through cultural exhibition, the community holding TCE and practicing earns income from the tourist, researchers and who may in turn be vital to their national development. Any behaviour that promotes and respects the culture and folklore of community using it should be acknowledged. There has to be limitations for attaching to protection of TCE/EoF as they might be misused at wrong places. For instance many scientific institutions use traditional cultural symbols and practices to generate an extra ounce of confidence of certainty. As long as the community still relies on their good cultural practices, then the TCE demands for policies that promotes it for a longer period of time. This will ensure that the future generation has adapted the cultural issues.

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South Africa

South Africa is of the stance that the current system of protecting IPRs is limited to private monopoly rights and therefore incompatible with the protection of IK. We proceed on the premise that IK is held as part of a community’s heritage passed down from generation to generation, and should not be allowed either to be privatized or commercially exploited for individual gain; or to slip into the “public domain.” Hence, our assertion is that the first beneficiary of indigenous knowledge must be the community directly connected with the knowledge accessed and to be protected.

Read conjointly with the aforesaid we propose that where there is no clear and/or identifiable beneficiary the State or its delegated authority will act as the custodian of the rights, and the products derived from the IPR/TK of the communities.

In addition to this subsection we propose the insertion of “indigenous, traditional and ‘local’ communities” as well as the insertion of word “traditional” before “knowledge holders”.

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Russian Association of Indigenous Peoples of the North (RAIPON)

Authors and performers of the works performed.

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Colombia

On this point it is important to distinguish the concepts of State, country and people or nation. Precisely in countries with great cultural diversity such as Colombia, where 91 indigenous peoples exist with more than 60 different languages and specific systems of organization and government, it is essential to channel benefits appropriately to these peoples or nations which even transcend national borders. In other words, although the concept of cultural community is sufficiently broad to cover even a country or a nation, it is important to establish that benefits may correspond to a nation when dealing with countries made up of a single cultural community, people or nation; or rather that there may be peoples or nations in regions, which in fact transcend territorial limits between neighboring countries.

Similarly, the concept of cultural community should be considered to include local or regional identities which do not necessarily constitute different peoples, but although such peoples share the same national language, religion and identity, they possess traditional cultural expressions/expressions of folklore which are specific to and authentic for a particular cultural community, which in turn forms part of a larger cultural community or national society within a country.

In the same way as for traditional knowledge, traditional cultural expressions and expressions of folklore generally originate and are maintained collectively, such that the rights derived therefrom should be granted mainly to communities and not to individuals. In this connection, although it is considered appropriate in conceptual terms to assign a right to a group, for practical purposes that group should be represented by a specific body, which gives rise to the question of the recognition and/or legal forum which the particular body must possess in the national legislative sphere.

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

Undoubtedly the sole beneficiary of this type of protection should be the indigenous community or ancestral people that has created an original traditional culture. Such benefit should be channeled towards direct action, through the relevant provisions, so that the maximum benefits accrue directly to the community.

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Tunisia

Governments, peoples and holders of such knowledge.

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Guatemala

Decree No. 25-2006 of the National Congress, Convention for the Safeguarding of the Intangible Cultural Heritage, states:

Sustainable development communities, groups and individuals.

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.

Guidelines: principles of complementarity of the economic and cultural aspects of development. Culture is one of the main driving forces of development, the cultural aspects thereof are just as important as their economic aspects, in relation to which individuals and peoples have the fundamental right of participation and enjoyment.

Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (WIPO/GRTKF/IC/2).

Native communities and peoples that are authors of their expressions of folklore.

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Russian Federation

Formal interpretation of the provisions of article 3 of the Law of the Russian Federation of October 9, 1992 No. 3612-I “Basics of the legislation of the Russian Federation on culture” allows us to come to a conclusion that folklore can be attributed to cultural values, some expressions of folklore can be attributed to cultural property of the peoples of the Russian Federation and “have all-Russian importance and thus completely belong to the Russian Federation and its subjects without any possibility of transfer to other countries or unions of countries to which the Russian Federation is a participant”.

           

Legal intellectual property institutes with respect to granting legal protection to an object of intellectual property do not have a single approach to defining the beneficiary.

In copyright the beneficiary is the author (creator) – the person who contributed into the creation of the work, and also the successors, in particular, the heirs of the author.

The institute of related rights considers as the beneficiary the initiator, the organizer, the person that contributed into the distribution of the work.

The institutes of patent law, the so called industrial property, does not also provide for a unity in defining the beneficiary. According to the patent law exclusive rights belong to the patent holder (article 10 of the Patent Law of the Russian Federation of 23 September, 1992 No. 3517-I), who can be the author of the invention, utility model, design (individual due to who’s creative work they were created), his employer (if the object is created in connection with his professional duties) or his successors.

A common feature, uniting all the abovementioned people in copyright and patent law is the contribution, expenses into the creation of object subject to legal protection. Thus, a beneficiary can be any person who has contributed into the creation of an object of his successor.

In respect to the works of folk arts (expressions of folklore) it is impossible to define the person who made a contribution into the creation of the work, was the creator, organizer of the process. Due to this and other reasons the objects of folk arts in Russia according to the Law of the Russian Federation “On Copyright and Related Rights” are not granted legal protection.

           

It is not possible also to define the heirs and successors of the authors of works of folk arts, due not only to the migration of population, but also the resemblance, common features, motifs of the works of folk arts of different peoples. Resemblance of the works is caused not only by the fact that works of folk arts were in many cases arising from one source, and not only by the cultural interaction between the peoples, but also by similar climatic, historical and domestic conditions, which left an imprint on the works of folk arts of many peoples.

In copyright and patent law after the death of the author in cases the author has no heirs all the rights in the works are transferred to the Russian Federation, which can assign the management of property rights to a special body.

Since is it impossible to define the successors in respect of the works of folk arts, we will try to build an analogy with the inheritance law.

Let’s assume that we can consider the state as the beneficiary.

However, the heirs of the author may live on the territories of different states, having different legal systems. As a general rule, provided for in article 1224 of the Civil Code of the Russian Federation concerning the inheritance, the relations on the inheritance are governed by the law of the country where the testator, here – the author, has last lived. Thus, in cases when the heirs of the author can not be defined, but it is clear that the author has last lived in the Russian Federation, the inheritance law of the Russian Federation is used, and thus we can be speaking of the Russian Federation as the successor similar to cases of escheat (article 1151 of the Civil Code).

However, in cases of works of folk arts the testator (the author) can not be defined, nor can be defined his last place of living, and accordingly the law of the country that should be applied to such relations. Thus, it is not clear which state may have pretensions of the rights in the works of folk arts.

The abovementioned speaks for the difficulties in defining the beneficiary, which can not be defined using the present Russian legislation.