Seventh Session of the Intergovernmental Committee on Intellectual by keara


									 Seventh Session of the Intergovernmental Committee on Intellectual Property
    and Genetic Resources, Traditional Knowledge and Folklore, Geneva,
                        November 1 to 5, 2004 (WIPO)

    Report on the Discussions on General Questions and on the Protection of

                                                   Dr. Silke von Lewinski

As in previous meetings, additional organisations have been approved their
accreditation as ad hoc observers to the Intergovernmental Committee, for example
the Saami Reproduction Rights Organisation, the West Africa Coalition of Indigenous
Peoples’ Rights, the Indonesian Traditional Wisdom Network and the Hawaii Institute
for Human Rights (the 14 organizations are listed and described in WIPO Doc.
GRTKF/IC/7/2 and GRTKF/IC/7/2 add.).
        Another general issue discussed only this time was a proposal by New Zealand
on the practical participation by indigenous and local communities which pointed at
the fact that the effective participation of indigenous peoples could be enhanced by
certain factors beyond funding. Indeed, since WIPO is an organisation of states,
procedural rules favour Member States, whereas representatives of indigenous
peoples who are not admitted by the own governments to the state delegations are
limited to the status of non-governmental organisations. With a view to reach more
effective participation, New Zealand proposed (1) greater speaking time, facilitated
by the opportunity to intervene earlier in discussions, perhaps interspersed with
states; (2) changes to seating arrangements; (3) the election of an indigenous co-
chair for the IGC and (4) the incorporation of panel presentations by members of
indigenous and local communities as part of the IGC Plenary (see WIPO Doc.
GRTKF/IC/7/14). Regarding these proposals, the ICG reacted as follows: Ad (1) it
expressed the view that time should, wherever possible for general statements
including such by all participants including representatives of indigenous and local
communities, at the beginning of the Committee’s sessions, and that more speaking
time should be allotted, at appropriate occasions during the sessions, to
representatives of local and indigenous communities; ad (2), it noted that the present
arrangements for seating where the traditional ones for intergovernmental bodies and


that any changes in that respect should be based on instructions to the Secretariat,
but that no such specific ones had received support and that therefore no decision
was taken in this respect at the present session; ad (3), it noted that the co-
chairmanship by a representative coming from a local or indigenous community
would presuppose a change in the rules of procedure while there was no consensus
in this respect and the proposal was not approved by the Committee; ad (4), it
agreed that, immediately before the commencement of the sessions of the
Committee, half-day panel presentations should be organised, chaired by a
representative from a local or indigenous community.
      Also, the question of a Voluntary Fund was further on discussed, this time on
the basis     of      the WIPO   Doc. GRTKF/IC/7/12.      Many indigenous       peoples’
representatives noted that experiences with voluntary funds in other fora had shown
little efficiency, given the low income of such funds. At the same time, it was made
clear that WIPO would currently not be able to fund enhanced participation of
indigenous peoples. The Committee encouraged continuing voluntary funding in the
short term and requested that, on the basis of the above document, a formal
proposal for a Voluntary Fund be prepared for its consideration at the 8 th session of
the Committee; the discussion included issues such as the selection process and
selection criteria.
      The discussion on folklore/traditional cultural expressions was based on WIPO
Doc. GRTKF/IC/7/3 and GRTKF/IC/7/4. Following the decision of the Committee in
the previous session, Doc. 7/3 has developed an overview of policy objectives, as
well as of general guiding principles and specific substantive principles of protection,
while it is still left open whether such objectives and principles could in the future be
applied only at the national or regional levels (for which document 7/4 sets out the
principles of document 7/3 in more detail) or also become possible elements of an
international treaty. The document is based on material collected and presented by
WIPO in previous documents and on discussions and comments in previous
sessions of the Committee. It condenses the information on legal solutions and
practical experiences gained so far.
      In particular, the policy objectives proposed in the document are the following
ones (in their essence): The protection of expressions of folklore should aim to (1)
recognise the value thereof, including the social, cultural, spiritual, economic and

other values; (2) promote respect for traditional cultures and folklore and the cultural
integrity, etc.; (3) be guided by the actual needs of communities and contribute to
their welfare and sustainable development; (4) be achieved in a manner that is
balanced and equitable and effectively empowers indigenous peoples and traditional
communities to exercise due authority over their own expressions of folklore; (5)
respect and facilitate the continuing customary use within and between these
communities; (6) contribute to the conservation and safeguarding of expressions of
folklore and the customary means for their development; (7) respect and operate
consistently with other international and regional instruments and processes; (8)
encourage, reward and protect authentic tradition-based creativity and innovation by
indigenous peoples and traditional communities; (9) promote intellectual and cultural
exchange; (10) contribute to cultural diversity; (11) promote the use of expressions of
folklore for community based development and promote the development and
expansion of marketing opportunities for authentic expressions of folklore; (12) curtail
the grant, exercise and enforcement of invalid intellectual property rights acquired by
authorized parties over expressions of folklore and derivatives thereof; (13) enhance
certainty, transparency and mutual respect and understanding in relations between
indigenous peoples and traditional communities as well as academic, commercial,
educational and other users; and (14) operate consistently with the protection of
traditional knowledge.
     The general guiding principles for protection of expressions of folklore under the
same document are, in essence, the following ones: (1) reflection of the aspirations
and expectations of indigenous peoples and traditional communities, including the
recognition and application of customary laws and protocols, etc.; (2) balance
between the right holders of expressions of folklore and the users thereof, and
proportionality; (3) respect for and cooperation with other international and regional
instruments and processes; (4) respect for the diversity of expressions of folklore,
and the wide range of needs of the beneficiaries of protection as well as sufficient
flexibility for national authorities to determine their appropriate means of achieving
the objectives of protection; (5) recognition of the specific characteristics of
expressions of folklore such as the collective context, etc.; (6) respect for customary
use, exchange etc. of expressions of folklore and (7) effectiveness and accessibility
of protection for indigenous peoples and traditional communities.

     The specific substantive principles could serve as a guideline for national
legislators in the first place and, later, possibly, as a basis for developing elements of
a treaty. They concern, under the document, the following twelve issues: (1) The
scope of the subject matter of protection is described as including productions
consisting of characteristic elements of traditional cultural heritage developed and
maintained by a community, or by individuals reflecting the traditional artistic
expectations of such a community and may include, for example, verbal, musical
expressions, expressions by action such as folk dances and tangible expressions
such as folk art, musical instruments and architectural forms. (2) Regarding the
criteria for protection, the document proposes that expressions of folklore are
protectable provided that they are products of creative intellectual activity including
collective creativity, and characteristic of a community’s distinctive cultural identity
and traditional heritage developed and maintained by it. (3) The beneficiaries should
be the indigenous people and traditional and other cultural communities (a) in whom
the custody and protection of expressions of folklore are entrusted in accordance
with the customary law and practices of the community, and (b) who maintain and
use them as being characteristic of their traditional and cultural heritage. On the
management of rights (4), the document proposes that effective protection should be
ensured by a responsible authority through awareness raising, education, advise and
guidance, monitoring, dispute resolution and other functions, and that authorizations
required to exploit expressions of folklore should be obtained from the community or
the authority acting on its behalf. In addition, where authorizations are granted by the
authority, it is proposed that this should occur only after appropriate consultations
with relevant indigenous peoples/communities in according with their decision-
making and governance processes, and that any monetary or non-monetary benefits
collected by the authority should be provided directly to the indigenous peoples or
communities, in addition to further conditions.
     On the scope of protection (5), a long list of acts which should be prevented by
law is proposed, including the reproduction, adaptation and other forms of
exploitation as well as any modification or other derogatory action in relation to
folklore, the acquisition by third parties of IP rights over expressions of folklore of
particular cultural or spiritual value; the prevention of unauthorized disclosure and
subsequent use, the protection of moral and economic rights in respect of

performances of folklore, the right of indigenous communities to be identified as the
source of any work derived from or inspired by the expression of folklore, the
prevention or sanctioning of any false, confusing or misleading indications as to the
origin, nature, manufacturing process etc. of goods or services that refer to, draw
upon or evoke expressions of folklore, and the right to equitable remuneration or
benefit-sharing where the exploitation is for gainful intent, to be determined by a
competent authority and the relevant community. Exceptions and restrictions (6) are
proposed to allow the normal use, exchange etc. of expressions of folklore within the
traditional and customary context by members of the community as determined by
customary laws and practices and be subject to the same kind of limitations as
permitted with respect to authors’ rights, designs, trademarks and other IP, unless
the uses would be offensive to the relevant community. The term of protection (7) is
proposed to last as long as the expression of folklore continues to be maintained and
used by, and is characteristic of, the cultural identity and traditional heritage of the
relevant people or community. (8) There should not be any formalities as a condition
for protection, while notification to a competent authority with a declaratory function is
seen useful. (9) Appropriate and accessible enforcement and dispute resolution
mechanisms should be available. In respect of application in time (10), it is
suggested that the existing expressions of folklore would be covered for future uses
and a transition period for already commenced uses should be provided. In relation
to other intellectual property protection (11), the protection of folklore should be
complimentary thereto and, finally, mechanisms should be established to provide
effective protection in national systems for expressions of folklore of foreign right
     On the whole, these guidelines and principles were received favourably, subject
to very specific remarks on individual issues or formulations. The committee took
note of all the comments; further comments before February 25, 2005, will also be
taken as a basis of a further draft of objectives and principles to be considered at the
next session. Also, the comments received within this time frame will be posted on
the WIPO website and be distributed as part of a compilation at the next session. The
decision to be taken on the basis of Doc. 7/3 was made as proposed in its paragraph
32 (iii), namely, the Secretariat should update the material in the light of revisions to
the draft objectives and core principles, and in the light of comments received. In

addition, the Committee took note of two other documents submitted by the
Secretariat, on the update on the legal technical assistance and capacity building
activities (Nr. 7/11) and a draft questionnaire regarding the establishment of effective
systems of protection (WIPO Doc. GRTKF/IC/7/INF/4).
     On the whole, the discussions on folklore were more technical and less political
than others, in particular than those on genetic resources. Yet, sensitivities are still
high, and many more, small steps will be needed to come closer to the ultimate aim
of a treaty. All submitted WIPO documents are again available under
(under conferences, past events and then Intergovernmental Committee on Genetic
Resources, Traditional Knowledge and Folklore).

End of Report

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