intergovernmental committee on
intellectual property and genetic resources,
traditional knowledge and folklore
Geneva, April 24 to 28, 2006
THE PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS/
EXPRESSIONS OF FOLKLORE:
UPDATED DRAFT OUTLINE OF POLICY OPTIONS AND LEGAL MECHANISMS
Document prepared by the Secretariat
1. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the Committee) commissioned the drafting of an outline of policy options and legal mechanisms for the protection of traditional cultural expressions (TCEs)/expressions of folklore (EoF). The Committee first requested this outline at its sixth session, and extensively reviewed an initial draft (WIPO/GRTKF/IC/7/4) at its seventh session. This document provides the revised draft that the Committee then requested.
2. If objectives and principles for protection of TCEs/EoF are established internationally, it would still be necessary to determine how they are implemented at the level of national and regional laws. This outline therefore gives updated information on the actual policy options and legal mechanisms that national and regional legal systems have already employed to give effect to the kind of draft objectives and principles set out in document WIPO/GRTKF/IC/9/4, the main working document on TCEs/EoF for this ninth session of the Committee, and in preceding versions (WIPO/GRTKF/IC/7/3 and WIPO/GRTKF/IC/8/4). An outline of policy options and legal mechanisms may serve as an information resource to assist in the choice of appropriate mechanisms to achieve policy objectives and to implement principles such as those set out for consideration in WIPO/GRTKF/IC/9/4.
3. In line with the directions of the Committee, this draft has been updated “in the light of revisions to the draft objectives and core principles [WIPO/GRTKF/IC/9/4] and in the light of comments received.” This document is an information resource and a potential capacity building tool only, and no specific decisions in respect of this document are suggested at this stage, beyond noting and commenting on its contents. It would be possible to present further updates to this document to the Committee, should the Committee find this a useful or desirable step.
4. At its sixth session (March 2004), the Committee requested the Secretariat to prepare two complementary drafts concerning protection of TCEs/EOF:
an overview of policy objectives and core principles for protection of TCEs; and
an outline of the policy options and legal mechanisms for the protection of TCE subject matter,
based on the full range of approaches already considered by the Committee, together with a brief analysis of the policy and practical implications of each option.1
5. The first document (the overview of policy objectives and core principles) was circulated as WIPO/GRTKF/IC/7/3 and reviewed by the Committee at its seventh session (November 2004). The policy objectives and core principles were revised in the light of guidance from the Committee and the intersessional commentary process mandated by the Committee. The resulting redraft of this document was circulated as WIPO/GRTKF/IC/8/4 and again as WIPO/GRTKF/IC/9/4.
6. The second document (the outline of policy options and legal mechanisms) was prepared as a companion to the first document. It provides information on how national and regional legal systems have actually implemented objectives and principles for protection of TCEs/EoF – the kind of policy options and legal mechanisms that have been used in practice to give effect to the objectives and principles that are being reviewed by the Committee. The objectives and principles define the policy space, including the international dimension of protection; the policy options and legal mechanisms describe how this policy space has been used in practice to protect TCEs/EoF against misappropriation and misuse.
7. The first version of the outline of policy options and legal mechanisms was submitted to the Committee as WIPO/GRTKF/IC/7/4, and reviewed at the seventh session. The Committee requested the preparation of a revised version, to be updated “in the light of revisions to the draft objectives and core principles and in the light of comments received”.2 The present document is the requested update.
8. This updated draft document continues the function of providing information on the policy options and legal mechanisms that national and regional legal systems have employed to give effect to the kind of draft objectives and principles set out in document WIPO/GRTKF/IC/9/4, the main working document on TCEs/EoF for this ninth session of the Committee, and in the preceding drafts, WIPO/GRTKF/IC/7/3 and WIPO/GRTKF/IC/8/4.
III. CONTEXT OF THE POLICY OPTIONS AND LEGAL MECHANISMS
9. This present document may, therefore, be viewed as an information resource or capacity building tool to draw on a wide base of practical experience to assist in the choice of appropriate mechanisms to achieve the draft objectives and to implement the draft principles that are set out in the companion document, WIPO/GRTKF/IC/9/4. Such draft international principles may in practice be implemented by a wide range of distinct national and regional legal mechanisms, ranging over diverse forms of IP right, adapted IP rights, the general law of unfair competition and various general legal mechanisms beyond the scope of IP law proper (such as criminal law, the law of delict/torts, the general law of civil liability, cultural heritage preservation laws, blasphemy laws, customary laws, contract law, employment law and marketing and labeling laws and schemes). National policymakers have a wide choice of policy options and legal mechanisms to give effect to objectives and principles such as those suggested in WIPO/GRTKF/IC/9/4. The present document illustrates the choices by providing draft materials for the Committee’s further review. It illustrates that it is possible to draw from varied existing practical experiences and select specific mechanisms, causes of action, doctrines and other means to achieve such objectives and to implement such principles.
10. This approach responds to the need to respect that, in addressing the international dimension, effective and appropriate protection may be achieved by a wide variety of legal mechanisms, and that too narrow, detailed or rigid an approach at the level of principle may restrict space for policy development at the national level, constrain effective protection, conflict with existing laws to protect TCEs/EoF, and pre empt necessary consultation with stakeholders and holders of TCEs in particular. It also concerns the need to draw on a wide range of legal mechanisms to achieve the intended objectives of protection.
11. This approach is relatively common in the IP field. Previous documents gave examples of IP conventions which establish certain general principles and which give scope for wide variation within the laws of the signatories.3 This approach is consistent with and expresses most directly the “principle of flexibility and comprehensiveness” suggested in document WIPO/GRTKF/IC/9/4 and in its earlier versions.
12. Actual experience with TCEs/EoF protection has shown that it is unlikely that any single “one size fits all” or “universal” international template will be found to protect TCEs comprehensively in a manner that suits the national priorities, legal and cultural environment, and needs of traditional communities in all countries.4 Forms of traditional creative expression and customary means of regulating their use, transmission, protection and preservation are diverse. Concerns have been expressed that attempts to codify and institutionalize protection of “cultural identity” are undesirable and that a flexible and inclusive approach is preferable. An indigenous organization has put it best: “Any attempt to devise uniform guidelines for the recognition and protection of indigenous peoples’ knowledge runs the risk of collapsing this rich jurisprudential diversity into a single ‘model’ that will not fit the values, conceptions or laws of any indigenous society”.5 Provisions for the protection of TCEs/EoF adopted at the international level would also have to accommodate legislative and jurisprudential diversity within current national and regional approaches.6 In particular, experience has shown that a mix of measures, between proprietary and non-proprietary approaches, and between distinct new measures and adaptations of existing IP rights, is more likely to achieve the objectives of protection.
IV. STRUCTURE OF THIS DOCUMENT
13. In line with the directions of the Committee, to serve as a useful reference and to maintain consistency, this document follows closely the structure proposed in WIPO/GRTKF/IC/9/4. It is structured as follows:
policy options for the protection of TCE/EoF, comprising:
options for the objectives of protection, recording various ways in which the policy objectives suggested in WIPO/GRTKF/IC/9/4 have been expressed in international, regional and national laws and instruments;
options relating to the general form of protection, recording the range of legal doctrines and general principles that have been applied to the protection of TCEs/EoF, corresponding broadly to the general guiding principles suggested in WIPO/GRTKF/IC/9/4;
legal elements of protection of TCEs/EoF, showing how legal provisions that have been developed and used in international, national and regional laws and instruments have implemented the specific substantive principles suggested in WIPO/GRTKF/IC/9/4.
14. This document gives a provisional outline of options and legal mechanisms. It could evolve and be further developed in line with the further evolution of the objectives and principles set out in WIPO/GRTKF/IC/9/4. However, no specific decisions in respect of this document are suggested at this stage, and the Committee is invited merely to note and comment on it, and call for it to be updated again if it so wishes.
15. In so far as terminology is concerned, terms such as “traditional cultural expressions” and “expressions of folklore”; “protection”; and, “indigenous peoples and traditional and other cultural communities” are used as discussed in previous documents, notably WIPO/GRTKF/IC/7/3, WIPO/GRTKF/IC/7/4 and WIPO/GRTKF/IC/8/4 and as they are used in the companion document WIPO/GRTKF/IC/9/4.