Module 8: Traditional Knowledge

Learning objective

Case Study

Lesson

What Is Traditional Knowledge

Traditional Knowledge is...

Though difficult to define, often conceived of as dividing into four typical genres: verbal expressions (stories, epics, legends, folk tales, poetry, riddles, etc.), musical expressions (folk songs and instrumental music), expressions by action (dances, plays, ceremonies, rituals and other performances) and tangible expressions that must be fixed on a permanent material (drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, mosaic, jewelry, basket work, textiles, carpets, costumes, musical instruments etc.) See WIPO and UNESCO Model Provisions.

Article 2 of The Convention for the Safeguarding of Intangible Cultural Heritage defines cultural heritage as

“practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.” The Convention specifies that “intangible cultural heritage”, is manifested in the following domains: oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; traditional craftsmanship.”

WIPO defines traditional knowledge as "tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields." It generally considers TCEs to i) be handed down from one generation to another, either orally or by imitation, ii) reflect a community's cultural and social identity, iii) consist of characteristic elements of a community's heritage, iv) created by "authors unknown" and/or by communities and/or by those who have the rights, responsibility or permission to do so, and v)evolve constantly within the community. See WIPO/GRTKF/IC/6/3, No. 50, p.17

[insert UNESCO's definition]

What is the Issue?

Technological developments over the years have led to a commercialization of traditional cultural expressions (TCEs) on a global scale without due respect being given to the cultural or economic interests of the communities from which they originate. The Internet provides pervasive access to TCEs and increasing consumer demands for primitive art, the development of tourism, and activist actions have all contributed to a considerable growth in the commercial exploitation of folklore.

What should be protected? artistic, literary and musical forms or all traditional culture?

Exploitation of Traditional Knowledge occurs in different forms. Examples include, but are not limited to, the unauthorized production of indigenous craft objects in the souvenir market, the unauthorized use of indigenous imagery on merchandise such as T shirts, the unauthorized use of indigenous names or phrases as trademarks, the unauthorized incorporation of folk music into commercial music production, and the appropriation of spiritual beliefs or customs and its transformation into commodifiable products. [Note to group---I would like to insert hyperlinks here to each example]- examples: Crazy Horse (Tasunke Witko) the name of a revered Lokata figure was used by a brewing company in Brooklyn, NY to market malt Crazy Horse ; the Lego company used Maori names "Pohatu," "Kopaka," and "Onewa" for toy figures which was opposed strongly by the Maori community;

An important debate currently lingers over the interplay between IP and TK systems, centering around the question: what kind of legal liability should govern use of traditional knowledge by third parties beyond its originating community and how should TK be protected? This issue is being addressed on national, regional and international levels.

In theory, TK can be protected through conventional IP law, for example, through the use of Copyright, Patent, Geographical Indication and Certification Marks, Trade Secret, and the Suppression of Unfair Competition doctrines. In practice, however, many regions and countries have found difficulties in fitting TK within traditional IP protection schemes. Thus, one approach has been the adoption of national sui generis laws which operate to protect TK by preventing third-party acts of use or appropriation.

Examples of Nation Specific Rules Governing Traditional Knowledge

• • GROUP NOTE: there is a ton of specific information in von Lewinski pp. 370 & up that details very specific differences in the legislation. Should we cover this in more detail? Let me know what you want me to do!

Countries Whose Traditional IP Laws Do Not Cover Traditional Knowledge

Several nations have copyright laws that expressly exclude folklore from the list of works capable of copyright protection. These include: Azerbaijan, Belarus, Estonia, Lithuania, Kazakhstan, Kyrgyzstan, Moldova, Russia, The Ukraine, Uzbekistan, Greece, Hungary, Armenia, Bulgaria, Lebanon, Slovenia, and Yemen. For instance, Article 9 of the 2002 Copyright Act of Bosnia and Herzegovina states that "the use of folk literature and art creations for the purpose of a literary, artistic or scientific arrangement shall be free."

Countries Whose Traditional IP Laws Cover Traditional Knowledge

No Explicit Reference to TCE

Some national copyright laws have no explicit references to folklore, yet TCEs may still be protected under copyright or other doctrines. For example, most countries in Europe have copyright legislation with no provisions mentioning TCEs, for example: Belgium, Cyprus, Denmark, Finland, France, Germany, Iceland, Italy, Latvia, Luxembourg, Norway, Poland, Portugal, San Marino, Spain, Sweden, Switzerland. Several "major industrialized countries" lack explicit TCE reference as well, including, Australia, Canada, Japan, and the United States. Additionally, several countries with recent copyright legislation have not expressly included TCEs within its scope (notably those in Asia: India, Malaysia, Philippines, Thailand, and South America: Barbados, Saint Vincent and the Grenadines, El Salvador, Trinidad and Tobago, Venezuela). Still, the silence in these national legislations does not mean that traditional knowledge is barred from protection, rather, in these countries TCE is considered part of the public domain and is thus incapable of being appropriated. Protection for folklore is still possible on the basis of regional, customary and international copyright rules. (see below)

Explicit Reference to TCE

Many countries now grant direct protection of folklore in their copyright legislation. Some have sections, chapters, or special parts of copyright law that are entirely devoted to folklore (Algeria, Congo, Nicaragua, Niger, Nigeria, Papua New Guinea, Paraguay, Togo, Tanzania). Others protect TCE by granting rights to the State for its protection (for instance, Malawi, Egypt, Saudi Arabia, Qatar).

In Sudan Article 7 of the Sudan Act notes that "National folklore of the Sudanese community is deemed to be the property of the State" and that the "State represented by the Ministry of Culture and Information, shall endeavor to protect works of folklore by all legal ways and means, and shall exercise the rights of an author in cases of mutilation, transformation and commercial exploitation."

Other national legislations on copyright that mention folklore seem to classify it with literary and artistic works, by including folklore on the list of works eligible for copyright (Angola, Benin, Ivory Coast, Djibouti, Gabon, Guinea, Madagascar, Malawi, Morocco, Mozambique, Oman, Republic of Central Africa, Senegal, Togo, Zaire), or by making it the subject of special provisions (Burkina Faso, Mongolia, Rwanda, Brazil, Burundi, Morocco, Seychelles).

In Ghana the new Copyright Act of 2005 significantly changed the way traditional knowledge is protected. In the Act, copyright protection extends to literary works, artistic works, musical works, sound recordings, broadcasts, cinematographic works, choreographic works, derivative works, and program-carrying signals. To be eligible for copyright, the work must be original, in writing (or otherwise reduced to material form,) and created by a citizen or resident of Ghana. The work must also have been first published in Ghana, or, if first published outside Ghana, published in Ghana within thirty days of its publication. Protection is granted for individuals during the life of the author and extends fifty years after his death, or, for corporate bodies, for fifty years from the date on which the work was made public. In Ghana, an author has exclusive rights to reproduce the work (with the exception of private use, quotations in other works, and use in pedagogy which are permitted). It is an infringement of the copyright to reproduce, sell or exhibit in public for commercial purposes any work without authorization, and to use the work in a manner that adversely affects the reputation of the author. Both civil and criminal penalties may apply. The Act establishes a National Folklore Board (Article 59) which governs the administration, preservation, registration and promotion of expressions of folklore. The Board gives the authorization for the use of folklore and may determine a fee to be paid.

Nigeria* Nigerian copyright law protects expressions of folklore "against reproduction, communication to the public by performance, broadcasting, [or] distribution by cable." In addition, it protects adaptations, translations and other transformations of such folklore, when made either for commercial purposes or outside their traditional customary context. The right to authorize any of these acts lies with the Nigerian Copyright Council, however, Nigerian folklore may be used without authorization for private, educational or illustrative purposes. The law requires identification of the source of the folklore by reference to the community or place from where the folklore is derived. Violations of the law subject the user to liability in damages, injunctions and other remedies the court deems appropriate. - Kuruk

Rwanda * Art. 3 of the Rwandan Law Governing Copyright, dating 15 November 1983, protects the totality of traditions and literary, artistic, religious, scientific, technological and other productions. Rwanda protects folklore under copyright law in a special provision. "Les œuvres du folklore sont protégées au même titre que les œuvres originales.Les œuvres du folklore sont protégées au même titre que les œuvres originales.Les œuvres du folklore sont protégées au même titre que les œuvres originales.

Aux fins de la présente loi, Folklore s'entend de l'ensemble des traditions et productions littéraires, artistiques, religieuses, scientifiques, technologiques, et autres créées à travers les générations par des Rwandais individuellement non identifiés et constituant ainsi les éléments fondamentaux du patrimoine rwandais.

Ce sont notamment :

Des œuvres littéraires de tout genre et de toute catégorie : contes, légendes, mythes, proverbes, récits, et poèmes Les styles et productions artistiques : danses et spectacles de toute sorte, œuvres musicales de toute sorte, styles et œuvres d'art décoratif de tout procédé, styles architecturaux; Les traditions et manifestations religieuses : rites et rituels, objets, vêtements, lieux de cultes;

connaissances scientifiques : pratiques et produits de la médecine et de la pharmacopée, isitions théoriques et pratiques dans les domaines des sciences naturelles et anthropologiques et autres; Les connaissances et œuvres de la technologie : Les arts et métiers de toute sorte. Œuvre inspirée du folklore s'entend de toute œuvre exclusivement créée à l'aide d'éléments empruntés au folklore rwandais."

Uganda http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweuga.htm

Senegal includes folklore in the list of works eligible for copyright protection.

Lesotho*

The line between traditional IP protection and sui generis laws is often blurred. Not all of the above examples are classic copyright protections of folklore and some may be classified as sui generis laws or a hybrid approach to preservation of indigenous knowledge. Still, some countries have adopted clear sui generis laws.

Countries with Sui Generis Traditional Knowledge Laws

Sui generis laws, considered by many to be the ideal solution for the protection of TCEs, launched with the recent enactment in Panama of Act No. 20 of 26 in June, 2000.

A WIPO study identified five main doctrinal approaches in sui generis laws: 1) the grant of exclusive TK rights, 2) the principle of prior informed consent, 3) a compensatory liability or domaine public payant approach, 4) an unfair competition approach, 5) the recognition of customary law.

Peru Peru's sui generis TK law aims to promote respect for and protect the "collective knowledge of indigenous peoples; to promote the fair and equitable distribution of the benefits derived from the use of that collective knowledge; to promote the use of the knowledge for the benefit of the indigenous peoples and mankind in general; to ensure that hte use of the knowledge takes place with the prior informed consent of the indigenous peoples; to promote the strengthening and development of the potential of the indigenous peoples...and to avoid situations where the patents are granted for inventions made or developed on the basis of collective knowledge of the indigenous peoples of Peru without any account being taken of that knowledge as prior art in the examination of the novelty and inventiveness of the said inventions."

Samoa*

Angolaincludes folklore in the list of works eligible for copyright protection.

Zimbabwe

Kenya

Namibia

Mali In Mali, with the exception of public entities, all persons seeking to sue folklore for profit must obtain prior authorization from the Minister of Arts and Culture who may impose a fee for such use. The law prohibits the assignment or licencing of "works derived from folklore" without the approval of the Minister. The law places in the public domain and charges a suer fee for all "works whose authors are unknown, including the songs, legends, dances, and other manifestations of the common cultural heritage." - kuruk

Cameroon Cameroonian law extends copyright protection to "works derived from folklore." Users must seek permission from the National Copyright Corporation before any commercial exploitation of folklore may occur. Agents authorized by the Corporation regulate the use of folklore in Cameroon. Kuruk

Algeria

Congo Folklore is considered party of the country's heritage and Congolese copyright law thus protects folklore without a time limitation. In Congo, the "Body of Authors" society is responsible for collecting royalties, representing authors' interests, and overseeing the use of folklore. Permission must be sought from the society before any public performance, reproduction or adaptation of folklore for commercial purposes. This includes the import or distribution of copies of works of national folklore made abroad.

Niger

Togo includes folklore in the list of works eligible for copyright protection.

Tunisia Article 7 of the Tunisian Copyright Act (Law n94 –36 of February 1994) provides adequate protection to expressions of folklore and make its commercial exploitation dependent on an express authorization by the Ministry of Culture.

Tanzania

Egypt Article 142 of the Law on the Protection of Intellectual Property Rights No.82 (3 June 2002) defines "national folklore" as part of the "public domain of the people." "The competent ministry shall exercise the author’s economic and moral rights and shall protect and support such folklore."

Saudi Arabia Article 7 (1) of the Copyright Law of 2003 states that "Folklore shall be the property of the state, and the Ministry shall exercise the copyright pertaining thereto." and that "(2) The import or distribution of copies of folklore works, copies of their translations or others which are produced outside the Kingdom without a license from the Ministry shall be prohibited."

Qatar Article 32 of the Copyright Act of 2002 provides that "National folklore shall be the public property of the State" and that "the State...shall protect national folklore by all legal means, and shall act as the author folklore works in facing any deformation, modification or commercial exploitation"

Jordan Article 7(c)(3) of the Copyright Law No. 22 of 1992 excludes from copyright protection "works which reverted to the public domain. For the purpose of this article folklore shall be considered in the public domain with the minister exercising the copyrights of these works against distortion, misrepresentation or damage to cultural interests" unless "the collections of these works were distinguished by a personal effort involving innovation or arrangement."

Ivory Coast includes folklore in the list of works eligible for copyright protection.

Djibouti includes folklore in the list of works eligible for copyright protection.

Gabon includes folklore in the list of works eligible for copyright protection.

Guinea includes folklore in the list of works eligible for copyright protection.

Madagascar includes folklore in the list of works eligible for copyright protection.

Morocco includes folklore in the list of works eligible for copyright protection. Morocco also establishes a special system of protection.

Mozambique includes folklore in the list of works eligible for copyright protection.

Oman includes folklore in the list of works eligible for copyright protection.

Republic of Central Africa" includes folklore in the list of works eligible for copyright protection.

Zaire includes folklore in the list of works eligible for copyright protection.

Burkina Faso protects folklore under copyright law in a special provision.

Mongolia protects folklore under copyright law in a special provision.

Brazil establishes a special system of protection.

Burundi establishes a special system of protection.

Seychelles establishes a special system of protection.

Examples of Regional Codes governing Traditional Knowledge

One way in which countries attempt to protect indigenous traditional cultural expressions (TCEs) is by pooling resources and creating intergovernmental organizations that control and monitor the use of TCEs in foreign territories. Advantages of establishing law at the regional level include harmonizing local laws, centralizing administration, and avoiding duplication of financial resources across multiple countries. While the objectives of regional laws may be sound, it is debatable whether the regional organizations provide effective forms of enforcement.

African Regional Intellectual Property Organization (ARIPO)

African Intellectual Property Organization (OAPI)

Common Market of the South (MERCOSUR)

Andean Community (aka, Andean Pact)

S. James Anaya and Robert A. Williams Jr. explore the definition of indigenous groups in The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 HARV. HUM. RTS. J. 33, 33 (2001). They mention

Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (2009)

This Model Law grants two sets of rights to the owners of traditional knowledge, moral rights and traditional culture rights.

Clause 13 grants moral rights to the "traditional owners of traditional knowledge or expressions of culture." Under Article 13, traditional owners of traditional knowledge and expressions of culture have the right of attribution, the right not to have ownership falsely attributed to them; and the right not to have their traditional knowledge and expressions of culture subject to derogatory treatment. The rights continue in force in perpetuity and are inalienable, and cannot be waived or transferred.

Traditional cultural rights comprise of the right of traditional owners to give their prior and informed consent (or not) to a range of non-customary uses of their traditional knowledge or expressions of culture and the right of traditional owners to use their traditional knowledge or expressions of culture in the ways listed in clause 7(2) in the exercise of their traditional cultural rights.

Prospective users who want to use traditional knowledge in accordance with customary rules need not seek permission to do so. Prospective users who want to use the traditional knowledge in a non-customary manner, as defined in clause 7(2) must seek obtain permission to do so by consulting the Cultural Authority of the country or by contacting the traditional owners directly.

Clause 11 clarifies that traditional cultural rights do not override intellectual property rights.

The Organization of American States, American Convention on Human Rights (1969)

American Declaration of the Rights and Duties of Man (1948)

Article 13 -- Right to the Benefit of Culture Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries. He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.

African Charter on Human and Peoples’ Rights (1989)

For an overview of African legislation dealing with indigenous peoples and rights, see the ILO’s OVERVIEW REPORT of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries. (2009).

Organization of African Unity Model Law on Community Rights and on the Control of Access to Biological Resources (1998)

International Legal Instruments

Universal Declaration of Human Rights (1948)

The Universal Declaration of Human Rights (UDHR) establishes the right to the protection of moral interests and materials derviving from any scientific, literary or artistic production. The UDHR is not a binding document.

Article 17

1) Everyone has the right to own property alone as well as in association with others.

2) No one shall be arbitrarily deprived of his property.

Article 27

(1) Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

International Covenant on Civil and Political Rights (1966)

The International Covenant on Civil and Political Rights (ICCPR) recognizes the self determination of minority groups and their right to control their culture.

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

International Covenant on Economic, Social and Cultural Rights (1966)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production. In 2005, the Committee on Economic, Social and Cultural Rights (CESCR) commented on Article 15 of the ICESCR (reproduced below), expanding it to protect indigenous groups' expressions of cultural heritage. CESCR calls upon signatories to adopt protective measures that "recognize, register and protect the individual or collective authorship of indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties."

Article 15

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

Berne Convention for the Protection of Literary and Artistic Works (1979)

Article 15(4)

(a) In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.

Resolution 2000/7 on Intellectual Property and Human Rights (2000)

After the passage of TRIPS, the UN Human Rights Commission studied its human rights implications. The Sub-Commission on the Protection and Promotion of Human Rights adopted Resolution 2000/7 on Intellectual Property and Human Rights. The Resolution notes that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.” It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.” The Sub-Commission urged national governments, intergovernmental organizations, and civil society groups to give human rights primacy over othe economic policies and agreements. Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U. C. DAVIS L. REV. 971, CITE (2007).

Convention for the Safeguarding of the Intangible Cultural Heritage (2003)

List of countries who have ratified is available here

Article 2—Definitions

1. The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.

2. The “intangible cultural heritage”, as defined in paragraph 1 above, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

Article 11 – Role of States Parties

Each State Party shall: (a) take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory; (b) among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions builds off the earlier Universal Declaration on Cultural Diversity of (2001). Canada, France, Germany, Greece, Mexico, Monaco, Morocco, and Senegal and Francophone member states of UNESCO strongly supported the Convention. The United States opposed it. 104 countries have acceded to or ratified the Convention.

The Convention recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion." It seeks to “to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory” (Article 1(h)). The Convention also seeks to mitigate the dilution of culture that follows from the movement of cultural goods and services across national borders.

This Convention has only one express reference to intellectual property rights. The “Convention manifests near antipathy to intellectual property protection standards. The drafters removed all of the clauses described above and replaced them with far weaker commitments. When protecting and promoting the diversity of cultural expressions, member states now “may” adopt “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions.” And they need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.” By contrast, states may also achieve the Cultural Diversity Convention's goals by “promot[ing] the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services” a provision that could be read as sanctioning promotional efforts that disregard intellectual property protection rules required by TRIPS and other international agreements.” Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U. C. DAVIS L. REV. 971, 1006 (2007).

United Nations Declaration on the Rights of Indigenous Peoples (2007)

The UN has been investigating the protection of minorities and indigenous populations since 1969. On 30 January 2007, the Assembly of the Union adopted a decision (Assembly/AU/ Dec. 141 (VIII)) on the UN Declaration on the rights of indigenous peoples. 143 countries voted in favor of the Declaration. In 2007, Australia, Canada, New Zealand and the US voted against this Declaration. Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine abstained.

The Report on Human Rights of Indigenous Peoples (2000) discusses the tangible and intangible cultural property of indigenous groups. The Report was given at organized by the Sub-Commission on the Promotion and Protection of Human Rights (formerly Sub-Commission on the Prevention of Discrimination and Protection of Minorities) on the draft principles and guidelines for the protection of the heritage of indigenous peoples.

Article 8

Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. States shall provide effective mechanisms for prevention of, and redress for: Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; Any action which has the aim or effect of dispossessing them of their lands, territories or resources; Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; Any form of forced assimilation or integration; Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 11

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12

1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 25*

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 31

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

ILO Convention 169 on Indigenous and Tribal People (1989)

ILO Convention No. 169 entered into force in 1991. It is the binding international instrument for those countries that have ratified it. Page 8 of the OVERVIEW REPORT of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries. [ATTACH REPORT] ILO Convention No. 169 replaces ILO Indigenous and Tribal Populations Convention No. 107 (1957) that had ratified by six African States. The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems.

Article 4(1)

Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.

Article 5

(a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals; (b) the integrity of the values, practices and institutions of these peoples shall be respected; (c) policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.

Policy Arguments

Why Protect TK?

Maintenance of collective identity" - also, economic concerns (allowed part of revenues drawn from exploitation of their TK) and also being able to control the uses that are made of their folklore, and excluding outsiders to the community from the market.

Personhood and Fairness To “secure protections for authors in relation to their creations, linking such property to peoples, communities, and groups seeking to safeguard their collective cultural heritage” and to “protect economic interests, allowing creators to enjoy the fruits of their labor and ensure them a basic standard of living.” Angela Riley, Indigenous Peoples and Emerging Protections for TK, 379 in International Intellectual Property Law and Policy (Yu 2007)

More on personhood:“First, because the identity of the group is bound up in the object (and similarly, the identity of the object relies on recognition by the group), the group acquires ownership rights over that object. Second, because the property is so closely tied to the identity of the group, it should be inalienable "because future generations are unable to consent to transactions that threaten their existence as a group." Finally, group ownership may also be premised on a Lockean theory. Cultural groups have rights in their cultural property because such property is the product of the group. Pursuant to the theory of Singer and Beermann, notions of group property are perfectly legitimate because property rights depend on value judgments and can be socially and politically constructed.” Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B. U. L. REV. 559, 570 (1995).

Incentives to perserve “Cultural property has two features that distinguish it from other natural resources such as oil. First, it has scholarly and aesthetic value. It provides a window into the past and often (but not always) has intrinsic artistic merit. Second, its scholarly and aesthetic value depends greatly on its careful handling.” Eric A. Posner Symposium: Antiquities Law: The International Protection of Cultural Property: Some Skeptical Observations, 8 CHI. J. INT'L L. 213, 225 (2007) (arguing that cultural property should not receive more protection than other forms of property).

More on Personhood for Groups“The protection of cultural and intellectual property is connected fundamentally with the realization of the territorial rights and self-determination of indigenous peoples. Traditional knowledge of values, autonomy, or self-government, social organization, managing ecosystems, maintaining harmony among peoples and respecting the land is embedded in the arts, songs, poetry and literature which must be learned and renewed by each succeeding generation of indigenous children.” Lorie Graham and Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. U. J.L. & POL’Y 313, 320 (2005) (citing Erica-Irene Daes, Protection of the Heritage of Indigenous People, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities, Doc. E.97.XIV.3, PP21-32 (1997))

Protecting the traditional knowledge of indigenous groups is a form or reparation for past wrongs Lorie Graham and Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. U. J.L. & POL’Y 313, 320 (2005) (citing Erica-Irene Daes, Protection of the Cultural and Intellectual Property of Indigenous Peoples, U.N. ESCOR, 45th Sess., Agenda Item 14, U.N. Doc. E/CN.4/Sub.2/1993/28 (July 1993); Erica-Irene Daes, Protection of the Heritage of Indigenous People, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities, Doc. E.97.XIV.3, PP21-32 (1997)) Indeed, “[s]uch violations may well give rise to claims of reparations under international law.” Lorie Graham and Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. U. J.L. & POL’Y 313, 320 (2005) (citing Theo van Boven, Final Report, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Escor, 45th Sess., Agenda Item 4, U.N. Doc. E/CN.4/SUB.2/1993 (July 1993); Theo van Boven, Revised Set of Basic Principles and Guidelines on the Right to Reparations for Victims of Gross Violations of Human Rights and Humanitarian Law, U.N. Escor, 48th Sess., Agenda Item 10, U.N. Doc. E/CN.4/Sub.2/1996/17 (1996).)

More on Personhood Kristen A. Carpenter discusses group rights and the application of Radin’s theory to cultural property. She also mentions Rawl’s theory of the Law of People as justifying the protection of indigenous group’s cultural property. : “contemporary liberal society is comprised of various political groups, each of which must recognize the others as legitimate - even if their values differ within acceptable limits of liberalism and decency - in order to effectuate just democratic ideals.” Real Property and Peoplehood, 27 STAN. ENVTL. L.J. 313, 345-51, 355-57 (2008) Indigenous groups seek the profits from products they created as a matter of “survivial and basic equality.” Kristen A. Carpenter, Sonia Katyal, and Angela Riley, In Defense of Property, 118 YALE L.J. 1022, 1103 (2009) (noting, however, that absolute ownership and exclusive access is not necessary) Indigenous groups seek to protect their traditional knowledge to preserve their culture and enable social reproduction.

How Should TK be protected?

Traditional IP Modes of Protection

Copyright

Many nations have used copyright law either alone, or, in conjunction with sui generis laws, to protect TCEs. However, there are many arguments against using copyright to protect TCES.

1) The fixation requirement - copyright laws require that the work be fixed in a material form. This is an obstacle in the protection of TCEs which do not always manifest in tangible expressions. Emily--> good info pp. 383 Lewinski

2) Originality

3) Authorship

4) The term of protection

Trademark Law Some expressions of folklore can, in theory, be registered as a trademark, which protects not only graphic representations, but also words, and sounds. An advantage of protection through trademark law is its near indefinite span of time, and not being subject to the condition of novelty. It is sufficient that the trademark has a "distinctive character." However, in practice the application of trademark law to TCEs is more complex since by registering a mark the community makes public what are sometimes considered secret and sacred symbols of their lives. Additional limits on sectors, may not benefit community (just he who registered) etc - See more - Lweinski, pp.401 & up

Trademark

Patent

Absolute ownership

Negotiation and mutual respect

(Michael Brown’s theory )

Adapt existing IP law to fit folklore and traditional cultural expressions

Copyright See, generally, Megan Carpenter, Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community, 7 Yale Hum. Rts. & Dev. L.J. 51 (2004)

Trade Secret See generally, Megan Carpenter, Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community, 7 Yale Hum. Rts. & Dev. L.J. 51, 74-75 (2004)

Trademark

Collective Trademark

Certification Mark

"Trademark law has the advantages of granting collective rights and of providing perpetual protection. However, in order to fall within the umbrella of this form of intellectual property protection, artistic and literary works of indigenous peoples must generally constitute commercial goods or services. Indigenous peoples could therefore prevent the marketing of outside goods as “Aboriginal made” or “Indian made,” for example, but could not protect sacred works such as dance, ritual ceremonies, or even sacred texts, not used in interstate commerce." Megan Carpenter, Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community, 7 Yale Hum. Rts. & Dev. L.J. 51, 76 (2004)

Geographic Indicator

Unfair Competition

Recognize Moral Rights

“Moral rights are independent personal rights aimed at maintaining the integrity of the author's works. The Australian Copyright Act as it presently stands does not offer much protection in the form of such rights. The only significant provisions in the statute in this respect are sections 189-195, which provide that works should not be attributed incorrectly to a person other than the artist or author. There is however a proposal to redress the omission through the introduction of a right to attribution and a right of integrity in the Act. The first is a right to be named as the author of the work, the second is a right to object to derogatory treatment of the work that is prejudicial to the author's honour or reputation. The significance of moral rights to indigenous artists is that they would prevent the debasement, mutilation and destruction of indigenous folkloric works. They also have the advantage of being "perpetual, inalienable and imprescribtible," and even if the author dies they are exercised by his or her heirs irrespective of who owns the economic rights.”

Cultural Stewardship

Kristen A. Carpenter, Sonia Katyal, and Angela Riley, In Defense of Property, 118 YALE L.J. 1022, 1103 (2009) (noting, however, that absolute ownership and exclusive access is not necessary)

International Human Rights

Grant TK protection that is fair and balanced and not overreaching. Reach a balance between the needs of indigenous groups and the necessary public domain. Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U. C. DAVIS L. REV. 971 (2007).

Duncan M. Matthews points out that "A human rights approach takes what is often an implicit balance between the rights of inventors and creators and the interests of the wider society within intellectual property paradigms and it makes it far more explicit and exacting... the rights of the creator are not absolute but conditional on contributing to the common good and welfare of society...because a human rights approach also establishes a different and often more exacting standard for evaluating the appropriateness of granting intellectual property protection, in order for intellectual property fulfil the conditions necessary to be recognised as a universal human right, intellectual property regimes and the manner they are implemented first and foremost must be consistent with the realisation of the other human rights, particularly those enumerated in the Covenant." In 2001, the High Commissioner on Human Rights reviewed the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, issuing a Report on his findings. He stated that Article 15 of the International Convention on Economic, Social and Cultural Rights requires a balance betweeen public and private interests. "Article 15 recognises the right of everyone to take part in cultural life and to enjoy the benefits of scientific progress and its applications" but also "recognises the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author."

Domain Public Payant

“The doctrine of domain public payant allows the use of works that have entered the public domain in return for the payment of royalties. Therefore indigenous folkloric works that are in the public domain would generate revenues for the indigenous owners. However, whilst such a system would sustain and promote indigenous culture, it would be ineffective as a means of regulating the use of culturally sensitive material. This is because it could create the view that such folklore is available for general use, albeit for a fee.” For more on different versions of domain public payant, see the UNESCO Copyright Bulletin from 1994.

Don’t change the law, just make sure everyone knows about the TK

Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage has compiled a List of Intangible Heritage in Need of Urgent Safeguarding UNESCO lists projects for safeguarding intangible cultural heritage in African countries here.

Why not protect TK?

IP law does not map onto TK easily. Traditional cultural expressions are often not tangible, not original and have undefined author.

Protection of TK would involve perpetuation of illiberal social hierarchies and oppressive customs within indigenous groups

Paul Kuruk explains that folklore rights "are vested in particular segments of the community and are exercised under carefully circumscribed conditions. For instance, with regard to song, the recitation of oriki, a praise-singing poetry among the Yoruba in Nigeria, was preserved exclusively for certain families. Among the Lozi in Zimbabwe, each traditional leader has his own praise songs containing both historical lore and proverbial wisdom that are recited on important occasions by a select group of bandsmen." For a full discussion of Lozi prayer, see upetd.up.ac.za/thesis/available/etd-08112008.../04chapter4.pdf . Kuruk continues: "Similar rules apply to crafts. Among the Tonga of Zimbabwe, crafts are subject to a sexual division of labor with wood and metals assigned to men and the making of pots, baskets, and mats to women. Within this broad division, there is a further specialization, because not all men and women are skilled in the art assigned to their sex. Elizabeth Colson and Max Gluckman write that “only those who have been instructed by an ancestral spirit are considered to have the right to work at a particular craft . . . .” In many cases, only a few specialists are needed to supply the community's demand for wooden dishes, stools, drums, axes or spear blades. Usually two or three women are authorized to make pots or baskets and may trade their surplus articles in a casual fashion with their neighbors. Similarly, among the Banyoro of Uganda, baskets are made by women belonging to the agricultural clans, who supply the rest of the community, including the pastoral peoples, with any baskets they require. Among the Baganda, the Heart Clan makes ornate basketry only in Budu. The making of Banyoro pottery, which is known for its excellent quality, is reserved to a distinct class separate from the ordinary peasants. In Nigeria, the Dakakari people have given exclusive rights to women to make grave sculpture. [FN107] With respect to cloth-making, the chief of the Ashanti in Ghana is the trustee of interests in all designs in fabrics, which he would either reserve for himself or allow prominent royals or dignitaries to copy for their use." Paul Kuruk, Promoting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the US, 48 Am. U. L. Rev. 769,784-86 (1999).

Back to the case study

Additional resources

Who Owns Native Culture by Michael F. Brown

Resources for understanding current debates about the legal status of indigenous art, music, folklore, biological knowledge and sacred sites.

Intellectual Property Rights Online

A compendium articles about Traditional Knowledge and Cultural Expressions

The African Copyright & Access to Knowledge Project (ACA2K)

The African Copyright & Access to Knowledge (ACA2K) Project probes the relationship between national copyright environments and access to knowledge in African countries.

National Experiences with the Protection of Traditional Cultural Expressions/Expressions of Folklore: Preface

WIPO's resources on Traditional Cultural Expressions (Folklore)

Creative Heritage Project: Strategic Management of IP Rights and Interests

Resources for developing best practices

Surveys of existing practices, protocols and policies

Resources on Indigenous Cultures and Cultural Property

A searchable database of codes, guides, policies, protocols and agreements relating to IP and the digitization of ICH

Short case studies presenting informal summaries of best practices

Multimedia materials, articles, laws and other resources

Assignment and discussion questions

Assignment

Discussion Question(s)

Contributors

This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Colin Maclay, Andrew Moshirnia, and Chris Peterson.

Home

Introduction

Course Materials:

• Module 1: Copyright and the Public Domain
• Module 2: The International Framework
• Module 3: The Scope of Copyright Law
• Module 4: Rights, Exceptions, and Limitations
• Module 5: Managing Rights
• Module 6: Creative Approaches and Alternatives
• Module 7: Enforcement
• Module 8: Traditional Knowledge
• Module 9: Activism
• Glossary

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