Module 8: Traditional Knowledge

Learning objective

Case Study

Lesson

What Is Traditional Knowledge

Traditional Knowledge is...

Though difficult to define, traditional knowledge (TK) is generally understood to encompass four types of creative works: 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. TK is used interchangeably with the term "traditional cultural expressions" and both reference music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives. TCEs are integral to the cultural and social identities of indigenous and local communities, they embody know-how and skills, and they transmit core values and beliefs.

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

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. These countries tend to classify traditional knowledge as within a "public domain" and thus do not award restricting rights to TK owners. 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 traditional intellectual property doctrines. For example, most countries in Europe have copyright legislation that may cover traditional knowledge, but do not have any explicit 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 references as well, including, Australia, Canada, Japan, and the United States. Additionally, several countries with recently-enacted 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 unprotected, rather, in these countries TCE is protected on the basis of customary, regional or international laws or through sui generis legislation. (see below)

Although the United States has not acted specifically to protect indigenous peoples' traditional knowledge, it has responded to Native American attempts to regain self-governance and control the use of their traditional knowledge by non-community members with the enactment of several laws in the 1900s. <<Group question: keep this here or move to Sui Generis section?>>

The United States thus passed the Antiquities Act of 1906 (16 U.S.C. §§ 431-33 (2000)), giving the President power to set aside as national monuments certain historic landmarks, structures and other objects of historic interest, the Historic Sites, Buildings and Antiquities Act of 1935 (16 U.S.C. §§ 461-67), empowering the National Park Service to restore, reconstruct, and maintain sites and objects of historic interest, and the National Historic Preservation Act of 1966 (16 U.S.C. § 470), providing for the maintenance of a National Register of Historic Places and requiring the Secretary of the Interior to establish a program to help Indian tribes preserve their particular properties taking into account tribal values.

It also enacted the Native American Arts and Crafts Act (25 U.S.C. § 305 (2000)) to assure the authenticity of Indian artifacts. The law created the Indian Arts and Crafts Board which was authorized to create “trademarks of genuineness and quality for Indian products” which could be registered with the Patent and Trademark Office and assigned to Native Indians without charge. In 1990 Congress passed the Native American Graves Protection and Repatriation Act (“NAGPRA”)( 25 U.S.C. § 3001(1)-(13) (2000)) which provided that the ownership or control of Native American cultural items excavated or discovered on federal or tribal lands remained with lineal descendants, Native American tribes or Hawaiian Organizations. When the cultural affiliation of an inventoried item could not be established, an indigenous group could recover it merely by showing through a preponderance of the evidence based on “geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion” that it has a cultural affiliation with the human remains and cultural property. In United States v. Carrow, the Court of Appeals for the Tenth Circuit rejected a void-for-vagueness challenge to NAGPRA, holding the Act not to be “infirm” by its failure “to list examples of cultural items.” 119 F.3d 796 (10th Cir. 1997).

In Australia

Explicit Reference to TCE

Many countries now explicitly reference folklore in their copyright legislation. Some have sections, chapters, or special parts of copyright law that are entirely devoted to folklore (Algeria, Bolivia, Chile, Congo, Nicaragua, Niger, Nigeria, Papua New Guinea, Paraguay, Togo, Tanzania, Tunisia).

Thus, in Nigeria, 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. Nigeria also protects traditional knowledge through patents and trademarks. To be patentable, an invention must be new, result from inventive activity, and be capable of industrial application. The general patent right is vested in the inventor, and the patent is valid for 20 years after the filing date. Additionally, Nigerian legislation protects registered trademarks on goods which entitles the registrant to exclusive rights of use over the trademark and the power to initiate infringement actions. Registration is valid for seven years and then can be renewed; registration is limited to marks that are distinctive.

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. Public agencies are exempted from the obligation to obtain prior authorization to use folklore for non-profit activities, though they still must notify the society before use.

A long list of national copyright laws classify traditional knowledge along with literary and artistic works by including folklore on the list of works eligible for copyright protection (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 (Ghana, 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. The Act provides that the copyrights of authors of folklore vest in the government as if the government was the creator of the works. In Ghana (as in the Central African Republic and Congo) funds from fees or other money accruing from the use of folklore is to be used for social welfare benefits.

Senegal includes folklore in the list of works eligible for copyright protection. Article 1 of the Senegalese Copyright Act provides special protection for folklore, and Article 9 states that any "direct or indirect" fixation of such material for "profit-making purposes" is subject to prior authorization by the Copyright Office of Senegal. All folklore uses require prior authorization from the Office which charges folklore users a (varying) fee based on the nature of the use and prior arrangements. Senegal criminalizes the importation of works into Senegal that violate its copyright law.

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."

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, while the Corporation collects royalties fixed by agreement between the parites and brings infringement actions against unlawful users of protected works.

Lesotho

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

Zimbabwe

Kenya published a Copyright Bill of 2001 which sought to modernize Kenya's copyright law and bring it in line with international instruments. In the Bill, Kenya expressly protects folklore, defined in Section 2 as 1) literary, musical or artistic work that 2) constitutes a basic element of the traditional cultural heritage of Kenya, and 3)is presumed to be created within Kenya 4) by an unidentified author and 5) which has passed from one generation to another. <<GROUP: did this pass? state now?>>
Namibia
Lesotho

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 licensing of "works derived from folklore" without the approval of the Minister. The law places in the public domain and charges a user fee for all "works whose authors are unknown, including the songs, legends, dances, and other manifestations of the common cultural heritage."

One other set of countries protect TCE by granting rights to the State for its protection (e.g. Sudan, Malawi, Egypt, Saudi Arabia, Qatar).

For instance, 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." Similarly, in 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 act states, "The competent ministry shall exercise the author’s economic and moral rights and shall protect and support such folklore." In 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." Likewise, 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" Interestingly, Jordan's 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."

The line between traditional IP protection and sui generis laws is often blurred. There is a definitional limitation in the traditional laws that explicitly protect "folklore" and a paucity of criteria for determining what is and is not classified or protected. Not all of the above examples are classic copyright protections of folklore and some may be classified as a hybrid approach to preservation of indigenous knowledge. Accordingly, some countries have set out to adopt clear sui generis laws to protect traditional knowledge within their borders. An even larger movement has also developed with regards to protection under regional arrangements and international initiatives. (see below)

Countries with Sui Generis Traditional Knowledge Laws

Sui generis laws are considered by many to be the ideal solution for the protection of TCEs. A sui generis regime can be specifically adapted to the nature of indigenous knowledge which is created, owned, and utilized differently than traditional intellectual property. As a practical matter, many countries find it difficult to protect TCEs under traditional IP laws - there are issues with fitting folklore into accepted notions of ownership, originality, duration, fixation, inventiveness and uniqueness - and have therefore turned to sui generis protection instead.

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.

Two early examples of national sui generis laws arose in the biological/genetic domain which may have encouraged other countries to adopt similar provisions specifically for TCEs. Ecuador’s Law on Intellectual Property of 1998 protects the country’s biological and genetic heritage and conditions the grant of product or process patents relating to heritage on the legal acquisition of elements of the heritage from the relevant traditional owners. Similarly, in 1997, the Philippine Congress passed the Indigenous Peoples Rights Act “to recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs), including their rights to “preserve and develop their cultures, traditions, and institutions” in cultural property. The Act affirms the right of ICCs/IPs to the full ownership and control of their cultural and intellectual rights. Thus, access to biological and genetic resources is permitted only with a free and prior informed consent of such communities. The Act guarantees ICCs/IPs the right to practice and revitalize their own cultural traditions, including “to practice and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to their religious and cultural cites the right to use and control of ceremonial objects; and, the right ot the repatriation of human remains.”

Panama's Act No. 20 of 26 launched the sui generis protection movement specifically for TCEs in June, 2000. The Act subjects “the rights of use and commercialization of the art, crafts and other cultural expressions based on the tradition of the indigenous community” to the regulation of each indigenous community approved and registered in the DIGERPI or in the National Copyright Office of the ministry of Education. It defines “indigenous collective rights” as “indigenous intellectual and cultural property rights law relating to art, music, literature...and other subject matter and manifestations that have no known author or owner and no date of origin and constitute the heritage of an entire indigenous people.”

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."

Many members of WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore have called for the establishment of sui generis systems in their written submissions to the Committee, including: Ethiopia, Thailand, Brazil, Colombia, Venezuela, the Russian Federation, Iran, Indonesia, Morocco, and Egypt. Thus, the process of adopting national sui generis laws has begun and is ever-increasing. Still, other examples of sui generis legislation occur on both regional and international levels.

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)

The African Regional Intellectual Property Organization (ARIPO), originally named the African Regional Industrial Property Organization, was formed in 1976 and includes many of the English-speaking African countries – specifically, Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia, and Zimbabwe. ARIPO’s overall objectives are to harmonize intellectual property regimes, foster cooperation, and provide coordinated administrative training across member states.

ARIPO has adopted two central protocols: the Harare Protocol, pertaining to patents and industrial designs, and the Banjul Protocol, relating to trademarks and service marks. Surprisingly, neither protocol specifically mentions protection of traditional knowledge or TCEs. Some have criticized the protocols as insensitive to the needs of the member states. Since the adoption of the protocols, ARIPO continues to work with the World Intellectual Property Organization (WIPO) to protect indigenous knowledge. Furthermore, ARIPO’s Administrative Council has initiated a study to assess the feasibility of developing a traditional knowledge database. In 2009, ARIPO’s Administrative Council suggested three primary ways to implement the Organization’s mandate on the protection of genetic resources, traditional knowledge, and expressions of folklore: (1) developing ARIPO’s Traditional Knowledge Digital Library, (2) creating regional frameworks on access and benefit sharing related to biological resources, and (3) adopting the Draft Protocol and implementing regulations on the protection of traditional knowledge and the expressions of folklore (NB: the Draft Protocol, document AC/XXXIII/14A, is not available at this time).

African Intellectual Property Organization (OAPI)

The African Intellectual Property Organization was established by French-speaking Africa, in collaboration with France's National Institute of Industrial Property for registration and grant of industrial property rights. It was signed as an Agreement Relating to the Creation of an African Intellectual Property Organization on March 2, 1977 at Bangui. The laws, modeled after the French laws of 1844, 1857, and 1909, were originally established under the 1962 Libreville Agreement (then known as the African and Malagasy Office of Industrial Property). The revised text was signed in 1977 and only took effect in February 1982.

Members declare their willingness to subscribe to all the major international conventions in intellectual property including the Patent Cooperation Treaty of 1970 and the Trademark Registration Treaty of 1973. The Agreement provides for common administrative procedures through the device of centralizing application and registration of all forms of intellectual property. It embodies a uniform system of law applicable to all member states, although the rights acquired by nationals of the member states would be subject to the domestic law in which those rights would have effect. The Agreement covers patents including utility models, trademarks and service marks, copyright, and cultural heritage. The high requirement of patentability appears to be relaxed by the provision for grants on the basis of deferred examination as to substance for a term of ten years in the first instance. It then provides for an additional five years provided that the patentee can prove working of patents in one of the member states, or other than importation, there was a legitimate reason for non-working. In this way, the low technological skill levels of member states is accommodated. This is also evident in the provision for certificates for "changes, improvements or additions" over a principal patent. Under the provision for trademarks, the first to file a mark is the owner. Owners of well-known marks can seek annulment on the national territory of one of the member states, of a mark liable to create confusion with his own. The copyright provisions are imbued with French legal principles of authorship and the rights that it is supposed to confer on creators of "original intellectual work," including moral rights. The Agreement exempts from copyright strictly personal and private use of reproduction, translation and adaptation. The scope of provisions for the maintenance of items of cultural interest such as museums, archaeological and scientific objects, life forms, artistic collections, and heritage and folklore of various kinds makes the Agreement more comprehensive and relevant to African traditional values. The Bangui Agreement was revised on February 24, 1999 to meet the requirements of the TRIPS Agreement, incorporating provisions pertaining to Layout-Designs (Topographies) of Integrated Circuits and Protection of Plant Varieties. With this development, it could be said that OAPI has provided a legal framework for the current biodiversity initiative that has become increasingly important in international discourse.

[DISCUSS SPECIAL PROTECTION IN BANGUI AGREEMENT]

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

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.

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?

Arguments from Personhood For many indigenous groups, TK encompasses cultural elements that are integral to the group's sense of identity. One can argue that objects and expressions that are fundamental to a person's or group's identity merit protection, and at the extreme, could be considered inalienable. Cite to Radin. Similarly, some advocates for TK protection have proposed a "cultural stewardship" justification for this protection. Kristen Carpenter, Sonya Katyal and Angela Riley advocate in favor of allowing indigenous communities to retain control, if not exclusive access and ownership, of TK because of its importance in shaping the identity of the indigenous group and its culture.

Closely related to arguments from personhood are arguments from moral rights. 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.”

Arguments based on Preservation Another reason to advocate for protection of TK is that unlike many forms of intellectual property, cultural expressions may require protection in order to preserve their value. For example, religious ceremonies and sacred rituals may be valuable to a culture in part because they are not wide-spread; their rarity is integral to their place in the culture. In order to maintain the value of these traditions, it may be necessary to restrict their use.

Arguments based on Reparations A third argument in favor of protection for TK is based upon the idea that many indigenous cultures have been damaged by invasive colonialism practiced by Western countries in the past few centuries. Supporters of this argument believe that protection of TK is a way of providing reparations, symbolic as well as monetary, for the wrongs committed against these indigenous groups.

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 TK. However, there are many arguments against using copyright to protect TL.

The fixation requirement Copyright laws require that the work be fixed in a material form. This is an obstacle in the protection of TKs which do not always manifest in tangible expressions.
Originality Copyright law requires that a work be "original" in order to merit protection. Since most TK is "traditional" rather than new, this originality requirement will often be difficult to satisfy.
Authorship Much cultural expression develops gradually over time, through the contributions of several members of a community. If no author or group of authors can be identified, it will be difficult for copyright protection to be obtained.
The term of protection The term of protection for copyright in the United States is the life of the author plus 70 years. For a piece of TK, however, if the indigenous group itself is considered the author, this standard would be unhelpful. Furthermore, the reasons that justify protecting TK would not justify protection that lasts only for the lifetime of one individual member of the group, since all members are equally entitled to protection on the theories of cultural personhood, preservation, and reparations. So in theory, the term of protection for TK could be indefinite if the author is considered to be the group, and if the term thus lasts as long as the life of the last remaining member plus 70 years.

To avoid these difficulties, it is possible for countries to modify copyright legislation so that it has different requirements for folklore or cultural expression. The Tunis Model Law for Copyright in the Developing Countries, adopted in 1976, advocates for copyright protection for works of national folklore without requiring fixation and with an unlimited term of protection.

Trademark Law

Some expressions of folklore can potentially be registered as trademarks. Trademark law protects not only graphic representations, but also words and sounds. An advantage of protection through trademark law is its near indefinite term of protection, and its lack of a novelty requirement; it is sufficient for purposes of protection that the trademark has a "distinctive character." However, trademark protection, unlike copyright and patent protection, require that the applicant demonstrate use of the mark in commerce. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Furthermore, the application of trademark law to TK is complicated, since by registering a mark the community makes public TK that the community may desire to keep secret for religious or other reasons.

Collective Trademark, Certification Marks, and Geographic Indicators

Collective trademarks, certification marks, and geographic indicators are a subset of trademark law that could be particularly useful for the protection of TK. Collective trademarks are trademarks that are used by a group of producers rather than one producer. Certification marks indicate that the producer of a good has met the standards of a particular group; a popular example of this is the Good Housekeeping certification prominent on household products sold in the United States. Geographic indicators, as the name suggests, are a mark that can be placed on products that come from a specific geographic area. Geographic indicators are often used for food products, such as wines, but some indigenous groups, for example in Alaska and New Zealand, have experimented with using geographic indicators as a means of protecting cultural expressions by authenticating products that are sold abroad.

Unfair Competition

Indigenous cultures may also have recourse through unfair competition law, a close relative of trademark law.

Absolute ownership

One possibility for TK protection is to give absolute ownership of the cultural expression to the indigenous group from which it originated. This is an unpopular option, as it denies the spread of knowledge and risks the loss of cultural expressions and information in the event that the group is disbanded or its members are assimilated with the general population.

Negotiation and mutual respect

Michael Brown argues in favor of empowering indigenous groups with TK protection in order to foster "negotiation and mutual respect" between indigenous cultures and those who seek to employ a culture's traditional expressions. This approach favors efforts to foster negotiations regarding rights to the use of TK, rather than changes in legislation that would mandate certain uses and forbid others.

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.

Why not protect TK?

IP law does not map onto TK easily. Traditional cultural expressions are often not put into a fixed form, are not "original" and do not have a defined author, three requirements for copyright protection. Furthermore, most expressions of folklore are not used in commerce as a means of identifying their source, and so would not be eligible for trademark protection. Finally, patent law may not be available to protect TK because by definition, TK has been used and passed down through generations, and this type of prior public use precludes patent protection. Thus, it appears that certain attributes of TK make it a difficult fit with all three of the major types of intellectual property law. Additionally, protection for TK does not fit well with the principal goals underlying the protection of intellectual property law. There is little evidence that protection is necessary to incentivize the creation of cultural expression, as other factors have successfully motivated the creation of these expressions for years. Furthermore, the labor-desert justification does not easily fit with TK protection, as those who created the traditional expression are either unidentifiable because the expression was the product of collaboration, or in some cases, long dead. Current members of the culture do not have as strong a claim for protection from a labor-desert perspective.

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

Another argument against providing protection for TK is that doing so may perpetuate inequality and oppression within indigenous groups. When an indigenous group is given the right to control the use of TK, the powerful members of that indigenous group may benefit at the expense of the group's minorities. Paul Kuruk argues that protection of TK may further the oppression of women and the lower social and economic groups within an indigenous culture.

Increase Awareness Rather than Changing the Law Some organizations have advocated for protection of TK through nongovernmental organizations and projects rather than through legislation. For example, 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. Furthermore, groups of academics and activists have created community standards for those, such as anthropologists, whose work impacts indigenous cultures and may involve sensitive issues of disclosure of TK.

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Additional resources

This list is current as of 2008. For more information see: <> Von Lewinski, 2008.

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