Intangible Cultural Heritage of Asia and the Pacific

Khmer shadow theatre

Intellectual Property and Intangible Cultural Heritage: Latest Developments at WIPO

An indigenous oral legend copied and published without authorization… Traditional music taken from an ethnomusicological archive, remixed and sold without any attribution…

The process of making a traditional musical instrument patented by a foreign company…

Discomforting? Yes? Why?

Because such examples of ICH are precious records of ancient traditions and histories vital to indigenous peoples’ and the identity of traditional communities’, cultural continuity and living heritage; their misuse or misappropriation, such as in the fictional examples above is unsettling.

In recent years, expressions of cultural heritage have become increasingly vulnerable to misuse and calls for a specific kind of protection have been heard: intellectual property (IP) protection.1IP refers to the results of creative intellectual activity. Most often these are creations—such as literary and artistic works— and innovations—such as inventions, designs, etc. IP regimes typically consist of laws that establish private property rights in order to grant control over access, use, misappropriation and exploitation, particularly commercial exploitation, and to provide incentives for further creativity. For over ten years, WIPO has been working to develop an IP-based protection system for important elements of the world’s cultures, known to WIPO as ‘Traditional Cultural Expressions’ or ‘TCEs.’2For more on WIPO’s work concerning TCEs, please visit:wipo.int/tk/en/folklore/

In the context of WIPO, TCEs are elements of any form, whether tangible or intangible, in which traditional culture and knowledge are expressed. They are characteristics of a community’s cultural heritage and are maintained, used, and developed by that community.

The type of protection that WIPO is developing is specific and different from what may be referred to as ‘preservation’ or ‘safeguarding,’ an activity usually undertaken under the purview of UNESCO and which, broadly speaking, aims at keeping the TCEs from falling into oblivion. The system of protection envisaged at WIPO uses IP principles and values to focus on the prevention of misappropriation and misuse of TCEs by third parties.

Negotiations on the protection of TCEs are taking place at WIPO in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC),3Information about the IGC made be found at: wipo.int/tk/en/igc/ a negotiating body created ten years ago; bringing together Member States, intergovernmental organizations, and NGOs, through which vibrant and extensive participation of indigenous and local communities is made possible, thanks notably to a voluntary fund program.4See wipo.int/tk/en/ngoparticipation/voluntary_fund/index.html

In September 2009, WIPO Member States renewed the mandate of the IGC, adopting a clearly defined work plan to guide the Committee’s work over the next two years. They agreed the IGC would undertake text-based negotiations with the objective of reaching an agreement on a text of an international legal instrument(s) that will ensure the effective protection of Genetic Resources, Traditional Knowledge and TCEs.

One of the texts currently under negotiation comprises of draft provisions for the sui generis protection of TCEs. The provisions seek to respond to several issues, including what exactly TCEs are, what acts of misuse or misappropriation would be forbidden and who would benefit from such protection, among others.

As part of the IGC’s new work program, an intercessional working group (IWG) was created to accelerate the negotiations. Its first meeting took place in the summer of 2010 and dealt chiefly with the protection of TCEs.5See wipo.int/tk/en/ngoparticipation/voluntary_fund/index.html During that meeting, experts participating in their personal capacities took part in lively and active discussions as well as an intense drafting of the revised provisions. Two more IWGs are foreseen to take place in the coming year with the intent of focusing time and efforts on Traditional Knowledge and Genetic Resources.

According to its mandate, the IGC is set to submit the text(s) of an international legal instrument(s) to the WIPO General Assembly in September 2011, which will decide on convening a Diplomatic Conference. Two IGC sessions will be held before the September deadline, the first of which will take place in December 2010.

Notes   [ + ]

1. IP refers to the results of creative intellectual activity. Most often these are creations—such as literary and artistic works— and innovations—such as inventions, designs, etc. IP regimes typically consist of laws that establish private property rights in order to grant control over access, use, misappropriation and exploitation, particularly commercial exploitation, and to provide incentives for further creativity.
2. For more on WIPO’s work concerning TCEs, please visit:wipo.int/tk/en/folklore/
3. Information about the IGC made be found at: wipo.int/tk/en/igc/
4, 5. See wipo.int/tk/en/ngoparticipation/voluntary_fund/index.html