1 WIPO--TCE guidelines Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

**************************************************************
Educational CyberPlayGround http://www.edu-cyberpg.com/
**************************************************************
Net Happenings Mailing List

Net Happenings Service
<http://www.edu-cyberpg.com/Community/Subguidelines.html>

Subscribe | Unsubscribe | Change Email Preferences -
<http://www.edu-cyberpg.com/Community/NetHappenings.html>
**************************************************************
National Children's Folksong Repository www.edu-cyberpg.com
Integrate Literacy, Music, and Technology into the classroom.
**************************************************************

WIPO--TCE guidelines from Wend Wendland


Intergovernmental Committee on Intellectual Property and Genetic Resources, 
Traditional Knowledge and Folklore

PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS/FOLKLORE

SUMMARY OF DRAFT POLICY OBJECTIVES AND CORE PRINCIPLES

This informal paper reproduces Annex I of document 
WIPO/GRTKF/IC/7/3.  These draft materials are put forward as one input only 
to facilitate continuing consideration and discussion of possible 
approaches to the Committee's work in preparing an overview of policy 
objectives and core principles.  These are discussed and elaborated further 
in the full document.

I.          POLICY OBJECTIVES

The protection of traditional cultural expressions or expressions of 
folklore should aim to:

[Recognize value]

(i)           recognize the intrinsic value of traditional cultures and 
folklore, including their social, cultural, spiritual, economic, 
intellectual, commercial and educational value, and acknowledge that 
traditional cultures constitute diverse frameworks of ongoing innovation 
and creativity that benefit all humanity;

[Promote respect]

(ii)           promote respect for traditional cultures and folklore, and 
for the dignity, cultural integrity, and the intellectual and spiritual 
values of the peoples and communities that preserve and maintain 
expressions of these cultures and folklore;

[Meet the actual needs of communities]

(iii)          be guided by the aspirations and expectations expressed 
directly by indigenous peoples and by traditional and cultural communities, 
and contribute to the welfare and sustainable economic, cultural and social 
development of indigenous peoples and traditional and other cultural 
communities;

[Empower communities]

(iv)          be achieved in a manner inspired by the protection provided 
for intellectual creations and innovations, in a manner that is balanced 
and equitable and that effectively empowers indigenous peoples and 
traditional and other cultural communities to exercise due authority over 
their own TCEs/EoF, including through appropriate moral and economic 
rights, should they wish to do so;

[Support customary practices]

(v)          respect and facilitate the continuing customary use, 
development, exchange and transmission of TCEs/EoF by, within and between 
these communities;

[Contribute to safeguarding traditional cultures]

(vi)          contribute to the preservation and safeguarding of TCEs/EoF 
and the customary means for their development, preservation and 
transmission, and promote the conservation, application and wider use of 
TCEs/EoF, for the direct benefit of indigenous peoples and of traditional 
and other cultural communities, and for the benefit of humanity in general;

[Respect for and cooperation with relevant international agreements and 
processes]

(vii)         recognize, and operate consistently with, other international 
and regional instruments and processes;

[Encourage community innovation and creativity]

(viii)        encourage, reward and protect authentic tradition-based 
creativity and innovation, particularly, when so desired by them, by 
indigenous peoples and traditional and cultural communities and their members;

[Promote intellectual and cultural exchange]

(ix)          promote, where appropriate, access to and the wider 
application of TCEs/EoF on terms fair and equitable to indigenous peoples 
and traditional and cultural communities, for the general public interest 
and as a means of sustainable development;

[Contribute to cultural diversity]

(x)          contribute to the promotion and protection of the diversity of 
cultural contents and artistic expressions;

[Promote community development and legitimate trading activities]

(xi)          promote the use of TCEs/EoF for community based development, 
recognizing them as a collective asset of the communities that identify 
with them;  and promote the development of and expansion of marketing 
opportunities for authentic TCEs/EoF, particularly traditional arts and crafts.

[Preclude invalid IP rights]

(xii)         curtail the grant, exercise and enforcement of invalid 
intellectual property rights acquired by unauthorised parties over 
TCEs/EoF, and derivatives thereof;

[Enhance certainty, transparency and mutual confidence]

(xiii)        enhance certainty, transparency and mutual respect and 
understanding in relations between indigenous peoples and traditional and 
cultural communities on the one hand, and academic, commercial, educational 
and other users of TCEs/EoF on the other;  and

[Complement protection of traditional knowledge]

(xiv)        operate consistently with protection of traditional knowledge, 
respecting that for many communities knowledge and expressions of culture 
form an indivisible part of their holistic cultural identity.


II.         CORE PRINCIPLES

A.  General guiding principles

[These principles should be respected to ensure that the specific 
principles below concerning protection are equitable, balanced, effective 
and consistent, and appropriately promote the objectives of 
protection.  Each principle is followed here by a brief description of the 
possible effect of the principle;  a more complete description is provided 
in Annex II of WIPO/GRTKF/IC/7/3.]

Principle of responsiveness to aspirations and expectations of relevant 
communities

Protection should reflect the aspirations and expectations of indigenous 
peoples and traditional and other cultural communities;  in particular, it 
should recognize and apply indigenous and customary laws and protocols as 
far as possible, promote complementary use of positive and defensive 
protection, address cultural and economic aspects of development, address 
insulting, derogatory and offensive acts, enable full and effective 
participation by these communities, and recognize the inseparable quality 
of traditional knowledge and TCEs/EoF for many communities.  Measures for 
the legal protection of TCEs/EoF should also be recognized as voluntary 
from the viewpoint of indigenous peoples and other communities who would 
always be entitled to rely exclusively or in addition upon their own 
customary and traditional forms of protection against unwanted access and 
use of their TCEs/EoF.

Principle of balance and proportionality

Protection should reflect the need for an equitable balance between the 
rights and interests of those that develop, preserve and sustain TCEs/EoF, 
and of those who use and benefit from them;  the need to reconcile diverse 
policy concerns;  and the need for specific protection measures to be 
proportionate to the objectives of protection, actual experiences and 
needs, and the maintenance of an equitable balance of interests.

Principle of respect for and cooperation with other international and 
regional instruments and processes

TCEs/EoF should be protected in a way that is consistent with the 
objectives of other relevant international and regional instruments and 
processes, and without prejudice to specific rights and obligations already 
established under binding legal instruments.  These principles are not 
intended to pre-empt the elaboration of other instruments or the work of 
other processes which address the role of TCEs/EoF in other policy areas.

Principle of flexibility and comprehensiveness

Protection should respect the diversity of TCEs/EoF and the wide range of 
needs of the beneficiaries of protection, should acknowledge diversity in 
national circumstances and legal systems, and should allow sufficient 
flexibility for national authorities to determine the appropriate means of 
achieving the objectives of protection.  Protection may accordingly draw on 
a comprehensive range of options, combining proprietary, non-proprietary 
and non-IP measures, and using existing IP rights, sui generis extensions 
or adaptations of IP rights, and specially-created sui generis IP measures 
and systems, including both defensive and positive measures.  Private 
property rights should complement and be carefully balanced with 
non-proprietary and non-IP measures


Principle of recognition of the specific nature, characteristics and 
traditional forms of cultural expression

Protection should respond to the traditional character of TCEs/EoF;  their 
collective or communal context and the inter-generational character of 
their development, preservation and transmission;  their relationship to a 
community's cultural and social identity and integrity, beliefs, 
spirituality and values;  their often being vehicles for religious and 
cultural expression;  and their constantly evolving character within a 
community.  Special measures for legal protection should also recognize 
that in practice TCEs/EoF are not always created within firmly bounded 
identifiable 'communities' that can be treated as legal persons or unified 
actors.  TCEs/EoF are not necessarily always the expression of distinct 
local identities; nor are they often truly unique, but rather the products 
of cross-cultural exchange and influence.

Principle of respect for customary use and transmission of TCEs/EoF

Protection should promote the use, development, exchange, transmission and 
dissemination of TCEs/EoF by the communities concerned in accordance with 
their customary laws and practices.  No contemporary use of a TCE/EoF 
within the community which has developed and maintained it should be 
regarded as distorting if the community identifies itself with that use of 
the expression and any modification entailed by that use.  Customary use, 
practices and norms should guide the legal protection of TCEs/EoF as far as 
possible, on such questions as ownership of rights, management of rights 
and communal decision-making, equitable sharing of benefits, exceptions and 
limitations to rights and remedies.


Principle of effectiveness and accessibility of protection


Measures for the acquisition, management and enforcement of rights and for 
the implementation of other forms of protection should be effective, 
appropriate and accessible, taking account of the cultural, social, 
political and economic context of indigenous peoples and traditional and 
other cultural communities.


B.  Specific substantive principles




B.1 Scope of subject matter



(a) 'Traditional cultural expressions' or 'expressions of folklore' may be 
understood as including productions consisting of characteristic elements 
of the traditional cultural heritage developed and maintained by a 
community, or by individuals reflecting the traditional artistic 
expectations of such a community.  Such productions may include, for 
example, the following forms of expressions, or combinations thereof:

(i)             verbal expressions, such as folk tales, folk poetry and 
riddles;  aspects of language such as words, signs, names, symbols and 
other indications;

(ii)           musical expressions, such as folk songs and instrumental music;

(iii)          expressions by action, such as folk dances, plays and 
artistic forms or rituals; whether or not reduced to a material form; and

(iv)         tangible expressions, such as:

                               (a)                   productions of folk 
art, in particular, drawings, designs, paintings, carvings, sculptures, 
pottery, terracotta, mosaic, woodwork, metalware, jewelry, basket weaving, 
handicrafts, needlework, textiles, carpets, costumes;

                              (b)                   musical instruments;

                               (c)                   architectural forms.



(b) The specific choice of terms to denote the protected subject matter 
should be determined at the national and regional levels.



B.2 Criteria for protection

TCEs/EoF are protectable, whatever the mode or form of their expression, 
provided they are:

                                 (i)                   the products of 
creative intellectual activity, including collective and cumulative 
creativity;  and

                               (ii)                   characteristic of a 
community's distinctive cultural identity and traditional heritage 
developed and maintained by it.



B.3 Beneficiaries

Measures for the protection of TCEs/EoF should be for the benefit of the 
indigenous peoples and traditional and other cultural communities:

                                 (i)                   in whom the custody 
and protection of the TCEs/EoF are entrusted in accordance with the 
customary law and practices of that community;  and

                               (ii)                   who maintain and use 
the TCEs/EoF as being characteristic of their traditional cultural heritage.



B.4 Management of rights

(a) To ensure the effectiveness of protection of TCEs/EoF, a responsible 
authority, which may be an existing office or agency, should be tasked with 
awareness raising, education, advice and guidance, monitoring, dispute 
resolution and other functions.

(b) Authorizations required to exploit TCEs/EoF should be obtained either 
directly from the community concerned or the authority acting on behalf of 
and in the interests of the community.  Where authorizations are granted by 
the authority:

                                 (i)                   such authorizations 
should be granted only after appropriate consultations with the relevant 
indigenous people/s or traditional or other community/ies, in accordance 
with their traditional decision-making and governance processes;

                               (ii)                   such authorizations 
should comply with the scope of protection provided for the TCEs/EoF 
concerned and should in particular provide for the equitable sharing of 
benefits from their use;

                              (iii)                   uncertainties or 
disputes as to which communities are concerned should be resolved as far as 
possible with reference to customary laws and practices;

                             (iv)                   any monetary or 
non-monetary benefits collected by the authority for the use of the 
TCEs/EoF should be provided directly by the authority to the indigenous 
people or traditional or other community concerned;

                               (v)                   enabling legislation, 
regulations or administrative measures should provide guidance on matters 
such as procedures for applications for authorization;  fees, if any, that 
the authority may charge for its services;  public notification 
procedures;  the resolution of disputes;  and the terms and conditions upon 
which authorizations may be granted by the authority.




B.5 Scope of protection



There shall be adequate measures to ensure:

                                 (i)                   the prevention 
of:  the reproduction, adaptation, public communication and other such 
forms of exploitation of;  any distortion, mutilation or other modification 
of, or other derogatory action in relation to; and the acquisition by third 
parties of IP rights over, TCEs/EoF of particular cultural or spiritual 
value or significance (such as sacred TCEs/EoF), and derivatives thereof;

                               (ii)                   the prevention of the 
unauthorized disclosure and subsequent use of and acquisition by third 
parties of IP rights over secret TCEs/EoF;

                              (iii)                   in respect of 
performances of TCEs/EoF, the protection of moral and economic rights as 
required by the WIPO Performances and Phonograms Treaty, 1996;  and

                             (iv)                   that, in the case of 
the use and exploitation of other TCEs/EoF:

-              the relevant indigenous, traditional or other cultural 
communities are identified as the source of any work derived from or 
inspired by the TCEs/EoF;

-              any distortion, mutilation or other modification of, or 
other derogatory action in relation to a TCE/EoF, which would offend 
against or be prejudicial to the reputation, customary values or cultural 
identity or integrity of the community, can be prevented and/or is subject 
to civil or criminal sanctions;

-              any false, confusing or misleading indications or 
allegations in the course of trade and contrary to honest business 
practices, as to the origin, the nature, the manufacturing process, the 
characteristics, the suitability for their purpose, the quantity, 
endorsement by or linkage with the community of goods or services that 
refer to, draw upon or evoke TCEs/EoF can be prevented and/or is subject to 
civil or criminal sanctions;  and

-              where the exploitation is for gainful intent, there should 
be equitable remuneration or benefit-sharing on terms determined by a 
competent authority and the relevant community.



B.6 Exceptions and limitations

Measures for the protection of TCEs/EoF should:

(i)             not restrict or hinder the normal use, transmission, 
exchange and development of TCEs/EoF within the traditional and customary 
context by members of the relevant community as determined by customary 
laws and practices;

(ii)           extend only to utilizations of TCEs/EoF outside the 
traditional or customary context, whether or not for commercial gain;

(iii)          be subject to the same kind of limitations as are permitted 
with respect to the protection of literary and artistic works, designs, 
trademarks and other IP, as relevant and as the case may be.  Such 
limitations should not, however, permit the use of TCEs/EoF in ways that 
would be offensive to the relevant community.


B.7 Term of protection

(a) Protection of any TCE/EoF should endure for as long as the TCE/EoF 
continues to be maintained and used by, and is characteristic of, the 
cultural identity and traditional heritage of the relevant indigenous 
people or traditional or cultural community.

(b) Measures for the protection of TCEs/EoF could specify circumstances in 
which an expression will be deemed no longer to be characteristic of a 
relevant people or community.


B.8 Formalities

(a)          The protection of TCEs/EoF should not be subject to any 
formalities.

(b)          In the interests of transparency and certainty, measures for 
the protection of TCEs/EoF may require that certain categories of TCEs/EoF 
for which protection is sought should be notified to a competent authority, 
including TCEs/EoF of particular cultural or spiritual value or 
significance such as sacred TCEs/EoF.  Such notification would have a 
declaratory function, would not in itself constitute rights, and could 
contribute towards 'positive' and/or 'defensive' forms of protection.  It 
should not involve or require the documentation, recordal or public 
disclosure of the TCEs/EoF.

B.9 Sanctions, remedies and enforcement

(a)          Accessible and appropriate enforcement and dispute resolution 
mechanisms, sanctions and remedies should be available in cases of breach 
of the protection for TCEs/EoF.

(b)          An authority should be tasked with, among other things, 
advising and assisting communities with regard to the enforcement of rights 
and with instituting civil and criminal proceedings on their behalf when 
appropriate and requested by them.


B.10 Application in time

Continuing uses of TCEs/EoF that had commenced prior to the introduction of 
new measures that protect such TCEs/EoF should be brought into conformity 
with those measures within a reasonable period of time after the measures 
enter into force, subject to equitable treatment of rights and interests 
acquired by third parties through prior use in good faith.  Long-standing 
prior use in good faith may be permitted to continue, but the user should 
be encouraged to acknowledge the source of the TCEs/EoF concerned and to 
share benefits with the original community.  Other uses should cease at the 
end of a reasonable transition period.

B.11 Relationship with intellectual property protection
Special protection for TCEs/EoF should not replace and is complementary to 
any protection applicable to TCEs/EoF and derivatives thereof under other 
intellectual property laws.

B.12 International and regional protection

(a)          Legal and administrative mechanisms should be established to 
provide effective protection in national systems for the TCEs/EoF of 
foreign rightsholders.  Measures should be established to facilitate as far 
as possible the acquisition, management and enforcement of such protection 
for the benefit of indigenous peoples and traditional and other cultural 
communities in foreign countries.

(b)          Existing or new regional organizations should be tasked with 
resolving competing claims to TCEs/EoF by communities within distinct 
countries, using customary laws, local information resources, alternative 
dispute resolution (ADR) and other such practical arrangements as necessary. 


<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>
EDUCATIONAL CYBERPLAYGROUND 
http://www.edu-cyberpg.com

Net Happenings, K12 Newsletters, Network Newsletters
http://www.edu-cyberpg.com/Community/index.html

FREE EDUCATION VENDOR DIRECTORY LISTING
http://www.edu-cyberpg.com/Directory/default.asp

HOT LIST OF SCHOOLS ONLINE
http://www.edu-cyberpg.com/Schools/default.asp

Educational CyberPlayGround Services
http://www.edu-cyberpg.com/PS/Home_Products.html
<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>

Other related posts: