WIPO Folklore Discussions Get New Energy After Years of Stalemate

28 July 2010

Discussions at an expert meeting last week at the World Intellectual Property Organization (WIPO) saw an influx of new energy toward establishing an international instrument to protect expressions of folklore and traditional cultural expressions (TCEs).

After years of discussions that never went beyond boilerplate statements and exchanges of views, this time deliberations focused on the wording of a possible text. Experts from around the world submitted specific proposals on how the agreement might be drafted.

While participants described the meeting's atmosphere as positive and constructive, the deliberations revealed a wide gap in positions - particularly between developed and developing countries - on the nature and substantive provisions of the instrument in question.

The IWG format proves effective

The expert meeting, which took place at WIPO headquarters in Geneva from 19 to 23 July, was the first of three such Inter-sessional Working Groups (IWGs) that have been scheduled by the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC). The IWG meetings are meant to "provide legal and technical advice and analysis" to the IGC's work. This meeting, the first IWG, was chaired by Thailand and focused on traditional cultural expressions (TCEs). The talks on TCEs are widely considered to be the most mature of the three negotiating areas on the IGC's agenda.

In 2009, the WIPO General Assembly provided a new mandate to the eight-year-old IGC to move to "text-based negotiations" with the aim of "reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions." The mandate also called for the IGC to develop a "clearly defined work programme" for 2010 and 2011.

At its previous sessions, the IGC delegates grappled with how to accelerate their work and make progress in fulfilling their mandate. In May, they agreed to set up the series of expert meetings. The IWG process was not given a mandate to adopt texts or proposals, but its work will be submitted to the IGC for advice and technical support.

The agreed format for the IWG - one national expert per country operating in his or her personal capacity, interacting with indigenous experts and NGOs representatives to address the three issues one at a time - saw focused, technical discussions that were much more productive than the more general IGC meetings have been in the past.

Wide gap in positions on substantive obligations

Discussions at the experts' meeting were based on a document of 11 draft articles entitled "Revised Provisions for the Protection of Traditional Cultural Expressions/Expressions of Folklore (WIPO/GRTKF/IC/17/4 Prov.). The document identifies drafting proposals and comments made by participants at the May session of IGC as well as other amendments that were subsequently submitted to the Secretariat by member states and observers.

The debate revealed that significant differences remain over many articles of the future instrument such as those relating to the subject matter of protection (article 1), beneficiaries (article 2), acts of misappropriation (article 3), management of rights (article 4), exceptions and limitations (article 5), term of protection (article 6), sanctions and remedies (article 7), transitional measures (article 9) and the relationship with intellectual property protection (article 10).

For instance, in the discussion on beneficiaries (article 2), indigenous experts were strongly in favour of stipulating "indigenous peoples" as the beneficiaries of the new protection regime, arguing that the new instrument must be consistent with the UN Declaration on the Rights of Indigenous Peoples. Other experts expressed a preference for terms such as "nations" and "local and traditional communities." The latter term is used in the Draft Protocol on the Protection of Traditional Knowledge and Expressions of Folklore that was adopted within the framework of the African Regional Intellectual Property Organization (ARIPO). A compromise solution proposed by the African Group would be to simply mention that the owners of the rights would be the "holders" of the TCEs.

Experts from developed countries posed questions about references to the "customary law" of indigenous and local communities in the new protection scheme. They asked how such rules would relate to national legislation and noted the difficulties of identifying customary laws in practice.

On term of protection (article 6), developing country experts and indigenous experts argued in favour of an indefinite protection for TCEs, while developed countries tended to prefer that protection be limited in time, at least in relation to the exercise of economic rights over the TCE in question.

In relation to management of rights (article 4), discussions centred on when and how a designated competent authority (national, regional or local) could act on behalf of the beneficiaries of protection. Many African nations favoured a regime with strong involvement of national authorities.

On sanctions and remedies (article 7), divergences evolved around whether criminal sanctions should be included in the instrument. Some countries noted that their national laws already provided for such criminal sanctions in cases of misappropriation. Others, however, particularly from the North, either argued against the inclusion of criminal sanctions or said that they should be severely limited in scope.

In relation to transitional measures (article 9), disagreements focused on the status of rights acquired before the entry into force of the new protection scheme and if and how they should be brought into conformity with it.

Finally, on the relationship with intellectual property protection (article 10), many developed countries, emphasised that the new protection regime for TCEs should in no way affect the international legal protection provided by other intellectual property rights, copyrights in particular.

One issue that arose several times during the discussion concerned how the protection of TCEs might impact the public domain. Developed countries expressed concern that an extensive protection would limit the amount of material available in the public domain.

After discussions in the plenary, six informal open-ended drafting groups were created to consolidate the various views expressed in the meeting and to propose streamlined text, including options on each cluster of issues. As a result, a new draft of the 11 articles was presented on the last day of the meeting. The draft, which reflects a number of options, will be put forward as the "advice" the IWG was requested to provide to the IGC.

However, a number of African countries noted that the drafting groups had not limited their work to removing duplications, but had taken the freedom to prioritise, remove and add proposals to the text. As such, the group said, the drafting groups had negotiated on behalf of the plenary.

At the end of the meeting an agreement was reached on how to address these concerns. As a result, the work of the IWG will be presented at the 17th IGC in three parts: the work of the informal working groups on the text of 11 articles; the summary record of questions, concerns and comments to that text made on the last day of the meeting; and additional options proposed by experts at the last day of the meeting giving room for other options to be included including the ones suggested by African countries. The three parts should be viewed as a single document, IWG decided.

A separate document, the record of the deliberations over the entire week, will also be presented to the next IGC meeting in December 2010.

The IWG also recognised the need to include a glossary with definitions of key terms in the text and recommended formally that at its next session the IGC request the Secretariat to prepare such a glossary for consideration by the IGC. It was specified that the glossary should draw, as far as possible, from existing United Nations and other international instruments.

The meeting's discussions reflected the complexity involved in establishing a sui generis regime for the protection of TCEs given the diversity of viewpoints on issues that are intertwined with the cultural fabric of many countries and communities around the world.

However, the talks generated cautious optimism among the participants about the possibility of achieving more progress at the next meetings of the IGC. It remains to be seen, however, whether this new set of articles will allow the parties to resolve their outstanding differences.

ICTSD reporting.

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