WIPO Member States Advance Talks on Traditional Cultural Expressions

9 March 2017

The UN’s intellectual property agency continued deliberations last week on a draft text to safeguard traditional cultural expressions (TCEs) from misuse or misappropriation, following a three-year pause on the subject.

The discussions were held under the 33rd session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO) from 27 February to 3 March.

The IGC session also constituted the first meeting on TCEs in the 2016/2017 biennium of the committee’s work programme, which is working towards arriving at an international legal instrument(s) to protect traditional knowledge, folklore, and genetic resources.

The text-based negotiations on these issues have been ongoing since 2010, though lapsed for just over a year in 2014 when delegates were unable to approve a work plan and mandate for the subsequent two-year period. This was resolved at the 2015 WIPO General Assembly with a deal on both issues for the 2016/2017 “biennium.” (See Bridges Weekly, 8 October 2015)

The IGC itself was established nearly two decades ago, in 2000, in response to concerns by biodiversity-rich countries and indigenous peoples that these resources were being misused and even exploited. It also aims to ensure that the benefits from their use are shared appropriately.

The subject of this week’s session – TCEs – are artistic expressions that are passed down across generations and make up part of the cultural and social identity of a traditional community. In the draft articles, TCEs are categorised into TCEs in action, including dances, ceremonies, rituals, and sports; material TCEs encompassing handicrafts, architecture, and other artistic expressions, as well as music and sound; and verbal and written TCEs, including poetry, fables, and other narratives.

Revised draft text

Over the course of the week, discussions unfolded through a string of plenary meetings and “informals,” convening experts – including two indigenous experts nominated by participating indigenous peoples – and up to six delegates per region nominated by WIPO member states.

Based on these discussions, facilitators Margo Bagley representing Mozambique and Marcela Paiva Véliz representing Chile presented a first revision (Rev. 1) of the draft articles on 1 March and a second revision (Rev. 2) on 3 March at the close of the week-long discussion. The session was chaired by Ian Goss of Australia.

The US tabled a discussion paper ahead of the session, enumerating examples of TCEs as a point of departure in order to “facilitate an informed discussion in the context of reaching a common understanding regarding the treatment of TCEs.”

Examples included sports such as baseball and lacrosse; dances such as tango and waltz; musical instruments such as bagpipes and the banjo; handicrafts ranging from the dreamcatcher to the cowboy boot; food including pizza, popcorn, barbecue, and sushi; as well as fairy tales and legends. A paper listing examples of traditional knowledge was similarly prepared by the US ahead of the 32nd session of the IGC. (See Bridges Weekly, 8 December 2016)

In addition, the EU submitted a proposal for a study for the WIPO Secretariat to examine the national experiences of WIPO member states and the domestic intellectual property measures in place aimed at protecting TCEs, building on previous studies carried out by the Secretariat.

Revisions to the articles

Under Article I on policy objectives that the instrument aims to achieve, the revised text now has three alternatives as opposed to the earlier four in the IGC 27 draft articles transmitted to the 33rd session.

The alternatives differ in various areas, including in their use of “misappropriation,” employed in the first alternative, but substituted by “misuse/unlawful appropriation” in the second. Among other differences, there are also variations in how these alternatives are framed, with Alternative 1 saying the instrument “should aim to provide beneficiaries with the means” to prevent misappropriation and “misuse/offensive and derogatory use,” while Alternative 2 says that the instrument “should aim to prevent” such misuse.

Alternative 3, which is shorter than the above-mentioned options, refers instead to supporting the “appropriate use and protection” of TCEs under both domestic laws and the intellectual property framework.

Alternatives 1 and 2 indicate that the instrument should seek to be supportive of “creation and innovation,” which is not referred to in the briefer third alternative.

The EU and US reportedly expressed a preference for Alternative 2, each noting that Alternative 3 is open for consideration, according to IP-Watch. The African Group articulated support for Alternative 1. China also expressed its support for Alternative 1, though was reportedly hesitant surrounding option (d) on encouraging and protecting creation and innovation.

With regard to Article 2, dealing with the use of terms and definitions, a number of member states, including Indonesia on behalf of the Group of Like-Minded Countries (LMCs), did not support defining public domain, stating that it was beyond the instrument’s scope. The African Group, Egypt, Brazil, Algeria, and Nigeria were also not in favour of including a definition for public domain. Some developing countries cited no precedent in international intellectual property instruments.

Rev. 2 also included an alternative, shorter definition of traditional cultural expressions proposed by the LMCs.

Two additional alternatives were added to Article 3 covering the subject matter of the instrument from the 2014 version, the first of which was also proposed by the LMCs. Alternative 1 was reportedly supported by Indonesia, Egypt, and Senegal among others, while the EU and the United States indicated a preference for Alternative 2, which includes a five-point criteria for TCEs protected by the instrument.

Article 4 dealing with the beneficiaries of protection, formerly Article 2, has three distinct alternatives, which differ over the treatment of “other beneficiaries” that do not fall into the categories of indigenous peoples and local communities. The brackets around the word “peoples” have reportedly been supported by the EU, while Senegal on behalf of the African Group and Colombia on behalf of the Latin American and Caribbean Group (GRULAC), for example, have been proponents for their removal.

Article 5 on the scope of protection of the instrument now has four alternatives. Alternative 2 proposes granting “exclusive rights” to beneficiaries in authorising the use of TCEs to third parties, while still maintaining ownership and rights to objection to modification of the TCEs deemed to disrupt their “integrity.”

The alternative was proposed by the LMCs, and supported by Senegal on behalf of the African Group, as well as Colombia, Indonesia, Paraguay, Peru, Thailand, and the Indigenous Caucus.

Alternative 4 maintains the “tiered approach” for protection that was first proposed in IGC 27, based on differentiated levels of protection according to the nature of the TCE and the extent to which it is publicly available. The US reportedly expressed an interest in further discussing the tiered approach.

A draft report of the session will be circulated by April 2017 and will be transmitted along with the new text to the IGC’s next session this June for consideration. For those issues still outstanding, an indicative list of pending issues to be tackled at the next session will also be transmitted. Still to be defined and agreed upon are issues related to policy objectives, subject matter, scope of protection, beneficiaries, the use and meanings of certain terms, the administration of rights/interests, and exceptions and limitations.

Voluntary Fund

The week opened with the announcement of a donation on behalf of the Australian government of A$50,000 (US$37,958) to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities, established in 2005 to host the participation and support the inclusion of perspectives of indigenous peoples in WIPO negotiations.

Australia has contributed 20 percent of total donations since the inception of the IGC, according to a news item jointly issued by WIPO and Australia’s Ministry for Industry, Innovation and Science.

“It’s very important because, of course, these are the people whose expressions and whose knowledge we are supposed to be protecting,” said Francis Gurry, WIPO Director General. “I hope other member states will quickly follow suit with their own donations.”

“The Committee welcomed the contribution by the Government of Australia to the WIPO Voluntary Fund for Accredited Indigenous and Local Communities, and strongly encouraged and called upon other members of the Committee and all interested public or private entities to contribute,” noted the document outlining the decisions adopted by the IGC in its 33rd session.

ICTSD reporting; “WIPO Committee On Protection Of Folklore: Shall We Dance?” INTELLECTUAL PROPERTY WATCH, 24 February 2017; “Indigenous Peoples At WIPO Call For Respect Of Their Sovereign Rights, Prevention of Cultural Genocide,” INTELLECTUAL PROPERTY WATCH, 2 March 2017; “Australia’s Indigenous Culture Event at WIPO Showcases Human Rights Candidacy,” INTELLECTUAL PROPERTY WATCH, 3 March 2017; “WIPO Committee On Protection Of Folklore: New Inspiration From Developing Countries,” INTELLECTUAL PROPERTY WATCH, 3 March 2017.

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