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Documentation and
Digitization of Intangible
Cultural Heritage: the
Experience of WIPO
International Conference on Intellectual Property and Cultural Heritage in the Digital World
Madrid, Spain
October 29-30, 2009
Brigitte Vézina
Traditional Knowledge Division
WIPO
Structure of Presentation
� Terminology: How will Terms be Used?
� Traditional Cultural Expressions (TCEs) and IP: What are Some of the Issues?
� Normative Work at WIPO: the WIPO Intergovernmental Committee (IGC)
� TCEs and Digitization and Documentation of ICH: Issues, Options and Practical Tools
TK, TCEs and ICH
ICH TCEs
TK TK
A working description of
TCEs
. . . any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, which are:
� the products of creative intellectual activity, including individual and communal creativity;
� characteristic of a community’s cultural and social identity and cultural heritage; and
� maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community
� Include: art, music, designs, symbols, performances, rituals, narratives (Art. 1, WIPO Draft Provisions on the Protection of Traditional Cultural Expressions, 2006)
� TCEs:
� embody communal identities and linked to the continued vitality of indigenous cultures
� reflect a community’s history, traditions, values and beliefs
� integral to cultural diversity
� TCEs should therefore be preserved and safeguarded: but should they be “protected” as a form of “intellectual property”?
TCES and intellectual
property
� Some forms of TCEs already protected: � Derivatives/contemporary adaptations
� Performances of TCEs
� Recordings of TCEs
� Compilations and databases of TCEs
� But, TCEs “as such” are in the “public domain” – should they be “protected” and, if so, what does “protection” mean? What options are there?
� See WIPO, Gap Analysis, WIPO/GRTKF/IC/13/4(b), available at www.wipo.int/tk/en/igc/gap-analyses.html
What could “protection” of
TCEs mean?
� an exclusive property right → to prevent or authorize use of TCEs, incl. for exploitation to support economic development
� prevention of inappropriate, unwanted use and commercialization by others
� remuneration for third party uses
� acknowledgement of source
� defensive protection (protection against IP rights)
Normative developments: WIPO
Intergovernmental Committee (IGC)
� first session in April 2001
� members and participants:
• member states
• intl. organizations
• NGOs (over 200)
• eg., ICOM
• indigenous and local communities: speedy
accreditation and WIPO Voluntary Fund
New IGC Mandate for 2010-2011
� International legal instrument for
effective protection of TK and TCEs
� Text-based negotiations
� Including on WIPO/GRTKF/IC/9/4
� Clearly defined work program for the
2010/2011 biennium
� 2011 GA: text submitted
� Diplomatic Conference IGC 15
December 7-11,
2009
Draft
provisions for
protection of
TCEs
Sui generis
provisions –
collective
rights, no
formalities,
indefinite
protection. . .
WIPO Draft Provisions on
TCEs
� Art 1: Subject matter
� Art 2: Beneficiaries
� Art 3: Scope of rights � Art 4: Management of rights
� Art 5: Exceptions and limitations
� Art 6: Term of protection
� Art 7: Formalities
� Art 8: Sanctions and remedies � Art 9: Transitional measures
� Art 10: Relationship with IP protection
� Art 11: International protection � See WIPO/GRTKF/IC/9/4 available at
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=55137
1. Cultural expressions of particular
cultural/spiritual value – exclusive
right if TCE registered
2. Other cultural expressions – no
formalities - moral rights and reasonable
royalty
Draft Article 3
3. Secret TCEs
Documentation and Digitization:
TCE and IP Issues
� Documentation and digitization of TCEs valuable for their safeguarding
� Museums and archives as repositories of indigenous and other cultural materials – fulfill vital preservation, educational, scholarly and public access functions
� However, indigenous communities question control over, access to, ownership of, control over and authorship of indigenous materials held by museums and archives
“The crux of the problem is that information about us is not owned by us”
� a problem is that IP rights in documentation and recordings of TCEs vest in those who made the documentation/recordings – communities see themselves as legally disenfranchised
� complex ethical, cultural and legal questions
� Museums and archives are pivotal spaces within which issues of access, control, authorship, ownership and re-use of indigenous cultural materials can be discussed
� emerging forms of collaboration between libraries and communities
� role of guidelines and protocols – building relationships
� Recognizing sensitivities surrounding documentation/digitization of TCEs and IP management, WIPO has developed practical tools, complementing normative work of the IGC: � WIPO Creative Heritage Training Program for Indigenous
Communities on Cultural Documentation, Archiving and IP Management
� WIPO Surveys and Database of Practices, Protocols and Policies
� WIPO Guide on “Intellectual Property and Safeguarding Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives” (draft)
WIPO Creative Heritage Training
Program on Cultural Documentation
� WIPO, American Folklife Center/LOC and
Duke University
� Hands-on technical training
� IP training
� Camera, sound recording equipment, laptop
and software
� Pilot program successfully completed, for
Maasai community, with National Museums of
Kenya, Kenya
WIPO Guide on IP and
Safeguarding Traditional
Cultures (draft)
complex and sensitive issues
� Who “owns” collections of indigenous materials?
� Which legal and ethical rules apply?
� How can museums/archives and communities develop mutually-beneficial relationships?
� What role does IP management play?
� What “good practices” are there?
Table of contents (to come)
Thank you!
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