World Intellectual Property Organization (WIPO)

Geneva, June 8 and 9, 2017

Report by Harriet Deacon for SIMBDEA

The remarks in this report are my personal opinion, based on an interpretation of what was presented at the seminar. They do not represent the opinions of any organisation, including SIMBDEA. Further details about the seminar and all relevant presentations can be found at this address: http://www.wipo.int/meetings/en/details.jsp?meeting_id=42301

This seminar was the most recent in a series of five, organised by the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge (TK) and Folklore. The seminar focused on questions of interest to the Committee regarding the development of an international instrument for the protection of intellectual property (IP) in traditional cultural expressions (TCEs, or Folklore). A wide range of speakers addressed questions ranging from key policy issues affecting the development of an international instrument on protection of TCEs; projects and initiatives relating to protection or safeguarding of TCEs; and relevant experiences of drafting other international instruments.

This report will not cover the presentations in detail, but will instead summarise and discuss some of the issues raised in the seminar.

In his keynote address, Peter Jaszi, Professor of Law emeritus, American University Law School, argued that three ‘functional gaps’ informed the development of an international IP instrument protecting TCEs: (a) problems ensuring attribution of the source of TCEs, (b) problems controlling how TCEs are used (and disclosed) and (c) problems allocating economic benefit from using TCEs. Any instrument ‘ultimately will be judged by how successfully it addresses these functional considerations’. Are there appropriate solutions to these problems that could draw on existing copyright protection models? On the one hand, Jaszi implied that it was difficult to see why publicly-available TCEs should not be allowed to fall into the public domain like other creative works. He also argued that it may be important to consider building in some fixed exceptions and limitations into any model of protection for TCEs, for research or other public interest uses. On the other hand, he suggested that it may be possible to address the problem of attribution by offering perpetual moral rights over TCEs. He proposed for consideration ‘a model of protection based on concepts of compensation rather than exclusivity’, for example by providing some compensation to indigenous and local communities (ILCs) through mechanisms like compulsory licensing instead of conferring economic rights over TCEs on ILCs.

During the seminar, various speakers challenged the idea that there was no need or precedent to provide perpetual protection for TCEs in the public domain. Collective or certification marks, as well as geographical indications, already provide a model of perpetual protection of economic rights. Preston Hardison, Policy Analyst, Tulalip Tribes, Tulalip Washington, pointed out that it is not always appropriate to balance public interest (for example in protecting the public domain through time-limited protection) against the rights of historically disadvantaged ILCs to control use of and benefit from their TCEs. Disclosure of TCEs was often the result of misappropriation and loss of control by ILCs, and was not the result of any process of free, prior and informed consent. Where individuals from ILCs had revealed secrets without the permission of other members of the community, this could also be seen as wrongful disclosure of TCEs. This continues to be a point of disagreement at the IGC.

Several speakers in the seminar gave examples of measures that could enable ILCs to achieve effective solutions to the problems of control, attribution and compensation in the absence of a more comprehensive IP rights regime for TCEs. Terri Janke, Solicitor Director, Terri Janke & Company, explained that under an Australian National Indigenous Cultural Authority at the national level, commercial use of TCEs could be negotiated with ILCs using some basic guidelines such as the ‘True Tracks ten principles’. Such an approach could give more control than a compulsory licensing approach focused simply on compensation. It can be applied to TCEs (such as the boomerang) that are already in the public domain, and considered well known or generic by potential commercial users. TCEs such as these might require a kind of re-localisation, linking particular methods of making and using boomerang styles, for example, to specific ILCs. The proposed Australian National Indigenous Cultural Authority could guide the development of a global clearing house, that could be linked to an ethical brand.

A similar approach – based on best practice guidelines – has been pursued by the International Trade Mark Association (INTA) to help members achieve legal certainty by seeking permissions and licensing arrangements with ILCs. Another model – TK labels for archival materials, as discussed by Jane Anderson, Assistant Professor of Anthropology and Museum Studies, New York University – provides ILCs with ways to signal how they would prefer researchers and others to access, attribute, interpret and use cultural materials contained in archives, even where the ILCs do not themselves have any IP rights over that material. This underlined the point that a diversity of strategies may be needed to address complex problems relating to historical injustice and power imbalances.

A number of speakers explained some of the challenges faced and solutions found while negotiating international instruments such as the UNESCO cultural conventions of 2003 and 2005, the Nagoya Protocol, the UNDRIP and the Marrakesh Treaty. These papers underlined the need to

• Define the problem;

• Identify the solution, its beneficiaries and limits (there has been discussion about the term ILC, and the status of nations as beneficiaries);

• Identify benefits for all key stakeholders (ILCs, commercial users of TCEs, governments);

• Justify why an international solution is needed, choose the right institution for the negotiation;

• Navigate between existing treaties - encourage mutual supportiveness between protection for TCEs and other existing IP instruments;

• Learn from experiments and implementation trials;

• Negotiate on principles not positions;

• Remain silent on issues that could be barriers – vagueness can be useful;

• Use proven language;

• Use agreed statements to express convergence

The insights from the seminar were taken into the 34^th session of the Intergovernmental Committee which commenced the following week. At this meeting, the Committee ‘recommended that the WIPO General Assembly decide that the Committee should continue its work during the 2018-2019 biennium and that the Assembly decide on a mandate and a work program.’ The IGC could not, however, agree on a specific mandate to propose to the General Assembly. The delegates did agree that there was a need for more indigenous participation and that more work should be done on the following documents:

• Consolidated Document Relating to Intellectual Property and Genetic Resources (document WIPO/GRTKF/IC/34/4);

• The Protection of Traditional Knowledge: Draft Articles (document WIPO/GRTKF/IC/34/5);

• The Protection of Traditional Cultural Expressions: Draft Articles (document WIPO/GRTKF/IC/34/8).

The documents for the 34^th IGC are available here: http://www.wipo.int/meetings/en/details.jsp?meeting_id=42302

A report of the 34^th IGC is available here: https://www.abs-canada.org/news/wipo-special-committee-on-genetic-resources-traditional-knowledge-and-traditional-cultural-expression-shies-away-from-consolidating-its-mandate-but-agrees-on-lack-of-indigenous-participation/