0.8 Traditional knowledge  (Page 15/24)

Wipo draft provisions on traditional cultural expressions/folklore and traditional knowledge (2006)

In 1998, the World Intellectual Property Organization (WIPO) embarked on a fact-finding mission to 28 countries to identify intellectual property-related regulations of traditional knowledge. Following a review of those materials, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) was formed in 2001. Since 2004, it has been  working  on draft provisions for the enhanced protection of traditional cultural expressions against misappropriation and misuse. Although the provisions are still in draft form, they are meant to serve as points of reference for ongoing policy discussions at the national, regional, and international levels.

The Draft Provisions have the following objectives: to recognize value; to promote respect; to meet the actual needs of communities; to prevent the misappropriation of traditional cultural expressions/expressions of folklore; to empower communities; to support customary practices and community cooperation; to contribute to safeguarding traditional cultures; to encourage community innovation and creativity; to promote intellectual and artistic freedom, research and cultural exchange on equitable terms; to contribute to cultural diversity; to promote community development and legitimate trading activities; to preclude unauthorized IP rights and to enhance certainty, transparency and mutual confidence. The General Guiding Principles and Substantive Principles are available  here .

Convention on the protection and promotion of the diversity of cultural expressions (2005)

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions builds off the earlier  Universal Declaration on Cultural Diversity  of (2001).  Canada, France, Germany, Greece, Mexico, Monaco, Morocco,  and  Senegal  and Francophone member states of UNESCO strongly supported the Convention. The  United States  opposed it. 104 countries have acceded to or ratified the Convention.

The Convention recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion." It seeks to “to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory” (Article 1(h)). The Convention also seeks to mitigate the dilution of culture that follows from the movement of cultural goods and services across national borders.

The Convention mentions intellectual property rights once, by recognizing "the importance of intellectual property rights in sustaining those involved in cultural creativity." The Convention is ambiguous, however, on how much protection to grant to TCEs. Article 6 lists the types of measures member states may adopt to protect and promote cultural diversity. Subsection 2(g) allows “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions” but subsection 2(e) allows for measure that “promote the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services.” Strong support for indigenous groups as creators of TCEs is not required by Article 7, as members states need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.” Professor Laurence R. Helfer has noted  that the Convention disregards the protection for TCEs that could be derived from the use of intellectual property law.