WIPO Secretariat document: Preliminary systematic analysis of national experiences with the legal protection of expressions of folklore

November 15, 2002

Geneva, 14 Nov 2002

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The Structure and Focus of this Document

11. In line with the request of the Committee at its third session, this document discusses and analyses in a systematic and technical manner the use of existing IPRs for the legal protection of traditional cultural expressions, and the ways in which sui generis systems adopted by certain States and regional organizations have sought to complement or substitute for IPRs. Information on the role of customary law and forms of interaction with legal systems in other countries is also included, where possible. In doing so:

(i) concrete examples of traditional cultural expressions for which legal protection is desired or has been claimed are used; and,

(ii) the usefulness of existing rights and of adopted sui generis systems is evaluated as against the stated objectives and concerns of Indigenous peoples and traditional communities.

12. The remainder of this document is structured as follows:

Part II - Practical Examples of Traditional Cultural Expressions for which Legal Protection is Desired;

Part III - Objectives of Indigenous Peoples and Traditional Communities;

Part IV – Systematic Analysis of Use of Existing Intellectual Property Rights and Sui Generis Approaches:

(i) literary and artistic productions - copyright;
(ii) performances of traditional cultural expressions – performers' rights;
(iii) collection, recordal and dissemination of traditional cultural expressions – copyright and related rights;
(iv) distinctive signs – trademarks and geographical indications;
(v) designs - industrials designs;
(vi) unfair competition (including passing off);

Part V – Acquisition, Management and Enforcement of Rights;

Part VI – Conclusions.

13. As this document is based as far as possible on national experiences and empirical information, the present version focuses most closely on copyright and related rights as most reported practical experience in protecting traditional cultural expressions has been in this area. Even so, it is well established that other branches of the IP system are also relevant to cultural expressions, although there may be less empirical information on them at this stage. Traditional distinctive signs and designs are therefore covered in brief, and unfair competition is also briefly discussed.

14. Patents of invention are also relevant to the protection of traditional cultural expressions – for example, a patent obtained in respect of a process for formation of the Caribbean steelpan musical instrument has raised objections from persons in the Caribbean.8 However, patent law is not discussed in this document, although it could be in future versions. Similarly, other relevant areas could be unjust enrichment, but as there is no empirical information at this stage, it is not taken further in this version.

15. The potential overlaps between these various IP branches are also noted. For example, traditional designs may be protected by copyright and/or industrial design law. An artistic work may be protected by copyright and may also be recognised and used as a trademark under certain conditions.

Comments Invited

16. This document does not purport to provide a definitive analysis. It is rather a further stage in the discussion. It is therefore a preliminary document, intended to invite comments and further input. A further version will be prepared for consideration by the Committee at its fifth session in 2003. Comments on this document may be sent to the WIPO Secretariat c/o the Traditional Knowledge Division, preferably by e-mail to grtkf@wipo.int, or otherwise at WIPO, 34, chemin des Colombettes, 1211, Geneva 20 (Switzerland), Fax +41 22 338 8120. Comments received before March 31, 2003 will be taken into account for purposes of the further version of this document.

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World Intellectual Property Organisation

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