Folklife at the International Level: Traditional Cultural Expressions as Intellectual Property

In the first of the “Folklife at the International Level” series, I ended with a glimpse into the complex issues that arise when intellectual property (IP) protection is sought for “traditional cultural expressions,” or “TCEs,” the terminology used by the World Intellectual Property Organization (WIPO). On its website, WIPO describes such expressions as including “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.” Moreover, they may be “considered as the forms in which traditional culture is expressed; form part of the identity and heritage of a traditional or indigenous community;” and are “passed down from generation to generation.”

Categorically, WIPO places TCEs within the broader concept of Traditional Knowledge, or “TK,” which is used in both general and narrower senses and is explained on its website as:

TK in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK. TK in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations. Traditional Knowledge can be found in a wide variety of contexts, including: agricultural, scientific, technical, ecological, and medicinal knowledge as well as biodiversity-related knowledge.

To learn more about WIPO efforts, especially with respect to initiatives focused on TCEs and associated issues, I have been relying on its many publications, particularly reports from certain Intergovernmental Committee meetings since the early 2000s, as well as informal interviews with past and present American Folklife Center leadership. While a more in-depth look at AFC engagement with WIPO efforts is forthcoming, I thought it would be beneficial to take a step back to the story of WIPO’s development of TCEs-related initiatives and the issues that lie at the heart of recognizing and protecting traditional cultural expressions as IP.

Luckily, I was recently able to interview a leading authority on WIPO and TCEs efforts, Mr. Wend Wendland, Director of WIPO’s Traditional Knowledge Division. Originally from Cape Town, Wend is a lawyer who specializes in intellectual property. Before joining WIPO in 1997, he worked as a media, entertainment law and IP attorney. In 1998, he was a founding member of a new WIPO “global issues” initiative on inter alia genetic resources, traditional knowledge, and folklore. In 2001, he served as the Secretary of the first Intergovernmental Committee on these three subject areas, later becoming the Director of the Traditional Knowledge Division that oversees genetic resources, traditional knowledge, and folklore efforts.

MS: Briefly, what is the history of WIPO’s recognition of and engagement with protecting TCEs?

WW: Newly-independent African countries raised the legal protection of “folklore” before a committee tasked with updating the Berne Convention (the main international copyright convention, dating from 1886), which met in Stockholm in 1967. This resulted in a new article in the Berne Convention (article 15.4), which protects unpublished works of unknown authors. This was how concerns about the absence of legal protection for expressions folklore were addressed at that time. The article is, however, regarded as inadequate and it has not really been used.

In the early 1980s, UNESCO [United Nations Educational, Scientific, and Cultural Organization] and WIPO collaborated in developing model provisions for national laws. An attempt to transform those provisions into an international treaty failed. In 1998, WIPO established a new program to address a range of emerging global intellectual property issues, including the protection of traditional knowledge, folklore, and genetic resources. The reasons behind the launch of this program are several, including developing countries becoming more assertive as to their own intellectual property interests (in the wake in particular of the World Trade Organization’s TRIPS Agreement of 1994), increasing awareness that intellectual property rules impact upon other policy areas, such as biodiversity, following the signing of the Convention on Biological Diversity in 1992), and the surge of indigenous peoples’ issues into international fora and, especially, the work that had started on a UN declaration on indigenous peoples’ rights, eventually completed in 2007. Work done under this program initially included fact-finding missions, roundtables, and regional consultations.

In 2000, WIPO’s member states established an intergovernmental committee [Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)] to discuss these issues multilaterally, with a view to possible international norms. A normative agenda of the committee was explicitly reflected in its mandate as from 2010, which then launched “text-based negotiations” with the objective of reaching agreement on the text of an international legal instrument or instruments. By this time, the WIPO Secretariat and the committee had begun to use the term “traditional cultural expressions” (TCEs) rather than “expressions of folklore.” The negotiations are still ongoing [for ongoing activities, see the recent TCE Seminar here]. Many member states and observers, including representatives of indigenous peoples and local communities, participate in the sessions of the committee.

MS: What progress has been made with respect to protecting TCEs via IP rights?

WW: Progress is being made in the WIPO committee. There is a draft text of an international legal instrument on TCEs, which comprises articles on all the key legal issues that an instrument would need to address. However, progress in narrowing gaps between delegations is slow. Gaps remain on core issues such as the definition of TCEs, beneficiaries of protection, the scope of rights, and exceptions and limitations to those rights. The policy objectives of protection and the relationship between TCEs protection and the public domain are also still under discussion. The normative work of the committee aside, there are, of course, ways in which existing IP systems can protect TCEs; for example, the strategic management of copyright and related rights was showcased in a groundbreaking partnership between a Maasai community in Kenya, the American Folklife Center, WIPO, the Center for Documentary Studies at Duke University, and the National Museums of Kenya. Certification trademarks and laws against passing off/unfair competition can effectively protect against misrepresentations around tradition-based products. Performances of expressions of folklore are protected internationally under two WIPO treaties: the 1996 WIPO Performances and Phonograms Treaty and the Beijing Treaty of 2012. Ways in which existing systems can be used more effectively are described in our brand new publication, Protect and Promote Your Culture: A Practical Guide to Intellectual Property for Indigenous Peoples and Local Communities.

MS: Why is it important to seek IP protection for TCEs?

WW: TCEs – such as indigenous designs, performances, art and music – embody rich creativity and are vulnerable to being misappropriated by third parties. Intellectual property principles are there precisely to protect against third parties free-riding on someone else’s creativity. Therefore, it makes sense for the intellectual property system to respond in some way to concerns that indigenous peoples, local communities, and developing countries have that their TCEs should be protected in the same way as “non-traditional” cultural expressions are. This does not mean, however, that TCEs are being shoe-horned into the conventional intellectual property system. The conventional intellectual property system evolved within Western Europe in the late 19^th century and was not designed explicitly with indigenous creations in mind. What the member countries of WIPO are trying, therefore, is to craft a special set of rules that would provide intellectual property-like protection that is adapted for TCEs. This would be protection against copying, adaptation, and other forms of intellectual property-like misappropriations. This is referred to as “legal protection,” as opposed to “preservation” and “safeguarding,” which are addressed in UNESCO conventions and are sometimes referred to as “material protection.”

MS: What are the core issues that are distinctive to protecting TCEs via IP rights?

WW: TCEs are generally passed down inter-generationally, regarded as collectively held and are often created not necessarily for dissemination and trade, but for ceremonial and spiritual purposes. There is an intimate connection between the social and cultural identities of indigenous peoples and local communities and their cultural expressions. Furthermore, communities expect their cultural expressions to be controlled by them forever. Yet, intellectual property systems generally require that protected subject matter is novel or original and that the creators are known by name. In addition, rights are limited by exceptions and they expire after a certain period. Within the rationale of the intellectual property system, works that are no longer protected nourish the “public domain,” which stimulates and fosters creativity. There are exceptions to these aspects of intellectual property systems (trademarks can last indefinitely, for example), but this informal summary gives a sense of why the conventional intellectual property system is not a perfect fit for protecting indigenous creations from the viewpoint of indigenous peoples.

MS: What sorts of challenges arise with respect to IP protection for TCEs?

WW: There are legal, policy and practical challenges. Legally, it may not always be clear what a “traditional” cultural expression is, and who their custodians/owners are. Furthermore, what set of rights should apply to TCEs, and if and/or how should they be limited? A key challenge is drawing the fine line between legitimate cultural borrowing and undesirable cultural appropriation. When does “appreciation” become “appropriation”? Practically, one of the challenges is to work out how and by whom new rights in TCEs would be managed and enforced, and to whom should any benefits arising from these rights accrue. Overall, the policy conundrum is to find a way to strike a balance between promoting creativity, fostering artistic freedom and freedom of expression, and respecting the rights and interest of indigenous peoples and local communities.

Any views expressed are not necessarily those of the WIPO Secretariat or any of WIPO’s Member States.