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U.S. delegation for IGC 33. l to r: Aurelia J. Schultz (USCO), Kristine Schlegelmilch (State Department), Michael Shapiro (Delegation Lead, USPTO), Deborah Lashley-Johson (IP Attaché), Susan Anthony (USPTO)

Traditional Knowledge and Traditional Cultural Expressions in the International Arena

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The following is a guest post by Aurelia J. Schultz, counsel for policy and international affairs.

At its annual meeting in Geneva in October, the member states of the World Intellectual Property Organization (WIPO) discussed the future work of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore—called the IGC for short.  The IGC’s subject areas of traditional knowledge (TK) and folklore (also referred to as traditional cultural expressions (TCEs)) have some overlap with copyright. There is no agreement yet on exact definitions of TK or TCEs, but some examples that have been discussed as potential TK or TCEs include Santa Claus, tales of Anansi the spider, and how to make kombucha. Because of this connection with copyright, the Copyright Office participates on the U.S. delegation to the IGC.

group of 5 people
U.S. delegation for IGC 33. L to R: Aurelia J. Schultz (USCO), Kristine Schlegelmilch (State
Department), Michael Shapiro (Delegation Lead, USPTO), Deborah Lashley-Johson (IP
Attaché), Susan Anthony (USPTO)

The IGC is a special committee at WIPO. Unlike permanent committees, such as the Standing Committee on Copyright and Related Rights (SCCR), the IGC operates for a fixed-term and with specific guidelines for the work it is expected to accomplish. When the term expires, WIPO’s member states decide whether the IGC should continue to meet, and if so, the new term’s duration and what the IGC should accomplish during the new term. The IGC operated continuously from its inception in 2001 until 2014. However, at the end of 2014, the General Assemblies did not renew the mandate; there was a brief hiatus before the most recent 2016–2017 mandate. During this year’s General Assemblies meeting, the WIPO member states issued a new mandate for the 2018–2019 term, instructing the IGC to “continue to expedite its work, with the objective of reaching an agreement on an international legal instrument(s).”

The IGC’s work has been directed at evaluating if and what additional protections are warranted for TK and TCE, besides those already provided for in existing agreements. WIPO member states attending the IGC meetings have discussed potential gaps and draft documents outlining additional intellectual property protection for TK and TCEs.  (For an in-depth discussion by WIPO of potential gaps in current protection, see the WIPO gap analysis documents for TK and TCEs.) Currently, certain aspects of TK and TCEs are protected through various intellectual property norms and treaties, such as domestic legislation that prohibits the registration of TCEs as trademarks for goods, provisions in the Berne Convention that protect unpublished works of unknown authorship, and provisions of the WIPO Performances and Phonograms Treaty that address remuneration rights for broadcasting for performers and producers of phonograms. The new 2018–2019 mandate instructs the IGC to “build on the existing work carried out by the Committee .  .  . with a primary focus on narrowing existing gaps.”

Given that there have been 34 IGC meetings so far, it is fair to say these issues are delicate and complex. It has been exciting to work with representatives from other agencies on the U.S. delegation and to meet experts from other countries over the past four IGC meetings; I look forward to participating in the upcoming discussions on TK and TCEs. The IGC will continue with two meetings in spring 2018 on genetic resources, followed by two meetings each on TK and TCEs in winter 2018 and spring 2019.

Comments (3)

  1. The TKs and TCEs at issue began as the creative endeavor of one forgotten person or group, and evolved into their current form via the freedom of interpretation that has been afforded to them by being part of the commons, free for re-use and transformation by all.

    It is telling that the authors of the linked WIPO documents consider the public domain to be a “gap” which must be narrowed. They cannot even bring themselves to consistently refer to it without surrounding it with scare quotes or saying “the so-called public domain”. Clearly they regard the commons with disdain and would like to eliminate it completely, for copyright expiration and even the most reasonable limitations of its applicability are a thorn in the side of would-be profiteers who want to squat on and charge top dollar for every word, sound, shape, substance and color for all eternity.

    Yeah, go ahead and narrow those gaps. Hold every possible creative expression for ransom, for multiple lifetimes. Every fairy tale practically already belongs to Disney as it is. The pop band Men At Work already lost all the profits for using that folk melody in the flute riff of “Down Under”. You can already copyright an interpretation of folk art. Our private photographs of the Eiffel Tower at night are all infringing.

    And it’s still not enough, is it? It seems you all won’t be satisfied until no one can make, share, or preserve any cultural expression at all, not even that which has always been in the public domain, without paying someone the highest license fees the market will bear. Well go ahead, knock yourselves out, sue the heck out of everybody and see how much better off culture is for all your efforts.

    The point is there should be a balance, and an end goal which benefits everyone. Stop stealing from the public domain, for starters.


  3. Protecting traditional cultures is a worthwhile goal. Attempting to limit who may, and may not utilize traditional knowledge is a folly and an abuse of human rights that we should all oppose.

    Such laws are much like the concept of blasphemy, while born of good intentions, they will consistently and reliably be abused. The result is a stifling of free expression, of censoring art.

    Traditional culture rightly belongs in the public domain, part of all of our heritage without regard to race or culture of origin. It should be a creative wellspring for any artist, author, or scientist to use freely, without worry of being sued or prosecuted.

    While some uses will occasionally be objectionable to some, this is a moral question, not a legal one.

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