Folklife at the International Level: Recent Developments in Protecting Traditional Cultural Expressions

Yet another World Intellectual Property Day has arrived, and what better way to celebrate than to catch up with related developments on the folklife front? So far, this series has explored the international efforts of the World Intellectual Property Organization (WIPO) in protecting traditional cultural expressions (TCEs) as intellectual property (IP) via IP protections. As discussed, reaching a common, global understanding of how such protection can be achieved, and finding agreement on its purposes and parameters, is complex, raising for well over a decade conceptual and definitional questions, and bringing to light challenging legal issues relating to, among others: cultural ownership and misappropriation, the public domain, fostering creativity and innovation, and respecting intellectual and artistic freedom, which all reflect the mutable nature of TCEs.

Despite the challenges of what has been characterized as a slow-moving process (albeit understandably so), the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has made strides in recent years. Prior to 2009, the IGC was understood as more of a “forum for discussion,” exploring issues related to IP protection of genetic resources, traditional knowledge (TK), and TCEs. Since then, according to WIPO, it has ”evolved into a true negotiating body, framed by clear schedules and sound working methods.”

In particular, negotiations among Member States within the IGC have brought the prospect of agreement on actual text of a potential international legal instrument, or instruments, considerably closer. According to WIPO: “An international legal instrument would define what is meant by traditional knowledge [TK] and [TCEs], who the rights holders would be, how competing claims by communities would be resolved, and what rights and exceptions ought to apply.” Here, an international instrument(s) could serve to provide sui generis protection for TK and TCEs, addressing the issue that while there may exist laws in certain countries for protecting TCEs (the “prime mechanism” at present for achieving such protection), other countries may be lacking similar, national-level legislation.

At the center of these efforts is this potential text: a document currently entitled, The Protection of Traditional Cultural Expressions: Draft Articles Rev. 2 (WIPO/GRTKF/IC/34/8). The TCEs Draft Articles document consists of fifteen draft articles, preceded by a draft, Preamble-like introduction. (There are similar documents focused on Traditional Knowledge and Genetic Resources.) Without describing the full text of the TCE document in detail here, it is interesting to note some of its main features. In my simplified interpretation, essential components of the document address the importance of protecting TCEs (draft “Preamble”), the aims of the potential instrument(s) (draft Article 1), how “TCEs” is defined, along with other key terms (draft Articles 2 and 3), who benefits from this potential instrument(s) (draft Article 4), and the scope, administration, and exceptions and limitations of TCEs protection (draft Articles 5-7).

Even more compelling, however, is that the document provides a glimpse into the kinds of values and issues that have emerged as most important – and perhaps, most challenging – during negotiations. Indeed, all of its sections – the draft, Preamble-like introduction (presently referred to as “Principles/Preamble/Introduction”) and the fifteen draft articles that follow are presented with – or rather, as – alternatives to be discussed and agreed upon, down to individual sentences and phrases (and even footnotes) that are fully bracketed or contain bracketed alternatives for eventual agreement on particular phrasing and, thus, intent.[4]

For instance, the Principles/Preamble/Introduction comprises at the moment thirteen draft “principles” that can serve to establish broad reasons for which protecting cultural heritage in general and TCEs in particular is worthwhile (in the context of WIPO efforts), with the first principle laying the foundational notion that a wide range of values are embedded within cultural heritage – from social and spiritual to educational and commercial, among others. Similar in tone to related, international instruments’ Preambles (to be explored in future posts), the draft states that protecting TCEs can help to promote and protect cultural creativity, innovation, and the diversity of cultural expressions, benefiting not only those who may call such expressions their own, but all humanity.

Other principles in the draft point to a need to respect the rights of “beneficiaries” over their TCEs under national and international law, and that contributing to their “welfare and sustainable economic, cultural, environmental and social development” is a guiding force of the proposed instrument(s) (draft Principle 2). Despite its preliminary status, it is worth highlighting that this foundation-laying text recognizes the primary roles TCEs beneficiaries play in not only “preserving and maintaining” their cultural expressions (draft Principle 4), but in “approving” of and being “involved” with, “on mutually agreed terms,” the “promotion/facilitation” of “intellectual and artistic freedom, research [or other fair] practices and cultural exchange” (draft Principle 11) through “transparent” and “mutually respectful” relations with “academic, commercial, governmental, educational and other users of [TCEs]” (draft Principle 8). At the same time, such exchanges that can contribute to the “innovation, transfer, and dissemination” of knowledge, benefitting both “holders” and “users” of TCEs, requires a “balance of rights an obligations” (draft Principle 9), and can help to protect and enhance “a vibrant public domain” for “all to use” (draft Principle 10). Furthermore, draft Principle 13 states: “Nothing in this [instrument] may be construed as diminishing or extinguishing the rights that indigenous [peoples] or local communities have now or may acquire in the future.”

Nonetheless, one seemingly minor topic of IGC discussions reveals just how complex it is to reach international agreement on the protection of living cultural traditions: what is meant by “beneficiaries,” and how should this term be defined? Indeed, the Indicative List of Outstanding/Pending Issues to be Tackled/Solved (WIPO/GRTKF/IC/34/7), carried over to the last IGC meeting on TCEs (June 2017), includes the issue, “Whether to include beneficiaries other than indigenous peoples and local communities,” for further IGC discussion later this year. Throughout the Principles/Preamble/Introduction of the Draft Articles, “beneficiaries” is presented with the bracketed and, thereby, to-be-agreed-upon phrase: “Indigenous [Peoples], [local communities] [and nations].” This indicates the possibility that beneficiaries other than “indigenous peoples and local communities” may benefit from TCEs protection in Member States’ territories. This possibility is certainly reflected in draft Article 4, “Beneficiaries of [Protection]/[Safeguarding],” which in addition to signaling an ongoing debate on the use of “protection” vs. “safeguarding,” consists of four alternative (Alt) definitions for “beneficiaries:”

Alt 1

Beneficiaries of this instrument are indigenous [peoples] and local communities who hold, express, create, maintain, use, and develop [protected] traditional cultural expressions.

Alt 2

The beneficiaries of this instrument are indigenous [peoples], local communities, [and]/[and where there is no notion of indigenous [peoples]], other beneficiaries as may be determined under national law.

Alt 3

The beneficiaries of this instrument are indigenous [peoples], local communities, and other beneficiaries as may be determined under national law.

Alt 4

The beneficiaries of this instrument are indigenous [peoples], as well as local communities and other beneficiaries, as may be determined under national law, [who hold, express, create, maintain, use, and develop [protected] traditional cultural expressions].

From reading the June 2017 IGC meeting report (WIPO/GRTKF/IC/34/14), it is interesting to see the cases that were made by Member State delegations, as well as other representatives, for and against the varying texts of draft Article 4, in addition to other articles that relate to this core, “beneficiaries” issue. During IGC discussions, it was generally expressed that including the flexible phrasing around “other beneficiaries” (Alts 2-4 above) takes into account differing systems of IP protections across Member States. Moreover, it reflects the fact that communities who practice certain TCEs may not belong to indigenous and/or local communities within a certain territory – that is, “where the TCEs could not be attributed to [indigenous and local communities] or the TCEs were not confined to [such communities],” as the Delegation of Australia argued (and which also proposed Alt 4). Here, as reported, the Delegation of Australia put forward that:

[I]t was worth exploring a balance between allowing some beneficiaries and carving out others.  It was not an unlimited kind of “other beneficiaries.”  It had to be qualified to make sure that beneficiaries as defined under national law were actually beneficiaries who maintained, used and held TCEs.

As an example, the Delegation of Uganda brought to light that Uganda hosts roughly one million refugees from neighboring countries whose TCEs protection may be supported through recognition of them as “other beneficiaries,” as opposed to “indigenous and local communities.”

Yet, points were made for keeping the beneficiaries category to indigenous and local communities only. For example, while the representative of the Tulalip Tribes (Washington State) acknowledged that “there were arguments on both ends,” he raised the issue of how “other beneficiaries” would be interpreted at national levels and the potential problems such wide-ranging interpretation could pose. The representative asked: “what volume would occupy the TCEs of just [indigenous peoples/local communities] in the IP system[?] It would probably not be all that great. But once it would be up to the State to define beneficiaries, that volume could become very large and could create some very big problems for the IP system.” The report continues:

He was concerned that, if there were others that were potential “beneficiaries” but who could not really be associated with a TCE but were claiming the TCE that was held by indigenous peoples (and that had happened because of the historical movement of TCEs), that could set up a conflict between the different claimants. He had outstanding concerns over those countries that did have [indigenous peoples/local communities] who were holders of TCEs that were not being recognized.

Similarly, it is also reported that the representative of the Indian Movement – Tupaj Amaru (an international NGO advocating for the rights of indigenous populations of the Americas) was against the inclusion of “other beneficiaries” and “wondered how judges would interpret that text, which was open to a number of interpretations and could create artificial, virtual beneficiaries.” Furthermore, he recommended that the IGC review other international instruments in relation to this topic of who benefits, and “urged participants to understand what they were doing, while they were gambling the future of [indigenous peoples/local communities].” These concerns are significant, and have me wondering what would happen in countries where tribal communities have yet to be legally recognized as indigenous and, by extension, the possible complications involved with defining and interpreting “local communities” across Member States.

In crafting such legal instruments, even small details can become the subject of considerable deliberations.  For example, an interesting aspect of the Draft Articles text is that even the use of the modal auxiliary verbs shall and should appears to be open for negotiation; they are generally presented throughout as “should/shall” or “shall/should” (and sometimes bracketed). From reading about these terms’ usage in international treaties, it appears that choosing between them can be rather loaded. While shall is used far more in prescriptive texts (in English) and represents a stronger obligation to act in the way that a legal text prescribes, should is typically understood as a “medium strength” modality in comparison. Christopher Williams explains: “[u]nlike must or shall, should expresses what has been defined as “escapable obligation” (Declerck 1991b: 378). However, there are cases where should would seem to be the most appropriate modal form to be used in prescriptive texts, for example when enunciating general guidelines and principles which often have strongly moral or ethical overtones […]” This is reflected in the Draft Articles with draft Principle 9, where should stands alone without its alternative shall: “[Acknowledging]/[to acknowledge] that the protection of [TCEs] should contribute toward the promotion of innovation […]”

As mentioned, discussions on the Draft Articles will continue later in the year at the next IGC meeting dedicated to TCEs. Nonetheless, a look into the rather remarkable work of WIPO and the IGC, tracing the development of this possible instrument(s), has helped to shine a light on one enduring question: who benefits from international, cultural/culture-related policy? Here, fundamental issues that can apply to any safeguarding effort, large and small, focused on living cultural traditions have been cast in high relief; that is, issues of ownership in both legal and non-legal senses over living cultural traditions, as well as in terms of local community involvement in (or full steering of) decision-making processes in protecting their living cultural heritage. My next series of posts will explore these issues in relation to other efforts in protecting folklife at the international level, namely those of the United Nations Educational, Scientific and Cultural Organization (UNESCO).