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Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage in the Digital World Madrid, Spain October 29-30, 2009 Brigitte Vézina Traditional Knowledge Division WIPO

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Page 1: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO

International Conference on Intellectual Property and Cultural Heritage in the Digital WorldMadrid, Spain October 29-30, 2009Brigitte Vézina Traditional Knowledge DivisionWIPO

Page 2: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Structure of Presentation

Terminology: How will Terms be Used?

Traditional Cultural Expressions (TCEs) and IP: What are Some of the Issues?

Normative Work at WIPO: the WIPO Intergovernmental Committee (IGC)

TCEs and Digitization and Documentation of ICH: Issues, Options and Practical Tools

Page 3: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

TK, TCEs and ICH

ICHTCEs

TKTK

Page 4: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

A working description of TCEs

. . . any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, which are:

the products of creative intellectual activity, including individual and communal creativity;

characteristic of a community’s cultural and social identity and cultural heritage; and

maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community

Include: art, music, designs, symbols, performances, rituals, narratives

(Art. 1, WIPO Draft Provisions on the Protection of Traditional Cultural Expressions, 2006)

Page 5: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

TCEs:

embody communal identities and linked to the continued vitality of indigenous cultures

reflect a community’s history, traditions, values and beliefs

integral to cultural diversity

TCEs should therefore be preserved and safeguarded: but should they be “protected” as a form of “intellectual property”?

Page 6: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

TCES and intellectual property

Some forms of TCEs already protected:

Derivatives/contemporary adaptations Performances of TCEs Recordings of TCEs Compilations and databases of TCEs

But, TCEs “as such” are in the “public domain” – should they be “protected” and, if so, what does “protection” mean? What options are there?

See WIPO, Gap Analysis, WIPO/GRTKF/IC/13/4(b), available at www.wipo.int/tk/en/igc/gap-analyses.html

Page 7: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

What could “protection” of TCEs mean?

an exclusive property right → to prevent or authorize use of TCEs, incl. for exploitation to support economic development

prevention of inappropriate, unwanted use and commercialization by others

remuneration for third party uses acknowledgement of source defensive protection (protection

against IP rights)

Page 8: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Normative developments: WIPO Intergovernmental Committee (IGC)

first session in April 2001members and participants:

• member states • intl. organizations • NGOs (over 200)

• eg., ICOM• indigenous and local communities: speedy

accreditation and WIPO Voluntary Fund

Page 9: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

New IGC Mandate for 2010-2011

International legal instrument for effective protection of TK and TCEs

Text-based negotiations Including on WIPO/GRTKF/IC/9/4

Clearly defined work program for the 2010/2011 biennium

2011 GA: text submitted Diplomatic Conference IGC 15

December 7-11, 2009

Draft provisions for protection of TCEs Sui generis provisions – collective rights, no formalities, indefinite protection. . .

Page 10: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

WIPO Draft Provisions on TCEs Art 1: Subject matter Art 2: Beneficiaries Art 3: Scope of rights Art 4: Management of rights Art 5: Exceptions and limitations Art 6: Term of protection Art 7: Formalities Art 8: Sanctions and remedies Art 9: Transitional measures Art 10: Relationship with IP protection Art 11: International protection

See WIPO/GRTKF/IC/9/4 available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=55137

Page 11: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

1. Cultural expressions of particular cultural/spiritual value – exclusive right if TCE registered

2. Other cultural expressions – no formalities - moral rights and reasonable royalty

Draft Article 3

3. Secret TCEs

Page 12: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Documentation and Digitization: TCE and IP Issues Documentation and digitization of TCEs valuable for their safeguarding

Museums and archives as repositories of indigenous and other cultural materials – fulfill vital preservation, educational, scholarly and public access functions

However, indigenous communities question control over, access to, ownership of, control over and authorship of indigenous materials held by museums and archives

“The crux of the problem is that information about us is not owned by us”

a problem is that IP rights in documentation and recordings of TCEs vest in those who made the documentation/recordings – communities see themselves as legally disenfranchised

complex ethical, cultural and legal questions

Page 13: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Museums and archives are pivotal spaces within which issues of access, control, authorship, ownership and re-use of indigenous cultural materials can be discussed

emerging forms of collaboration between libraries and communities

role of guidelines and protocols – building relationships

Page 14: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Recognizing sensitivities surrounding documentation/digitization of TCEs and IP management, WIPO has developed practical tools, complementing normative work of the IGC:

WIPO Creative Heritage Training Program for Indigenous Communities on Cultural Documentation, Archiving and IP Management

WIPO Surveys and Database of Practices, Protocols and Policies

WIPO Guide on “Intellectual Property and Safeguarding Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives” (draft)

Page 15: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

WIPO Creative Heritage Training Program on Cultural Documentation

WIPO, American Folklife Center/LOC and Duke University

Hands-on technical training IP trainingCamera, sound recording equipment, laptop

and softwarePilot program successfully completed, for

Maasai community, with National Museums of Kenya, Kenya

Page 16: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage
Page 17: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage
Page 18: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage
Page 19: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

WIPO Guide on IP and Safeguarding Traditional Cultures (draft)

complex and sensitive issues

Who “owns” collections of indigenous materials?

Which legal and ethical rules apply? How can museums/archives and

communities develop mutually-beneficial relationships?

What role does IP management play? What “good practices” are there?

Page 20: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Table of contents (to come)

Page 21: Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage

Thank you!

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