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WIPO Publication No. 913(E) ISBN 978-92-805-1363-9

INTELLECTUAL PROPERTYAND TRADITIONAL CULTURALEXPRESSIONS/FOLKLORE

Booklet nº 1This is one of a series of Booklets dealingwith intellectual property and geneticresources, traditional knowledge andtraditional cultural expressions/folklore

Disclaimer: The information contained in this booklet is not meant as a substitutefor professional legal advice. Its main purpose is limited to providing basic information.

Cover artwork extracted from work entitled “Munupi Mural” by Susan Wanji Wanji,Munupi Arts and Crafts Association, Pirlangimpi Community, Melville Island, Australia.Ms. Wanji Wanji is the copyright holder in the work. The work was used with the full

express and informed consent of the artist. All rights reserved.

Certain images used in this booklet have been obtained from commerciallyavailable databases to which WIPO subscribes.

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A Brief Overview Content

Indigenous art copied onto carpets, T-shirtsand greeting cards; traditional music fusedwith techno-house dance rhythms to producebest-selling ‘world music’ albums; hand-woven carpets and handicrafts copied andsold as ‘authentic’; the process for making atraditional musical instrument patented;indigenous words and names trademarkedand used commercially.

These are the kinds of examples thatindigenous and other traditional and culturalcommunities cite when arguing thattraditional creativity and cultural expressionsrequire greater protection in relation tointellectual property (IP).

The World Intellectual Property Organization(WIPO), which first began examining therelationship between IP and the protection,promotion and preservation of traditionalcultural expressions (TCEs) (or ‘expressions offolklore’) several decades ago, has an activeprogram of policy development, legislativeassistance and capacity-building in this area.

The relationship between TCEs and IP raisescomplex and challenging issues. Expressionsof traditional cultures/folklore identify andreflect the values, traditions and beliefs ofindigenous and other communities.

A Brief Overview

A Brief Overview 1Timeline 3

Key Concepts 5What are “traditional culturalexpressions”? 5Intellectual property ‘protection’ 9What is the relationship between IP‘protection’ and the ‘preservation andsafeguarding’ of cultural heritage? 10

A Legal and Cultural Policy Framework 12What are the needs and expectationsof TCE/folklore custodians? 12The role of the ‘public domain’ 13

Legal Options : National, Regional andInternational Trends and Experiences 15

Setting national policy objectives 15Use of existing IP rights andsui generis adaptations to them 16Sui generis measures and systems 19Recording and documentation ofcultural expressions 20

Practical Steps for Setting OverallDirections 21

What Next ? 22

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The terms ‘traditional culturalexpressions’/‘expressions of folklore’

This booklet uses the terms ‘traditionalcultural expressions’ (TCEs) and‘expressions of folklore’ interchangeably.Although ‘expressions of folklore’ has beenthe term used most commonly ininternational discussions and is found inmany national laws, some communities haveexpressed reservations about negativeconnotations of the word ‘folklore.’ The useof ‘traditional cultural expressions’ or‘expressions of folklore’ in this booklet is notintended to suggest any consensus amongStates, communities or other stakeholders onthe validity or appropriateness of theseor other terms. As many point out, the choiceof an appropriate term or terms, and theidentification of the subject matter that it/they cover, is ultimately a matter for decisionby policymakers and relevant communities atthe local and national levels.

The challenges of multiculturalism andcultural diversity, particularly in societies withboth indigenous and immigrant communities,require cultural policies to maintain a balancebetween the protection and preservation ofcultural expressions – traditional or otherwise– and the free exchange of culturalexperiences.

A further challenge is to balance a wish topreserve traditional cultures with a desire tostimulate tradition-based creativity as acontribution to sustainable economicdevelopment. Addressing these challengesprovokes some deeper questions. To whom,if anyone, does a nation’s cultural heritage‘belong’? What is the relationship between IPprotection and the promotion of culturaldiversity? Which IP policies best serve acreative and multicultural ‘public domain’?How, if at all, should current IP systemsrecognize customary laws and protocols?When is ‘borrowing’ from a traditionalculture legitimate inspiration and when is itinappropriate adaptation or copying? Is therea relationship between the ‘preservation’ ofcultural heritage and the IP ‘protection’ ofTCEs, and, if so, what is it?

This booklet identifies the key concepts, legaland cultural policy considerations and mainlegal options, based upon national, regionaland international trends, relating to theprotection of TCEs.

First, a brief historical perspective ispresented.

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Timeline

� In 1967, an amendment to the BerneConvention for the Protection ofLiterary and Artistic Works provided amechanism for the internationalprotection of unpublished andanonymous works. According to theframers of this amendment, reflected inArticle 15.4 of the Convention, it aims atproviding international protection forexpressions of folklore/TCEs.

� In 1976, the Tunis Model Law onCopyright for Developing Countrieswas adopted. It includes sui generisprotection for expressions of folklore.

� In 1982, an expert group convened byWIPO and the United Nations Educational,Scientific and Cultural Organization(UNESCO) developed a sui generis modelfor the IP-type protection of TCEs: theWIPO-UNESCO Model Provisions, 1982.

� In 1984, WIPO and UNESCO jointlyconvened a group of experts on theinternational protection of expressions offolklore by IP. A draft treaty based on theModel Provisions, 1982 was at theirdisposal. Yet, a majority of the participantsbelieved it premature to establish aninternational treaty at that time.

� In December 1996, WIPO MemberStates adopted the WIPO Performancesand Phonograms Treaty (WPPT), whichprovides protection also for a performerof an expression of folklore.

� In April 1997, the ‘UNESCO-WIPOWorld Forum on the Protection ofFolklore’ was held in Phuket, Thailand.

� During 1998 and 1999, WIPO conductedfact-finding missions in 28 countries toidentify the IP-related needs andexpectations of traditional knowledgeholders (‘FFMs’). For purposes of thesemissions, ‘traditional knowledge’included TCEs as a sub-set. Indigenousand local communities, non-governmentalorganizations, governmentalrepresentatives, academics, researchersand private sector representatives wereamong the more than 3000 personsconsulted on these missions. The resultsof the missions were published by WIPOin a report entitled ‘Intellectual PropertyNeeds and Expectations of TraditionalKnowledge Holders: WIPO Report onFact-finding Missions (1998-1999)’(FFM Report).

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� In 1999, WIPO organized regionalconsultations on the protection ofexpressions of folklore for Africancountries (March 1999), for countries ofAsia and the Pacific region (April 1999),for Arab countries (May 1999), and forLatin America and the Caribbean (June1999). Each of the consultations adoptedresolutions or recommendations, whichincluded the recommendation that WIPOand UNESCO increase and intensify theirwork in the field of folklore protection.The recommendations unanimouslyspecified that future work in these areasshould include the development of aneffective international regime for theprotection of expressions of folklore.

� In late 2000, the WIPO Intergovern-mental Committee on IntellectualProperty and Genetic Resources,Traditional Knowledge and Folklore(the Committee) was established. TheCommittee has made substantial progressin addressing both policy and practicallinkages between the IP system and theconcerns of practitioners and custodiansof traditional cultures. Under the guidanceof the Committee, the Secretariat ofWIPO has issued a detailed questionnaireon national experiences, and undertakena series of comprehensive analyticalstudies based on the responses to thequestionnaire and other consultations and

research. The studies have formed thebasis for ongoing international policydebate and assisted in the development ofpractical tools. Drawing on this diverseexperience, the Committee is movingtowards an international understanding ofthe shared objectives and principles thatshould guide the protection of TCEs. Allthese materials are available from theSecretariat of WIPO and at http://www.wipo.int/tk/en/cultural/index.html

� As part of its broader program on TCEs,WIPO also organizes workshops andseminars, expert and fact-findingmissions, commissions case-studies, andcarries out and provides legislativedrafting, advice, education and training.

WIPO-UNESCO Model Provisionsfor National Laws, 1982

In 1982, Model Provisions for National Lawson the Protection of Expressions of Folkloreagainst Illicit Exploitation and Other PrejudicialActions (the Model Provisions, 1982) wereadopted under the auspices of WIPO andUNESCO. They establish two main categoriesof acts against which TCEs are protected,namely ‘illicit exploitation’ and ‘otherprejudicial actions’. The Model Provisions haveinfluenced the national laws of manycountries. Several States and other stake-holders have suggested that the ModelProvisions require improvement and updating.

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Key ConceptsKey Concepts

What are “traditional culturalexpressions”?

Traditional cultural expressions, often theproduct of inter-generational and fluid socialand communal creative processes, reflect andidentify a community’s history, cultural andsocial identity, and values.

While lying at the heart of a community’sidentity, cultural heritage is also ‘living’ – it isconstantly recreated as traditional artists andpractitioners bring fresh perspectives to theirwork. Tradition is not only about imitationand reproduction; it is also about innovationand creation within the traditionalframework. Therefore, traditional creativity ismarked by a dynamic interplay betweencollective and individual creativity.From an IP perspective, in this dynamic andcreative context it is often difficult to knowwhat constitutes independent creation. Yet,under current copyright law, a contemporaryadaptation or arrangement of old and pre-existing traditional materials can often besufficiently original to qualify as a protectedcopyright work.

This is a key point, and it lies at the heart ofextensive policy debate – is the protectionalready available for contemporary tradition-based creativity adequate, or is some form ofadditional IP protection for the underlyingand pre-existing materials necessary? Seefurther below under ‘A Legal and CulturalPolicy Framework’.

Characteristics of traditional culturalexpressions (TCEs)/folklore

In general, it may be said that TCEs/folklore(i) are handed down from one generation toanother, either orally or by imitation, (ii)reflect a community’s cultural and socialidentity, (iii) consist of characteristic elementsof a community’s heritage, (iv) are made by‘authors unknown’ and/or by communitiesand/or by individuals communally recognizedas having the right, responsibility or permissionto do so, (v) are often not created forcommercial purposes, but as vehicles forreligious and cultural expression, and (vi) areconstantly evolving, developing and beingrecreated within the community.

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A working description of traditionalcultural expressions/expressionsof folklore

While not constituting a formal definition assuch, a working description of TCEs could be:

‘Traditional cultural expressions’/‘expressions of folklore’ meansproductions consisting of characteristicelements of the traditional artistic heritagedeveloped and maintained by a communityof [name of country] or by individualsreflecting the traditional artistic expectationsof such a community, in particular:

––––– verbal expressions, such as folk tales, folkpoetry and riddles, signs, words, symbolsand indications;

––––– musical expressions, such as folk songsand instrumental music;

––––– expressions by actions, such as folkdances, plays and artistic forms or rituals;whether or not reduced to a materialform; and,

––––– tangible expressions, such as:- productions of folk art, in particular,

drawings, paintings, carvings,sculptures, pottery, terracotta, mosaic,woodwork, metalware, jewelry, basketweaving, needlework, textiles, carpets,costumes;

- crafts;- musical instruments;- architectural forms.

‘Expressions of’ traditional culture (or‘expressions of’ folklore) may be eitherintangible, tangible or, most usually,combinations of the two – an example ofsuch a ‘mixed expression of folklore’ wouldbe a woven rug (a tangible expression) thatexpresses elements of a traditional story (anintangible expression).

Cultural heritage and economicdevelopment

While the artistic heritage of a communityplays significant social, spiritual and culturalroles, it can also, as a source of creativity andinnovation, play a role in economicdevelopment.

The use of traditional cultural materials as asource of contemporary creativity cancontribute towards the economicdevelopment of traditional communitiesthrough the establishment of communityenterprises, local job creation, skillsdevelopment, appropriate tourism, andforeign earnings from community products.

Here IP can play a role. By providing legalprotection for tradition-based creativity, IPprotection can enable communities and theirmembers to commercialize their tradition-based creations, should they wish to do so,and/or to exclude free-riding competitors.The marketing of artisanal products alsorepresents a way for communities to show

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and strengthen their cultural identity andcontribute to cultural diversity. Here IP canassist in certifying the origin of arts and crafts(through certification trademarks) or bycombating the passing off of fake productsas ‘authentic’ (through the law of unfaircompetition), for example. Communitieshave used their IP to exercise control overhow their cultural expressions are used, andto defend against insensitive and degradinguse of traditional works.

Traditional cultural manifestations are also asource of inspiration and creativity forcultural industries, such as theentertainment, fashion, publishing, crafts anddesigns industries. Many businesses today,small, medium and large, in developed anddeveloping countries, create wealth using theforms and materials of traditional cultures.For example, vibrant publishing, music andaudiovisual industries in India and Nigeriadraw upon local cultural materials.

A national cultural developmentproject

An example of a cultural development projectis the poverty alleviation program ‘Investingin Culture’ for the Khomani San people inSouth Africa. This program is revitalizing thecommunity’s craft-making and enabling thecommunity for the first time to generate itsown income.

The relationship between tradition, creativityand the market-place is not always perceivedto be a happy one. What is creativity from oneperspective may be seen to erode traditionalculture from another.

The commercial value of handicrafts

Visual arts and crafts are an important sourceof income for Indigenous artists andcommunities in Australia, and the level ofcopyright and other IP protection they enjoyis of utmost importance to them, accordingto a report issued in 2002. It is estimated thatthe indigenous visual arts and crafts industryhas a turnover of approximately US$130million in Australia, of which indigenouspeople receive approximately US$30 million.

In Colombia, ‘Artesanias de Colombia’ is thenational institution charged with thedevelopment and promotion of thehandicrafts sector. In many cases inColombia, craft items are the only tradableproducts of small communities. Thehandicrafts sector employs a majority ofwomen, considered an important factor inwealth distribution in small-income or single-parent families.

What is the relationship with

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‘traditional knowledge’ (TK)?

Indigenous and traditional communities oftenregard expressions of their traditionalcultures/folklore as inseparable from systemsof traditional knowledge (such as medicaland environmental knowledge, andknowledge related to biological resources). Indiscussions about IP protection, however,expressions of traditional cultures/folklore aregenerally discussed distinctly from traditionalknowledge (or TK). This is not to suggest thatthese should be artificially distinguished inthe community context. It simply reflects thewidespread experience that distinct legaltools and a different set of policy questionstypically arise when IP protection is applied tosafeguard TCEs on the one hand, andtechnical TK on the other. IP protectiontherefore complements traditional patternsof cultural expressions and traditionalknowledge systems, and operates beyondthe original community: it is not aimed tosupplant or imitate the community’s owncustoms and practices. Wide experience has

shown that the IP protection of TCEs raisescertain specific questions of cultural policyand, unlike technical TK, involves legaldoctrines closest to those underpinning thecopyright and related rights systems. Thegeneral principles and specific solutions forTCEs and TK are likely to differ, therefore. Itis important that the forms of protectionprovided for folklore be inspired and shapedby the appropriate legal and cultural policiesand principles. In addition, a distinct focus onTCEs/folklore facilitates more specific,technical and concrete discussions, andengages more fully the experiences andperspectives of relevant stakeholders, such asGovernment offices and departments dealingwith copyright, culture and education;indigenous and traditional bearers andperformers of cultural traditions and artisticexpressions; and folklorists, ethnomusico-logists, archivists and other cultural scholars.In contrast to TK, there is already significantexperience in developing and implementingIP protection specifically for TCEs/folklore atthe international, regional and national levels(see ‘Timeline’ above).

For an introductory discussion on traditionalknowledge, see the companion Booklet“Intellectual Property and TraditionalKnowledge”

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Intellectual property ‘protection’

Intellectual property (IP) refers to creations ofthe mind such as inventions, designs, literaryand artistic works, and symbols, names,images, and performances.

IP is typically protected by laws that establishprivate property rights in creations andinnovations in order to grant control over

their exploitation, particularly commercialexploitation, and to provide incentives forfurther creativity. Copyright, for example,protects the products of creativity, in theform of original literary and artistic works,against certain uses such as reproduction,adaptation, public performance,broadcasting and other forms ofcommunication to the public. It can also

Copyright, adaptation and ‘derivative works’

When is the use of traditional cultural materials legitimate inspiration and when is itinappropriate adaptation and copying? An author of a work normally has the exclusive rightto control the making of adaptations of the work. Examples would be translations, revisions andany other forms in which a work may be recast, transformed or adapted. These are sometimestogether referred to as ‘derivative works.’ Derivative works may themselves qualify for copyrightprotection if sufficiently original. Even works derived from materials in the public domain can becopyright protected, because a new interpretation, arrangement, adaptation or collection ofpublic domain materials can result in a new distinct expression which is sufficiently ‘original.’This helps to explain why a contemporary literary and artistic production derived from or inspiredby traditional culture that incorporates new elements can be considered a distinct, original workand is thus protected.

However, the protection afforded to derivative works vests only in the new material or aspectsof the derivative work. Thus, aside from new material that belongs to the author, a derivativework may also comprise material that already belongs to another rightholder or is in the publicdomain. The copyright or public domain status, as the case may be, of this material is unaffected.

While a copyright holder’s exclusive rights normally include a right to authorize or prevent theadaptation of the protected work, however, in general, this does not prevent creators from beinginspired by other works or from borrowing from them. Copyright supports the idea that newartists build upon the works of others and it rewards improvisation. In other words, ‘borrowingfrom’ and inspiration are permitted, adaptation and copying are not. Distinguishing betweenthem is not always easy.

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provide protection against demeaning ordegrading use of a work, an issue that isoften of concern in relation to traditionalcultural materials. Not all aspects of IPprotection are focussed directly on innovationand creativity, particularly the law ofdistinctive marks, indications and signs (lawsgoverning trademarks, geographicalindications and national symbols) as well asthe related area of the repression of unfaircompetition. These aim at the protection ofestablished reputation, distinctiveness andgoodwill, such as may be enjoyed by atraditional community in the production ofhandicrafts, artworks and other traditionalproducts.

The elements and principles of the copyrightsystem are particularly relevant to theprotection of TCEs because many are literaryand artistic productions and therefore alreadyor potentially the subject matter of copyrightprotection. This is why many countriesalready protect folklore within copyright law.Rights related to copyright, particularly therights of performers, are also directly useful.The other main branch of IP law, industrialproperty, has also been used to protect TCEs– especially trademarks (such as collectivemarks) and geographical indications,industrial designs (including textile designs),and the suppression of unfair competition.

Saami women intraditional dress

What is the relationshipbetween IP ‘protection’ and the‘preservation and safeguarding’of cultural heritage?

Within the context of cultural heritage, thenotions of ‘preservation’ and ‘safeguarding’refer generally to the identification,documentation, transmission, revitalizationand promotion of cultural heritage in orderto ensure its maintenance or viability. Thepreservation and safeguarding of culturalheritage and the promotion of culturaldiversity are key objectives of severalinternational conventions and programs aswell as regional and national policies,practices and processes.

United Nations Educational, Scientificand Cultural Organization (UNESCO)

UNESCO undertakes extensive work on thepreservation of cultural heritage. WIPO’scooperation with UNESCO on the protectionof traditional cultural expressions includes thedevelopment, in 1982, of the WIPO-UNESCOModel Provisions. WIPO and UNESCOcontinue to cooperate as they have done inthe past. For example, in 1999 WIPO andUNESCO jointly organized regionalconsultations on folklore. In 2003, MemberStates of UNESCO adopted an ‘InternationalConvention for the Safeguarding ofIntangible Cultural Heritage’.

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The different meanings of‘protection’

Take as an example a legend that wasrecorded centuries ago on a piece of cloth.‘IP protection’ of the legend could behelpful in preventing others fromreproducing the legend on a T-shirt.However, if only a few people know thelegend and the language that should beused to recite the legend, ‘protection’ maytake the form of measures that would assistpeople to pass on their knowledge of thelegend and the language to the nextgeneration. If the cloth begins to decay,‘protection’ may take the form of measuresto ensure that the cloth is preserved forfuture generations. In other instances,‘protection’ could take the form ofpromoting the legend outside thecommunity in order that others may learnabout it and gain a greater understandingand respect for the culture of theoriginating community.

WIPO’s work is, in line with its mandate,principally concerned with the ‘protection’ ofTCEs in the intellectual property sense.

There is an important relationship between IP‘protection’ and ‘preservation/safeguarding’in the cultural heritage context. For example,the very process of preservation (such as therecording or documentation and publicationof traditional cultural materials) can triggerconcerns about lack of IP protection and canrun the risk of unintentionally placing TCEs inthe ‘public domain’; thus leaving others freeto use them against the wishes of theoriginal community. Or, unless handledcarefully, it can mean that the personrecording the traditional expression gainscopyright over the form in which it isrecorded (e.g. a photograph, film or soundrecording of a TCE).

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The Zambian NationalDance Troupe

Clarity on what is meant by ‘protection’ iskey, because the needs and expectations ofTCE holders and practitioners can in somecases be addressed more appropriately bymeasures for preservation and safeguardingrather than IP protection.

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The legal protection of TCEs should beconsidered in an inclusive policy context, andnot as an end in itself. This involves reflectingon such broader issues as:

––––– the preservation and safeguarding ofcultural heritage;

––––– the promotion of cultural diversity;

––––– the respect for cultural rights;

––––– the promotion of artistic developmentand cultural exchange;

––––– the needs and interests of indigenousand traditional communities; and,

––––– the promotion of tradition-basedcreativity and innovation as ingredientsof sustainable economic development.

What are the needs andexpectations of TCE/folklorecustodians?

Indigenous and local communities have calledfor various forms of protection; these include:

––––– protection of traditional literary andartistic productions against unauthorizedreproduction, adaptation, distribution,performance and other such acts, as wellas prevention of insulting, derogatory and/or culturally and spiritually offensive uses;

––––– protection of handicrafts, particularlytheir ‘style’;

––––– prevention of false and misleading claimsto authenticity and origin/failure toacknowledge source; and

––––– defensive protection of traditional signsand symbols.

With regard to these kinds of examples,three approaches among indigenous andlocal communities were identified during thefact-finding missions and consultationsconducted by WIPO since 1998:

––––– IP protection to support economicdevelopment: some communities wishto gain and exercise IP in their tradition-based creations and innovations toenable them to exploit their creationsand innovations commercially as acontribution to their economicdevelopment.

A Legal and Cultural Policy FrameworkA Legal and Cultural Policy Framework

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––––– IP protection to prevent unwanteduse by others: communities may wish togain IP protection in order to activelyexercise IP rights to prevent the use andcommercialization of their culturalheritage and TCEs by others, includingculturally offensive or demeaning use.

The first two approaches involve ‘positiveprotection’ – that is, obtaining and assertingrights in the protected material. Positiveprotection can therefore (i) serve as the legalbasis for any commercial and other dealingsthat TCE holders may choose to pursue withother partners, and (ii) stop third parties fromusing TCEs in an unauthorized orinappropriate way. Defensive strategies, bycontrast, aim at preventing others fromgaining or maintaining adverse IP rights.Various positive and defensive strategies canbe used together, depending on what theholders or custodians of TCEs want to achieve.A community’s secret or sacred TCEs may beprotected defensively; while handicrafts maybe positively protected as part of a communitytrading enterprise and against imitations orfakes.

The role of the ‘public domain’

An integral part of developing an appropriatepolicy framework within which to view IPprotection and TCEs is a clearerunderstanding of the role, contours andboundaries of the so-called ‘public domain.’The term ‘public domain’ is used here torefer to elements of IP that are ineligible forprivate ownership and the contents of whichany member of the public is legally entitledto use. The ‘public domain’ in this contextmeans something other than ‘publiclyavailable’ – for example, content on theInternet may be publicly available but not inthe ‘public domain’ from a copyrightperspective. The ‘public domain’ is oftencharacterized by indigenous and otherstakeholders as having been created by the IPsystem and does not therefore respect theprotection of TCEs that customary andindigenous laws require.

Mr. Cun Fablao, a designerfrom the Yunnan Province,China, received industrialdesign protection forhis tradition-basedsilver-plated tea-set

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The debate about appropriate protectionboils down to whether, and how, thereshould be changes to the existing boundarybetween the ‘public domain’ and the scopeof IP protection. In other words, is the IPprotection that is already available forcontemporary tradition-based creativity andperformances adequate? Does it strike theright balance and meet the needs oftraditional communities and the generalpublic? Does it offer the greatestopportunities for creativity and economicdevelopment? Or, is some new form of IPprotection for the underlying and pre-existingmaterials necessary?

Responses to these complex questions arevaried. Some argue the public domaincharacter of folklore does not hamper itsdevelopment. On the contrary, it encouragesmembers of a community to keep alive ‘pre-existing cultural heritage’ by providingindividuals of a community with copyrightprotection when they use various expressionsof ‘pre-existing cultural heritage’ in theirpresent-day creations or works. On the otherhand, it is questioned whether all historicmaterials should be denied protection merelybecause they are not recent enough! On thisview, new creations frequently rely onborrowed cultural and historic antecedents,and cultural communities deserve to beacknowledged, and to benefit from this useof their traditions.

Trends and experiences:Use of contracts

In 1998, a New Zealand swimwearmanufacturer, Moontide, launched a newrange of women’s swim suits made frommaterial patterned with interlocking korudesigns of the Maori people. The firmdeveloped the swimwear line with a Maorientrepreneur, and it negotiated the use ofthe koru motif with an elder in the localcommunity. Two concerns governed thedesign element’s use: commercial viabilityand cultural respect. Part of the income fromsales goes to the Pirirakau hapu (sub-tribe) ofthe Ngati Ranginui people.

Source: Shand, Peter, ‘Scenes from the ColonialCatwalk: Cultural Appropriation, IntellectualProperty Rights, and Fashion’, Cultural Analysis,Volume 3, 2002.

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Legal Options : National, Regional andInternational Trends and Experiences

Experience so far with TCE protection hasshown that no single template orcomprehensive ‘one-size-fits-all’ solution islikely to suit all the national priorities, legaland cultural environment, and the needs oftraditional communities in all countries.Instead, effective protection may be found ina ‘menu’ of differentiated and multipleoptions for protection, perhaps underpinnedby an internationally agreed set of commonobjectives and core principles.

The options include existing IP systems(including unfair competition), adapted IPrights (sui generis aspects of IP systems), andnew, stand-alone sui generis systems, as wellas non-IP options, such as trade practices andlabeling laws, use of contracts, customaryand indigenous laws and protocols, culturalheritage preservation laws and programs,common law remedies such as unjustenrichment, rights of publicity, blasphemy,and criminal law.

This section provides a few examples of somenational, regional and internationalexperiences so far with these various options.

First, however, a few words on a key initialstep, the setting of objectives.

Setting national policyobjectives

The way in which a protection system isshaped and defined will depend to a largeextent on the objectives it is intended toserve. Countries have expressed a variety ofpolicy objectives underlying the protection ofTCEs, including:

––––– Wealth creation, trading opportunitiesand sustainable economic development;

––––– Preservation, promotion anddevelopment of traditional cultures andfolklore;

––––– Prevention of unauthorized exploitation,illicit use and abuse of TCEs/folklore;

––––– Promotion of respect for traditionalcultures and the communities thatpreserve them;

––––– Safeguarding of the cultural identity andvalues of communities;

––––– Promotion of cultural diversity.

Legal Options : National, Regional andInternational Trends and Experiences

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Laws are not enough: capacity-strengthening and institutionbuilding

One of the main lessons learned from WIPO’swork so far is that having laws for theprotection of expressions of folklore is notenough. Laws have to be known about, andthe communities and persons that areintended to benefit from them must berelatively easily able to gain, manage andexercise rights under the law. In addition,government services need to be able to givepractical assistance to communities, and legaladvisors need appropriate information toadvise their clients. For the effective protectionof expressions of folklore, therefore, broadawareness-raising and training are needed, asare legal aid and appropriate institutions thatcan help communities manage and enforcetheir rights.

Use of existing IP rights andsui generis adaptations of themProtection of literary and artisticproductions and designs

As previously pointed out, a contemporaryinterpretation, adaptation, collection orarrangement of old and pre-existingtraditional materials can often be sufficientlyoriginal to qualify as a protected copyrightwork. Also, under Article 15.4 of the BerneConvention, anonymous and unpublishedworks (like much folklore) can be protected.

Similarly, traditional designers working withintheir cultural heritage can register their newdesigns. Some indigenous and traditionalwords and symbols can be protected astrademarks.

In addition, the protection already available,internationally, under the WIPO Performancesand Phonograms Treaty (WPPT) may be of greatvalue. Folklore is often accessed andappropriated by third parties through its mostrecent traditional performance – for instance,when a performance of a traditional chant isrecorded, the recording is what enables othersto get access to that chant, so it is vital todetermine how the recording is used and

The indigenous artist of this well-known work, based ontraditional creation stories, (depicted on the left) successfullyclaimed infringement of copyright against the maker of thecarpet (depicted on the right).Because of cultural and spiritual offence, the court awardedextra damages to be shared by the artist’s communityaccording to its customary law.Author: Ms. Banduk Marika. All rights reserved. This work isthe copyright of the artist and may not be reproduced in anyform without the permission of the artist and the clanconcerned.

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distributed. Countries that ratify the WPPTmust give performers of folklore the right toauthorize sound recordings of theirperformances, and the right to authorizecertain dealings with those recordings.

The need to protect communal rights is oftencalled for. What possibilities are there? Underthe copyright system, more than one personcan be a copyright holder. Groups of persons,such as a traditional community, can form anassociation, trust or other legal entity, to holdcopyright. In addition, courts have beenprepared to recognize communal interests ina copyrighted work for the purpose ofawarding damages, and communal copyrightcould also be the subject of a specific suigeneris provision within copyright legislation(for example, one country is studying thepossibility of granting communities the rightto exercise moral rights to protect againstinappropriate, derogatory or culturallyinsensitive use of tradition-based copyrightedmaterial.) A State may also decide to protectcollective interests by vesting rights infolklore in a national body or office which istasked with furthering the interests ofindigenous or traditional communities.

Protection against false or misleadingclaims as to authenticity or origin

One of the kinds of appropriations thatindigenous and traditional communities oftencomplain of is the use of false and

misleading claims as to authenticity and/ororigin. For example, a cheaply made souveniritem may carry a label falsely indicating thatit is ‘authentic’, ‘indigenous made’, ororiginates from a particular community.Unfair competition law, as well as tradepractices and labeling laws, are helpful here,as has been shown in several instances inpractice (see box below).

Trends and Experiences: Unfaircompetition and trade practices laws

A company in Australia has beenprevented from continuing to describe itsrange of hand-painted or hand-carvedsouvenirs as ‘Aboriginal’ or ‘authentic’ unlessit reasonably believed that the artwork orsouvenir was painted or carved by a personof Aboriginal descent. Proceedings wereinstituted against the company under unfaircompetition and trade practices laws.

The Indian Arts and Crafts Act, 1990 ofthe United States of America (USA)protects Native American artisans by assuringthe authenticity of Indian artifacts under theauthority of an Indian Arts and Crafts Board.The Act, a ‘truth-in-marketing’ law, preventsthe marketing of products as ‘Indian made’when the products are not made by Indiansas defined by the Act.

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In addition, indigenous peoples haveregistered certification trademarks to helpsafeguard the authenticity and quality oftheir arts and crafts. In Australia, certificationmarks have been registered by the NationalIndigenous Arts Advocacy Association(NIAAA) and in New Zealand the Maori ArtsBoard, Te Waka Toi, is making use oftrademark protection through thedevelopment of the Toi Iho ™ Maori MadeMark. (See further: http://www.toiiho.com/)

TCEs often have a strong link with a specificlocality. This means that geographicalindications can also protect TCEs, in particularwhen they are in the form of tangibleproducts such as handicrafts that havequalities derived from their geographical origin– for instance, the Olinalá craft products fromthat region in Mexico. While the protectedgeographical indication is usually the name ofthe location itself, certain TCEs could bedirectly protected as geographical indications,such as indigenous and traditional names,signs and symbols.

Indigenous peoples and traditionalcommunities are concerned that unauthorizedcommercial enterprises take their words,names, designs, symbols and other distinctivesigns, and use and register them astrademarks. This practice can be challengedunder general trademark principles. But someauthorities, such as in the Andean Community,New Zealand and the USA, have amendedtheir laws to strengthen defensive protection,explicitly enabling the barring of unauthorizedregistration of indigenous signs and symbolsas trademarks.

Protection against insulting,derogatory and offensive uses

TCEs often embody spiritual qualities and thevery cultural identity of a community. Therefore,insulting, derogatory and offensive use ofTCEs can be a prime concern. Preventing suchmisuse, and promoting respect for cultural andspiritual values, may be the principal goal ofprotection for some countries and somecommunities. In fact, such ‘defensiveprotection’ might be the most important formof protection that some States andcommunities may wish for. Apart from lawsagainst blasphemy and other such non-IPtools, some IP-based options are being

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explored by States. For example, a communalmoral right, as mentioned above, wouldenable communities to act against certain usesof indigenous cultural materials, much in thesame way that moral rights enables an authorto object to the distortion, mutilation or otherderogatory use of his or her works. A furtherpossibility is the creation of a register in whichcommunities could record those TCEs the useof which should not be permitted for culturaland spiritual reasons.

Sui generis measuresand systems

Many countries and several regionalorganizations have elected to protect TCEsthrough sui generis measures. Most havedone so within their copyright laws, followinglargely the Model Provisions, 1982. Othershave elected to establish stand-alone IP-likelaws and systems, examples of which are:

––––– the Indigenous Peoples Rights Act of1997 of the Philippines;

Trends and experiences: Distinct sui generis systems

Under the Pacific Regional Framework for the Protection of Traditional Knowledge andExpressions of Culture, 2002, ‘traditional owners’ have the right to authorize or prevent, amongstothers, the adaptation, transformation and modification of the protected TCEs. An external usermust receive consent to make new derivative works (works based upon a TCE).Any IP rights in derivative works vest in the work’s author. However, if the work is usedfor commercial purposes, the rights-holder must share benefits with the traditional owners,acknowledge the source of the TCEs and respect moral rights in the TCEs.

The Special Intellectual Property Regime Governingthe Collective Rights of Indigenous Peoples for theProtection and Defense of their Cultural Identity andtheir Traditional Knowledge of Panama, 2000establishes a registration system for TCEs. A special officehas been created within the country’s IP office to approvethe applications and maintain the register. The procedurebefore the IP office does not require the services of alawyer and there are no application fees.

A ‘mola’from PanamaCourtesy: Ms. Zuriñe Areta,Geneva, Switzerland

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––––– the Bangui Agreement on the Creationof an African Intellectual PropertyOrganization (OAPI), as revised in 1999;

––––– the Special Intellectual Property RegimeGoverning the Collective Rights ofIndigenous Peoples for the Protectionand Defense of their Cultural Identityand their Traditional Knowledge ofPanama, 2000 and the related ExecutiveDecree of 2001; and,

––––– the Pacific Regional Framework for theProtection of Traditional Knowledge andExpressions of Culture, 2002.

Establishing sui generis systems

In developing a sui generis system for theprotection of TCEs, the following key issuescould be addressed:

––––– What are the goals of protection?––––– What material should be protected?––––– Should it pass certain tests (e.g. not yet

published) to be protected?––––– Who owns and manages the rights?––––– What rights do they get – and are there

exceptions to those rights?––––– Are there procedures or formalities to

obtain rights?––––– Who enforces the rights, and what

sanctions apply?––––– How long do rights continue?––––– Is protection retrospective? What if third

parties are already using TCEs?––––– How can rights be recognized abroad?

Recording and documentationof cultural expressions

Many stakeholders call for the recording anddocumentation of TCEs and the establishmentof inventories, databases and lists.

The recording and documentation of culturalmaterials play an important role in strategiesfor the safeguarding of cultural heritage andtraditional cultures.

Yet recording or documenting TCEs haveimplications for IP protection that need to beweighed carefully. TCEs are often intangibleand orally maintained. Requiring some formof prior documentation and/or registration inorder to establish IP rights, may contradictthe oral, intangible and ‘living’ nature ofmany TCEs. Apart from the costs involved indocumenting and recording TCEs, thecopyright that may vest in the documentationand recordings may not vest in the communitiesthemselves under copyright law and, in anyevent, extends only to the ways in which theTCEs are expressed and not to the values,meanings and other ‘ideas’ connoted by theTCEs. Documentation and recordings, on thecontrary, and particularly if they are madeavailable in digitized form, make the TCEsmore accessible and available and mayundermine the efforts of communities toprotect them.

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Practical Steps for Setting Overall DirectionsPractical Steps for Setting Overall Directions

Based on the preceding materials, thefollowing series of steps may helppolicymakers ‘navigate’ their way andillustrate the available options:

� Step One: determine national policyobjectives, including the needs ofcommunities that are the holders andcustodians of folklore. Are they relatedto IP (or more concerned with otherpolicy goals such as preservation ofcultural heritage)? What subject matteris to be protected? Against which acts isprotection sought? Is the protectionaimed at positive or defensiveprotection, or a combination of the two?

� Step Two: identify options availableunder conventional IP systems,including unfair competition, as well asoptions for adapted or modifiedelements of existing IP.

� Step Three: analyze options available innon-IP systems relevant to meeting thedesired goals, such as cultural heritage,consumer protection and marketing laws,and indigenous and customary laws.

� Step Four: determine whether a stand-alone sui generis system is necessary, orwhether existing rights and modificationsto them can meet the needs identifiedand strike the right balance. How woulda sui generis system relate toconventional IP systems particularly inrespect of overlapping subject matter?

� Step Five: identify which practical andoperational measures, institutions andprograms may be required to facilitatethe effective use and implementation ofthe forms of protection already in placeor to be established.

� Step Six: establish how national systemswould interact to provide regional andinternational protection, throughbilateral, regional or international legalframeworks.

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What Next?What Next?

The Secretariat of WIPO continues toundertake, upon request, legal-technicalcooperation activities for the establishment,strengthening and effective implementationof systems and measures for the legalprotection of TCEs. As a component of thisprogram, it is developing a comprehensive‘Practical Guide’ for lawmakers, policymakers, communities and other stakeholders,and is also preparing more tailored guides forother interested parties, such as commercialusers and handicraft organizations. Inaddition, the development of modelcontracts, codes of conduct and guidelinesfor use by folklore archives, museums andother institutions to assist them in managingthe IP aspects of their cultural heritagecollections is being explored.

At a policy level, the wealth of the legalanalyses, national and regional submissions,reports and other materials considered by theWIPO Committee has already laid a solidfoundation for international legaldevelopment. The Committee has taken upthe task of distilling this practicalunderstanding in the form of precise policy

and legislative options for enhancedprotection of TCEs through adapated orexpanded conventional IP systems, orthrough stand-alone sui generis systems. Acommon basis of core principles and sharedobjectives is coming into focus. These policyand legislative options could, should theMember States of WIPO so wish, form thebasis of recommendations, guidelines, modelprovisions or other instruments for thenational, regional and internationalprotection of TCEs.

This legal development would build on theprotection for folklore already provided ininternational treaties. It would lead to moreeffective protection of TCEs, basing it on astronger shared understanding of the commonprinciples and objectives of protection. Thisshould help coordinate and strengtheninternational responses to concerns aboutfailure to acknowledge and respect thecultural heritage of indigenous and traditionalcommunities, and ensure that this heritage isused appropriately and equitably, whileallowing cultural exchange and evolution tothrive.

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Further reading

This booklet draws from many documents, studies and other materials prepared and consultedwithin the context of WIPO’s work, and all of which are available from the Secretariat and at:http://www.wipo.int/tk/en/cultural/index.html. A list of the main materials used follows:

WIPO Secretariat, “Intellectual Property Needs and Expectations of Traditional Knowledge Holders:WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge(1998-1999)”.

WIPO Secretariat, Background Paper No 1 “Consolidated Analysis of the Legal Protection ofTraditional Cultural Expressions of Folklore”

WIPO Secretariat, “Final Report on National Experiences with the Legal Protection of Expressionsof Folklore” (WIPO/GRTKF/IC/3/10)

WIPO Secretariat, “Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions”(WIPO/GRTKF/IC/5/3)

WIPO Secretariat, “Traditional Cultural Expressions of Folklore – Legal and Policy Options”(WIPO/GRTKF/IC/6/3)

Janke, Terri, “Minding Culture – Case Studies on Intellectual Property and Traditional CulturalExpressions”, prepared for WIPO

Kutty, P. V., “National Experiences with the Protection of Expressions of Folklore/Traditional CulturalExpressions – India, Indonesia and the Philippines”, prepared for WIPO

International Trade Centre (UNCTAD/WTO) and WIPO Secretariat, ”Marketing Crafts and Visual Arts:the Role of Intellectual Property - A Practical Guide”

Disclaimer: The information contained in this booklet is not meant as a substitutefor professional legal advice. Its main purpose is limited to providing basic information.

Cover artwork extracted from work entitled “Munupi Mural” by Susan Wanji Wanji,Munupi Arts and Crafts Association, Pirlangimpi Community, Melville Island, Australia.Ms. Wanji Wanji is the copyright holder in the work. The work was used with the full

express and informed consent of the artist. All rights reserved.

Certain images used in this booklet have been obtained from commerciallyavailable databases to which WIPO subscribes.

For more information contact WIPO at www.wipo.int

World Intellectual Property Organization34, chemin des ColombettesP.O. Box 18CH-1211 Geneva 20Switzerland

Telephone:+41 22 338 91 11

Fax:+41 22 740 18 12

WIPO Publication No. 913(E) ISBN 978-92-805-1363-9

INTELLECTUAL PROPERTYAND TRADITIONAL CULTURALEXPRESSIONS/FOLKLORE

Booklet nº 1This is one of a series of Booklets dealingwith intellectual property and geneticresources, traditional knowledge andtraditional cultural expressions/folklore