Traditional Knowledge,

Intellectual Property and

Folklore Festivals

Open Forum on Traditional

Knowledge

CIOFF World CongressParis, France16 November2012

Brigitte Vézina

Legal Officer

What is WIPO?

United Nations

Mission: develop a

balanced international IP

system

TK Division: Role of IP in

protection, preservation and

promotion of traditional

knowledge — notably re:

festivals

The Wik Apalech Dancers at the Laura

Aboriginal Dance and Cultural Festival

Wik Apalech Dancers at the Launch of the National Museum of

Australia, Canberra, 2000.

All rights reserved

Photos courtesy of Leonore Lancaster, then Arts Coordinator of Aurukun Arts and Craft Centre.

Permission: Aurukun Shire Council, 2004.

See WIPO, Minding Culture, 2003, written by Terri Janke, Case Study 5

“Protection of Indigenous Dance Performances”

What is Intellectual Property?

Creations of the mind, such as stories, music, art,

inventions, words and signs, designs, performances…

Copyright, patents, trademarks, designs, geographical

indications, unfair competition...

IP system encourages and rewards creativity and

innovation of creators while preserving the public

interest

Intellectual Property and Festivals

Who owns rights in a photograph taken at a festival?

Can a visitor upload his personal pictures of the festival on the

Internet?

Does one need permission to perform a play at a festival?

How can one protect a festival’s name?

Can festival organizers film and broadcast all festival events?

Intellectual Property and Festivals

Sale of fake festival merchandize

Pirating of the festival’s official broadcast signal

“Bootlegging” (illegal recording) of live music performances

Offensive copying of sacred symbols displayed at festival

Sale of postcards reproducing photographs of a ritual dance

Use without permission of a video clip of a traditional ceremony

Replication of traditional dance costumes

Inappropriate copying of tribal face painting of festival performers

“Traditional” Intellectual Property

Traditional

knowledge

(TK)

Traditional

cultural

expressions

(TCEs)

=

Expressions

of folklore

Intangible cultural

heritage (ICH)

Traditional Knowledge

know-how, innovations, information, practices, skills, learning

ex.: hunting, fishing techniques, traditional medicine, migration patterns, animal breeding, hybridization, etc.

John Isaac / Kathmandu, Nepal Debebe / Mongolian Herder Tarialan, MongoliaJoseane Daher / Xavante Indians Mato Grosso, Brazil

Traditional Cultural Expressions

Expressions of folklore = folklore

Forms in which culture and knowledge are expressed, elements of cultural heritage

Ex: rituals, songs, dances, paintings, drawings, crafts, poems, tales, textiles...

John Olsson / Guatemala

John Isaac / Detailed view of the Glwa Heiltsuk canoe Qatuwas Festival,

Bella Bella Canada

James Bu / Pyongyang, Democratic People’s Republic of Korea

Martine Perre / Alieu,Timor-Leste

Folklore is Intellectual Property, but…

Cultural heritage elements are valuable and important… but…

…under threat

Elements are intellectual property… but…

…traditional

transmitted from generation to generation

link with the community

���� not fully protected by existing IP systems

���� indigenous peoples, local communities and many States call for their

greater protection, safeguarding, preservation and promotionJohn Isaac / Heiltsuk women

Calvert Island Canada

Eskinder Debebe / Mongolian

Herder Community

What is Protection?

Dancing and Music Performance, Solomon Islands, 2012

What does IP protection mean?

Treating TK and TCEs as IP

Holders have a say over access and use of TK/TCEs by third parties

Using IP principles and values to prevent misuse and

misappropriation

Balance and proportionality: IP does not give perfect control

limitations and exceptions

limited term

public domain

Are TK and TCEs Protected as Intellectual

Property?

Yes and No

Some aspects are already protected by current IP systems (derivative works, performances, recordings, databases, compilations, patents on TK-based innovations, etc.)

TK and TCEs “as such” not yet fully protected internationally

as such

What does WIPO do?

WIPO’s Traditional Knowledge

Program addresses the

protection of the TK, TCEs and

genetic resources of

indigenous peoples and local

communities

International norm-

setting

Technical assistance and

capacity-building

Normative Development at WIPO

WIPO Intergovernmental Committee – 2000

Forum where negotiations take place on international legal

instruments

Member States, indigenous and local communities, business,

civil society and other NGOs

Objective of protection

Definition of the subject matter

Beneficiaries

Scope of protection

Exceptions and limitations

Term of protection

Key Considerations of the Draft

Instruments

NJ / Niue South Pacific

Andi Gitow /

Masai

Traditional

Music Group

Kenya

Capacity-building

Awareness-Raising

Legal and Policy

Development

Training Activities

Practical Tools and

Resources

Capacity Building:

Creative Heritage Project

Publication for cultural institutions on managing IP in TCE collections

Software tool – enables communities and cultural institutions to manage access and use of TCE recordings

Training Program on Cultural Documentation and IP Management – provides technical assistance on documenting cultural heritage and guidance on management of IP interests

Training Program: Community Cultural

DocumentationWIPO + American Folklife Center + Duke University

Intense practical training

Documentary techniques

Archiving skills

IP management related to efficient and community-focused cultural heritage preservation

Maasai community, in collaboration with National Museums of Kenya

Maroon and Rastafari communities, in collaboration with JamaicanIntellectual Property Office

WIPO and Festivals

TK/TCEs frequently displayed, performed, represented and shared at festivals around the globe

TK/TCEs are vital to the preservation of the cultural distinctiveness and vitality of the artists’ and performers’communities

Working with those involved in the organization of arts, folklore and cultural festivals to develop and apply appropriate management strategies to deal with the IP issues related to festivals

Intellectual Property and the

11th Festival of Pacific Arts, Solomon

Islands, 2012

Festivals and Intellectual Property Basics

Copyright

Marks

Geographical Indications

Designs

Festivals and Copyright

In a festival context, copyright can protect:

the songs and dances being performed

costumes, stage sets and props

artwork and crafts on display or for sale

banners, posters, brochures, information leaflets

Copyright as Property

=

Basics of Copyright

Copyright gives a creator the exclusive rights to

reproduce and make other uses of her work

It lasts, generally, for the life of the author + min.50 years

There are exceptions and limitations in the public interest

(e.g. fair use)

Festivals and Marks

Trademarks

Name or logo…

Exclusive right to use the mark

Certification Marks

Compliance with defined standards

Festivals and Geographical Indications

Geographical Indications

http://idrijalace.com/idrija-lace-festival-2009/dsc_1099

Festivals and Designs

Devising a Festival’s Intellectual

Property Strategy

Managing the Festival’s own Intellectual Property

Managing the Intellectual Property of Others

Managing the Cultural and Customary Interests of

Participants

Raising-Awareness and Enforcing the Policy

Managing the Festival’s Own

Intellectual Property Assets

Building the Festival Brand

Registering a Trademark

Securing a Domain Name

Managing the Festival’s Copyright

The Art of Licensing

Controlling the Media

Granting Accreditations

Managing the Intellectual Property of

Others

Examples:

Trademarks of sponsors displayed on the festival premises

Songs performed by invited musicians

Film projected to festival audience

Poems recited in public

Merchandize posted on the festival’s website

Artwork exhibited by festival artists and craftspeople…

Ensure that proper prior authorization (permission, license or

release), preferably in writing, has been obtained, even when

using just a part of protected material

Best way to avoid disputes and litigation

Vital to a festival’s reputation and longevity

Managing the Cultural and Customary

Interests of Participants

Offensive and culturally inappropriate to photograph,

record, film, copy, imitate or commercialize TK or TCEs,

especially if culturally sensitive or sacred

Unauthorized uses may cause harm to individuals or

entire community

Take complementary measures, going beyond existing

IP law

Measures to Protect TK/TCEs

Guidelines and protocols

inform and instruct visitors and media about TK/TCEs respect

encourage appropriate behavior

Contracts, especially in writing

terms and conditions for using TK/TCEs according to values and

needs of holders (e.g. acknowledgement)

concretize financial deals and sharing of benefits derived from

exploitation of TK/TCEs

Signs, notices and warnings

posted on the festival site or given prior to a performance

Raising-Awareness and Enforcing the Policy

Preparing Signs, Notices and Warnings

Developing a Respect Strategy

Training Festival Staff and Volunteers

Monitoring Infringement and Taking Legal Action

The WIPO Guide on IP for Festivals

(forthcoming)

What?

Provides general information about IP and TK/TCEs

Identifies the main IP issues related to festivals

Offers suggestions on how to harness a festival’s IP assets and how

best to ensure respect for the world’s cultures

Outlines practical elements of an effective IP management strategy

Offers examples and templates in an annex

For whom?

people organizing folklore, arts and cultural festivals

festival participants, performers and exhibitors

festival visitors

general public

Conclusion

Organizing a festival is a complex undertaking

An effective IP management strategy is central

Can foster cultural respect and generate economic

opportunities

Conventional IP tools + complementary measures

IP management does not end with the festival’s closing

ceremony. Festivals may be busy tackling IP issues well

beyond the festival, both in time and space.

The WIPO TK Website

Thank you for your attention!

Further information about IP

and TK and TCEs:

www.wipo.int/tk

WIPO’s work on IP and arts

festivals:

http://www.wipo.int/tk/en/cultur

alheritage/ip-arts-festivals.html

Contact WIPO’s Traditional

Knowledge Division at

grtkf@wipo.int