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

1. 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

2. 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

3. TK, TCEs and ICH TK TK TCEs ICH

4. 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)

5. 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”?

6. 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

7. What could “protection” of TCEs mean? • an exclusive property right → to prevent or authorize use of TCEs, incl. for exploitation to support economic development • preventionof inappropriate, unwanted use and commercialization by others • remuneration for third party uses • acknowledgement of source • defensive protection (protection against IP rights)

8. Normative developments: WIPO Intergovernmental Committee (IGC) • first session in April 2001 • members and participants: • member states • intl. organizations • NGOs (over 200) • eg., ICOM • indigenous and local communities: speedy accreditation and WIPO Voluntary Fund

9. New IGC Mandate for 2010-2011 Draft provisions for protection of TCEs Sui generis provisions – collective rights, no formalities, indefinite protection. . . • 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

10. 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

11. Draft Article 3 1. Cultural expressions of particular cultural/spiritual value – exclusive right if TCE registered 2. Other cultural expressions – no formalities - moral rights and reasonable royalty 3. Secret TCEs

12. 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

13. 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

14. 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)

15. WIPO Creative Heritage Training Program on Cultural Documentation • WIPO, American Folklife Center/LOC and Duke University • Hands-on technical training • IP training • Camera, sound recording equipment, laptop and software • Pilot program successfully completed, for Maasai community, with National Museums of Kenya, Kenya

19. WIPO Guide on IP and Safeguarding Traditional Cultures (draft) • 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? complex and sensitive issues

20. Table of contents (to come)

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