Intangible Cultural Heritage and Intellectual Property

Toshiyuki Kono Kyushu University, Japan

(This is used only for the conference on June 3rd, 2011 in Alicante.

Use for other purposes needs author’s consent.)

Culture

Raymond Williams, Keywords: A Vocabulary of Culture and Society “culture”: one of the most complicated words in English 3 usages (1) The independent and abstract noun which describes general process of intellectual, spiritual and aesthetic development, (2) The independent noun, whether used generally or specifically, which indicates a particular way of life, whether of a people, a period, a group or humanity in general, (3) The independent and abstract noun which describes the works and practices of intellectual and especially artistic activity.

Culture (contd.)

Richard Sennet

arts

religious, political, and social beliefs that bind a people

“Arts”: many meanings

cultural goods/ services

cultural activities

Emergence of Artists

Artists emerged in the Renaissance period from the community of medieval craftsmen.

(M. and R. Wittkower)

Three characteristics:

(1) Individual, (2) Autonomy, (3) Originality * Tension between (2) and (3)

(more autonomy less original; patronage more original)

Cultural activities and law in modern society

Constitution: freedoms of belief and expression minimizing the state’s intervention Copyright economic incentive more creations Various regulations retention of “space” in the market (ex. Quota), financial assistance for certain cultural industries etc.

A director of Kunqu Opera said..

In 1990’s “when the curtain opened, we usually found audience members could be counted on one hand, and almost all of them were elderly.”

An expert indicates,

“the genuine part of Kunqu Opera is being lost, because in the past 20 or 30 years Kunqu artists have been pursuing quick success. The newly created plays can rarely reach the level of the classics”.

Questions

Without traditional cultural expressions – less cultural diversity

1. Creation and transmission: separable?

2. Transmission occurs automatically?

Cf. Creation be inspired by incentives through CR.

3. How would IP/CR contribute to traditional cultural activities?

Transmission and creation: separable?

“many expressions of folklore are handed down from generation to generation, orally or by imitation. Over time, individual composers, singers and other creators and performers might call these expressions to mind and re-use, re-arrange and re-contextualize them in a new way. There is, therefore, a dynamic interplay between collective and individual creativity” (WIPO/GRTKF/IC/17/4, p.14)

Automatic transmission?

• Functions of transmission learning process dissemination of knowledge, techniques, know-how • Various dangers depopulation urbanization disinterest changes in market folklorization

3 possible policy options to stimulate transmissions

(1) Laissez-faire Approach UK, Germany (2) Pride Approach Japan, Korea (3) Rescue Approach UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003) (134 SP) (4) IP/CR works?

Laissez-faire: why?

(1) Focused on Tangible Heritage

(2) In Europe, popular arts and traditions occupied a minor place in the world of arts dominated by the fine arts or high culture.

In the Renaissance, when cultural attitudes imposed the rules and principles of a scholarly culture on the higher classes in society while the rules and principles of an oral culture prevailed for other classes. (J. Cusenier),

Following the French Revolution, there was a dichotomy between the conservation of fine arts and popular arts and craft. (Greffe)

Pride Approach: Basic structure of Japanese law

First legislation on intangible heritage in the world (1950), major amendment (1954, 1975) 3 different types of intangible heritage

(1) Intangible cultural property (2) Intangible folk-cultural property (3) Selected preservation technique

“importance” (value judgment) designation/ “holder” certification ex. ICP 58 individuals, 12 groups IFCP 266

ICP Ex. Bunraku pupetier

Holder(s) Mr. XXX Mr. YYY

Rescue Approach: UNESCO Convention for the Safeguarding of Intangible Cultural Heritage

(2003)

List of Intangible Cultural Heritage in need of Urgent Safeguarding (Art.17)

Safeguarding Plan + financial assistance from the Fund of the Convention

Cf. Art.16: Representative List – similar to pride approach

IP/CR contributes? How?: ICH and TCE

TCE – outcome: “traditional cultural expression” Cf. Substantive provision Art.1 (WIPO/GRTKF/IC/17/4 Prov. Annex) ICH – process: ex. “technique” could be ICH Scheme: ICH Safeguarding – enhance communities and individuals – gradually developing, but problematic cases due to commercialization TCE Protection – Sometimes no economic incentive…..

CR contributes? How?: ICH and TCE

• 19th century-type CR TCE

who, what and how long etc.

originally designed for “artists”

Time-consuming negotiations to draft provisions on sui generis protection

Current state of discussions at WIPO

(WIPO/GRTKF/IC/17/4 Prov. Annex) • Art 3: prevention of misuse

identification, prevention, benefit sharing,

• Art 4: management of rights

authorization-agency issue, education, remuneration

• Art 5: exceptions

• Art 6: term – “as long as”

• Art.7: no formality

• Art.8: sanctions: civil, criminal and administrative

ICH and TCE some common issues

Identification: Inventory (ICH)--registration (TCE)

Cf. evolving nature of ICH

Bearers: community (Cf. indigenous community)

and individual (Cf. WIPO IGC)

Consent of bearers

Unanswered issues

• Why quality matters for some individuals and communities? Does economic incentive really matter?

• What is the role of IP/CR? How to collaborate with ICH? – to deal with process and outcome?

Thank you for your kind attention.

Muchas Gracias.