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Traditional Knowledge, Intellectual Property and Folklore ... Forum on Traditional... · See WIPO,...
Transcript of Traditional Knowledge, Intellectual Property and Folklore ... Forum on Traditional... · See WIPO,...
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