INTELLECTUAL PROPERTY
AND TRADITIONAL CULTURAL
EXPRESSIONS/FOLKLORE
WORLD
INTELLECTUAL
PROPERTY
ORGANIZATION
Booklet n1This is one of a series of Booklets dealing
with intellectual property and genetic
resources, traditional knowledge and
traditional cultural expressions/folklore
Disclaimer: The information contained in this booklet is not meant as a substitute
for 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 commercially
available databases to which WIPO subscribes.
1
A Brief Overview Content
Indigenous art copied onto carpets, T-shirts
and greeting cards; traditional music fused
with techno-house dance rhythms to produce
best-selling `world music' albums; handwoven
carpets and handicrafts copied and
sold as `authentic'; the process for making a
traditional musical instrument patented;
indigenous words and names trademarked
and used commercially.
These are the kinds of examples that
indigenous and other traditional and cultural
communities cite when arguing that
traditional creativity and cultural expressions
require greater protection in relation to
intellectual property (IP).
The World Intellectual Property Organization
(WIPO), which first began examining the
relationship between IP and the protection,
promotion and preservation of traditional
cultural expressions (TCEs) (or `expressions of
folklore') several decades ago, has an active
program of policy development, legislative
assistance and capacity-building in this area.
The relationship between TCEs and IP raises
complex and challenging issues. Expressions
of traditional cultures/folklore identify and
reflect the values, traditions and beliefs of
indigenous and other communities.
A Brief Overview
A Brief Overview 1
Timeline 3
Key Concepts 5
What are "traditional cultural
expressions"? 5
Intellectual property `protection' 9
What is the relationship between IP
`protection' and the `preservation and
safeguarding' of cultural heritage? 10
A Legal and Cultural Policy Framework 12
What are the needs and expectations
of TCE/folklore custodians? 12
The role of the `public domain' 13
Legal Options : National, Regional and
International Trends and Experiences 15
Setting national policy objectives 15
Use of existing IP rights and
sui generis adaptations to them 16
Sui generis measures and systems 19
Recording and documentation of
cultural expressions 20
Practical Steps for Setting Overall
Directions 21
What Next ? 22
2
The terms `traditional cultural
expressions'/`expressions of folklore'
This booklet uses the terms `traditional
cultural expressions' (TCEs) and
`expressions of folklore' interchangeably.
Although `expressions of folklore' has been
the term used most commonly in
international discussions and is found in
many national laws, some communities have
expressed reservations about negative
connotations of the word `folklore.' The use
of `traditional cultural expressions' or
`expressions of folklore' in this booklet is not
intended to suggest any consensus among
States, communities or other stakeholders
on the validity or appropriateness of these
or other terms. As many point out, the
choice of an appropriate term or terms, and
the identification of the subject matter that
it/they cover, is ultimately a matter for
decision by policymakers and relevant
communities at the local and national levels.
The challenges of multiculturalism and
cultural diversity, particularly in societies with
both indigenous and immigrant communities,
require cultural policies to maintain a balance
between the protection and preservation of
cultural expressions ­ traditional or otherwise
­ and the free exchange of cultural
experiences.
A further challenge is to balance a wish to
preserve traditional cultures with a desire to
stimulate tradition-based creativity as a
contribution to sustainable economic
development. Addressing these challenges
provokes some deeper questions. To whom,
if anyone, does a nation's cultural heritage
`belong'? What is the relationship between IP
protection and the promotion of cultural
diversity? Which IP policies best serve a
creative and multicultural `public domain'?
How, if at all, should current IP systems
recognize customary laws and protocols?
When is `borrowing' from a traditional
culture legitimate inspiration and when is it
inappropriate adaptation or copying? Is there
a relationship between the `preservation' of
cultural heritage and the IP `protection' of
TCEs, and, if so, what is it?
This booklet identifies the key concepts, legal
and cultural policy considerations and main
legal options, based upon national, regional
and international trends, relating to the
protection of TCEs.
First, a brief historical perspective is
presented.
3
Timeline
 In 1967, an amendment to the Berne
Convention for the Protection of
Literary and Artistic Works provided a
mechanism for the international
protection of unpublished and
anonymous works. According to the
framers of this amendment, reflected in
Article 15.4 of the Convention, it aims at
providing international protection for
expressions of folklore/TCEs.
 In 1976, the Tunis Model Law on
Copyright for Developing Countries
was adopted. It includes sui generis
protection for expressions of folklore.
 In 1982, an expert group convened by
WIPO and the United Nations Educational,
Scientific and Cultural Organization
(UNESCO) developed a sui generis model
for the IP-type protection of TCEs: the
WIPO-UNESCO Model Provisions, 1982.
 In 1984, WIPO and UNESCO jointly
convened a group of experts on the
international protection of expressions of
folklore by IP. A draft treaty based on the
Model Provisions, 1982 was at their
disposal. Yet, a majority of the participants
believed it premature to establish an
international treaty at that time.
 In December 1996, WIPO Member
States adopted the WIPO Performances
and Phonograms Treaty (WPPT), which
provides protection also for a performer
of an expression of folklore.
 In April 1997, the `UNESCO-WIPO
World Forum on the Protection of
Folklore' was held in Phuket, Thailand.
 During 1998 and 1999, WIPO conducted
fact-finding missions in 28 countries to
identify the IP-related needs and
expectations of traditional knowledge
holders (`FFMs'). For purposes of these
missions, `traditional knowledge'
included TCEs as a sub-set. Indigenous
and local communities, non-governmental
organizations, governmental
representatives, academics, researchers
and private sector representatives were
among the more than 3000 persons
consulted on these missions. The results
of the missions were published by WIPO
in a report entitled `Intellectual Property
Needs and Expectations of Traditional
Knowledge Holders: WIPO Report on
Fact-finding Missions (1998-1999)'
(FFM Report).
4
 In 1999, WIPO organized regional
consultations on the protection of
expressions of folklore for African
countries (March 1999), for countries of
Asia and the Pacific region (April 1999),
for Arab countries (May 1999), and for
Latin America and the Caribbean (June
1999). Each of the consultations adopted
resolutions or recommendations, which
included the recommendation that WIPO
and UNESCO increase and intensify their
work in the field of folklore protection.
The recommendations unanimously
specified that future work in these areas
should include the development of an
effective international regime for the
protection of expressions of folklore.
 In late 2000, the WIPO Intergovernmental
Committee on Intellectual
Property and Genetic Resources,
Traditional Knowledge and Folklore
(the Committee) was established. The
Committee has made substantial progress
in addressing both policy and practical
linkages between the IP system and the
concerns of practitioners and custodians
of traditional cultures. Under the guidance
of the Committee, the Secretariat of WIPO
has issued a detailed questionnaire on
national experiences, and undertaken a
series of comprehensive analytical studies
based on the responses to the
questionnaire and other consultations and
research. The studies have formed the
basis for ongoing international policy
debate and assisted in the development of
practical tools. Drawing on this diverse
experience, the Committee is moving
towards an international understanding
of the shared objectives and principles
that should guide the protection of TCEs.
All these materials are available from the
Secretariat 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 and
seminars, expert and fact-finding
missions, commissions case-studies, and
carries out and provides legislative
drafting, advice, education and training.
WIPO-UNESCO Model Provisions
for National Laws, 1982
In 1982, Model Provisions for National Laws
on the Protection of Expressions of Folklore
against Illicit Exploitation and Other Prejudicial
Actions (the Model Provisions, 1982) were
adopted under the auspices of WIPO and
UNESCO. They establish two main categories
of acts against which TCEs are protected,
namely `illicit exploitation' and `other
prejudicial actions'. The Model Provisions have
influenced the national laws of many
countries. Several States and other stakeholders
have suggested that the Model
Provisions require improvement and updating.
5
Key Concepts
Key Concepts
What are "traditional cultural
expressions"?
Traditional cultural expressions, often the
product of inter-generational and fluid social
and communal creative processes, reflect and
identify a community's history, cultural and
social identity, and values.
While lying at the heart of a community's
identity, cultural heritage is also `living' ­ it is
constantly recreated as traditional artists and
practitioners bring fresh perspectives to their
work. Tradition is not only about imitation
and reproduction; it is also about innovation
and creation within the traditional
framework. Therefore, traditional creativity is
marked by a dynamic interplay between
collective and individual creativity.
From an IP perspective, in this dynamic and
creative context it is often difficult to know
what constitutes independent creation. Yet,
under current copyright law, a contemporary
adaptation or arrangement of old and preexisting
traditional materials can often be
sufficiently original to qualify as a protected
copyright work.
This is a key point, and it lies at the heart of
extensive policy debate ­ is the protection
already available for contemporary traditionbased
creativity adequate, or is some form of
additional IP protection for the underlying
and pre-existing materials necessary? See
further below under `A Legal and Cultural
Policy Framework'.
Characteristics of traditional cultural
expressions (TCEs)/folklore
In general, it may be said that TCEs/folklore
(i) are handed down from one generation to
another, either orally or by imitation, (ii)
reflect a community's cultural and social
identity, (iii) consist of characteristic elements
of a community's heritage, (iv) are made by
`authors unknown' and/or by communities
and/or by individuals communally recognized
as having the right, responsibility or permission
to do so, (v) are often not created for
commercial purposes, but as vehicles for
religious and cultural expression, and (vi) are
constantly evolving, developing and being
recreated within the community.
6
A working description of traditional
cultural expressions/expressions
of folklore
While not constituting a formal definition as
such, a working description of TCEs could be:
`Traditional cultural expressions'/
`expressions of folklore' means productions
consisting of characteristic elements of the
traditional artistic heritage developed and
maintained by a community of [name of
country] or by individuals reflecting the
traditional artistic expectations of such a
community, in particular:
­­­­­ verbal expressions, such as folk tales, folk
poetry and riddles, signs, words, symbols
and indications;
­­­­­ musical expressions, such as folk songs
and instrumental music;
­­­­­ expressions by actions, such as folk
dances, plays and artistic forms or rituals;
whether or not reduced to a material
form; and,
­­­­­ tangible expressions, such as:
- productions of folk art, in particular,
drawings, paintings, carvings,
sculptures, pottery, terracotta, mosaic,
woodwork, metalware, jewelry, basket
weaving, needlework, textiles, carpets,
costumes;
- crafts;
- musical instruments;
- architectural forms.
`Expressions of' traditional culture (or
`expressions of' folklore) may be either
intangible, tangible or, most usually,
combinations of the two ­ an example of
such a `mixed expression of folklore' would
be a woven rug (a tangible expression) that
expresses elements of a traditional story (an
intangible expression).
Cultural heritage and economic
development
While the artistic heritage of a community
plays significant social, spiritual and cultural
roles, it can also, as a source of creativity and
innovation, play a role in economic
development.
The use of traditional cultural materials as a
source of contemporary creativity can
contribute towards the economic
development of traditional communities
through the establishment of community
enterprises, local job creation, skills
development, appropriate tourism, and
foreign earnings from community products.
Here IP can play a role. By providing legal
protection for tradition-based creativity, IP
protection can enable communities and their
members to commercialize their traditionbased
creations, should they wish to do so,
and/or to exclude free-riding competitors.
The marketing of artisanal products also
represents a way for communities to show
7
and strengthen their cultural identity and
contribute to cultural diversity. Here IP can
assist in certifying the origin of arts and crafts
(through certification trademarks) or by
combating the passing off of fake products
as `authentic' (through the law of unfair
competition), for example. Communities have
used their IP to exercise control over how
their cultural expressions are used, and to
defend against insensitive and degrading use
of traditional works.
Traditional cultural manifestations are also a
source of inspiration and creativity for
cultural industries, such as the entertainment,
fashion, publishing, crafts and designs
industries. Many businesses today, small,
medium and large, in developed and
developing countries, create wealth using the
forms and materials of traditional cultures.
For example, vibrant publishing, music and
audiovisual industries in India and Nigeria
draw upon local cultural materials.
A national cultural development
project
An example of a cultural development
project is the poverty alleviation program
`Investing in Culture' for the Khomani San
people in South Africa. This program is
revitalizing the community's craft-making
and enabling the community for the first
time to generate its own income.
The relationship between tradition, creativity
and the market-place is not always perceived
to be a happy one. What is creativity from one
perspective may be seen to erode traditional
culture from another.
The commercial value of handicrafts
Visual arts and crafts are an important
source of income for Indigenous artists and
communities in Australia, and the level of
copyright and other IP protection they enjoy
is of utmost importance to them, according
to a report issued in 2002. It is estimated
that the indigenous visual arts and crafts
industry has a turnover of approximately
US$130 million in Australia, of which
indigenous people receive approximately
US$30 million.
In Colombia, `Artesanias de Colombia' is
the national institution charged with the
development and promotion of the
handicrafts sector. In many cases in
Colombia, craft items are the only tradable
products of small communities. The
handicrafts sector employs a majority of
women, considered an important factor in
wealth distribution in small-income or singleparent
families.
8
What is the relationship with `traditional
knowledge' (TK)?
Indigenous and traditional communities often
regard expressions of their traditional
cultures/folklore as inseparable from systems
of traditional knowledge (such as medical
and environmental knowledge, and
knowledge related to biological resources). In
discussions about IP protection, however,
expressions of traditional cultures/folklore are
generally discussed distinctly from traditional
knowledge (or TK). This is not to suggest that
these should be artificially distinguished in
the community context. It simply reflects the
widespread experience that distinct legal
tools and a different set of policy questions
typically arise when IP protection is applied to
safeguard TCEs on the one hand, and
technical TK on the other. IP protection
therefore complements traditional patterns
of cultural expressions and traditional
knowledge systems, and operates beyond
the original community: it is not aimed to
supplant or imitate the community's own
customs and practices. Wide experience has
shown that the IP protection of TCEs raises
certain specific questions of cultural policy
and, unlike technical TK, involves legal
doctrines closest to those underpinning the
copyright and related rights systems. The
general principles and specific solutions for
TCEs and TK are likely to differ, therefore. It is
important that the forms of protection
provided for folklore be inspired and shaped
by the appropriate legal and cultural policies
and principles. In addition, a distinct focus on
TCEs/folklore facilitates more specific,
technical and concrete discussions, and
engages more fully the experiences and
perspectives of relevant stakeholders, such as
Government offices and departments dealing
with copyright, culture and education;
indigenous and traditional bearers and
performers of cultural traditions and artistic
expressions; and folklorists, ethnomusicologists,
archivists and other cultural scholars.
In contrast to TK, there is already significant
experience in developing and implementing
IP protection specifically for TCEs/folklore at
the international, regional and national levels
(see `Timeline' above).
For an introductory discussion on traditional
knowledge, see the companion Booklet
"Intellectual Property and Traditional
Knowledge"
9
Intellectual property `protection'
Intellectual property (IP) refers to creations of
the mind such as inventions, designs, literary
and artistic works, and symbols, names,
images, and performances.
IP is typically protected by laws that establish
private property rights in creations and
innovations in order to grant control over
their exploitation, particularly commercial
exploitation, and to provide incentives for
further creativity. Copyright, for example,
protects the products of creativity, in the
form of original literary and artistic works,
against certain uses such as reproduction,
adaptation, public performance,
broadcasting and other forms of
communication to the public. It can also
Copyright, adaptation and `derivative works'
When is the use of traditional cultural materials legitimate inspiration and when is it
inappropriate adaptation and copying? An author of a work normally has the exclusive
right to control the making of adaptations of the work. Examples would be translations,
revisions and any other forms in which a work may be recast, transformed or adapted. These
are sometimes together referred to as `derivative works.' Derivative works may themselves
qualify for copyright protection if sufficiently original. Even works derived from materials in the
public domain can be copyright protected, because a new interpretation, arrangement,
adaptation or collection of public 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 inspired by traditional culture that incorporates new elements can be
considered a distinct, original work and is thus protected.
However, the protection afforded to derivative works vests only in the new material or aspects
of the derivative work. Thus, aside from new material that belongs to the author, a derivative
work may also comprise material that already belongs to another rightholder or is in the public
domain. 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 the
adaptation of the protected work, however, in general, this does not prevent creators from
being inspired by other works or from borrowing from them. Copyright supports the idea that
new artists build upon the works of others and it rewards improvisation. In other words,
`borrowing from' and inspiration are permitted, adaptation and copying are not. Distinguishing
between them is not always easy.
10
provide protection against demeaning or
degrading use of a work, an issue that is
often of concern in relation to traditional
cultural materials. Not all aspects of IP
protection are focussed directly on
innovation and creativity, particularly the law
of distinctive marks, indications and signs
(laws governing trademarks, geographical
indications and national symbols) as well as
the related area of the repression of unfair
competition. These aim at the protection of
established reputation, distinctiveness and
goodwill, such as may be enjoyed by a
traditional community in the production of
handicrafts, artworks and other traditional
products.
The elements and principles of the copyright
system are particularly relevant to the
protection of TCEs because many are literary
and artistic productions and therefore already
or potentially the subject matter of copyright
protection. This is why many countries
already protect folklore within copyright law.
Rights related to copyright, particularly the
rights of performers, are also directly useful.
The other main branch of IP law, industrial
property, has also been used to protect TCEs
­ especially trademarks (such as collective
marks) and geographical indications,
industrial designs (including textile designs),
and the suppression of unfair competition.
Saami women in
traditional dress
What is the relationship between
IP `protection' and the
`preservation and safeguarding'
of cultural heritage?
Within the context of cultural heritage, the
notions of `preservation' and `safeguarding'
refer generally to the identification,
documentation, transmission, revitalization
and promotion of cultural heritage in order
to ensure its maintenance or viability. The
preservation and safeguarding of cultural
heritage and the promotion of cultural
diversity are key objectives of several
international conventions and programs as
well as regional and national policies,
practices and processes.
United Nations Educational, Scientific
and Cultural Organization (UNESCO)
UNESCO undertakes extensive work on the
preservation of cultural heritage. WIPO's
cooperation with UNESCO on the protection
of traditional cultural expressions includes
the development, in 1982, of the WIPOUNESCO
Model Provisions. WIPO and
UNESCO continue to cooperate as they have
done in the past. For example, in 1999 WIPO
and UNESCO jointly organized regional
consultations on folklore. In 2003, Member
States of UNESCO adopted an `International
Convention for the Safeguarding of
Intangible Cultural Heritage'.
Photo:MercedesMartínezDozal
11
The different meanings of
`protection'
Take as an example a legend that was
recorded centuries ago on a piece of cloth.
`IP protection' of the legend could be
helpful in preventing others from
reproducing the legend on a T-shirt.
However, if only a few people know the
legend and the language that should be
used to recite the legend, `protection' may
take the form of measures that would
assist people to pass on their knowledge of
the legend and the language to the next
generation. If the cloth begins to decay,
`protection' may take the form of measures
to ensure that the cloth is preserved for
future generations. In other instances,
`protection' could take the form of
promoting the legend outside the
community in order that others may learn
about it and gain a greater understanding
and respect for the culture of the
originating community.
WIPO's work is, in line with its mandate,
principally concerned with the `protection' of
TCEs 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 the
recording or documentation and publication
of traditional cultural materials) can trigger
concerns about lack of IP protection and can
run the risk of unintentionally placing TCEs in
the `public domain'; thus leaving others free
to use them against the wishes of the
original community. Or, unless handled
carefully, it can mean that the person
recording the traditional expression gains
copyright over the form in which it is
recorded (e.g. a photograph, film or sound
recording of a TCE).
Photo:WendWendland
The Zambian National
Dance Troupe
Clarity on what is meant by `protection' is
key, because the needs and expectations of
TCE holders and practitioners can in some
cases be addressed more appropriately by
measures for preservation and safeguarding
rather than IP protection.
12
The legal protection of TCEs should be
considered in an inclusive policy context, and
not as an end in itself. This involves reflecting
on such broader issues as:
­­­­­ the preservation and safeguarding of
cultural heritage;
­­­­­ the promotion of cultural diversity;
­­­­­ the respect for cultural rights;
­­­­­ the promotion of artistic development
and cultural exchange;
­­­­­ the needs and interests of indigenous
and traditional communities; and,
­­­­­ the promotion of tradition-based
creativity and innovation as ingredients of
sustainable economic development.
What are the needs and
expectations of TCE/folklore
custodians?
Indigenous and local communities have called
for various forms of protection; these include:
­­­­­ protection of traditional literary and artistic
productions against unauthorized
reproduction, adaptation, distribution,
performance and other such acts, as well
as prevention of insulting, derogatory and/
or culturally and spiritually offensive uses;
­­­­­ protection of handicrafts, particularly
their `style';
­­­­­ prevention of false and misleading claims
to authenticity and origin/failure to
acknowledge source; and
­­­­­ defensive protection of traditional signs
and symbols.
With regard to these kinds of examples,
three approaches among indigenous and
local communities were identified during the
fact-finding missions and consultations
conducted by WIPO since 1998:
­­­­­ IP protection to support economic
development: some communities wish
to gain and exercise IP in their traditionbased
creations and innovations to
enable them to exploit their creations
and innovations commercially as a
contribution to their economic
development.
A Legal and Cultural Policy Framework
A Legal and Cultural Policy Framework
Photo:WendWendland
Traditional
artisans and
performers,
Yunnan
Province,
China
13
­­­­­ IP protection to prevent unwanted
use by others: communities may wish to
gain IP protection in order to actively
exercise IP rights to prevent the use and
commercialization of their cultural
heritage and TCEs by others, including
culturally offensive or demeaning use.
The first two approaches involve `positive
protection' ­ that is, obtaining and asserting
rights in the protected material. Positive
protection can therefore (i) serve as the legal
basis for any commercial and other dealings
that TCE holders may choose to pursue with
other partners, and (ii) stop third parties from
using TCEs in an unauthorized or
inappropriate way. Defensive strategies, by
contrast, aim at preventing others from
gaining or maintaining adverse IP rights.
Various positive and defensive strategies can
be used together, depending on what the
holders or custodians of TCEs want to achieve.
A community's secret or sacred TCEs may be
protected defensively; while handicrafts may
be positively protected as part of a community
trading enterprise and against imitations or
fakes.
The role of the `public domain'
An integral part of developing an appropriate
policy framework within which to view IP
protection and TCEs is a clearer
understanding of the role, contours and
boundaries of the so-called `public domain.'
The term `public domain' is used here to refer
to elements of IP that are ineligible for private
ownership and the contents of which any
member of the public is legally entitled to
use. The `public domain' in this context
means something other than `publicly
available' ­ for example, content on the
Internet may be publicly available but not in
the `public domain' from a copyright
perspective. The `public domain' is often
characterized by indigenous and other
stakeholders as having been created by the IP
system and does not therefore respect the
protection of TCEs that customary and
indigenous laws require.
Mr. Cun Fablao, a designer
from the Yunnan Province,
China, received industrial
design protection for
his tradition-based
silver-plated tea-set
Photo:WendWendland
14
The debate about appropriate protection
boils down to whether, and how, there
should be changes to the existing boundary
between the `public domain' and the scope
of IP protection. In other words, is the IP
protection that is already available for
contemporary tradition-based creativity and
performances adequate? Does it strike the
right balance and meet the needs of
traditional communities and the general
public? Does it offer the greatest
opportunities for creativity and economic
development? Or, is some new form of IP
protection for the underlying and pre-existing
materials necessary?
Responses to these complex questions are
varied. Some argue the public domain
character of folklore does not hamper its
development. On the contrary, it encourages
members of a community to keep alive `preexisting
cultural heritage' by providing
individuals of a community with copyright
protection when they use various expressions
of `pre-existing cultural heritage' in their
present-day creations or works. On the other
hand, it is questioned whether all historic
materials should be denied protection merely
because they are not recent enough! On this
view, new creations frequently rely on
borrowed cultural and historic antecedents,
and cultural communities deserve to be
acknowledged, and to benefit from this use
of their traditions.
Trends and experiences:
Use of contracts
In 1998, a New Zealand swimwear
manufacturer, Moontide, launched a new
range of women's swim suits made from
material patterned with interlocking koru
designs of the Maori people. The firm
developed the swimwear line with a Maori
entrepreneur, and it negotiated the use of
the koru motif with an elder in the local
community. Two concerns governed the
design elemenťs use: commercial viability
and cultural respect. Part of the income from
sales goes to the Pirirakau hapu (sub-tribe)
of the Ngati Ranginui people.
Source: Shand, Peter, `Scenes from the Colonial
Catwalk: Cultural Appropriation, Intellectual
Property Rights, and Fashion', Cultural Analysis,
Volume 3, 2002.
15
Legal Options : National, Regional and
International Trends and Experiences
Experience so far with TCE protection has
shown that no single template or
comprehensive `one-size-fits-alľ solution is
likely to suit all the national priorities, legal
and cultural environment, and the needs of
traditional communities in all countries.
Instead, effective protection may be found in
a `menu' of differentiated and multiple
options for protection, perhaps underpinned
by an internationally agreed set of common
objectives and core principles.
The options include existing IP systems
(including unfair competition), adapted IP
rights (sui generis aspects of IP systems), and
new, stand-alone sui generis systems, as well
as non-IP options, such as trade practices and
labeling laws, use of contracts, customary
and indigenous laws and protocols, cultural
heritage preservation laws and programs,
common law remedies such as unjust
enrichment, rights of publicity, blasphemy,
and criminal law.
This section provides a few examples of some
national, regional and international
experiences so far with these various options.
First, however, a few words on a key initial
step, the setting of objectives.
Setting national policy
objectives
The way in which a protection system is
shaped and defined will depend to a large
extent on the objectives it is intended to
serve. Countries have expressed a variety of
policy objectives underlying the protection of
TCEs, including:
­­­­­ Wealth creation, trading opportunities
and sustainable economic development;
­­­­­ Preservation, promotion and
development of traditional cultures and
folklore;
­­­­­ Prevention of unauthorized exploitation,
illicit use and abuse of TCEs/folklore;
­­­­­ Promotion of respect for traditional
cultures and the communities that
preserve them;
­­­­­ Safeguarding of the cultural identity and
values of communities;
­­­­­ Promotion of cultural diversity.
Legal Options : National, Regional and
International Trends and Experiences
16
Laws are not enough: capacitystrengthening
and institution
building
One of the main lessons learned from WIPO's
work so far is that having laws for the
protection of expressions of folklore is not
enough. Laws have to be known about, and
the communities and persons that are
intended to benefit from them must be
relatively easily able to gain, manage and
exercise rights under the law. In addition,
government services need to be able to give
practical assistance to communities, and legal
advisors need appropriate information to
advise their clients. For the effective
protection of expressions of folklore,
therefore, broad awareness-raising and
training are needed, as are legal aid and
appropriate institutions that can help
communities manage and enforce their rights.
Use of existing IP rights and
sui generis adaptations of them
Protection of literary and artistic
productions and designs
As previously pointed out, a contemporary
interpretation, adaptation, collection or
arrangement of old and pre-existing
traditional materials can often be sufficiently
original to qualify as a protected copyright
work. Also, under Article 15.4 of the Berne
Convention, anonymous and unpublished
works (like much folklore) can be protected.
Similarly, traditional designers working within
their cultural heritage can register their new
designs. Some indigenous and traditional
words and symbols can be protected as
trademarks.
In addition, the protection already available,
internationally, under the WIPO Performances
and Phonograms Treaty (WPPT) may be of great
value. Folklore is often accessed and
appropriated by third parties through its most
recent traditional performance ­ for instance,
when a performance of a traditional chant is
recorded, the recording is what enables others
to get access to that chant, so it is vital to
determine how the recording is used and
The indigenous artist of this well-known work, based on
traditional creation stories, (depicted on the left) successfully
claimed infringement of copyright against the maker of the
carpet (depicted on the right).
Because of cultural and spiritual offence, the court awarded
extra damages to be shared by the artisťs community
according to its customary law.
Author: Ms. Banduk Marika. All rights reserved. This work is
the copyright of the artist and may not be reproduced in any
form without the permission of the artist and the clan
concerned.
Allrightsreserved
17
distributed. Countries that ratify the WPPT
must give performers of folklore the right to
authorize sound recordings of their
performances, and the right to authorize
certain dealings with those recordings.
The need to protect communal rights is often
called for. What possibilities are there? Under
the copyright system, more than one person
can be a copyright holder. Groups of persons,
such as a traditional community, can form an
association, trust or other legal entity, to hold
copyright. In addition, courts have been
prepared to recognize communal interests in
a copyrighted work for the purpose of
awarding damages, and communal copyright
could also be the subject of a specific sui
generis provision within copyright legislation
(for example, one country is studying the
possibility of granting communities the right
to exercise moral rights to protect against
inappropriate, derogatory or culturally
insensitive use of tradition-based copyrighted
material.) A State may also decide to protect
collective interests by vesting rights in folklore
in a national body or office which is tasked
with furthering the interests of indigenous or
traditional communities.
Protection against false or misleading
claims as to authenticity or origin
One of the kinds of appropriations that
indigenous and traditional communities often
complain of is the use of false and misleading
claims as to authenticity and/or origin. For
example, a cheaply made souvenir item may
carry a label falsely indicating that it is
`authentic', `indigenous made', or originates
from a particular community. Unfair
competition law, as well as trade practices
and labeling laws, are helpful here, as has
been shown in several instances in practice
(see box below).
Trends and Experiences: Unfair
competition and trade practices laws
A company in Australia has been
prevented from continuing to describe its
range of hand-painted or hand-carved
souvenirs as `Aboriginaľ or `authentic' unless
it reasonably believed that the artwork or
souvenir was painted or carved by a person
of Aboriginal descent. Proceedings were
instituted against the company under unfair
competition and trade practices laws.
The Indian Arts and Crafts Act, 1990 of
the United States of America (USA)
protects Native American artisans by assuring
the authenticity of Indian artifacts under the
authority of an Indian Arts and Crafts Board.
The Act, a `truth-in-marketing' law, prevents
the marketing of products as `Indian made'
when the products are not made by Indians
as defined by the Act.
18
In addition, indigenous peoples have
registered certification trademarks to help
safeguard the authenticity and quality of
their arts and crafts. In Australia, certification
marks have been registered by the National
Indigenous Arts Advocacy Association
(NIAAA) and in New Zealand the Maori Arts
Board, Te Waka Toi, is making use of
trademark protection through the
development of the Toi Iho TM Maori Made
Mark. (See further: http://www.toiiho.com/)
TCEs often have a strong link with a specific
locality. This means that geographical
indications can also protect TCEs, in particular
when they are in the form of tangible
products such as handicrafts that have
qualities derived from their geographical origin
­ for instance, the Olinalá craft products from
that region in Mexico. While the protected
geographical indication is usually the name of
the location itself, certain TCEs could be
directly protected as geographical indications,
such as indigenous and traditional names,
signs and symbols.
Indigenous peoples and traditional
communities are concerned that unauthorized
commercial enterprises take their words,
names, designs, symbols and other distinctive
signs, and use and register them as
trademarks. This practice can be challenged
under general trademark principles. But some
authorities, such as in the Andean Community,
New Zealand and the USA, have amended
their laws to strengthen defensive protection,
explicitly enabling the barring of unauthorized
registration of indigenous signs and symbols
as trademarks.
Protection against insulting, derogatory
and offensive uses
TCEs often embody spiritual qualities and the
very cultural identity of a community. Therefore,
insulting, derogatory and offensive use of
TCEs can be a prime concern. Preventing such
misuse, and promoting respect for cultural and
spiritual values, may be the principal goal of
protection for some countries and some
communities. In fact, such `defensive
protection' might be the most important form
of protection that some States and
communities may wish for. Apart from laws
against blasphemy and other such non-IP
tools, some IP-based options are being
ReproducedcourtesyofTeWakaToi
19
explored by States. For example, a communal
moral right, as mentioned above, would
enable communities to act against certain uses
of indigenous cultural materials, much in the
same way that moral rights enables an author
to object to the distortion, mutilation or other
derogatory use of his or her works. A further
possibility is the creation of a register in which
communities could record those TCEs the use
of which should not be permitted for cultural
and spiritual reasons.
Sui generis measures
and systems
Many countries and several regional
organizations have elected to protect TCEs
through sui generis measures. Most have
done so within their copyright laws, following
largely the Model Provisions, 1982. Others
have elected to establish stand-alone IP-like
laws and systems, examples of which are:
­­­­­ the Indigenous Peoples Rights Act of
1997 of the Philippines;
Trends and experiences: Distinct sui generis systems
Under the Pacific Regional Framework for the Protection of Traditional Knowledge and
Expressions of Culture, 2002, `traditional owners' have the right to authorize or prevent,
amongst others, the adaptation, transformation and modification of the protected TCEs. An
external user must 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 used
for 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 Governing
the Collective Rights of Indigenous Peoples for the
Protection and Defense of their Cultural Identity
and their Traditional Knowledge of Panama, 2000
establishes a registration system for TCEs. A special office
has been created within the country's IP office to approve
the applications and maintain the register. The procedure
before the IP office does not require the services of a
lawyer and there are no application fees.
A `mola'
from Panama
Courtesy:Ms.Zurie Areta,
Geneva, Switzerland
20
­­­­­ the Bangui Agreement on the Creation
of an African Intellectual Property
Organization (OAPI), as revised in 1999;
­­­­­ the Special Intellectual Property Regime
Governing the Collective Rights of
Indigenous Peoples for the Protection
and Defense of their Cultural Identity and
their Traditional Knowledge of Panama,
2000 and the related Executive Decree of
2001; and,
­­­­­ the Pacific Regional Framework for the
Protection of Traditional Knowledge and
Expressions of Culture, 2002.
Establishing sui generis systems
In developing a sui generis system for the
protection of TCEs, the following key issues
could 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 documentation of
cultural expressions
Many stakeholders call for the recording and
documentation of TCEs and the establishment
of inventories, databases and lists.
The recording and documentation of cultural
materials play an important role in strategies
for the safeguarding of cultural heritage and
traditional cultures.
Yet recording or documenting TCEs have
implications for IP protection that need to be
weighed carefully. TCEs are often intangible
and orally maintained. Requiring some form
of prior documentation and/or registration in
order to establish IP rights, may contradict
the oral, intangible and `living' nature of
many TCEs. Apart from the costs involved in
documenting and recording TCEs, the
copyright that may vest in the documentation
and recordings may not vest in the communities
themselves under copyright law and, in any
event, extends only to the ways in which the
TCEs are expressed and not to the values,
meanings and other `ideas' connoted by the
TCEs. Documentation and recordings, on the
contrary, and particularly if they are made
available in digitized form, make the TCEs
more accessible and available and may
undermine the efforts of communities to
protect them.
21
Practical Steps for Setting Overall Directions
Practical Steps for Setting Overall Directions
Based on the preceding materials, the
following series of steps may help
policymakers `navigate' their way and
illustrate the available options:
 Step One: determine national policy
objectives, including the needs of
communities that are the holders and
custodians of folklore. Are they related
to IP (or more concerned with other
policy goals such as preservation of
cultural heritage)? What subject matter is
to be protected? Against which acts is
protection sought? Is the protection
aimed at positive or defensive
protection, or a combination of the two?
 Step Two: identify options available
under conventional IP systems,
including unfair competition, as well as
options for adapted or modified
elements of existing IP.
 Step Three: analyze options available in
non-IP systems relevant to meeting the
desired goals, such as cultural heritage,
consumer protection and marketing laws,
and indigenous and customary laws.
 Step Four: determine whether a standalone
sui generis system is necessary, or
whether existing rights and modifications
to them can meet the needs identified
and strike the right balance. How would
a sui generis system relate to
conventional IP systems particularly in
respect of overlapping subject matter?
 Step Five: identify which practical and
operational measures, institutions and
programs may be required to facilitate
the effective use and implementation of
the forms of protection already in place
or to be established.
 Step Six: establish how national systems
would interact to provide regional and
international protection, through
bilateral, regional or international legal
frameworks.
22
What Next ?
What Next ?
The Secretariat of WIPO continues to
undertake, upon request, legal-technical
cooperation activities for the establishment,
strengthening and effective implementation
of systems and measures for the legal
protection of TCEs. As a component of this
program, it is developing a comprehensive
`Practical Guide' for lawmakers, policy
makers, communities and other stakeholders,
and is also preparing more tailored guides for
other interested parties, such as commercial
users and handicraft organizations. In
addition, the development of model
contracts, codes of conduct and guidelines
for use by folklore archives, museums and
other institutions to assist them in managing
the IP aspects of their cultural heritage
collections is being explored.
At a policy level, the wealth of the legal
analyses, national and regional submissions,
reports and other materials considered by the
WIPO Committee has already laid a solid
foundation for international legal
development. The Committee has taken up
the task of distilling this practical
understanding in the form of precise policy
and legislative options for enhanced
protection of TCEs through adapated or
expanded conventional IP systems, or
through stand-alone sui generis systems. A
common basis of core principles and shared
objectives is coming into focus. These policy
and legislative options could, should the
Member States of WIPO so wish, form the
basis of recommendations, guidelines, model
provisions or other instruments for the
national, regional and international
protection of TCEs.
This legal development would build on the
protection for folklore already provided in
international treaties. It would lead to more
effective protection of TCEs, basing it on a
stronger shared understanding of the
common principles and objectives of
protection. This should help coordinate and
strengthen international responses to
concerns about failure to acknowledge and
respect the cultural heritage of indigenous and
traditional communities, and ensure that this
heritage is used appropriately and equitably,
while allowing cultural exchange and
evolution to thrive.
23
Further reading
This booklet draws from many documents, studies and other materials prepared and consulted
within 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 of
Traditional Cultural Expressions of Folklore"
WIPO Secretariat, "Final Report on National Experiences with the Legal Protection of Expressions
of 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 Cultural
Expressions", prepared for WIPO
Kutty, P. V., "National Experiences with the Protection of Expressions of Folklore/Traditional Cultural
Expressions ­ 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"
For more information contact the:
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Visit the WIPO website at:
http://www.wipo.int
and order from the WIPO Electronic Bookshop at:
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WIPO Publication No. 913(E) ISBN 92-805-1363-X