As mentioned in a previous piece entitled WIPO expert committee deliberates on road map to protect traditional cultural expressions, WIPO has convened an intersessional working group (IWG) comprised of experts from countries and observer organizations to examine draft provisions of a document prepared by the WIPO secretariat on ‘The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles‘. The IWG runs from July 19-23, 2010. The demandeurs (including many developing countries and representatives of indigenous communities) of this process want to see WIPO establish a sui generis legal regime to protect traditional cultural expressions/expressions of folklore. If WIPO establishes a legal instrument to protect traditional cultural expressions/expressions of folklore, it could have profound significance on certain aspects of the public domain, especially in light of calls by several experts for the legal instrument to have ‘indefinite terms’ of protection.
As KEI is participating in this expert group, we have orally presented the following textual suggestions on this Monday, Tuesday and Wednesday to the IWG on Articles 3, 4, 5, 6, 8 and 9 of working document 17/4.
We have also submitted our comments in writing to the WIPO secretariat: the International Bureau has made copies of each of KEI’s drafting suggestions on the Revised Objectives and Principles available to the IWG experts. For each article, please compare our text with that contained in working document 17/4 which can be found here: http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_4_prov.pdf.
Article 3 deals with ‘Acts of Misappropriation’. One delegation, Mexico, has suggested the title also include ‘and misuse’.
This is the written intervention KEI submitted to WIPO on Article 3.
As regards Article 3
KEI suggests that in some cases, consideration be given to liability rule approaches that would require remuneration when there is commercialization of a protected expression, without creating an exclusive right, and without providing for remuneration where the expression is used in works that are distributed or performed for free.
An additional possibility would be to target the remuneration right to only some types of commercial exploitation, such as for uses in motion pictures or recorded music where the work generates more than a minimum amount of revenue.
Our rationale for making these suggestions are as follows.
Among the major objections to a sui generis intellectual property right for the protection of traditional cultural expressions are (1) concerns about the impact of such a new right on the freedom to create new works, and (2) the potential negative impact of such a new right on non-commercial and free uses of works.
By allowing the freedom to use traditional cultural expressions in cases where there is remuneration for cases where the expressions are already subject to some commercial exploitation, or where the use is associated with the distribution or use of a work for free, there may be greater acceptance of such a new sui generis regime.
KEI notes that we have in the SCCR objected to a related right for broadcasting organizations, on the grounds that a new layer of exclusive rights would make it more difficult to create new works, or to use older works, including works now available for free, or works where it is difficult to locate and negotiate rights from multiple right owners. This is also a major challenge for persons who make documentary films. By fashioning the right as we have suggested, the sui generis regime would both be less restrictive, and more likely to be accepted in some member states.
KEI recognizes that in some cases, the community identified as an owner or guardian of a traditional cultural expression may have an interest in controlling or regulating the use of the expression, independent of the issue of remuneration. Even in these cases, the regulation of uses need not necessarily be presented as an intellectual property right. For example, libel or slander are important restrictions of speech that operate wholly independent of intellectual property rights.
Other types of moral issues, such as the right of attribution, can be associated with a right of remuneration, or even to free uses of works.
The following text is KEI’s drafting suggestions for article 4 on ‘Management of Rights’. After KEI orally delivered its intervention, the expert representing the United States (Justin Hughes), welcomed KEI’s suggestions on article 4.
KEI suggests a new paragraph 3 in Article 4, which would read as follows
ARTICLE 4:MANAGEMENT OF RIGHTS
3. The management of the financial aspects of the rights should be subject to transparency concerning the sources and amounts of money collected, the expenditures if any to administer the rights, and the distribution of money to beneficiaries.
The following text is what KEI proposed for Article 5 on exceptions and limitations.
On the topic of ARTICLE 5: EXCEPTIONS AND LIMITATIONS, KEI offers the following suggestions
1. the protection of TCEs/EoF should:
c) not apply to utilizations of TCEs/EoF in the following cases:
. . . change
b) non commercial research or private study;
to: b) non commercial uses;
…
and consider a new f)
f) Uses where the revenues for the use are less than the annual (or monthly) income of a resident.
KEI offered the following drafting suggestions for Article 6 on “Term of protection’ with implications for Article 7 on ‘Formalities’.
With respect to Article 6,I would suggest that the liability for and enforcement of the rights be linked to registration formalities. This reduces the risks associated with infringement of the sui generis regime.
The registration of the rights also makes it feasible to set limits on the terms of economic rights.
KEI provided this observation on Article 8 with respect to Sanctions, Remedies and Exercise of Rights.
With respect to Article 8 on Sanctions, Remedies and Exercise of Rights, I would ask the IWG to consider that:”[t]here is the possibility of exceptions in the enforcement of these rights, that are separate from and in addition to the exceptions that will be created for the substantive rights. For example, Article 44.2 of the TRIPS Agreement is an exception to an obligation to enforce a right”.
KEI offered the following comments on Article 9 on Transitional Measures.
The IWG may want to consider:With respect to works created after the instrument enters into force, all the substantive provisions of the instrument should apply.
With respect to works created before the instrument enters into force, the economic rights should be forward looking and limited only to those works whose revenues exceed a minimum threshold including possibly different thresholds for different classes of works.
In response to KEI’s intervention to Article 9, the expert from the Tulalip Tribes said the following:
With respect to the previous speaker’s intervention, you can have a scaled approach. Many copyrights are really in use; the book is out of print, so there might be a system to recover those rights in a graded way. The principle is that indigenous peoples & local community haven’t often (or always) given permissions for these uses. Publishers acquired them under the impression they had a legal right to do so, but it’s our property and if we didn’t give permission we’d like to recover it.