From 15-24 July 2013, the World Intellectual Property Organization (WIPO) is holding the 25th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC/GRTKF) . Currently, the IGC is chaired by Ambassador Wayne McCook of Jamaica.
The first week of of IGC 25 is devoted to fine-tuning of the text of document WIPO/GRTKF/IC/25/4 entitled, “The Protection of Traditional Cultural Expressions: Draft Articles”. It is understood that this text could serve as the basis for a legally binding instrument for the protection of traditional cultural expressions.
The second week of IGC25 will review and take stock of the text(s) on the international legal instrument(s) ensuring the effective protection of traditional cultural expressions, traditional knowledge and genetic resources and recommendations to the General Assembly. The film industry and the biotech and pharmaceutical industries are playing close attention to the outcome of this week’s deliberations. It is expected that the mandate of the WIPO IGC will be renewed again by the WIPO General Assembly in September 2013 for another 2 years as key delegations do not feel the texts of the international legal instruments for genetic resources, traditional knowledge and traditional cultural expressions are sufficiently mature to convene a Diplomatic Conference.
The following intervention by KEI on liability rules in the contact of Article 3 on the scope of protection (The Protection of Traditional Cultural Expressions: Draft Articles) was delivered by Asma Rehan.
Thank you Mr. Chair.
In relation to Article 3 on the scope of protection, we take note of your Informal Issues Paper on Traditional Cultural Expression which indicates that IP protection include rights to an equitable compensation.
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 TCEs are firstly concerns about the impact of such a new right on the freedom to create new works, and secondly the potential negative impact of such a new right on non-commercial and free uses of works.
KEI recognizes that in some cases, the community identified as an owner or guardian of a TCEs 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.
Thank You