Documentation and Digitization of Intangible Cultural Heritage: the Experience of WIPO International Conference on Intellectual Property and Cultural Heritage in the Digital World Madrid, Spain October 29-30, 2009 Brigitte Vézina Traditional Knowledge Division WIPO

Structure of Presentation Terminology: How will Terms be Used? Traditional Cultural Expressions (TCEs) and IP: What are Some of the Issues? Normative Work at WIPO: the WIPO Intergovernmental Committee (IGC) TCEs and Digitization and Documentation of ICH: Issues, Options and Practical Tools

TK, TCEs and ICH TK TK TCEs ICH

A working description of TCEs . . . any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, which are: the products of creative intellectual activity, including individual and communal creativity; characteristic of a community’s cultural and social identity and cultural heritage; and maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community Include: art, music, designs, symbols, performances, rituals, narratives (Art. 1, WIPO Draft Provisions on the Protection of Traditional Cultural Expressions, 2006)

TCEs: embody communal identities and linked to the continued vitality of indigenous cultures reflect a community’s history, traditions, values and beliefs integral to cultural diversity TCEs should therefore be preserved and safeguarded: but should they be “protected” as a form of “intellectual property”?

TCES and intellectual property Some forms of TCEs already protected: Derivatives/contemporary adaptations Performances of TCEs Recordings of TCEs Compilations and databases of TCEs But, TCEs “as such” are in the “public domain” – should they be “protected” and, if so, what does “protection” mean? What options are there? See WIPO, Gap Analysis, WIPO/GRTKF/IC/13/4(b), available at www.wipo.int/tk/en/igc/gap-analyses.html

What could “protection” of TCEs mean? an exclusive property right → to prevent or authorize use of TCEs, incl. for exploitation to support economic development prevention of inappropriate, unwanted use and commercialization by others remuneration for third party uses acknowledgement of source defensive protection (protection against IP rights) IP rights in TCEs to enable communities to exploit them commercially IP rights in TCEs in order to prevent their use and commercialization by others, including use that falsely suggests a connection with a community; derogatory use; and use of sacred and secret TCEs right to prevent others from gaining IP rights over TCEs

Normative developments: WIPO Intergovernmental Committee (IGC) first session in April 2001 members and participants: member states intl. organizations NGOs (over 200) eg., ICOM indigenous and local communities: speedy accreditation and WIPO Voluntary Fund Establishment of WIPO Intergovernmental Committee in late 2000 and

New IGC Mandate for 2010-2011 Draft provisions for protection of TCEs Sui generis provisions – collective rights, no formalities, indefinite protection. . . International legal instrument for effective protection of TK and TCEs Text-based negotiations Including on WIPO/GRTKF/IC/9/4 Clearly defined work program for the 2010/2011 biennium 2011 GA: text submitted Diplomatic Conference IGC 15 December 7-11, 2009

WIPO Draft Provisions on TCEs Art 1: Subject matter Art 2: Beneficiaries Art 3: Scope of rights Art 4: Management of rights Art 5: Exceptions and limitations Art 6: Term of protection Art 7: Formalities Art 8: Sanctions and remedies Art 9: Transitional measures Art 10: Relationship with IP protection Art 11: International protection See WIPO/GRTKF/IC/9/4 available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=55137

Draft Article 3 1. Cultural expressions of particular cultural/spiritual value – exclusive right if TCE registered 2. Other cultural expressions – no formalities - moral rights and reasonable royalty 3. Secret TCEs

Documentation and Digitization: TCE and IP Issues Documentation and digitization of TCEs valuable for their safeguarding Museums and archives as repositories of indigenous and other cultural materials – fulfill vital preservation, educational, scholarly and public access functions However, indigenous communities question control over, access to, ownership of, control over and authorship of indigenous materials held by museums and archives “The crux of the problem is that information about us is not owned by us” a problem is that IP rights in documentation and recordings of TCEs vest in those who made the documentation/recordings – communities see themselves as legally disenfranchised complex ethical, cultural and legal questions

Museums and archives are pivotal spaces within which issues of access, control, authorship, ownership and re-use of indigenous cultural materials can be discussed emerging forms of collaboration between libraries and communities role of guidelines and protocols – building relationships

Recognizing sensitivities surrounding documentation/digitization of TCEs and IP management, WIPO has developed practical tools, complementing normative work of the IGC: WIPO Creative Heritage Training Program for Indigenous Communities on Cultural Documentation, Archiving and IP Management WIPO Surveys and Database of Practices, Protocols and Policies WIPO Guide on “Intellectual Property and Safeguarding Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives” (draft)

WIPO Creative Heritage Training Program on Cultural Documentation WIPO, American Folklife Center/LOC and Duke University Hands-on technical training IP training Camera, sound recording equipment, laptop and software Pilot program successfully completed, for Maasai community, with National Museums of Kenya, Kenya

WIPO Guide on IP and Safeguarding Traditional Cultures (draft) Who “owns” collections of indigenous materials? Which legal and ethical rules apply? How can museums/archives and communities develop mutually-beneficial relationships? What role does IP management play? What “good practices” are there? Managing access to and use of collections inevitably implicates IP law, policy and practice complex and sensitive issues

Table of contents (to come)

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