1. 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

2. 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

3. TK, TCEs and ICH TK TK
TCEs
ICH

4. 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)

5. 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”?

6. 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

7. 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

8. 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

9. New IGC Mandate for
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

10. 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

11. 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

12. 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

13. 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

14. 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)

15. 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

19. 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

20. Table of contents (to come)

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