Chapter 2 - Fields of Intellectual Property Protection
model provisions for legislation. Such model provisions were to be elaborated so as to be applicable
both in countries where no relevant legislation was in force and in those where existing legislation
could be further developed. They were also to allow for protection by means of copyright and
neighboring rights where possible. These provisions for national laws were to pave the way for sub-
regional, regional and international protection of creations of folklore.
2.284 The Model Provisions were drafted in response to concerns that expressions of folklore were
susceptible to various forms of illicit exploitation and prejudicial actions. More specifically, as stated
in the Preamble to the Model Provisions, the Expert Committee believed that the dissemination of
folklore might lead to improper exploitation of the cultural heritage of a nation, that any abuse of a
commercial or other nature or any distortion of expressions of folklore was prejudicial to the cultural
and economic interests of a nation, that expressions of folklore constituting manifestations of
intellectual creativity deserved to be protected in a manner inspired by the protection provided for
intellectual productions, and that the protection of folklore had become indispensable as a means
of promoting its further development, maintenance and dissemination.
2.285 Several countries have used the Model Provisions as a basis for national legal regimes for the
protection of folklore. However, some have expressed the need for their improvement and
Attempts to Establish an International Treaty
2.286 A number of participants stressed, at the meeting which adopted the Model Provisions, that
international measures would be indispensable for extending the protection of expressions of
folklore of a given country beyond the borders of the country concerned. WIPO and Unesco acted
accordingly when they jointly convened a Group of Experts on the International Protection of
Expressions of Folklore by Intellectual Property, which met in December 1984. While there was a
general recognition of the need for international protection of expressions of folklore, the great
majority of the participants considered it premature to establish an international treaty in view of
insufficient national experience, particularly in the implementation of the Model Provisions. Two
main problems were identified by the Group of Experts: these were the lack of appropriate sources
for the identification of the expressions of folklore to be protected, and the lack of workable
mechanisms for settling the questions of expressions of folklore that can be found not only in one
country, but in several countries of a region. The Executive Committee of the Berne Convention
and the Intergovernmental Committee of the Universal Copyright Convention, at their joint sessions
in Paris in June 1985, agreed with the Group’s findings, considering that only a recommendation,
rather than an international treaty, would be realistic at that stage.
The Adoption of the WIPO Performances and Phonograms Treaty (the WPPT)
2.287 The WIPO Performances and Phonograms Treaty (the WPPT), which was adopted in
December 1996 and came into force on May 20, 2002 (see below, Chapter 5), provides that the
definition of “performer” for the purposes of the Treaty includes the performer of an expression of
folklore. This addressed a problem in respect of the key notion of “performers” (and the notion of
“performances” following indirectly from the notion of “performers”) as determined in the
International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations, 1961 (the Rome Convention). Under Article 3(a) of the Rome
Convention, “‘performers’ means actors, singers, musicians, dancers, and other persons who act,
sing, deliver, declaim, play in, or otherwise perform literary or artistic works” (emphasis added).
Since expressions of folklore do not correspond to the concept of literary and artistic works proper,
the WPPT has widened the definition.
WIPO Intellectual Property Handbook: Policy, Law and Use
2.288 In the Diplomatic Conference at which the WPPT, as well as the WIPO Copyright Treaty (the
WCT) were adopted in December 1996, the WIPO Committee of Experts on a Possible Protocol to
the Berne Convention and the Committee of Experts on a Possible Instrument for the Protection of
the Rights of Performers and Producers of Phonograms recommended that “provision should be
made for the organization of an international forum in order to explore issues concerning the
preservation and protection of expressions of folklore, intellectual property aspects of folklore, and
the harmonization of the different regional interests.”
WIPO-Unesco World Forum on the Protection of Folklore
2.289 Pursuant to the recommendation made during the 1996 Diplomatic Conference, the WIPO-
Unesco World Forum on the Protection of Folklore was held in Phuket, Thailand, in April 1997. The
Forum adopted a “Plan of Action” which identified inter alia certain needs and issues: these were
the need for a new international standard for the legal protection of folklore, and the importance of
striking a balance between the community owning the folklore and the users of expressions of
2.290 The Plan of Action also suggested that “regional consultative fora should take place….” in
order to make progress towards addressing these needs and issues.
WIPO Fact-finding Missions
2.291 During 1998 and 1999, WIPO conducted fact-finding missions (“FFMs”) in 28 countries to
identify the needs and expectations of traditional knowledge holders relating to intellectual
property. Indigenous and local communities, non-governmental organizations, governmental
representatives, academics, researchers and private sector representatives were among the groups
of persons consulted on these missions. For the purpose of these missions, “traditional knowledge”
included TCEs as a specific form. Much of the information obtained related either directly or
indirectly to TCEs.
2.292 The results of the missions have been published by WIPO in a report entitled “Intellectual
Property Needs and Expectations of Traditional Knowledge Holders: WIPO Report on Fact-finding
Missions (1998-1999)” (the “FFM Report”).
WIPO-Unesco Regional Consultations on the Protection of Expressions of Folklore
2.293 Pursuant to the suggestion included in the Plan of Action adopted at the WIPO-Unesco
World Forum on the Protection of Folklore, 1997, WIPO and Unesco organized four Regional
Consultations on the Protection of Expressions of Folklore in 1999. Each of the regional
consultations adopted resolutions or recommendations which identify intellectual property needs
and issues, as well as proposals for future work, related to expressions of folklore. Three of the four
regional consultations recommended the establishment within WIPO of a separate committee on
folklore and traditional knowledge to facilitate future work in these areas.
The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore
2.294 Accordingly, and following certain other developments in the area of genetic resources, in
late 2000, the Member States of WIPO established an Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore.
Chapter 2 - Fields of Intellectual Property Protection
2.295 The Committee is making significant progress in articulating in intellectual property terms
the needs and expectations of Indigenous peoples and traditional communities in relation to their
TCEs, marking out a conceptual framework within which to view those needs and expectations, and
methodically developing policy options and practical tools in response to them.
2.296 The Committee has considered detailed Secretariat analysis of the use of existing
intellectual property and sui generis approaches for the legal protection of TCEs. This analysis was
based on the national experiences of 64 Member States, surveyed through a questionnaire issued
by WIPO in 2001, and presentations made during Committee sessions, and a set of case studies.
One of these, entitled “Minding Culture – Case Studies on Intellectual Property and Traditional
Cultural Expressions,” comprises practical studies of actual cases in which Indigenous Australians
have sought to use intellectual property to protect their TCEs. In addition, WIPO has also published
a study of practical experiences in India, Indonesia, and the Philippines. The Committee has
received detailed briefings by New Zealand, Nigeria, Panama, the Russian Federation, Tunisia, the
United States of America and the Secretariat of the Pacific Community on their recent legislative
experiences with the legal protection of TCEs.
Intellectual Property Needs and Expectations of Indigenous and Traditional Communities
2.297 In the course of the extensive fact-finding and consultations undertaken by WIPO,
Indigenous peoples and traditional communities have expressed various needs related to intellectual
property, such as:
intellectual property protection to support economic development: some communities wish
to claim and exercise intellectual property in their tradition-based creations and innovations
to enable them to exploit their creations and innovations commercially as a contribution to
their economic development;
intellectual property protection to prevent unwanted use by others: some communities may
wish to claim intellectual property in order to be able to actively exercise intellectual
property rights that prevent the use and commercialization of their cultural heritage and
TCEs by others, including culturally offensive or demeaning use; uses which may need to be
prevented could include, for example, uses that falsely suggest a connection with a
community, derogatory, libellous, defamatory or fallacious uses, and uses of sacred and
prevention of others acquiring intellectual property rights over TCEs: communities are also
concerned to prevent others from gaining or maintaining intellectual property over
derivations and adaptations of TCEs and representations, which entails the use of defensive
mechanisms to block or pre-empt third parties’ intellectual property rights that are
considered prejudicial to the community’s interests, and to the integrity of their cultural
heritage and cultural expressions.
This latter kind of strategy is distinct from positive intellectual property protection, in which a
community actively obtains and exercises intellectual property rights (the two first cases given
above). Both defensive and positive protection strategies may be used in parallel by the one
community, depending on their assessment of their overall objectives and interests. Specific
defensive protection mechanisms may also be built into national or regional intellectual property
laws: for instance, specific measures to prevent the acquisition of trademark rights over Indigenous
or traditional symbols have been already adopted by New Zealand, the United States of America
and the Andean Community.
WIPO Intellectual Property Handbook: Policy, Law and Use
2.298 The work of the WIPO Intergovernmental Committee has highlighted the need to clarify and
articulate the distinct notions of “intellectual property protection” and “preservation/safeguarding”
when applied to cultural heritage. The term “protection” is widely used, but this can mask a wide
range of potential objectives. It is important to be clear to what extent and in which cases
intellectual property protection is relevant to meeting the needs of Indigenous and traditional
communities, as some of them are perhaps more concerned with preservation and safeguarding
than intellectual property protection. Unfair competition law and marketing, labelling and other
consumer protection laws may be particularly relevant and valuable, especially since concerns about
commercial misuse of TCEs often arise from the perception that they are being used to create a
misleading impression that a product is “authentic” or produced or endorsed by a traditional
2.299 Generally speaking, one single form of protection for TCEs is unlikely to meet all the needs
of a traditional community: it may need to use a range of positive and defensive legal tools to
achieve its chosen objectives in protecting and preserving its traditional culture.
Trends and Experiences in the Protection of TCEs
2.300 Several States already provide specific legal protection for TCEs as intellectual property in
their national laws or regulations, largely within their national copyright legislation, although the
modalities of protection may differ.
2.301 In some cases, TCEs are simply referred to as a form of copyright work, and most of the
usual rules of copyright apply to them. Examples of these countries would include Barbados, Côte
d’Ivoire, Indonesia and the Islamic Republic of Iran. Another group of States have included within
their copyright legislation provisions specifically designed for expressions of folklore. Examples
would include Burkina Faso, Ghana, Kenya, Mexico, Mozambique, Namibia, Nigeria, Senegal, Sri
Lanka, Togo, the United Republic of Tanzania, and Viet Nam. In most of these cases, the provisions
are based upon the Tunis Model Law of 1976 or the 1982 Model Provisions.
2.302 A third category comprises States that provide protection for expressions of folklore in
distinct sui generis legislation, such as Panama and the Philippines. Panama’s Law of 2000 provides
perpetual and collective protection of the intellectual property type, based upon a registration
requirement, for the handicrafts and other creations of its Indigenous peoples. The Bangui
Agreement of the African Intellectual Property Organization (OAPI), as revised in 1999, establishes
sui generis protection for TCEs. More recently, the Secretariat of the Pacific Community has
developed a sui generis model law for the Pacific Island countries.
2.303 However, when it comes to implementation, even in those countries which provide specific
legal protection for TCEs, it appears from the results of the WIPO questionnaire that there are few
countries in which such provisions are actively utilized or effective in practice. There appears to be
little practical experience with the implementation of existing systems and measures which countries
have established in law. States have cited a variety of legal, conceptual, infrastructural and other
operational difficulties they experience in implementing workable and effective legislative provisions
at the national level. States have requested enhanced legal-technical cooperation in this respect.
Some have argued that it is necessary to provide States and regional organizations with updated
and improved guidelines or model provisions for national laws, taking into account the 1982 Model
Provisions as a starting point.
Documents you may be interested
Documents you may be interested