“Intellectual Property and the Safeguarding of Traditional Cultures": a review

Feeling cultural, or even a bit traditional?  A new World Intellectual Property Organization (WIPO) publication “Intellectual Property and the Safeguarding of Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives” was launched late last year.  The press release announcing it drew this comment from the IPKat, but he didn't have the chance to read and carefully review it.  The Kat therefore thanks a kind and enthusiastic reader, Ann-Gaelle Cox, for reviewing it for the benefit of us all.  Explains Ann-Gaelle:

"This recent WIPO publication provides a comprehensive overview of the various intellectual property issues arising out of the creation and treatment of traditional cultural expressions (“TCEs”) – typically creative works emanating from indigenous peoples and communities (“tradition-bearers”), such as Australian Aboriginal artists. The protection of such works poses particular challenges for cultural institutions and indigenous communities alike, the principal problem being that the existence and ownership of IP rights in such works are far from clear.
The publication is structured as follows: first, an overview of the various legal and practical issues, followed by an analysis – from an international perspective - of relevant IP rights (in particular copyright), as applied to areas of specific concern to cultural institutions such as museums. It concludes with a number of examples of good practice from institutions and communities around the world. 

Why Are TCEs An Issue? 

In general, TCEs are not “created” in the traditional IP sense: typically, they arise through custom and practice, often as a result of community – rather than individual – contributions. Also, they tend to evolve, sometimes over a long period of time. Because it is difficult, if not impossible, to ascertain exactly what was created, when and by whom, TCEs do not neatly fit the traditional IP creation–ownership matrix. 

Thus cultural institutions frequently find themselves at the centre of a complex puzzle of overlapping rights. Museums need to showcase TCEs as part of their usual cultural heritage activities, but they run the risk of offending tradition-bearers if they do not involve them proactively. While recent technological developments (such as digitisation) provide exciting opportunities for museums, they also create new challenges in terms of IP rights management.
Nevertheless, in spite of this complex environment, cultural institutions around the world are developing impressive new practices and techniques for dealing with TCEs, while taking into account ethical and cultural sensitivities. 

Legal Background 

While it can be said that IP rights are relatively well-defined, TCEs are, by their very nature, open-ended and perhaps impossible to define. Typical examples include a folk tale, a ritualistic dance, or an incantation. As the publication illustrates, for various reasons, IP law provides little or no protection for TCEs per se. Yet tradition-bearers usually see themselves as rights-owners or “custodians” of TCEs. In reality, they are often “legally disenfranchised” from their creations.
Currently, no international legal framework exists to deal with TCEs and IP rights, although various conventions (in addition to some national IP laws) seek to protect TCEs (eg. the 2007 United Nations Declaration on the Rights of Indigenous Peoples). 

The debate is not limited to legal issues. Cultural and ethical considerations bear equal, if not greater, weight. For instance, when it comes to managing disputes involving TCEs, litigation is a poor tool when compared to Alternative Dispute Resolution. One reason is that litigation is largely confrontational; more importantly, it tends to focus on the establishment and protection of legal rights, to the detriment of customary law and practice, both of which can be important factors where TCEs are concerned. 

Copyright 

Although copyright is arguably the most relevant IP right in the TCE context, its application is limited – indeed, in many cases, a TCE will not be protected by copyright. Thus TCEs run the risk of being treated as “public domain”, or considered works of unknown authorship or orphan works. Some argue that a new sui generis right should be created to protect TCEs. 

One of the principal limitations of copyright law as far as TCEs are concerned is the requirement for originality. In many jurisdictions, the threshold for originality is rather low, such that a secondary or derivative work will often attract copyright, whereas the original TCE itself is deprived of protection. An example of this would be a film based on an oral legend. Other significant limitations are fixation (a requirement in some jurisdictions), and the idea/expression dichotomy (copyright protects the expression of an idea, not the idea itself). Yet TCEs often reflect ideas, meanings, beliefs, etc. more than anything else; they are not limited to mere expression. 

Authorship-ownership questions also raise complex issues. Generally speaking, TCEs are not the product of one author – rather, they are the result of an ongoing creative process, to which members of a wider community contribute. The inability to ascertain one or more authors (and therefore, owners) has significant drawbacks under copyright law. Alternatives, such as treating TCEs as orphan works, may - depending on the jurisdiction – mean that they are subject to a compulsory licensing regime, or that they can be freely used (assuming a diligent search for the author is fruitless). 

Further, the usual copyright exceptions and limitations are arguably of limited value in the TCE context. For example, the notion of “fair use” or “fair dealing” may simply not be appropriate, especially where TCEs are in some way sensitive or sacred. 

Moral rights will sometimes be relevant, and may enable tradition-bearers to impose limitations and conditions on the use of TCEs, or to object to certain treatment. For instance, moral rights may be used to control the digitisation of TCEs by cultural institutions (eg. the creation of thumbnails – digital copies in miniature format). 

It is important to note that the needs and demands of cultural institutions in relation to TCEs are increasingly complex. As well as exhibiting TCEs, museums carry out preservation, restoration and archiving activities. In particular, digitisation is a challenge, especially when TCEs in digital format are then made available via the Internet. Mass dissemination inevitably increases the risk that tradition-bearers will be offended (if, for instance, prior consent is not obtained), and that users may misuse such TCEs. 

Other Forms of IP Protection 

The publication also considers the application of trade marks, geographical indications and domain names to TCEs, albeit in less detail. As regards trade marks for instance, problems may arise when TCEs are made into logos. Similarly, registering (as a trade mark) the name of TCE is likely to be an issue. 

Good Practice 

The publication concludes with a round-up of current good practices relating to the management of TCEs, by both cultural institutions and traditional communities. A WIPO database of existing IP-related protocols, policies and practices has been compiled for further reference and is accessible online. Examples of good practice include the principle of “prior informed consent” (eg. when researchers collect TCEs), the handling of digital archives (eg. the British Library’s policy statement regarding its archive of sound recordings), and conditions of access to online documentation (eg. the Musée du Quai Branly’s website). As far as traditional communities are concerned, steps are being taken to protect and control TCEs pre-emptively, for instance through protocols, standard agreements, consent forms, undertakings, etc. 

What Next? 

This publication is one of a number of current WIPO projects. Following on from the related WIPO Intergovernmental Committee (“ICG”) set up in 2000, several WIPO working documents are in progress. The ICG plans to submit new legislative texts in this area in 2011".

Intellectual Property and the Safeguarding of Traditional Cultures – Legal Issues and Practical Options for Museums, Libraries and Archives, WIPO (Molly Torsen and Jane Anderson), 2010, can be downloaded here.