Transcript 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,

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
TCEs
TK
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)
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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:
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
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?

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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)
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
New IGC Mandate for 2010-2011


International legal instrument for
effective protection of TK and TCEs
Text-based negotiations




Including on WIPO/GRTKF/IC/9/4
Draft
provisions for
protection of
TCEs
Sui generis
provisions –
collective
rights, no
formalities,
indefinite
protection. . .
Clearly defined work program for the
2010/2011 biennium
2011 GA: text submitted
IGC 15
Diplomatic Conference
December 7-11,
2009
WIPO Draft Provisions on
TCEs
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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=55
137
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
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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)
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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?
complex and sensitive issues
Table of contents (to
come)
Thank you!
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