Multilateral Matters #3: Copyrighting Culture? Challenges and opportunities regarding the international protection of traditional cultural expressions

Photo September 28 2019-2

by Wend Wendland, Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town, wend.wendland@uct.ac.za, @WendWendland

Multilateral Matters

An occasional blog on international developments related to intellectual property, innovation, development and public policy

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Key points

The term “traditional cultural expressions” (TCEs)[1] refers to the intangible elements of an Indigenous People’s or local community’s cultural heritage, such as music, art, symbols, narratives and performances.

For reasons well documented elsewhere[2], TCEs as such are treated as “public domain” and not fully protected by the conventional intellectual property (IP) system.

There are divergent views as to whether or not TCEs as such should receive IP-similar protection and, if so, to what extent.

To some degree, contemporary versions and adaptations of TCEs can be protected using existing IP systems. Depending on one’s policy objectives, these protections might be adequate.

Most countries believe, however, that a new “sui generis”[3] system is needed.

Multilateral negotiations underway at the World Intellectual Property Organization (WIPO) are aimed at reaching agreement on an international legal instrument that would provide balanced and effective protection for TCEs.

The quest for the international protection of TCEs is significant. However, these negotiations are complex and slow-moving.

The TCEs puzzle is emblematic of the providential IP question: how to regulate the production, ownership and sharing of knowledge in ways that balances control and access, excluding and sharing, and competing and collaborating.[4]

In strikingly similar ways to the very newest of technologies such as artificial intelligence, TCEs interrogate long-held understandings of core copyright concepts such as “authorship”, “originality” and “public domain”.

In the face of greater prioritization in IP policymaking of open access, exceptions and limitations, and a more expansive and resilient public domain, one may ask whether TCEs protection is an idea whose time has passed.

Hopefully not: international agreement that TCEs deserve some form of IP protection would be eye-openingly significant for Indigenous Peoples and local communities and for international IP policymaking. With political will and flexibility on all sides, pragmatic and win-win outcomes are possible.

Introduction

The trademarking by Disney of the Swahili phrase “hakuna matata[5], the copying of Australian Aboriginal art[6], the adaptation by Simon and Garfunkel of the folk song El Condor Pasa[7], and the copying by Louis Vuitton of Basotho blanket designs[8], are a sampling of the cases cited when conversations turn towards the misappropriation of TCEs.

Indeed, the appropriations in each of these cases seem intestinally wrong (if not unlawful, surely?).

As a result, there have been efforts over many decades to agree on international rules for the protection of TCEs.

But these efforts are proving complicated, because the cultural, economic, trade and technological issues at stake are sensitive, inter-related and impactful.

Most of this work takes place within the United Nations Educational, Scientific and Cultural Organization (UNESCO) and WIPO. UNESCO’s focus is, however, different to that of WIPO: while UNESCO addresses preservation and safeguarding (such as combatting the erosion of intangible heritage over time and reviving disappearing cultural traditions and practices), WIPO addresses legal protection, which is the protection of intangible cultural heritage against unauthorized copying, adaptation and commercial use, in other words, IP-like protection.

The focus of this blog is on the IP issues, and not on questions of safeguarding and preservation. Nor does it directly address the IP issues associated with the restitution of cultural properties[9] or “cultural appropriation”.[10]

Before unpacking some of the policy, legal and technical questions, a quick review of the history of efforts to provide international TCEs protection.

Brief historical background[11]

These efforts have a long and rich history, starting in Africa.

While TCEs were for many decades regarded as the “common heritage of humanity”, and, therefore free for all to use, this approach began to be questioned from the early 1960s.

Following a meeting in 1963 in Brazzaville, newly-independent African countries proposed the legal protection of “folklore” during the updating in 1967 of the Berne Convention (the main international copyright convention, dating from 1886). This resulted in a new article in the Berne Convention (Article 15.4), which protects unpublished works of unknown authors. This was how concerns about the absence of legal protection for TCEs were addressed at that time. The article has not really been used. Interestingly, some countries may now be considering improving Article 15.4 rather than continuing down the path of a new sui generis system.

African countries were not alone in raising this issue.  For example, in his new book, Making Intangible Heritage: El Condor Pasa and Other Stories from UNESCO[12], Professor Valdimar Hafstein recounts how in 1973 Bolivia asked UNESCO to address the issue of Simon and Garfunkel’s use of El Condor Pasa. This initiative by Bolivia is therefore also part of the story of how the legal protection of “folklore” made it onto the multilateral policy agenda.

The Tunis Model Law on Copyright for Developing Countries, 1976, included provisions for the special protection of “expressions of folklore”. Many African and Asian countries followed this model.

In the early 1980s, UNESCO and WIPO developed model provisions for national laws.[13] These have also been widely followed. An attempt in 1985 to transform those provisions into an international treaty failed because it was deemed premature.

Both the Tunis Model Law and the WIPO-UNESCO Model Provisions guide only national systems of protection, and their provisions are somewhat old-fashioned by the standards of today’s discourse.

Under the WIPO Performances and Phonograms Treaty, 1996, complemented by the WIPO Beijing Treaty, 2012, performances of expressions of folklore have the same international protection as other performances. This is useful because many TCEs live in the form of regular performances.

Following the 1997 WIPO-UNESCO World Forum on the Protection of Folklore, in 1998, WIPO established a new program to address a range of emerging global IP issues, including the protection of traditional knowledge (TK), TCEs and genetic resources.

Work done under this new WIPO program initially included fact-finding missions, roundtables, the publication of case-studies and regional consultations.

The WIPO IGC’s negotiations

In 2000, WIPO’s member countries established the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the WIPO IGC) to discuss these issues multilaterally.

Norm-setting was explicitly added to the IGC’s mandate for the first time as from 2010, when the IGC launched “text-based negotiations” with the objective of reaching agreement on the text of an international legal instrument or instruments.

The WIPO IGC’s negotiations are significant. While IP protection is generally achieved at the national level and IP rights are territorial, an international instrument would enable transnational protection (in other words, a TCE from country A could be protected in country B if both countries have ratified or acceded to the instrument). As with all IP, for TCEs this is crucial because TCEs are especially vulnerable to copying and exploitation abroad.[14] Nor can such international protection be achieved merely through bilateral or plurilateral agreements.

This same negotiation also addresses IP and genetic resources and the protection of TK, closely related to TCEs.[15]

The term “international legal instrument” can in principle refer to a wide range of binding and non-binding expressions of international agreement.

It’s worth bearing in mind that an instrument is only binding on countries that agree to be bound by it through ratification or accession.

One of the challenges for the negotiators in the WIPO IGC is to work out which standards belong in an international instrument and which issues can rather be left for national laws.

These negotiations are slow-moving.[16] A possible way forward is for the negotiators to reach agreement on a succinct and pragmatic framework convention which includes protective standards for TCEs and TK that could perhaps be agreed now (such as moral rights for secret and closely held TCEs and TK), with an in-built agenda for continued normative work on more complex unresolved issues, such as economic rights, sacred TCEs and publicly available TCEs.

The framework would explicitly recognize a wide national discretion to implement the standards through a variety of legal doctrines and mechanisms, and create a mechanism for negotiations to continue among the parties to the framework convention.

This modest and interim yet concrete outcome would capture progress made so far, build confidence in the process and lock in agreement to continue negotiations on the remaining issues.

What are some of the outstanding policy issues?

Whether or not TCEs as such should receive protection as a form of IP is a complicated question situated in a swirl of competing policy objectives.

Trying to answer this question means reconciling diverse objectives such as:

  • respecting cultural diversity: respecting, preserving, promoting and protecting the distinct identities of Indigenous Peoples and local communities especially in light of the threats to cultural distinctiveness posed by the uniformizing effects of globalization and the speed and ease with which new technologies can use, re-use, meld and share creative expressions;
  • fostering multiculturalism, cultural exchange and the free flow of cultural experiences, especially in societies comprising both Indigenous and immigrant societies;
  • safeguarding and preserving intangible cultural heritage, including through preventing the misuse and distortion of cultural expressions through contact with modern cultural influences and a resulting hybridization and corrosion of “authenticity”; and
  • promoting and rewarding creativity and innovation, including that which is inspired by and borrows from pre-existing TCEs. This is the objective most closely related to IP policy.

 

Given that TCEs are largely traditional literary, musical and artistic materials, it’s only natural that one looks to the copyright system for inspiration as to the form that a sui generis IP-similar protection regime for TCEs might take.

(Indigenous and traditional symbols, names, indications and other marks are also important TCEs, which relate most closely to the objectives of the trademark system and geographical indications protection. The specific issues around the protection of these types of TCEs might be the focus of a future blog).

The link with copyright does not, however, mean that TCEs should be shoehorned into the existing copyright system – the “square peg in a round hole” trap. The fixation requirement in many national copyright laws, the requirement that the author or authors of a work be identifiable and copyright’s limited term of protection are often cited as examples of why the conventional copyright system is not, as such, directly suitable to protect TCEs.

This is why many countries have sui generis legislation. As I noted earlier in this blog, many countries provide special TCEs protection within their copyright laws based on models established in the 1970s and 1980s. More recently, Kenya[17], South Africa[18] and Zambia[19], to name only a few African countries, have enacted or are busy enacting more modern sui generis laws that protect TCEs and TK. In addition, the African Regional Intellectual Property Organization (ARIPO) has developed a regional instrument, the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, 2010. WIPO maintains a searchable online database of all TK and TCE laws.[20]

Rather than forcing TCEs into the conventional copyright system, crafting a suitable sui generis system involves drawing deeply upon the principles, values and norms of copyright protection and adapting them as needed to create an IP-similar sui generis system for TCEs protection. Indigenous customary laws are another important source of guidance.

A sui generis system for the protection of TCEs would fill gaps in existing IP systems, but not all gaps necessarily need filling. A conundrum for policymakers is to decide which gaps should and should not be filled.

Nor should, it could be argued, a sui generis system for the protection of TCEs entirely contradict the protection system for non-traditional literary, musical and artistic materials, i.e. the copyright system. For example, to balance the interests of creators and the public, the copyright system allows “borrowing from” but not “copying”. It could well be envisaged that the same should apply to TCEs, at least non-sacred TCEs. Similarly, in keeping with the idea-expressions dichotomy, copyright does not protect a work’s “style”. Should the same apply to protected TCEs?

The role, contours and boundaries of the public domain

Another way to look at this is to ask which policy objectives are best served by the public domain status of TCEs, and which would be better served by removing TCEs from the public domain and propertising them.

There are arguments on both sides.

Many contend that “culture cannot be copyrighted”, to paraphrase a famous article on this subject by Professor Michael Brown[21]: vesting IP rights in TCEs would freeze them, inhibit creativity, reify “authenticity”, stifle cultural exchange and divide communities by creating artificial monopolies of exploitation.[22]

On the other hand, many reject the public domain treatment of TCEs and argue that treating TCEs as IP would accord them the respect they deserve, enhance the legitimacy of the IP system, and empower communities to positively leverage them for economic development, if they so choose, and/or prevent their misappropriation and misuse by third parties.[23] It’s also relevant here to note Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples, 2017, which recognizes that Indigenous Peoples “have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions. . .”.[24]

The old and the new: intersecting circles

While TCEs protection set sail as an international IP issue over 50 years ago and remains unresolved, today it encounters new headwinds in the form of greater prioritisation in IP policymaking of access rights, a robust and expanding public domain and exceptions and limitations. These might, however, not be the priorities of Indigenous Peoples and local communities. Often the countries advocating weaker IP protections in other IP negotiations also lead calls for new forms of TCEs protection. If there is a contradiction here, some further thinking may be needed as to how these positions can be squared.

Having been on the agenda for many decades, TCEs protection may be regarded as an old issue. However, it interrogates long-held understandings of core copyright concepts, such as “authorship”, “originality” and the “public domain”, in similar ways to very new technologies such as artificial intelligence.

In sum, the protection of TCEs raises complex cultural, economic, trade and technological policy issues.

So far, it’s proved virtually impossible to come up with a single model of protection for all kinds of TCEs in all countries, communities and situations. “No one size fits all”.

What would be useful is a more differentiated and nuanced approach, and this segues to some of the legal and technical issues around the protection of TCEs.

Some of the legal and technical issues

There is an interlocking matrix of legal and technical issues that lies beneath the web of more conceptual policy questions described above.

The main ones are:

  • What exactly are “traditional” cultural expressions (subject matter)?
  • For which purposes should they be protected (objectives)?
  • For whose benefit (beneficiaries)?
  • Which rights should attach to protected TCEs (scope of rights)?
  • Which exceptions and limitations to those rights ought to apply (exceptions and limitations)?

These five core questions are cross-cutting and are best discussed jointly: for example, a very broad definition of subject matter might need to be tempered by a narrow set of rights or more expansive exceptions and limitations. By contrast, stronger rights could be imagined if the beneficiaries and/or the subject matter were to be narrowly circumscribed.

These are the key issues that receive so far most attention in the WIPO IGC’s negotiations on TCEs. They have also been examined in Seminars organized by the WIPO’s Traditional Knowledge Division and in more recently established ad hoc meetings of experts.[25]

Brigitte Vezina has published a thoughtful paper in which she suggests “common-denominator compromises” on each of these five issues.[26]

In addition to these five key issues, there are also others that have yet to be properly discussed, such as formalities, administration of rights, transboundary protection, term of protection and international protection.

The “tiered approach”

A cognitive device that is proving useful in what is otherwise a very dense and multi-issued negotiation in the WIPO IGC, is the so-called “tiered approach” (or “differentiated protection”).

In short, this proposes a scheme in which different kinds of TCEs might receive different levels of protection. For example, while it might be appropriate to vest exclusive economic rights/rights of free, prior and informed consent in sacred and secret TCEs, only moral rights (the rights of attribution and to prevent derogatory use and distortion) would vest in TCEs that are already widely dispersed and publicly available. There are some legitimate questions about such an approach, and some refinement would be needed. But it has merit, at least as a device to move negotiations away from an ultimately doomed overly broad and “one-size-fits-all” approach.

The “tiered approach” is not a new idea in the IGC.[27]

Professor Chidi Oguamanam has written an important critique of the approach in his paper Tiered or Differentiated Approach to Traditional Knowledge and Cultural Expressions: Evolution of a Concept.[28]

Concluding remarks

In a derivative culture, where should one draw the line between legitimate inspiration and unlawful misappropriation? Between appreciation and appropriation?

Which approach to TCEs and the public domain best respects the old while fostering the new?

Can the WIPO IGC upgrade the old-fashioned standards from the 1970s and 1980s with new-fashioned thinking?

These and other questions continue to confound lawmakers and policy wonks.

Perhaps timing is against TCEs protection as the knowledge and data governance systems of tomorrow may bear little resemblance to the IP systems of today. In the mid-1980s, UNESCO and WIPO adjudged TCEs protection to be premature. The issue resurfaced at WIPO at the very end of 1990s, but was it by then too late? Is TCEs protection an idea whose time has passed?

Hopefully not. The significance of the recognition of TCEs as IP – for Indigenous Peoples and local communities and for the world-wide legitimacy of the IP system – cannot be overstated.

The international negotiations in the WIPO IGC are slow but they are making progress, and pragmatic win-win outcomes, even interim outcomes with a commitment to continue negotiations on outstanding issues, should be possible.

In parallel, inspired by these negotiations, many communities, countries, regional organizations, as well as cultural institutions and professional associations, are crafting and implementing practical solutions to help Indigenous Peoples and local communities benefit from their TCEs and protect them as economic and cultural assets.

There is hope yet.


Some suggested readings

There is a vast trove of literature on IP and TCEs. In addition to the materials already mentioned in the endnotes, here is a small non-exhaustive selection of additional materials:

Andanda, Pamela, “Striking a Balance between Intellectual Property Protection of Traditional Knowledge, Cultural Preservation and Access to Knowledge”, Journal of Intellectual Property Rights, Vol. 17, November 2012, pages 547 to 558.

Anderson, Jane, Law, Knowledge, Culture (Edward Elgar, 2009).

Deacon, Harriet and Smeets, Rieks, “Intangible heritage safeguarding and intellectual property protection in the context of implementing the UNESCO ICH Convention”, in Laurajane Smith and Natsuko Akagawa (eds.), Intangible Heritage, (Routledge, 2018).

Forsyth, Miranda, “Lifting the Lid on ‘The Community’: Who Has the Right to Control Access to Traditional Knowledge and Expressions of Culture?”, International Journal of Cultural Property, (2012) 19:1-31.

Janke, Terri, Our Culture, Our Future (Australian Institute of Aboriginal and Torres Strait Islander Studies and the Aboriginal and Torres Strait Islander Commission, 1999).

Kuruk, P., “Protecting Folklore under Modern Intellectual Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States”, 48 American University Law Review 769 (1999).

Ouma, Marisella, “The Policy Context for a Commons Based Approach to Traditional Knowledge in Kenya”, in Jeremy de Beer, Chris Armstrong, Chidi Oguamanam and Tobias Schonwetter (eds.), Innovation and Intellectual Property: Collaborative Dynamics in Africa (UCT Press, 2014), available at http://www.openair.org.za/images/9781775821830.pdf (accessed February 6, 2019).

Perlman, Marc, “Traditional Cultural Expressions”, in Daniel Robinson, Ahmed Abdel-Latif and Pedro Roffe (eds.), Protecting Traditional Knowledge: The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, (Routledge, 2017).

Wendland, Wend “’It’s a Small World (After All)’: Some Reflections on Intellectual Property and Traditional Cultural Expressions”, in Beat Graber and Burri-Nenova (eds.), Intellectual Property and Traditional Cultural Expressions in a Digital Environment, (Edward Elgar, 2008).

Wendland, Wend, “International Negotiations at WIPO on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions: Analysis of the Process So Far and Thoughts on Possible Future Directions” (2018) 114 Intellectual Property Forum 31.

WIPO, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions/Expressions of Folklore, (WIPO, 2003), available at https://www.wipo.int/edocs/pubdocs/en/tk/785/wipo_pub_785.pdf (accessed February 6, 2019).

WIPO, The Protection of Traditional Cultural Expressions: Updated Draft Gap Analysis (WIPO, 2019), available at https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_39/wipo_grtkf_ic_39_7.pdf (accessed February 6, 2019).

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This blog is written exclusively in the author’s capacity as Adjunct Professor, Department of Commercial Law, Faculty of Law, University of Cape Town. Any views expressed are those of the author alone and do not necessarily represent the views of any organization or institution.

Notes from the author: 1. After having settled on the title of this blog, I came across and acknowledge this book by the late Professor Ronald Bettig, Copyrighting Culture: The Political Economy of Intellectual Property (1996, Westview Press). 2. I thank Daphne Zografos-Johnsson for her comments on a draft of this blog.

[1] TCEs are also referred to as “expressions of folklore”.

[2] For example, Lucas-Schloetter, Agnes, “Folklore” in von Lewinski, Silke (ed.) Indigenous Heritage and Intellectual Property (Kluwer Law International, 2004), pages 259 to 273; Zografos, Daphne Intellectual Property and Traditional Cultural Expressions (Edward Elgar, 2010).

[3] A Latin expression meaning “of its own kind”. In this context, a new system for TCEs would be sui generis because it would, while providing IP similar protection, be designed to take into account the special features of TCEs and the particular needs of their holders, principally Indigenous Peoples and local communities.

[4] Oguamanam, Chidi and de Beer, Jeremy, A Cross-Regional Research Partnership for Sustainable Development: The Open African Innovation Research (Open Air) Experience (Open AIR Working Paper 8, 2017), page 8.

[5] Hakuna Matata ™ Can Disney Actually Trade Mark That?, (New York Times, December 20, 2018).

[6] Janke, Terri Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, (WIPO, 2003), available at https://www.wipo.int/edocs/pubdocs/en/tk/781/wipo_pub_781.pdf (accessed February 6, 2019).

[7] Hafstein, Valdimar, Making Intangible Heritage: El Condor Pasa and Other Stories from UNESCO, (Indiana University Press, 2018).

[8] Fab or cultural faux pas? Louis Vuitton’s Basotho blanket-inspired collection (Sunday Times, July 13, 2017), https://www.timeslive.co.za/sunday-times/lifestyle/fashion-and-beauty/2017-07-13-the-evolution-of-the-basotho-blanket/ (accessed on February 6, 2019).

[9] See Pavis, Mathilde and Wallace, Andrea, “Response to the 2018 Sarr-Savoy Report: Statement on Intellectual Property Rights and Open Access Relevant to the Digitization and Restitution of African Cultural Heritage and Associated Materials”, February 5, 2019, available at https://docs.google.com/document/d/1-RIGHXiYjB6nFhzeOn6gHapFL-w9oontJFZfAjlSXkI/edit (accessed February 11, 2019);  Sarr, Felwine and Savoy, Benedicte, “The Restitution of African Cultural Heritage. Towards a New Relational Ethics” (published by the Ministry of Culture, France, 2018).

[10] Defined as “the unacknowledged or inappropriate adoption of the customs, practices, ideas, etc. of one people or society by members of another and typically more dominant people or society” (Oxford English Dictionary), https://en.oxforddictionaries.com/definition/cultural_appropriation (accessed February 10, 2019).

[11] For more detail, see inter alia Wendland, Wend, “Intellectual Property and the Protection of Cultural Expressions: The Work of the World Intellectual Property Organization (WIPO)”, Molengrafica Series, (Molengraaf Institute for Private Law, Centre for Intellectual Property Law (CIER), Utrecht, 2002), pages 101-114.

[12] Hafstein, Valdimar, Making Intangible Heritage: El Condor Pasa and Other Stories from UNESCO, (Indiana University Press, 2018).

[13] WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1982.

[14] Ouma, Marisella, “Traditional Knowledge: The Challenges Facing International Lawmakers”, WIPO Magazine (WIPO, February 2017).

[15] In the context of the WIPO IGC, TK refers to traditional technical knowledge, such as Indigenous Peoples’ knowledge, innovations and practices related to biodiversity, climate change, health and agriculture. TCEs are the forms in which knowledge and culture are expressed. There are as yet no formal definitions of TK or TCEs agreed at the international level. See WIPO, Glossary, available at https://www.wipo.int/tk/en/resources/glossary.html (accessed February 17, 2019).

[16] For a general analysis of the challenges and opportunities in this negotiation, see Multilateral Matters #1 accessible at http://ip-unit.org/2018/multilateral-matters-series-achieving-positive-outcomes-in-international-intellectual-property-negotiations/ (accessed February 6, 2019).

[17] Protection of Traditional Knowledge and Cultural Expressions Act, 2016.

[18] Protection, Promotion, Development and Management of Indigenous Knowledge Bill, 2015.  See Bagley, Margo, “Toward an Effective Indigenous Knowledge Protection Regime: Case Study of South Africa”, CIGI Papers 207, (CIGI, December 2018), available at https://www.cigionline.org/publications/toward-effective-indigenous-knowledge-protection-regime-case-study-south-africa (accessed February 17, 2019).

[19] The Protection of Traditional Knowledge, Genetic Resources and Expressions of Folklore Act, 2016.

[20] https://www.wipo.int/tk/en/databases/tklaws/ (accessed February 17, 2019).

[21] Brown, Michael, “Can Culture be Copyrighted?”, Current Anthropology Volume 39, Number 2, April 1998.  See also Brown, Michael, Who Owns Native Culture, (Harvard University Press, 2004).

[22] See generally inter alia Noyes, Dorothy, “The Judgment of Solomon: Global Protections for Tradition and the Problem of Community Ownership”, Cultural Analysis, Volume 5, 2006; Coombe, Rosemary, “The Properties of Culture and the Possession of Identity: Postcolonial Struggle and the Legal Imagination”, in Ziff and Rao (eds.), Borrowed Power: Essays on Cultural Appropriation, (Rutgers University Press, 1997); Burns Coleman, Elizabeth, “The Disneyland of Cultural Rights to Intellectual Property: Anthropological and Philosophical Perspectives”, in Beat Graber and Burri-Nenova (eds.), Intellectual Property and Traditional Cultural Expressions in a Digital Environment, (Edward Elgar, 2008).

[23] See, for example, Dutfield, Graham, “Protecting Traditional Knowledge and Folklore”, Intellectual Property Law, Articles on Cultural Expressions and Indigenous Knowledge, Molengrafica Series, (Molengraaf Institute for Private Law, Centre for Intellectual Property Law (CIER), Utrecht, 2002), pages 73 to 76; von Lewinski, Silke, “Final Considerations”, in von Lewinski, Silke (ed.) Indigenous Heritage and Intellectual Property (Kluwer Law International, 2004); Wong, Tzen and Fernandini, Claudia, “Traditional Cultural Expressions: Preservation and Innovation”, in Wong, Tzen and Dutfield, Graham (eds.), Intellectual Property and Human Development: Current Trends and Future Scenarios, (Cambridge University Press, 2011), pages 178 to 184; Hardison, Preston, “The Unfocused Gaze”, presentation made at WIPO Seminar, June 2017, available at https://www.wipo.int/edocs/mdocs/tk/en/wipo_iptk_ge_17/wipo_iptk_ge_17_presentation_14hardison.pdf (accessed February 17, 2019); Mattila, Tuomas, “Needs of the Sami People for Intellectual Property Protection from the Viewpoint of Copyright and Trademarks”, (published by the Ministry of Education and Culture, Finland, 2018), pages 27 to 29, accessible at http://julkaisut.valtioneuvosto.fi/handle/10024/161206 (accessed February 17, 2019).

[24] Available at https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (accessed February 17, 2019).

[25] For all the IGC’s documents so far, see https://www.wipo.int/tk/en/igc/ (accessed February 10, 2019).

[26] Vezina, Brigitte, “Traditional Cultural Expressions: Laying Blocks for an International Agreement”, CIGI Papers 169, (CIGI, April 2018), available at https://www.cigionline.org/sites/default/files/documents/Paper%20no.169_1.pdf (accessed on February 6, 2019).

[27] Such an approach was embodied in the very first draft instrument on TCEs that appeared in the IGC back in 2007. It was drafted by the Secretariat. Unfortunately, that draft (as well as the TK draft that the Secretariat also prepared at the time) were shelved by the IGC and the “tiered approach” idea was not directly discussed for some years. Many years later, at an IGC retreat in Bali in March 2014, Indonesia, I presented it for consideration again referring in slides to it as a “drafts rights pyramid” (see Chair’s Summary: Consultative Meeting on the Work of the Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (Bali, Indonesia, 11-12 March 2014), on file with the author), and the idea found its way back into the IGC, where it is now part of the architecture of the draft IGC text on TCEs.

[28] Oguamanam, Chidi, “Tiered or Differentiated Approach to Traditional Knowledge and Cultural Expressions: Evolution of a Concept”, CIGI Papers 185, (CIGI, August 2018), available at https://www.cigionline.org/sites/default/files/documents/Paper%20no.185web_0.pdf (accessed on February 6, 2019).