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]
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