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ITEM 6: FOLKLORE

Final Report on National Experiences with the Legal Protection of Expressions of Folklore (WIPO/GRTKF/IC/3/10)

267. The Secretariat introduced document WIPO/GRTKF/IC/3/10, noting that it proposed four possible tasks for the Committee's further work on folklore, and added that further responses to the questionnaire were welcomed as stated in paragraph 8 of the document. The Secretariat planned to publish the laws of the countries that had responded and requested the relevant countries to submit their laws. The Secretariat also advised that all the responses to the questionniare were available on the web site and in paper form. Finally the Secretariat was publishing studies on WIPO's website "Minding Culture: Case-Studies on Intellectual Property and Traditional Cultural Expressions", written by Ms. Terri Janke which reflected practical examples of the protection of expressions of traditional culture.

268. The Delegation of Algeria, on behalf of the African Group, said that the Group believed that the existing IPRs, such as copyright, trademarks, certification and collective marks and industrial designs, could provide protection to expressions of folklore in respect of tradition-based creations where the creators of the expression can be identified. The African Group proposed that the Committee should examine the means by which IP registration systems, particularly the trade-mark and industrial designs systems, could be adapted to enhance the protection provided to expressions of folklore, without prejudice to the examination of these questions within other organs of WIPO. The Delegation further stated that the African group supported the study of the relationship between customary laws, protocols and practices governing custodianship, use and transmission of expressions of folklore, on the one hand, and the formal IP system, on the other, in relation inter alia to the establishment of sui generis systems of protection and so as to ensure that IPRs do not preclude continued customary creation and use of expressions of folklore. They believed that the WIPO/UNESCO Model Provisions, 1982 would provide a useful reference point for the development of effective national, regional and international systems of protection, although these could be updated and improved upon and favored the establishment of a comprehensive international binding instrument on the protection of expressions of folklore, with some form of dispute settlement mechanism either similar to that which is obtainable under the TRIPS Agreement or a mediation process as is provided by the WIPO Arbitration and Mediation Center. The Delegation recommended that WIPO provide greater legal-technical assistance for effective implementation of systems for the protection of expressions of folklore at national and regional levels. Such assistance should include awareness raising, institution building, and training and information for traditional communities on enforcement. In addition, WIPO should conduct empirical studies on the economic effects of the exploitation of tangible and intangible expressions of folklore, particularly handicrafts, in developing and the least developed countries, and particularly in the light of new technologies for the reproduction and dissemination of such folkloric works. The Delegation stated that the African Group was fully aware of the fact that the African States should deploy efforts so that expressions of folklore should enjoy greater and better adjusted protection of folklore to enable the African peoples to derive the maximum social and economic benefits from such protection. This protection could be embodied in legislation or in the reinforcement of national structures. Finally, the Delegation expressed the African Group's wish to encourage use by their traditional communities of existing IPRs for the protection of traditional culture and expressions of folklore.

269. The Delegation of China provided an overview of their position on the use of the existing IP system and the protection of folklore. In the first instance, the Delegation stated that the protection of folklore, especially in its forms of expression, the way it was used and how to prevent unfair competition, although different from the protection of copyright, was not fundamentally different from copyright protection. The aim of national and international protection should therefore be focused on the utilization and development to prevent inappropriate use. Protection should not have an impact on the normal use and development of folklore. Secondly, for those who discovered and recorded folklore, the Government should encourage them to discover and make use of folklore but at the same time the Government should regulate the actions to prevent any disrespect or unfair treatment to those communities where the folklore originates. Thirdly, concerning the scope of protection of folklore, copyright law was not completely applicable. However, there were two aspects of protection which were important. One was the reproduction and distribution and the second was the public performance and broadcasting. Fourthly, concerning the recreation of folklore, those who carry out recreation should respect the religious beliefs, living customs and cultural traditions of the communities where the folklore was from and their sources should be indicated. Fifthly, the difference of folklore protection from copyright protection was that the major entity of the protection was not an individual but a government authority. The government authority, the authoritative organ, issued licenses and collected fees which would be completely used to develop folklore. On the other hand, it would also exercise administrative sanctions against those violations. Sixthly, the Delegation stated that in discussing folklore issues, a difference should be made between traditional technical skills and folklore expressions. The former belonged to the scope of industrial property and the latter belonged to copyright. At the same time, a distinction should be made between the different characteristics of tangible assets and intangible assets. With regard to the international protection of folklore, the Delegation agreed to actively carry out in-depth discussions and explorations. However, it was emphasized that national protection systems should first be established on the basis of existing systems, and together, learn from experiences of other countries. On these aspects, the Delegation requested the Committee to provide more information. In addition, the Delegation stated that they would give great attention to the discussions on updating the 1982 Model Provisions on folklore. Finally, the Delegation invited the Committee to refer to document WIPO/GRTKF/IC/3/14 on the current status of protection and legislation of national folklore and related fields in China.

270. The Delegation of Spain speaking on behalf of the European Community and its Member States stated that the document was extremely complete and useful for evaluating the different aspects of folklore. The Delegation referred the Committee to document WIPO/GRTKF/IC/3/11 entitled "Expressions of Folklore". With regard to document WIPO/GRTKF/IC/3/10, the Delegation stated that its Members felt it extremely important to give greater assistance for the establishment, strengthening and implementation of systems and measures for the legal protection of expressions of folklore at the national level. The Delegation supported the carrying out of studies on practical cases of the relationship between customary laws and protocols and the formal IP system. Finally, the Delegation stated that its Member States would like to share their experiences with all countries and regions already applying folklore protection.

271. The Delegation of the United States of America stated that it was pleased to have sufficient time to discuss the important topic of folklore, as senior officials of the American Folk Life Center were part of its Delegation. The Delegation then informed the Committee that one of the panels at a two day Copyright Conference recently organized jointly by the USPTO and the U.S. Copyright Office to celebrate World Intellectual Property Day 2002 had concerned the protection of folklore. This panel had consisted of representatives of the Choctaw Nation (a Native American tribe), the Government of Canada, the Government of Jamaica, the European Commission, the American Folk Life Center of the U.S. Library of Congress, and a New Zealand professor and had discussed many of the issues raised in document WIPO/GRTKF/IC/3/10, such as the challenges of finding solutions in pluralistic societies and immigration-based countries to which traditional societies have moved with their folklore, and the role of Government in the activities of traditional cultures. The Delegation then informed the Committee of a recent event in South Carolina. In order to continue their art, which is an integral part of Charleston's tourism economy, the traditional basketmakers of Charleston depend upon a supply of and open access to sweetgrass. In the 1980s, developers building condominiums on the sea islands off the Charleston coast were both destroying many of the sweetgrass beds in the intercoastal marshes, as well as posting "no trespassing" signs on this important land. Folklorists, anthropologists, developers, ecologists, legislators, tourism officials and the basketmakers themselves met to discuss the problem. Local legislation was passed to balance the interests of the basketmakers with the interests of the developers, ensuring open access to sweetgrass beds for the basketmakers and acknowledging their contributions to the economy and culture of Charleston itself. The Delegation further cited the range of existing legal remedies to protect expressions of folklore currently available in the U.S.A., such as copyright, certification marks, the Indian Arts and Crafts Act and the USPTO's growing Database of Official Insignia of Native American Tribes. The laws of the United States might not be appropriate to be adopted by other countries and urged all countries to consult widely with their indigenous and local communities to determine what legislation might be most appropriate for them. The Delegation mentioned two U.S. government collections that preserved and protected collections of expressions of folklore; namely, the Library of Congress and the Smithsonian Institution. The Library of Congress was currently discussing with scholars of folklore in various countries to facilitate the preservation of material that may otherwise be threatened by conflict. The Delegation continued by noting that folklore collections did not grant exclusive rights but this should not be a reason to underestimate their role in preserving folklore, since such preservation can lead to commercial benefits. For instance, a recent movie, "O Brother, Where Art Thou," featured a soundtrack of 1920s and 1930s music recorded in the field by rural Delta blues performers, and preserved in the Alan Lomax Archives in New York City. The use of that music netted the performers a financial windfall for recordings they had long forgotten. Alan Lomax's daughter, now in charge of the collection, continued to search for additional artists from those recordings with whom to share the benefits of successful commercialization. The Delegation concluded by stating that it supported Possible Tasks 1 and 4 in document WIPO/GRTKF/IC/3/10, since they were in keeping with the incremental approach that had marked WIPO's activities to date, but was unable to support Possible Tasks 2 and 3, on the basis that they were both premature. In relation to Possible Task 1, the Delegation suggested that various U.S. Government resources, particularly those of the Folk Life Center at the Library of Congress, might be available to participate with WIPO in providing legal-technical assistance in the development of folklife preservation and conservation. For instance, the Center was currently undertaking a project with seven major archives across the United States to create an ethnographic thesaurus that could be applied internationally. This would provide nations with a vocabulary and agreed definitions to facilitate the passing of folklore-related legislation. In addition, the USPTO Office of Independent Inventors Programs might assist in sharing its experience with the Database on Official Insignia of Native American Tribes. In relation to Possible Activity 4, the Delegation encouraged WIPO to take full advantage of the work done in the context of the previously undertaken Fact-Finding Missions, in the best use of resources.

272. The Delegation of South Africa supported the document and the position of the African Group and China. It should be possible to develop an improved version of an international treaty, and the time was ripe for implementation of an improved treaty. With regard to the WIPO-UNESCO Model Provisions of 1982, the Delegation stated that even with its limitations it was a good starting point to craft a treaty. It went without saying that existing systems and measures at the national level should be strengthened - this meant that the Delegation supported possible tasks 1 (paragraph 156) and 2 (paragraph 162). Furthermore, the Delegation felt that the issue of folklore and TK were intertwined, and cautioned not to compartmentalize the issues. It supported possible task 4, since this is only to improve the possible treaty.

273. The Delegation of Switzerland supported the implementation of Task 1. With regard to paragraphs 162 and 168, notably Task 2 and Task 3, the Delegation stated that they were premature as they were too many preliminary issues still open, such as definitions, the possible classification of rights, the holders and the exercise of these rights. These questions should first be resolved. In addition, the WIPO Performances and Phonograms Treaty (the WPPT) of 1996 already addressed the protection of performers of folklore at the international level. The Delegation believed that it would be necessary at first to examine in a more detailed fashion the application of the Model Provisions at the national level and the WPPT provisions before setting up new mechanism at the international level.  Referring to paragraph 171, the Delegation supported and welcomed Task 4. This task would be useful in answering many of the preliminary questions. Finally, the Delegation supported the proposals and comments put forward by the European Union and its Member States in document WIPO/GRTKF/IC/3/11. In conclusion, the Delegation believed recalled its willingness to find practical, effective and balanced solutions acceptable to all.

274. The Delegation of Tunisia supported the African Group position. The Delegation stated their belief in that folklore was closely related to the protection of TK given that the nature of its collective property and its link with national heritage. The Delegation wished to give special attention to folklore as it contributed to the social and economic development and is a source of creativity and invention. The Delegation stated their interest in copyright highlighted that Tunisia was one of the first eleven countries to have adhered to the Berne Convention. Legislation had been updated and improved to preserve the elements which made up their heritage. The first and sixth articles of the 1966 legislation on copyright law and article 1 and 7 of the Copyright Law of 1994 mentioned the need to preserve and protect folklore and categories inspired from it. This work was done in the framework of protecting literature, artistic heritage, material heritage and intellectual heritage. The Delegation stated that they were putting together a compilation of all the teachings related to folklore in Tunisia. They have given priority to popular poetry, stories and had applied scientific methodology to fixed music on hard copy, tapings or recordings. Tunisia had a Center with a Museum for traditional musical instruments, which also had a recording studio which could be used commercially upon authorization of the Ministry for Culture. Assistance would be given to musicians and performers who were going through difficult times. Protection therefore meant that there must be a clearly defined definition of concepts.A National heritage and the difficulties inherent in its protection in developing countries demonstrated the efforts required for protection. In this respect, the Delegation stressed the need to provide technical assistance from both UNESCO and WIPO who had an interest in cultural heritage. The Delegation thus supported Task 1. Furthermore the Delegation believed that an international legislative framework for the protection of folklore was necessary given that protection through current systems of IP proved insufficient. In addition, the Delegation supported Task 2 as they had already stated in their answers to the questionnaire.

275. The Delegation of Senegal stated that Senegal had, since 1973, applied the provisions of Article 15 of the Berne Convention under their copyright law and had incorporated the notion of domaine public payant. The Bureau sénégalais du droit d'auteur (BSDA) was charged with the administration of copyright and thus the protection of folklore. With regard to Article 15, the Delegation explained that preference was for a non-paying domaine public system. Senegal wished to embody it in their national legislation. Given the promotion of the protection of folklore and having stressed the important role of folklore in Senegal's economic and social development, several traditional communities were able to benefit. The Delegation then provided information on activities carried out by Senegal, namely the establishment of a database to assist musicians, the organization of concerts, both inside and outside of Senegal, the encouragement and training of artists to reinforce their expressions of folklore and to slow the "brain drain".

276. The Delegation of Egypt supported the position expressed by the Delegation of Algeria on behalf of the African group. The theoretical and practical problems presented could not come to an end and there should be a level of general consensus on what exactly one wanted to protect, whether it be linked to expressions of folklore or TK, that was to agree on the things and material requiring protection. In this context the Delegation stated that the Model Provisions were valid as a basis on which to build a sui generis framework for the protection of expressions of folklore at the national level. Thus the Delegation supported Task 2 found in paragraph 162. Furthermore, in order to set up an international draft treaty which defined the obligations of all parties concerned, the Delegation referred to Task 3 and invited the Secretariat to prepare a document on the possible elements for an international framework for the protection of expressions folklore. The Delegation felt that the means of protection should be of an international nature. They did not agree with the term extra-territorial found in paragraph 168. The term was contrary to the regionally, territoriality of the application of laws, and national law could be applied outside of the territory of the country concerned. Thirdly, the Delegation stated that the Rome Convention and its Annexes could guide one in order to provide protection of some aspects of TK and expressions of folklore, in accordance with the popular usage of the current terminology. The Delegation stated that the terminology would be entered as folk traditions. Fourthly, the Delegation suggested to redraft the term or concept of performers found in the Rome Convention, which could comprise performers who carry out folkloric art, whatever the form or shape of performance. This would entail a change in national legislation whereupon a more flexible term could be used in line with the social and cultural framework of each society. Fifth, the Delegation stated that there was the need to have a precise determination of forms of folk traditions and documenting them through setting up of comprehensive inventories for these forms. National laws should define the forms which required protection by setting up inventories or databases which defined and described these forms in accordance with clear defined and agreed upon criteria. Sixth, the developing countries, including Egypt, were in dire and real need of material and technical assistance to carry out these inventories and databases, thus Task 1 was supported. In the field of folk traditions or folklore, the Scandinavian countries' experience and that of other European countries could be very useful. In this context, the Delegation extended a request to them for assistance. The Delegation referred the Committee to some examples, notably the Finnish Folklore Inventory, the Nordic Institutes of Folklore, the Uppsala Inventory in Sweden, the Ethnographic Museums in Sweden, Norway and other countries, the Roman Folklore Inventory and other prominent inventories in a number of countries.

277. The Delegation of Cote d'Ivoire referred to discussions on document WIPO/GRTKF/IC/3/9 and observed that a "door was left open" on the pertinence or not of the use of the concept of folklore. The Delegation stated that this "open door" was the basis on which their comments rested. The Delegation stated that were the concept of folklore to be substituted by another concept then the Delegation would be prepared to favor the report as its contents covered the essential values of their traditions and civilizations in relation to expressions of TK. The semantic form could lead to confusion between the two systems of protection being sought. This concept had in the third session seemed to achieve a clear definition. The Delegation referred the Committee to the third part of document WIPO/GRTKF/IC/3/10, paragraph 155 and the publication on a "How to" guide based on case studies. The Delegation felt that this guide would be an instrument for reference which would enable legislators, States, grassroots communities and researchers to fine tune the mechanism which was envisaged. The Delegation supported the initiatives of a study based on the report, of a study on IP systems and customary law, as well as the updating of the Model Provisions, despite their limitations. Finally, the Delegation supported the declaration of Algeria on behalf of the African group.

278. The Delegation of Australia stated that document WIPO/GRTKF/IC/3/10 provided a helpful context and a significant resource to better understand the context in which the work of this Committee was being done. The Delegation pointed to some aspects that seemed to be of particular note. First, the Delegation observed that there were a complexity of issues concerned with the particular circumstances of respondent countries, their social and legal history, the availability or lack of practical mechanisms for exercising rights, lack of knowledge, views and the forms of application other laws. The subject matter was diverse, as indicated in paragraphs 90 and 92 of the report. These suggested that if future progress in the area was to be made, then an understanding had to be reached on the scope and meaning of the term "expressions of folklore". While a precise definition might not be necessary, there was a primary need to identify the criteria that should be met as a condition for protection by IPRs. With regard to paragraph 120, the Delegation noted the diversity of owners or custodians of folklore but that the vast majority of States indicated that they regarded expressions of folklore as the property of the country as a whole. The Delegation noted that the issue of rights-holders also needed to be resolved. With regard to the issue of scope of protection, the Delegation referred the Committee to paragraphs 108 and 109. These paragraphs highlighted the potential of over-protection, where cultural preservation might be frozen and the public area for creation reduced. Protection should be aimed to allow inspiration from traditional cultural expressions while respecting the boundaries between unfair use and legitimate inspiration. The Delegation noted that the European Community position paper also reflected such a concern. Given this concern the Delegation nevertheless believed that under some systems there were mechanisms for providing for a level of protection to at least creations deriving from traditional expressions of folklore. By proving protection to the creations themselves, as for example under copyright, there was a measure of protection while yet allowing the continued growth and protection of such expressions in dynamic and living manner. The report made it clear that protection of expressions of folklore was multifaceted. That meant that effective protection almost certainly did not lie solely within the realm of IP but in practice, through action on a range of measures, practical and legal, including capacity building, awareness raising and education. Paragraph 153 discussed some of those matters at some length. As for the tasks, the Delegation believed that there would be practical value and utility in adopting Task 1. Task 4 was also seen as a useful way in which to better expand understanding of the interaction of customary law and the international IP norms.

279. The Delegation of Ukraine stated that it had responded to the questionnaire and regretted that it had not been received by the Secretariat. This documentation was now submitted. It was due to the efforts of their citizens that folklore could be developed. The Delegation provided an example of such folklore where special experts, in Transcaspian, western Ukraine, made attempts to record elements of musical folklore which were not kept in museums. This musical folklore had been kept for the everyday use of the community. The Delegation noted that one was able to hear the singing of popular folklore music in every household as the expression of music was considered very important. Protection was available and administered by the competent authorities. Special guidebooks were made and indicated that expressions of folklore were considered as national creations. Special authorizations were not needed. The Delegation stated that folklore should continue to evolve and obstacles must not be placed to prevent its development. The mere fact that the Committee met was further evidence that there were obstacles and these prevented one from handing over the heritage from generation to generation. The Delegation believed that the Committee should be cautious as folklore could be protected. The question could be resolved thanks to the system of copyright and related rights. Where the subjects of copyright and related rights were physical persons, and where in some countries they could be both physical and legal persons, very often it was the State. Yet the question concerning communities and whether the community could become a legal entity had not yet been defined. The Delegation stated that document WIPO/GRTKF/IC/3/10 prompted the following conclusion, that there was protection for the expressions of folklore but in a majority of cases performers were not individual persons. More often than not they were communities, groups of people, and they needed to become the subject of copyright and related rights. The Delegation believed that resolving this issue could assist in the protection of national traditions.

280. The Delegation of Kenya supported the views expressed by the Delegation of Algeria on behalf of the African Group. The Delegation stated that folklore, from time immemorial, had been an educational tool in their traditional societies. Together with TK, folklore had served their societies both spiritually and physically. With reference to paragraph 94, the Delegation stated that it recognized that folklore was a form of TK and therefore placed great importance on TK being extended to folklore. The Delegation also stated that the paragraph also highlighted the linkages between folklore and the environment, ecosystems and the total identity of a community. The Delegation noted that they looked forward to the outcome of the current meetings, as their laws had already been adjusted to accommodate a measure of protection of folklore. The Delegation said that they participated in the questionnaires and provided information on the measures taken thus far under their copyright law. Based on those experiences, the Delegation supported Task 1. The Delegation further endorsed paragraph 106 on the scope of protection. In that respect, the Delegation wished to place emphasis on protecting performers, recorders and archivists of expressions of folklore. The Delegation supported the establishment of an international instrument that would be holistic in both protecting folklore and allowing its continued use.

281. The Delegation of Canada submitted that it could support Tasks 1 and 4 but not Tasks 2 and 3. As regards Task 1, the Delegation agreed with the proposal that the WIPO Secretariat provide, upon request, enhanced technical-legal assistance to States, peoples and communities to establish, strengthen and implement systems and measures at the national level, subject to existing budgetary limitations. With regard to Task 2, the Delegation believed that it was premature to consider updating the Model Provisions. As the final report itself indicated, there were few countries where laws, designed to protect expressions of folklore, were actively utilized and functioning effectively in practice. In light of this, it was unclear as to what value would come from pursing the exercise until greater experience was gained at the national level. The Delegation believed that Task 3 was also premature. As in the case of sui generis systems for TK protection at the international level, there needed to be more knowledge and experience with developing and implementing protection at the national level, before useful discussion could take place. Finally, the Delegation supported Task 4. The further practical study of the relationship between customary laws and protocols and the formal IP system would be useful. There were many uncertain issues to be addressed regarding these relationships thus further study would allow the Committees to develop a better understanding of the complexities involved in reconciling the various systems.

282. The Delegation of the Islamic Republic of Iran stated that folklore was the cultural heritage and national identity of all nations and its protection, particularly for the developing countries, was of such great importance. The Delegation stated that they, like developing countries, possessed valuable folkloric cultural heritage and stated that WIPO was the most suitable organization for provision of reasonable and fair solutions in respect of the problems relating to IP aspects of folklore. The Delegation suggested that some steps should be taken to create, reinforce, and effectively exercise national protection systems with due consideration of various legal, legislative, contextual, structural and administrative needs of these countries. In this regard the Delegation stated that it was particularly important that WIPO provided these countries with the relevant required technical-legal assistance for improvement or establishment of new effective national systems for protection of expressions of folklore. The Delegation named a few principles on which the technical-legal assistance should be based on, namely; (i) the maximum use of existing IP rights systems; (ii) the necessity of designing certain training courses and plans to increase awareness and knowledge; (iii) the establishment and reinforcement of relevant basic structures for the implementation of laws and regulations; (iv) the necessity of identification, documenting, classification and registration of expressions of folklore in databanks in a standard form with due consideration of the necessary steps to be taken for prevention of likely future misuse; (v) due to the technological advances and discovery of new forms of commercial exploitation of expressions of folklore, updating the 1982 Model Provisions would be a suitable starting point to effectively assist in the establishing, reinforcing and implementation of a national protection system. The Delegation stated that the need for more effective protection in the national level did not imply that the expressions of folklore should not be protected beyond the borders of the country. On the contrary, the Delegation stated that the formation of efficient local systems would in turn facilitate cross-border protection of expressions of folklore on the basis of principles such as national treatment. The Delegation added that folklore and an innovative work on the basis of folklore were protected under the Iranian Copyright Law dated 1969. Although the Law had been passed and implemented before the Model Provisions of 1982, the Delegation stated that some aspects of the Model Provisions could be found in their Law.

283. As an initial reaction, the Delegation of Peru supported the four possible tasks outlined by the Secretariat. The Delegation, especially with regard to Task 1, supported paragraph 155 where they stated that the idea of this paragraph seemed extremely useful to them. With regard to Task 2, the Delegation supported paragraphs 160 and 161 and insisted that the Committee not simply update the Model Provisions because of technological changes but review the Model Provisions taking into account that which was stated in paragraph 160 and 161 in a more integrated way. With regard to Task 3, the Delegation supported paragraphs 152 to 167, and stated that regional issues deserved special attention. The Delegation also supported Task 4.

284. The Delegation of Morocco stated that they had recently adopted a new law (Law 2-00) concerning copyright and stated that within this law articles concerning expressions of folklore had been included and taken into consideration the system of domaine public payant as mentioned in paragraph 153(e). The Delegation stated that they also had protection with regard to tangible assets. The Delegation endorsed the statement of the Delegation of Algeria on behalf of the African Group and believed that the reinforcement and implementation of measures for the protection of expressions of folklore at national level were necessary. The classification, fixation and recording of expression of folklore were indispensable before dealing with any question concerning the protection of expressions of folklore. The Delegation supported paragraph 153, and stated that, despite the existence of national legislation, the applications of the Model Provisions faced numerous obstacles. The Delegation supported Possible Task 1 and Possible Task 2 as they believed that the Model Provisions should be updated in view of progress achieved in the technological areas and the new legal issues that have a risen concerning the protection of expressions of folklore.

285. The Delegation of New Zealand expressed reservations in their response to the questionnaire concerning the use of the term folklore which might be considered offensive or inappropriate in a number of cultures and the separation of the artistic expression from the TK underlying that expression. The Delegation suggested that this was not consistent with the holistic view of many indigenous peoples. The Delegation noted that this issue was acknowledged in paragraph 20 of document WIPO/GRTKF/IC/3/9 and that in paragraph 22 it was suggested that the term folklore continued to be used as a subset of the more general term TK. The Delegation noted the comments of other States that it may be necessary in practice to use or develop different mechanisms for the protection of different aspects of TK. With regard to Task 1, the Delegation supported the task and agreed with the comments of the Secretariat in paragraphs 149 and 151 of document WIPO/GRTKF/IC/3/10 and noted that benefits would accrue to states other than those principally involved, through the sharing of national experiences. The Delegation did not favor Task 2 as they stated that the resources would be better allocated to Task 1. The Delegation, with regard to Task 3, considered that the time was not right to embark upon the development of frameworks for extra-territorial protection. The Delegation agreed with the comments in paragraph 163, and stated that it was important to fully consider domestic solutions before moving to the question of whether an international agreement was required. The Delegation did not object to the examination of certain existing mechanisms. The Delegation supported Task 4 and agreed that the issues identified in paragraph 170 merited further consideration. The Delegation stated that a key focus should be the effect any new solutions would have on the traditional decision-making structures of indigenous peoples and local communities charged with the protection of their TK and expressions of it.

286. The Delegation of Venezuela stated that with regard to the action plan referred to in paragraph 36, the Delegation wished to include expressions of folklore at a national and regional level. On paragraph 68, which dealt with handicrafts and referred to the recommendations from the World Customs Organization (WCO) on these products, the Delegation stated that they had made efforts in this area with establishment of an inventory in which not only the handicrafts were registered but also the producers of the handicrafts. The Delegation stated that within the WCO the possibility exists of having technical assistance for member countries in this regard and suggested that WIPO take into account this code to improve protection systems. With regard to paragraph 74, the Delegation stated that there were two international instruments with regard to indigenous and local populations that exist in the International Labor Organization (ILO). The Delegation stated that local communities must be included, as they are holders of TK and deserved protection. On paragraph 86 (B) section (c), the Delegation felt that an exchange of information on the measures adopted by countries with such protection measures shall be included. The Delegation further stated that Venezuela, through the Institute of Cultural Heritage, had a model for an inventory of products within their country and that they could look at contents of the inventory in order to modify it if necessary. The Delegation referred to paragraphs 89, 90 and 91 to be closely tied to document WIPO/GRTKF/IC/3/9. The Delegation stated that it was extremely important to establish conceptual elements, which were clear on expressions of folklore and the different types of expressions so as to contribute to the suggestion in paragraph 88. With regard to the proposed tasks, the Delegation agreed with them in principle but suggested another task, as a possible substitute for Task 1 or conducted prior to Task 1, which concerned the identification of types of expressions of folklore already protected under existing systems. The Delegation stated that the conclusion of this task would make the process for conducting the remaining tasks easier. The Delegation stated that the next session should take into account experiences on the protection of expressions of folklore by countries and demonstrations thereof as it would be useful for the discussions. The separation of folklore from TK was a simple methodological device for dealing with these complex subjects, but its had to be clear that one was not speaking of two separate entities.

287. The Delegation of Panama reported that Panama had already developed its own legal framework for the protection of collective rights which included expressions of folklore, and hoped that this system would work in practice as they had experienced difficulties. It was necessary to strengthen protection by applying laws at a national level immediately in traditional IP systems, where interested parties presented themselves to competent officers to request protection. In this case, it was necessary to effectuate broad diffusion of the protection available. The Delegation stated that Panama was currently attempting to implement a new strategy for special laws and had contemplated the development of an indigenous project which would address gender issues with regard to expressions of folklore of specific groups. The Delegation fully supported the activities proposed, especially Task 1, and stated that they would ask for assistance and advice to set up a system in and look at the legal measures for the protection of folklore at national levels. The Delegation stated their interest in the evaluation of the systems of collective rights and how they related to specific components of expressions of folklore. With regard to databases and registers, the Delegation felt that this was important and supported the idea of the need to review databases with regard to folklore. The Delegation insisted upon support for the remaining 3 activities, and although it stated that it would be premature to look at extraterritorial protection, the Delegation believed that the Committee could lay the basis for the beginnings of efforts for protection at an international level. The Delegation concluded that information from other states would enrich discussion at the Committee.

288. The Delegation of Jordan stated that effective protection of folklore should come from relevant conviction of Members and that all legislation should be acceptable and guarantee the required protection. The Delegation stated that they preferred to study this within the framework of the copyright holder whether it be TK or folklore. The Delegation stated that developing countries needed financial and technical assistance.

289. The representative of OAPI pointed out a few corrections to document WIPO/GRTKF/IC/3/10. The representative referred to paragraph 170 and suggested that the Committee study under what condition customs gave rights to communities, social professional groups, families or individuals. The representative stated that African States shall draw up an inventory of the expressions of folklore. The representative stated that during the discussion on TK, several delegations highlighted the impossibility of applying the customary laws of the communities and that this would also apply to expressions of folklore. The representative suggested that WIPO take into account the results of the symposium held in Phuket, Thailand in 1997, the 1999 regional consultations and the fact-finding missions in undertaking such a study. The representative supported the remaining tasks.

290. The representative of UNESCO referred to the activities conducted recently which concerned the elaboration of a normative international instrument concerning the material of intangible cultural heritage. The representative stated that a resolution was adopted at their General Conference in 1999 and that it was decided that the most appropriate instrument would be an international convention and the first draft would be examined at their General Conference in 2003. Several of their Members States had emphasized the importance of avoiding any duplication with related activities of other organizations, particularly WIPO. The representative referred to the program concerning the proclamation of the oral and intangible heritage of humanity which they had already carried out locally due to a revitalization of the relevant cultural heritage. The representative referred to their initial meetings held on the drafting of the international convention and quoted the proposed definition of intangible cultural heritage which had been drafted by their group of experts and which could possibly be covered by the draft international convention.

291. The representative of the Secretariat to the Pacific Community (SPC) drew attention to document WIPO/GRTKF/IC/3/9, which referred to the UNESCO Symposium on the Protection of Traditional Knowledge and Expressions of Indigenous Cultures in the Pacific Islands. This Symposium was initiated by the Secretariat to the Pacific Community (SPC) and jointly hosted by them and UNESCO. The Secretariat to the Pacific Community was concerned about the increasing exploitation of the Pacific Islands tangible and intangible cultural heritage much of which was not yet in the public domain and had the Symposium examined existing IP mechanisms, including the Model Provisions to protect Pacific Island TK. The representative noted that this had revealed that existing legal systems did not address the issue of protection against improper use of their traditional heritage, resulting in the development of the Pacific Regional Framework which she described. Forum Trade Ministers had mandated SPC, Pacific Forum Secretariat (ForSec), UNESCO, and WIPO to assist Forum Island countries. The representative therefore supported Task 1 and noted, as mentioned by the Delegation of Venezuela, that regional measures should be included.

292. The representative of the International Publishers Association (IPA) stated that Task 2 seemed to view the domaine public payant system as a viable form of sui generis protection for TK. The representative opposed this form of protection and stated that it could hinder the dissemination and creative adaptation and transformation of TK and especially expressions of folklore. The representative stated that in preventing aged knowledge and expressions from falling into the public domain after a protection term or defined period of time, the domaine public payant system would undermine their publishing members' efforts to develop viable industries. The representative stated that with regard to Task 2 the Committee should not take as its point of departure the domaine public payant system. The representative supported the development of and search for more appropriate forms of protection and encouraged WIPO to take on Tasks 1 and 4 with a view to use existing protection systems effectively and to develop and search for alternative mechanisms of protection that designated, involved and empowered beneficiaries of a possible international protection scheme more directly and strongly than would be the case under a domaine public payant system.

293. The Secretariat noted that with regard to matters relating to Tasks 2 and 3, there was a need to clarify and refocus the ideas within the proposed tasks. The Secretariat stated that the focus was clearly on national experience and making existing systems more effective, and that the Secretariat would retain an empirical focus when looking at information about existing systems and their use. Noting that the work on making systems more effective at the national level inevitably meant taking some account of international and regional developments and means of interaction between national legal systems. In this regard, the Secretariat referred to the WPPT, recently enforced and which provided protection for performances and expressions of folklore, and stated that this would have some implications for national systems including those based on the 1982 Model Provisions. The Secretariat noted the hesitation with regard to Tasks 2 and 3, and stated that the Secretariat would further explore and better document the background to these issues. The Secretariat noted further that there was a need for WIPO to work closely with other organizations as mentioned by the Secretariat to the Pacific Community (SPC), given the importance of such regional developments for the work of the Committee.

294. The Chair concluded that proposed Tasks 1 and 4 had been adopted and approved by the Committee. However no consensus was reached regarding Tasks 2 and 3 for the present time. The Chair suggested that on the basis of document WIPO/GRTKF/IC/3/10 the Secretariat should prepare an analytical and systematic document on national experiences of protection of folklore either by means of traditional IP or by means of sui generis legislation, and the implementation of such legislative frameworks, including the role of customary law and forms of interaction with legal systems in other countries, as a basis for further discussions at the fourth session of the Intergovernmental Committee. It was so decided by the Committee.

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