Draft Provisions

The work of the Intergovernmental Committee (IGC) has led to the development of two sets of draft provisions for the protection of traditional cultural expressions/folklore (TCEs) and for the protection of traditional knowledge (TK) against misappropriation and misuse.

The draft provisions draw upon a wide range of community, national and regional experiences, and have been developed over several years by and in consultation with Member States, indigenous peoples and other traditional and cultural communities, civil society organizations and a range of other interested parties.

While the draft objectives and principles have no formal status, they illustrate some of the perspectives and approaches that are guiding work in this area, and could suggest possible frameworks for the protection of TCEs and TK against misappropriation and misuse. These draft materials are being used as points of reference in a range of national, regional and international policy discussions and standard-setting processes.
 

Commissioning of the provisions (March 2004)

The provisions were commissioned by the IGC at its sixth session in March 2004, on the basis of draft working materials progressively developed over the five previous IGC sessions. At its seventh session in November that year, the IGC then extensively reviewed first drafts of the provisions, circulated as documents WIPO/GRTKF/IC/7/3 (TCEs) and WIPO/GRTKF/IC/7/5 (TK).
 

First commenting process (November 2004 to February 2005)

The IGC agreed on an open commenting process to run between its seventh and eighth sessions, and requested a redraft to be based on comments received. Member States, indigenous peoples and other traditional and cultural communities, civil society organizations and a range of other interested parties submitted more than 200 pages of comments. All the comments were taken into account in the subsequent revision of the provisions.
 

Second commenting process (April to December 2006)

The revised drafts were circulated and reviewed very extensively by the IGC at its eighth and ninth sessions, in June 2005 and April 2006 respectively. The IGC requested further comments from Committee participants to be submitted and circulated in advance of its tenth session, which took place from November 30 to December 8, 2006.
 

Third commenting process (December 2009 to February 2010)

At its fifteenth session (December 2009), the IGC made drafting proposals and other comments on the draft provisions, and established an intersessional written commenting process between the fifteenth and sixteenth sessions.
 

Links to comments received (most recent first)

• Comments provided during the intersessional commenting process between the fifteenth and sixteenth IGC sessions
• Comments provided during the intersessional commenting process between the ninth and tenth IGC sessions
• Comments on the provisions at the ninth IGC session
• Comments on the provisions at the eighth IGC session - reporting from the meeting
• Comments provided during the intersessional commenting process between the seventh and eighth IGC sessions
• Comments at seventh session
   

National and regional implementation

These draft provisions suggest possible international objectives and principles. The IGC also requested supplementary studies describing how these objectives and principles have been adopted and implemented at regional and national levels. They are available as documents WIPO/GRTKF/IC/9/INF/4 (TCEs) and WIPO/GRTKF/IC/9/INF/5 (TK).
 

Why are there two sets of provisions? Should TK and TCEs not be treated holistically?

There are two distinct sets of provisions, one dealing with TCEs (or expressions of folklore) and the other with TK. This responds to the choice made in many cases to address distinctly the specific legal and policy questions raised by these two areas. However, the draft materials are prepared in the understanding that for many communities these are closely related, even integral, aspects of respect for and protection of their cultural and intellectual heritage. The two sets of draft provisions are therefore complementaryand closely coordinated. Taken together, they do form an holistic approach to protection. This reflects existing practice at the international and national levels. Some jurisdictions protect both TCEs and TK in a single instrument. Others use a range of laws and instruments to address the two areas distinctly. Some laws also address specific aspects of these two areas, such as biodiversity-related TK or indigenous arts and crafts. The draft objectives and principles acknowledge those diverse choices and facilitate a holistic approach.