Key terms related to intellectual property and genetic resources, traditional knowledge and traditional cultural expressions.
- Access to Genetic Resources
- Adaptation (See: Derivative Work)
- Biological Diversity
- Biological Material (See: Biological Resources)
- Biological Resources
- Biotechnological Inventions
- Clearing House Mechanism
- Country of Origin of Genetic Resources
- Cultural Diversity
- Cultural Expressions
- Cultural Heritage
- Cultural Property
- Customary Context
- Customary Law and Practices
- Derivative Work
- Disclosure Requirements
- Expressions of Folklore
- Genetic Resources
- Heritage (of Indigenous Peoples)
- Indigenous and Local Communities
- Indigenous Knowledge
- Indigenous Peoples
- Intangible Cultural Heritage
- International Patent Classification
- Material Transfer Agreements
- Minimum Documentation (PCT)
- Mutually Agreed Terms
- Prior Informed Consent
- Prior Art
- Providers and Recipients of Genetic Resources
- Public Domain
- Sui Generis
- Traditional Context
- Traditional Cultural Expressions
- Traditional Knowledge
- Traditional Knowledge Associated with Genetic Resources
- Traditional Medicine
- Tradition based Creations and Innovations
- United Nations Declaration on the Rights of Indigenous Peoples
- Use of Traditional Cultural Expressions/Traditional Knowledge
- WIPO UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions
“Access” is defined in Article 1 of the Decision 391 on Access to Genetic Resources of Andean Community (1996) as “the obtaining and use of genetic resources conserved in situ and ex situ, of their by-products and, if applicable, of their intangible components, for purposes of research, biological prospecting, conservation, industrial application and commercial use, among other things.”
There is no universally accepted definition of the term. However, it has been argued by many stakeholders that traditional knowledge and traditional cultural expressions are generally regarded as collectively originated and held, so that any rights and interests in this material should vest in communities rather than individuals. In some cases, however, individuals, such as traditional healers, might be regarded as the holders of traditional knowledge or traditional cultural expressions and as beneficiaries of protection.
Some national and regional laws for the protection of traditional knowledge and traditional cultural expressions provide rights directly to concerned peoples and communities. Many rather vest rights in a governmental authority, often providing that proceeds from the granting of rights to use the traditional knowledge or cultural expressions shall be applied towards educational, sustainable development, national heritage, social welfare or culture related programs.
Discussions on the issue have noted that the term could include indigenous peoples, indigenous communities, local communities, traditional communities, cultural communities, nations, individuals, groups, families, and minorities.
Article 2 of the Convention on Biological Diversity (1992) defines the term “biological diversity”, often shortened to “biodiversity”, as meaning the “variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.”
As defined in Article 2 of the Convention on Biological Diversity (1992), this term “includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity.” Genetic resources form, therefore, one category of biological resources.
Article 1 of the Decision 391 on Access to Genetic Resources of Andean Community (1996) defines the term as “individuals, organisms or parts of them, populations or any biotic component of value or of real or potential use that contains a genetic resource or its by-products.”
The term is defined in the European Union Directive on the legal protection of biotechnological inventions as “material containing genetic information and capable of reproducing itself or being reproduced in a biological system.” (Article 2.1(a) of the Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions.) According to the United States Code of Federal Regulations, this term shall include “material that is capable of self-replication either directly or indirectly.” (Section 1.801 of Chapter 37 of the Code of Federal Regulations (CFR) and USPTO Manual of Patent Examining Procedure (MPEP): 2403.01.)
This term is defined in the European Union Directive on the Legal Protection of Biotechnological Inventions as “inventions which concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used.” (Article 3.1 of the Directive 98/44/EC of the European Parliament and of the Council of 6 July, 1998 on the legal protection of biotechnological inventions) Biotechnological inventions fall into three categories: processes of the creation and modification of living organisms and biological material, the results of such processes, and the use of such results.
Article 2 of the Convention on Biological Diversity (1992) defines the term as “any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.” The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) uses the same definition in its Article 2.
The term “modern biotechnology” is also defined in Article 3 of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted in 2000, as “the application of: a) in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) and direct injection of nucleic acid into cells or organelles, or b) fusion of cells beyond the taxonomic family, that overcome natural physiological reproductive or recombination barriers and that are not techniques used in traditional breeding and selection.”
A Clearing House Mechanism (CHM) is a mechanism which facilitates and simplifies exchange of information or transactions among multiple Parties (UNEP Glossary). The CHM of the Convention on Biological Diversity (1992) was established further to Article 18.3 of the Convention. Its mission is to contribute significantly to the implementation of the Convention through the promotion and facilitation of technical and scientific cooperation, among Parties, other Governments and stakeholders.
According to Article 2 of the Convention on Biological Diversity (1992): “country of origin of genetic resources” means “the country which possesses those genetic resources in in-situ conditions.” Other definitions include genetic resources in ex-situ conditions. For instance, country of origin is defined by Article 1 of the Decision 391 on Access to Genetic Resources of Andean Community (1996) as a “country that possesses genetic resources in in-situ conditions, including those which, having been in in-situ conditions, are now in ex-situ conditions.”
According to Article 2 of the Convention on Biological Diversity (1992): “country providing genetic resources“ means “the country supplying resources collected from in-situ sources, including populations of both wild and domesticated species, or taken from ex-situ sources, which may or may not have originated in that country.”
According to Article 4(1) of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), cultural diversity refers to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies.
Article 4(3) of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) defines cultural expressions as “those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.”
For purposes of the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage (1972), the following is considered as cultural heritage, as outlined in Article 1:
- monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science;
- groups of buildings: groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science;
- sites: works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view.
Cultural property is defined in the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) as property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belongs to the following categories:
- rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest;
- property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;
- products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;
- elements of artistic or historical monuments or archaeological sites which have been dismembered;
- antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
- objects of ethnological interest; (g) property of artistic interest, such as:
- pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);
- original works of statuary art and sculpture in any material;
- original engravings, prints and lithographs;
- original artistic assemblages and montages in any material;
- rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections
- postage, revenue and similar stamps, singly or in collections;
- archives, including sound, photographic and cinematographic archives;
- articles of furniture more than one hundred years old and old musical instruments.
Black’s Law Dictionary defines “custodian” as a “person or institution that has charge or custody (of a child, property, papers, or other valuables).” According to the same source, “custody” refers to the care and control of a thing or person for inspection, preservation, or security. A “custodian” is defined in the Oxford English Dictionary as “one who has the custody of a thing or person; a guardian, keeper.” The Merriam-Webster dictionary provides: “one that guards and protects or maintains.”
The term “custodian” in the context of traditional knowledge and cultural expressions refers to those communities, peoples, individuals and other entities which, according to customary laws and other practices, maintain, use and develop the traditional knowledge and cultural expressions. It expresses a notion that is different from “ownership,” since it conveys a sense of responsibility to ensure that the traditional knowledge or cultural expressions are used in a way that is consistent with community values and customary law.
"Customary context" refers to the utilization of traditional knowledge or cultural expressions in accordance with the practices of everyday life of the community, such as, for instance, usual ways of selling copies of tangible expressions of folklore by local craftsmen. (Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982, Part III, para. 42.) (See also Traditional Context)
Black’s Law Dictionary defines “customary law” as law “consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws.” Customary law has also been defined as “locally recognized principles, and more specific norms or rules, which are orally held and transmitted, and applied by community institutions to internally govern or guide all aspects of life.” (Protection Rights over Traditional Knowledge: Implications of Customary Laws and Practices, Research Planning Workshop, Cusco, Peru, 20-25 May, 2005.)
The ways in which customary laws are embodied differ from one another. For instance, the laws can be codified, written or oral, expressly articulated or implemented in traditional practices. Another important element is whether these laws are actually “formally” recognized by and/or linked to the national legal systems of the country in which a community resides. A decisive factor in determining whether certain customs have status as law is whether they have been and are being viewed by the community as having binding effect, or whether they simply describe actual practices.
Customary laws concern many aspects of communities’ lives. They define rights and responsibilities of community members on important aspects of their life, culture and world view: customary law can relate to use of and access to natural resources, rights and obligations relating to land, inheritance and property, conduct of spiritual life, maintenance of cultural heritage and knowledge systems, and many other matters.
“Customary practices” may be described as the acts and uses governing and guiding aspects of a community’s life. Customary practices are engrained within the community and embedded in the way it lives and works. They cannot be perceived as stand-alone, codified “laws” as such ("WIPO, Customary Law, Traditional Knowledge and Intellectual Property: An Outline of the Issues" ).
Article 2(e) of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) provides the following definition: “a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of heredity.”
In copyright law, the term “derivative works” refers to the translations, adaptations, arrangements and similar alterations of preexisting works which are protected under Article 2(3) of the Berne Convention for the Protection of Literary and Artistic Works (1971) as such without prejudice to the copyright in the preexisting works. Sometimes, the term is used with a broader meaning, extending to the compilations/collections of works protected under Article 2(5) of the Convention, (as well a under Article 10.2 of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights, 1994 (the TRIPS Agreement), and Article 5 of the WIPO Copyright Treaty, 1996 (WCT)). (WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, WIPO.)
In this sense, a “derivative work” includes compilations of data or other material, whether in machine-readable or other form, which, by reason of the selection or arrangement of their contents, constitute intellectual creations. (Art. 2(5) Berne Convention, Art. 10(2) TRIPS Agreement, Art. 6 World Copyright Treaty.)
Some jurisdictions have adapted the definition of derivative works in the field of traditional cultural expressions. According to the Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (2002), the term refers to any intellectual creation or innovation based upon or derived from traditional knowledge or expressions of culture. (Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, Part I. 4.)
Adaptation is the act of altering a pre-existing work (either protected or in the public domain) or a traditional cultural expression, for a purpose other than for which it originally served, in a way that a new work comes into being, in which the elements of the pre-existing work and the new elements—added as a result of the alteration—merge together. (WIPO Guide to the Copyright and Related Right Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, WIPO, p. 264.)
Article 12 of the Berne Convention for the Protection of Literary and Artistic Works (1971) provides that authors of literary and artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works. Black’s Law Dictionary provides that copyright holders have the exclusive right to prepare derivative works, or adaptations, based on the protected work.
Disclosure is part of the core rationale of patent law. Patent law imposes a general obligation on patent applicants, as referred to in Article 5 of the Patent Cooperation Treaty (PCT), “to disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art”.
However, “disclosure requirements” is also used as a general term for reforms made to patent law at the regional or national level, and proposals to reform international patent law, which would specifically require patent applicants to disclose several categories of information concerning traditional knowledge and/or genetic resources when these are used in developing the invention claimed in a patent or patent application. (For further information, see document WIPO/GRTKF/IC/16/6, Annex I, pages 7 to 11 and WIPO, TK Division, database on national and regional legislative measures in patent law.)
Three broad functions have been considered for disclosure methods relating to genetic resources and traditional knowledge:
- to disclose any genetic resources/traditional knowledge actually used in the course of developing the invention (a descriptive or transparency function, pertaining to the genetic resources/traditional knowledge itself and its relationship with the invention);
- to disclose the actual source of the genetic resources/traditional knowledge (a disclosure function, relating to where the genetic resources/traditional knowledge was obtained) – this may concern the country of origin (to clarify under which jurisdiction the source material was obtained), or a more specific location (for instance, to ensure that genetic resources can be accessed, so as to ensure the invention can be duplicated or reproduced); and
- to provide an undertaking or evidence of prior informed consent (a compliance function, relating to the legitimacy of the acts of access to genetic resources/traditional knowledge source material) - this may entail showing that genetic resources/traditional knowledge used in the invention was obtained and used in compliance with applicable laws in the country of origin or in compliance with the terms of any specific agreement recording prior informed consent; or showing that the act of applying for a patent was in itself undertaken in accordance with prior informed consent. (WIPO Technical Study on Patent Disclosure Requirements related to Genetic Resources and Traditional Knowledge, WIPO Publication No. 786(E), p. 65)
The Oxford English Dictionary defines “documentation” as the accumulation, classification and dissemination of information; the material as collected. Documenting traditional knowledge and traditional cultural expressions may include recording them, writing them down, taking pictures of them or filming them—anything that involves recording them in a way that preserves them and could make them available for others.
It is different from the traditional ways of preserving and passing on traditional knowledge and traditional cultural expressions within the community. (Summary and Introduction to the Toolkit for Managing Intellectual Property when Documenting Traditional Knowledge and Genetic Resources, document WIPO/GRTKF/IC/5/5.)
Registers of Traditional Knowledge
Registers can be analyzed from many different perspectives. According to their legal nature, registers can be termed either declarative or constitutive, depending upon the system under which they are established.
A declaratory regime relating to traditional knowledge recognizes that the rights over traditional knowledge do not arise due to any act of government but rather are based upon pre-existing rights, including ancestral, customary, moral and human rights. In the case of declarative registers, although registration does not affect the existence of such rights, it may be used to assist patent officials in analyzing prior art, and to support challenges to patents granted which may have directly or indirectly made use of traditional knowledge. In circumstances where these registers are organized in an electronic form and available through the Internet, it is important to establish a mechanism that ensures that entry dates of traditional knowledge are valid when carrying out searches related to novelty and inventiveness. A third function that these registers may have is to facilitate benefit-sharing between users and providers.
Constitutive registers form part of a legal regime which seeks to grant rights over traditional knowledge. Constitutive registers will record the granting of rights (i.e. exclusive property rights) to the traditional knowledge holder as a means to ensure their moral, economic and legal interests are protected and recognized. Most model constitutive registers are conceived as public in nature, run by a national entity and under a law or regulation which clearly determines how valid registration of traditional knowledge can take place and be formally recognized and accepted. As such they may be more controversial and difficult to design and face some critical challenges and questions in moving from concept to practice. (The Role of Registers & Databases in the Protection of Traditional Knowledge: A Comparative Analysis. UNU-IAS Report, January 2004, p. 32)
In the WIPO-UNESCO Model Provisions, 1982, “expressions of folklore" are productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of a country or by individuals reflecting the traditional artistic expectations of such a community, in particular:
- Verbal expressions, such as folk tales, folk poetry and riddles;
- Musical expressions, such as folk songs and instrumental music;
- Expressions by action, such as folk dances, plays and artistic forms or rituals; whether or not reduced to a material form; and
- Tangible expressions. (Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, Section 2.)
In the context of the IGC, the terms “traditional cultural expressions” and “expressions of folklore” are synonyms and used interchangeably.
As defined in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore (1989), “folklore (or traditional and popular culture) is the totality of tradition-based creations, of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”
Article 2 of the Convention on Biological Diversity (1992) defines ”genetic resources” as “genetic material of actual or potential value.” It further defines “genetic material” as “any material of plant, animal, microbial or other origin containing functional units of heredity.”
The “heritage of indigenous peoples” (and other peoples) or “indigenous cultural heritage” refers broadly to the items described in the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, 2000, developed by the Chairperson-Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Mrs. Erica-Irene Daes. Paragraphs 12, 13 and 14 of the Guidelines provide definitions.
The term “indigenous and local communities” has been the subject of considerable discussion and study and there is no universal, standard definition thereof.
The term is used in the Convention on Biological Diversity (1992) and also in the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010). The Convention on Biological Diversity (1992) uses the term “indigenous and local communities” in recognition of communities that have a long association with the lands and waters that they have traditionally live on or used. (“The Concept of Local Communities”, Background paper prepared by the Secretariat of the Permanent Forum on Indigenous Issues for the Expert Workshop on the Dissaggregation of Data (PFII/2004/WS.1/3/Add.1). See also UNEP/CBD/WS-CB/LAC/1/INF/5.)
Local communities may be defined as “the human population in a distinct ecological area who depend directly on its biodiversity and ecosystem goods and services for all or part of their livelihood and who have developed or acquired traditional knowledge as a result of this dependence, including farmers, fisherfolk, pastoralists, forest dwellers and others.” (See UNEP-CBD Sui generis workshop, UNEP/CBD/WG8J/4/INF/18, p.2.)
Indigenous knowledge is knowledge held and used by communities, peoples and nations that are ‘indigenous’. In this sense, “indigenous knowledge” would be the traditional knowledge of indigenous peoples. Indigenous knowledge is, therefore, a part of the traditional knowledge category, but traditional knowledge is not necessarily indigenous. Yet the term is also used to refer to knowledge that is itself “indigenous”. In this sense, the terms “traditional knowledge” and “indigenous knowledge” may be interchangeable. (WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999) “Intellectual Property Needs and Expectations of Traditional Knowledge”, p.23. See also List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), para. 41 of Annex.)
The term “indigenous peoples” has been the subject of considerable discussion and study and there is no universal, standard definition thereof.
The United Nations Declaration on the Rights of Indigenous Peoples (2007) acknowledges the equal human rights of indigenous peoples against cultural discrimination and seeks to promote mutual respect and harmonious relations between the indigenous peoples and States. However, it does not provide a definition of “indigenous peoples.”
According to Black’s Law Dictionary, “intangible” refers to something that lacks a physical form. “Tangible” on the other hand is defined as “having or possessing physical form; corporeal; capable of being touched and seen; perceptible.”
“Intangible cultural heritage” is defined in the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) as “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artifacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.
For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.”
The Convention also states that “intangible cultural heritage” is manifested inter alia in the following domains: a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; b) performing arts; c) social practices, rituals and festive events; d) knowledge and practices concerning nature and the universe; e) traditional craftsmanship.
The International Patent Classification (IPC) is “a hierarchical system in which the whole area of technology is divided into a range of sections, classes, subclasses and groups. The Classification is a language independent tool indispensable for the retrieval of patent documents in the search for ‘prior art’.” (see WIPO PATENTSCOPE)
Traditional Knowledge Resource Classification
The Traditional Knowledge Resource Classification (TKRC) is an innovative structured classification system for the purpose of systematic arrangement, dissemination and retrieval which identifies about 5,000 sub–groups of traditional knowledge against one group in IPC. The TKRC has been developed for the Indian Systems of medicine (Ayurveda, Unani, Siddha and Yoga).
The TKRC has gained international recognition and linked with the IPC. It is likely to facilitate greater awareness on the traditional knowledge systems by leveraging the modern system of dissemination i.e. Information Technology, in particular, the Internet and Web technologies. It is anticipated that TKRC structure and details will create interest in those countries that are concerned about prevention of grant of wrong patents for non-original discoveries relating to traditional knowledge systems. (More information is available at http://www.tkdl.res.in/tkdl/langdefault/common/TKRC.asp?GL=Eng)
Material Transfer Agreements (MTAs) are agreements in commercial and academic research partnerships involving the transfer of biological materials, such as germplasm, microorganisms and cell cultures to exchange of materials from a provider to a recipient and setting conditions for access to public germplasm collections, seed banks or in situ genetic resources.
According to the WIPO PCT Glossary, the Minimum documentation could be described as “the documents in which the International Searching Authority must search for relevant prior art. It also applies to International Preliminary Examining Authorities for examination purposes. The documentation comprises certain published patent documents and non-patent literature contained in a list published by the International Bureau. The Minimum Documentation is set out by the PCT Regulations Rule 34“.
In the PCT International Search Guidelines, the international search minimum documentation is defined as “a document collection that is systematically arranged (or otherwise systematically accessible) for search purposes according to the subject matter content of the documents, which are primarily patent documents supplemented by a number of articles from periodicals and other items of non-patent literature”. (Para IX-2.1, PCT International Search Guidelines (as in force from 18 September 1998))
Since 2003, some traditional knowledge documentation is included in the non-patent literature part of the PCT Minimum Documentation.
In the field of intellectual property, Black’s Law Dictionary defines “misappropriation” as “the common-law tort of using the noncopyrightable information or ideas that an organization collects and disseminates for a profit to compete unfairly against that organization, or copying a work whose creator has not yet claimed or been granted exclusive rights in the work. […] The elements of misappropriation are: (1) the plaintiff must have invested time, money, or effort to extract the information, (2) the defendant must have taken the information with no similar investment, and (3) the plaintiff must have suffered a competitive injury because of the taking.”
The tort of misappropriation is part of unfair competition law in the common law system. Misappropriation thus entails the wrongful or dishonest use or borrowing of someone’s property, and is often used to found action in cases where no property right as such has been infringed. Misappropriation may refer to wrongful borrowing or to the fraudulent appropriation of funds or property entrusted to someone’s care but actually owned by someone else.
In the field of patents, Black’s Law Dictionary defines “misuse” as “the use of a patent either to improperly extend the granted monopoly to non-patented goods or to violate antitrust laws.” In general, Black’s Law Dictionary states: “improper use, in an unintended or unforeseeable manner.” Dictionaries generally define misuse as a wrong, incorrect or improper use, or misapplication. Misuse may also refer to improper or excessive use, or to acts which change the inherent purpose or function of something.
Besides recognizing the authority of national governments to determine access to genetic resources, Article 15(4) of the Convention on Biological Diversity (1992) provides that “access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article”. The Executive Secretary of the Convention has noted that contracts are the most common way of recording mutually agreed terms. (See document UNEP/CBD/COP/4/22, para. 32) The Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization indicate some basic requirements for mutually agreed terms in Articles 41 to 44.
Article 18 of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) specifically deals with compliance with mutually agreed terms.
Black’s Law Dictionary defines “nation” as a large group of people having a common origin, language, and tradition and usually constituting a political entity. The term “nation” carries connotations of a community shaped by common descent, culture and history and often by a common language as well. (Dieter Kugelmann, The Protection of Minorities and Indigenous Peoples Respective Cultural Diversity, A. Von Bogdandy and R. Wolffrum, (eds), Max Planck Year Book of United Nations Law, Vol. 11, 2007, p. 235.)
The term “cultural communities” is intended to be broad enough to include the nationals of an entire country, a “nation,” in cases where traditional cultural expressions are regarded as “national folklore” and belonging to all of the people of a particular country. This complements and accords with the practice in other policy areas. (Glossary on Intangible Cultural Heritage, Netherlands National Commission for UNESCO, 2002 (“... A nation can be a cultural community”), as quoted in “The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles”, WIPO/GRTKF/IC/17/4.)
Preservation has two broad elements – first, the preservation of the living cultural and social context of traditional knowledge and cultural expressions, so that the customary framework for developing, passing on and governing access to traditional knowledge or cultural expressions is maintained; and second, the preservation of traditional knowledge and cultural expressions in a fixed form, such as when they are documented.
Preservation may have the goal of assisting the survival of the traditional knowledge or cultural expressions for future generations of the original community and ensuring their continuity within an essentially traditional or customary framework, or the goal of making them available to a wider public (including scholars and researchers), in recognition of their importance as part of the collective cultural heritage of humanity. (Overview of Activities and Outcomes of the Intergovernmental Committee (WIPO/GRTKF/IC/5/12), para. 37)
Non-intellectual property laws and programs dealing with the safeguarding and promotion of living heritage can play a useful role in complementing laws dealing with intellectual property protection. Other international legal systems, such as the Convention on Biological Diversity (1992) and the UNESCO deal with aspects of conservation, preservation and safeguarding of traditional knowledge and traditional cultural expressions within their specific policy contexts. (The Protection of Traditional Knowledge: Draft Gap Analysis: Revision, WIPO/GRTKF/IC/13/5(b) Rev. Annex I, p. 6.)
A right or principle of “prior informed consent” (PIC) or sometimes “free, prior and informed consent” (FPIC) is referred to or implied in several international instruments, particularly in the environmental field, such as Article 6(4) of the Basel Convention on the Transboundary Movement of Hazardous Wastes, 1989, and the Convention on Biological Diversity (1992).
The term flows from the implementation of the general principle of participation of indigenous peoples in decision-making, involvement in the formulation, implementation and evaluation of programs affecting them. (Art.32(2), United Nations Declaration on the Rights of Indigenous Peoples; See also United Nations Development Group, Guidelines Related to Indigenous Peoples.)
The purpose of the use of the adjective “free” is to ensure that no coercion or manipulation is used in the course of negotiations, while inclusion of “prior” acknowledges the importance of allowing time to indigenous to fully review proposals respecting the time required for achieving consensus. It also anticipates the reality that decisions, especially those relating to major investments in development, are often taken in advance with indigenous people. The notion of “informed” consent reflects the growing acceptance that environment and social impact assessment are a pre-requisite for any negotiation process and allow all parties to make balanced decisions.
“Consent” is a process whereby permission is given, based on a relationship of trust. An informed consent implies that clear explanations are provided, along with contract details, possible benefits, impacts and future uses. The process should be transparent, and the language fully understood by indigenous peoples. (Stephen Allen and Alexandra Xanthaki, “Reflections on the UN Declaration on the Rights of Indigenous Peoples”, Oxford and Portland, Oregon, p.49. See also “United Nations Economic and Social Council Permanent Forum on Indigenous Issues”, Fourth Session, and “Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples”, E/C.19/2005/3. p.8.)
Prior art is, in general, all the knowledge that existed prior to the relevant filing or priority date of a patent application, whether it existed by way of written and oral disclosure. In some legal instruments there is a differentiation between printed publications, oral disclosures and prior use and where the publications or disclosure occurred. (WIPO Intellectual Property Handbook, WIPO Publication No. 489 (E), 2008, p. 19)
For the purposes of the PCT, prior art is defined by Rule 33.1 of the PCT Regulations as “everything which has been made available to the public anywhere in the world by means of written disclosure (including drawings and other illustrations) and which is capable of being of assistance in determining that the claimed invention is or is not new and that it does or does not involve an inventive step (i.e. that it is or is not obvious), provided that the making available to the public occurred prior to the international filing date.”
In Europe, Article 54(2) of the European Patent Convention (EPC) defines the equivalent term “the state of the art”. Section 35 of the United States Code 102 defines prior art indirectly through the concept of “novelty”. Section 29 of Japanese Patent Law indirectly defines “prior art”.
“Protection” in the work of the IGC has tended to refer to protection of traditional knowledge and traditional cultural expressions against some form of unauthorized use by third parties. Two forms of protection have been developed and applied.
Two aspects of positive protection of traditional knowledge and traditional cultural expressions by intellectual property rights are explored, one concerned with preventing unauthorized use and the other concerned with active exploitation of the traditional knowledge and traditional cultural expressions by the originating community itself.
Besides, the use of non-intellectual property approaches for the positive protection of traditional knowledge and traditional cultural expressions can be complementary and used in conjunction with intellectual property protection. For instance, positive protection of traditional knowledge and traditional cultural expressions may prevent others from gaining illegitimate access to traditional knowledge and traditional cultural expressions or using them for commercial gain without equitably sharing the benefits, but it may also be used by traditional knowledge and traditional cultural expressions holders to build up their own enterprises based on their traditional knowledge and traditional cultural expressions.
Defensive protection refers to a set of strategies to ensure that third parties do not gain illegitimate or unfounded intellectual property rights over traditional cultural expressions, traditional knowledge subject matter and related genetic resources. Defensive protection of traditional knowledge includes measures to preempt or to invalidate patents that illegitimately claim pre-existing traditional knowledge as inventions.
(More information is available in “Overview of Activities and Outcomes of the Intergovernmental Committee” (WIPO/GRTKF/IC/5/12))
Providers and recipients of genetic resources may include the government sector (e.g., government ministries, government agencies (national, regional or local), including those responsible for administration of national parks and government land); commerce or industry (e.g., pharmaceutical, food and agriculture, horticulture, and cosmetics enterprises); research institutions (e.g., universities, gene banks, botanic gardens, microbial collections); custodians of genetic resources and traditional knowledge holders (e.g. associations of healers, indigenous peoples or local communities, peoples’ organizations, traditional farming communities); and others (e.g., private land owner(s), conservation group(s) etc.).
In a copyright context, a work is considered to be in the public domain if there is no legal restriction for its use by the public.
Black’s Law Dictionary defines the public domain as “the universe of inventions and creative works that are not protected by intellectual-property rights and are therefore available for anyone to use without charge. When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and can be appropriated by anyone without liability for infringement.” (Black's Law Dictionary 1027 (8th ed. 2005))
The public domain has been defined in the field of copyright and related rights as “the scope of those works and objects of related rights that can be used and exploited by everyone without authorization, and without the obligation to pay remuneration to the owners of copyright and related rights concerned – as a rule because of the expiry of their term of protection, or due to the absence of an international treaty ensuring protection for them in the given country.” (WIPO Guide to the Copyright and Related Rights Treaties by WIPO and Glossary of Copyright and Related Rights Terms)
The public domain in relation to patent law consists of knowledge, ideas and innovations over which no person or organization has any proprietary rights. Knowledge, ideas and innovations are in the public domain if there are no legal restrictions of use (varying in different legislations and forming, therefore, different public domains), after expiration of patents (regularly 20 years), in consequence of non renewal, after revocation and after invalidation of patents. (See document SCP/13/5.)
“Sacred” refers to “any expression of traditional knowledge that symbolizes or pertains to religious and spiritual beliefs, practices or customs. It is used as the opposite of profane or secular, the extreme forms of which are commercially exploited forms of traditional knowledge.” (Daniel J. Gervais, Spiritual but not Intellectual: the Protection of Sacred Intangible Traditional Knowledge, 11 Cardozo J. Int’l & Comp. L. 467, 469-490 (2003))
Sacred traditional knowledge refers to the traditional knowledge which includes religious and spiritual elements, such as totems, special ceremonies, sacred objects, sacred knowledge, prayers, chants, and performances and also sacred symbols, and also refers to sacred traditional knowledge associated with sacred species of plants, animals, microorganisms, minerals, and refers to sacred sites.
Whether traditional knowledge is sacred or not depends on whether it has sacred significance to the relevant community. Much sacred traditional knowledge is by definition not commercialized, but some sacred objects and sites are being commercialized by religious, faith-based and spiritual communities themselves, or by outsiders to these, and for different purposes.
The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) describes safeguarding measures as: “measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non formal education, as well as the revitalization of the various aspects of such heritage.” Safeguarding refers to the adoption of precautionary measures to shield certain cultural practices and ideas which are considered of value. (Draft Glossary, National Commission for UNESCO)
Something “secret” is something that is kept from the knowledge of others or shared only with those concerned (Black’s Law Dictionary). “Sacred-secret” traditional knowledge and cultural expressions have a secret or sacred significance according to the customary law and practices of their traditional owners. (Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, Part I (4).)
Black’s Law Dictionary defines “sui generis” as “[Latin “of its own kind”] of its own kind or class; unique or peculiar. The term is used in intellectual property law to describe a regime designed to protect rights that fall outside the traditional patent, trademark, copyright, and trade-secret doctrines. For example, a database may not be protected by copyright law if its content is not original, but it could be protected by a sui generis statute designed for that purpose.”
A sui generis system is a system specifically designed to address the needs and concerns of a particular issue. There are already several examples of sui generis intellectual property rights such as plant breeders’ rights—as reflected in the International Convention on the Protection of New Varieties of Plants, 1991 (“the UPOV Convention”)—and the intellectual property protection of integrated circuits—as reflected in the Treaty on Intellectual Property in respect of Integrated circuits, 1989 (“The Washington Treaty”), among others.
“Traditional context” refers to the way of using traditional knowledge or traditional cultural expressions in their proper artistic framework based on continuous usage by the community. An example could be the use of a ritual dance in its traditional context, as referring to the performance of the said dance in the actual framework of the rite. (Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions, 1982,, , Part III. 42) (See also Customary Context)
WIPO uses the terms “traditional cultural expressions” and “expressions of folklore” to refer to tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms. The terms “traditional cultural expressions” and “expressions of folklore” are used as interchangeable synonyms, and may be referred to simply as “traditional cultural expressions,” often in its abbreviated forms “TCEs.” The use of these terms is not intended to suggest any consensus among WIPO Member States on the validity or appropriateness of these or other terms, and does not affect or limit the use of other terms in national or regional laws.
There is as yet no accepted definition of traditional knowledge (TK) at the international level.
“Traditional knowledge,” as a broad description of subject matter, generally includes the intellectual and intangible cultural heritage, practices and knowledge systems of traditional communities, including indigenous and local communities (traditional knowledge in a general sense or lato sensu). In other words, traditional knowledge in a general sense embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with traditional knowledge.
In international debate, “traditional knowledge” in the narrow sense refers to knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations. Traditional knowledge can be found in a wide variety of contexts, including: agricultural knowledge; scientific knowledge; technical knowledge; ecological knowledge; medicinal knowledge, including related medicines and remedies; and biodiversity-related knowledge, etc. (See WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999 &rdquoIntellectual Property Needs and Expectations of Traditional Knowledge”, at p. 25) .
Codified Traditional Knowledge
Codified traditional knowledge is “traditional knowledge which is in some systematic and structured form, in which the knowledge is ordered, organized, classified and categorized in some manner.” (List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), para. 16 of Annex)
In the field of traditional medicine, for example, the Traditional Medicine Team of the World Health Organization (WHO) distinguishes between (a) codified systems of traditional medicine, which have been disclosed in writing in ancient scriptures and are fully in the public domain, e.g. Ayurveda disclosed in ancient Sanskrit scriptures or Traditional Chinese Medicine (TCM) disclosed in ancient Chinese medical texts; and (b) non-codified traditional medicinal knowledge which has not been fixed in writing, often remains undisclosed by traditional knowledge holders, and is passed on in oral traditions from generation to generation. In South Asia, for instance, the codified knowledge systems include the Ayurvedic system of medicine, which is codified in the 54 authoritative books of the Ayurvedic System, the Siddha system, as codified in 29 authoritative books, and the Unani Tibb tradition, as codified in 13 authoritative books.
Disclosed Traditional Knowledge
“Disclosed traditional knowledge” refers to “[traditional knowledge which is accessible to persons beyond the indigenous or local community which is regarded as the ‘holder’ of the [traditional knowledge]. Such [traditional knowledge] might be widely accessible to the public and might be accessed through physical documentation, the internet and other kinds of telecommunication or recording. [Traditional knowledge] might be disclosed to third parties or to non-members of the indigenous and local communities from which [traditional knowledge] originates, with or without the authorization of the indigenous and local communities.” (List and Brief Technical Explanation of Various Forms in which Traditional Knowledge may be Found (WIPO/GRTKF/IC/17/INF/9), para. 4 of Annex.)
Publicly Available Traditional Knowledge
The experts at the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing discussed the terms “public domain” and “publicly available” with special reference to traditional knowledge associated with genetic resources: “the term public domain, which is used to indicate free availability, has been taken out of context and applied to [traditional knowledge] associated with genetic resources that is publicly available. The common understanding of publicly available does not mean available for free. The common understanding of public availability could mean that there is a condition to impose mutually agreed terms such as paying for access. [Traditional knowledge] has often been deemed to be in the public domain and hence freely available once it has been accessed and removed from its particular cultural context and disseminated. But it cannot be assumed that [traditional knowledge] associated with genetic resources that has been made available publicly does not belong to anyone. Within the concept of public availability, prior informed consent from a [traditional knowledge] holder that is identifiable, could still be required, as well as provisions of benefit-sharing made applicable, including when a change in use is discernible from any earlier prior informed consent provided. When a holder is not identifiable, beneficiaries could still be decided for example by the State.” (See UNEP/CBD/WG-ABS/8/2, Report of the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing.)
The term “traditional knowledge associated with genetic resources” is used in the Convention on Biological Diversity (1992). Some experts at the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing suggested that “traditional knowledge associated with genetic resources” refers to “traditional knowledge which is specific or general in its relationship to genetic resources.” (See UNEP/CBD/WG-ABS/8/2, Report of the Meeting of the Group of Technical and Legal Experts on Traditional Knowledge Associated with Genetic Resources in the Context of the International Regime on Access and Benefit-Sharing, para.12 of Annex) Some molecules/properties/active ingredients of genetic resources may be identified in genetic materials without the support of traditional knowledge and others with the support of traditional knowledge.
Although in most cases genetic resources seem to have associated traditional knowledge, it was also recognized that not all genetic resources have associated traditional knowledge. Article 37 of the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of Their Utilization provides that “permission to access genetic resources does not necessarily imply permission to use associated knowledge and vice versa.”
WHO defines the term as “the sum total of the knowledge, skills and practices based on the theories, beliefs and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of physical and mental illnesses.” (WHO General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine (WHO/EDM/TRM/2000.1), p. 1) WHO also defines “traditional medicine” as “including diverse health practices, approaches, knowledge and beliefs incorporating plant, animal, and/or mineral based medicines, spiritual therapies, manual techniques and exercises applied singularly or in combination to maintain well-being, as well as to treat, diagnose or prevent illness.” (WHO Traditional Medicine Strategy 2002-2005, p. 7)
Traditions are a set of cultural practices and ideas, which are considered to belong to the past and which are designated a certain status. (Draft Glossary, National Commission for UNESCO.) Tradition-based creations or innovations refer to innovations and creations based on traditional knowledge as such, developed and innovated beyond a traditional context. (See Articles 10-13 of the ITPGRFA) Traditional knowledge as such refers to “knowledge systems, creations, innovations and cultural expressions that: have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; have generally been developed in a non-systematic way; and, are constantly evolving in response to a changing environment.” (See WIPO Document WIPO/GRTKF/IC/3/9.)
Tradition-based innovation refers the case where tradition is a source of innovation by members of the relevant cultural community or outsiders, and can also identify others uses of tradition relevant to an intellectual property analysis. (Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3, para. 57)
The United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples in 2007. The Declaration acknowledges the equal human rights of indigenous peoples against cultural discrimination and seeks to promote mutual respect and harmonious relations between the indigenous peoples and States.
In relation to traditional knowledge, traditional cultural expressions and genetic resources, Article 31.1 states that: “indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts.
They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” Article 31.2 further provides that “in conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.” On traditional medicine, Article 24 provides that “indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals.”
Traditional knowledge and cultural expressions can be used for different purposes. The use of traditional knowledge or cultural expressions includes commercial or industrial use, customary use, fair use, household use and public health use of traditional medicine, and research and educational use.
Black’s Law Dictionary defines “commercial use” as “a use that is connected with or furthers an ongoing profit-making activity.” “Non-commercial use” is defined as “a use for private pleasure or business purposes that non involving the generation of income or bestowing a reward or other compensation.”
The Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2002, defines customary use as “the use of traditional knowledge or expressions of culture in accordance with the customary laws and practices of the traditional owners.”
The term “continuing customary use” refers to the persistence and living nature in the use of traditional knowledge and/or traditional cultural expressions by indigenous communities in accordance with their own customary laws and practices.
In the field of copyright, Black’s Law Dictionary defines “fair use” as “a reasonable and limited use of a copyrighted work without the author’s permission, such as quoting from a book in a book review or using parts of it in a parody. Fair use is a defense to an infringement claim, depending on the following statutory factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the economic impact of the use.”
Household Use and Public Health Use
Black’s Law Dictionary defines “household” as “belong to the house or family; domestic”.
Paragraph 1 of Doha Declaration on the TRIPS Agreement and Public Health recognize “the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.” Paragraph 5(c) further states that “each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.”
Research and Educational Use
In the field of patents, Black’s Law Dictionary defines “experimental-use defense” as “a defense to a claim of patent infringement raised when the construction and use of the patented invention was for scientific purposes only. While still recognized, this defense is narrowly construed and today may apply only to research that tests the inventor's claims.”
It is to be noted that, although intellectual property rights are exclusive rights, certain exceptions and limitations to the exclusive rights are provided. For example, in the field of patents, a number of countries provide in their national legislations for certain exceptions and limitations to the exclusive rights, including, but not limited to:
a) acts done for private and non-commercial use;
b) acts done only for experimental purposes or research purposes.
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) defines at Article 2(c) as follows: “to conduct research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology as defined in Article 2 of the Convention.”
WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions
The Model Provisions were adopted in 1982 by a Committee of Governmental Experts convened jointly by WIPO and UNESCO. The provisions provide a sui generis model for intellectual property-type protection of traditional cultural expressions/expressions of folklore, which has been fairly widely used by WIPO Member States. Under the Model Provisions, traditional cultural expressions/expressions of folklore are protected against “illicit exploitation and other prejudicial actions.”
The Model Provisions seek to maintain a balance between the protection against abuses of expressions of folklore, on the one hand, and the freedom and encouragement of further development and dissemination of folklore, on the other. They take into account the fact that expressions of folklore form a living body of human culture, which should not be stifled by too rigid protection.