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Traditional Knowledge Laws: ARIPO

Title Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (ARIPO)
Subject Matter Traditional Knowledge; Traditional Cultural Expressions
Issue(s) Subject Matter of Protection; Beneficiaries or Rightholders; Scope of Protection; Exceptions and Limitations
Type(s) of Legislation Sui Generis

Subject Matter of Protection

Section 2 - Definitions

“expressions of folklore” are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:
      i. verbal expressions, such as but not limited to stories, epics, legends, poetry, riddles and other narratives; words, signs, names, and symbols;
      ii. musical expressions, such as but not limited to songs and instrumental music;
      iii. expressions by movement, such as but not limited to dances, plays, rituals and other performances; whether or not reduced to a material form; and;
      iv. tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, needlework, textiles, glassware, carpets, costumes; handi-crafts; musical instruments; and architectural forms.

“traditional knowledge” shall refer to any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another. The term shall not be limited to a specific technical field, and may include agricultural, environmental or medical knowledge, and knowledge associated with genetic resources.

Beneficiaries or Rightholders

Section 6 - Beneficiaries of protection of traditional knowledge

The owners of the rights shall be the holders of traditional knowledge, namely the local and traditional communities, and recognized individuals within such communities, who create, preserve and transmit knowledge in a traditional and intergenerational contex t in accordance with the provisions of section 4.

Section 18 - Beneficiaries of protection of expressions of folklore

The owners of the rights in expressions of folklore shall be the local and traditional communities:
(a) to whom the custody and protection of the expressions of folklore are entrusted in accordance with the customary laws and practices of those communities; and
(b) who maintain and use the expressions of folklore as a characteristic of their traditional cultural heritage.

Scope of Protection

Section 7. Rights conferred to holders of traditional knowledge

7.1. This Protocol shall confer on the owners of rights referred to in section 6 the exclusive right to authorize the exploitation of their traditional knowledge.
7.2. In addition, owners shall have the right to prevent anyone from exploiting their traditional knowledge without their prior informed consent.
7.3. For the purposes of this Protocol, the term "exploitation" with reference to traditional knowledge shall refer to any of the following acts:
      (a) Where the traditional knowledge is a product:
            (i) manufacturing, importing, exporting, offering for sale, selling or using beyond the traditional context the product;
            (ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context;
      (b) Where the traditional knowledge is a process:
            (i) making use of the process beyond the traditional context;
            (ii) carrying out the acts referred to under paragraph (a) of this subsection with respect to a product that is a direct result of the use of the process.

Section 19. Protection of expressions of folklore against unlawful acts

19.1. Expressions of folklore shall be protected against all acts of misappropriation, misuse and unlawful exploitation.
19.2. In respect of expressions of folklore of particular cultural or spiritual value or significance to a community, the Contracting States shall provide adequate and effective legal and practical measures to ensure that the relevant community can prevent the following acts from taking place without its free and Prior Informed Consent:
      (a) in respect of such expressions of folklore other than words, signs, names and symbols:
            (i) the reproduction, publication, adaptation, broadcasting, public performance, communication to the public, distribution, rental, making available to the public and fixation (including by still photography) of the expressions of folklore or derivatives thereof;
            (ii) any use of the expressions of folklore or adaptation thereof which does not acknowledge in an appropriate way the community as the source of the expressions of folklore;
            (iii) any distortion, mutilation or other modification of, or other derogatory action, in relationto the expressions of folklore; and
            (iv) the acquisition or exercise of intellectual property rights over the expressions of folklore or adaptations thereof;
      (b) in respect of words, signs, names and symbols which are such expressions of folklore, any use of the expressions of folklore or derivatives thereof, or the acquisition or exercise of intellectual property rights over the expressions of folklore or derivatives thereof, which disparages, offends or falsely suggests a connection with the community concerned, or brings the community into contempt or disrepute.
19.3. In respect of the use and exploitation of other expressions of folklore, the Contracting States shall provide adequate and effective legal and practical measures to ensure that:
      (a) the relevant community is identified as the source of any work or other production adapted from the expressions of folklore;
      (b) any distortion, mutilation or other modification of, or other derogatory action in relation to expressions of folklore can be prevented and/or is subject to civil or criminal sanctions;
      (c) any false, confusing or misleading indications or allegations which, in relation to goods or services that refer to, draw upon or evoke the expressions of folklore of a community or suggest any endorsement by or linkage with that community, can be prevented and/or is subject to civil or criminal sanctions; and
      (d) where the use or exploitation is for gainful intent, there should be equitable remuneration or benefit-sharing on terms determined by the national competent authority in consultation with the relevant community.
19.4. Contracting States shall provide adequate and effective legal and practical measures to ensure that communities have the means to prevent the unauthorized disclosure, subsequent use of and acquisition and exercise of intellectual property rights over expressions of folklore that are held secret.

Exceptions and Limitations

Section 11 Exceptions and limitations applicable to protection of traditional knowledge

The protection of traditional knowledge under this Protocol shall not be prejudicial to the continued availability of traditional knowledge for the practice, exchange, use and transmission of the knowledge by its holders within the traditional context. 

Section 20 Exceptions and limitations applicable to protection of expressions of folklore

20.1. Measures for the protection of expressions of folklore shall:
      (a) be such as not to restrict or hinder the normal use, development, exchange, dissemination and transmission of expressions of folklore within the traditional or customary context by members of the community concerned, as determined by customary laws and practices;
      (b) extend only to uses of expressions of folklore taking place outside their traditional or customary context, whether or not for commercial gain;
      (c) be subject to exceptions in order to address the needs of non-commercial use, such as teaching and research, personal or private use, criticism or review, reporting of current events, use in the course of legal proceedings, the making of recordings and reproductions of expressions of folklore for inclusion in an archive or inventory exclusively for the purposes of safeguarding cultural heritage, and incidental uses,
Provided that in each case, such uses are compatible with fair practice, the relevant community is acknowledged as the source of the expressions of folklore where practicable and possible, and such uses would not be offensive to the relevant community.
20.2. The measures put in place for the protection of expressions of folklore may make special provision for their use by the nationals of the country concerned.