According to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Indigenous Peoples “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.”[1] It is the responsibility of the States to collaborate with the Indigenous Peoples to “take effective measures to recognize and protect the exercise of these rights.”[2] Unfortunately, it is unclear which intellectual property (IP) system can best protect these rights and who the beneficiaries of the rights are.
Internationally, the World Intellectual Property Organization (WIPO) has distinguished between traditional knowledge (TK) and traditional cultural expressions (TCEs) when it comes to Indigenous Peoples and local communities seeking IP protection.[3] TK includes “knowledge, know-how, skills and practices that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”[4] TCEs, also known as “expressions of folklore,” can include “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.”[5] Due to the variety of types of works included in TKs and TCEs, this article will focus on TCEs, as they can utilize the IP systems currently in place.[6]
WIPO covers six types of intellectual property types: patents, copyright, trademarks, industrial design, geographical indications, and trade secrets.[7] TCEs can fall under the categories of copyright, geographical indications, or trademarks.[8] However, it is recognized that the current international system of IP protection “can only be usefully applied with respect to the economic and not the purely ethnic or religious aspects of folklore.”[9] It is also acknowledged that the IP “system cannot recognize the collective ownership of practices and knowledge handed down from generation to generation.”[10] It has been suggested that, due to these gaps in the current IP system, a sui generis IP system should be adopted.[11] A sui generis system belongs within the realm of intellectual property; however, they structurally depart in order to fulfil the needs of TCE holders.[12]
One attempt at making a sui generis system on the international level occurred in 1985 when the United Nations Educational, Scientific and Cultural Organization (UNESCO) and WIPO published the Model Provisions for National Laws on the Protection of Expression of Folklore Against Illicit Exploitation and Other Prejudicial Actions (Model Provisions).[13] The Model Provisions were intended to provide guidance to States for developing their national legislation with flexibility for each State to adopt a system of protection that best meets the needs of the States and Indigenous Peoples concerned.[14] Through these Model Provisions, there is the need to balance the “protection against abuses of expressions of folklore . . . and . . . the freedom of encouragement of further development and dissemination of folklore.”[15] This balancing is imperative because folklore forms a living body of human culture and therefore a stringent protection system should not impact the culture itself by creating unworkable confines.[16] Covered by the Model Provisions are “expressions of folklore,” which are “productions consistent of characteristic elements of traditional artistic heritage developed and maintained by a community in a country or by individuals reflecting the traditional expectations of such a community.”[17] Within this document, the terms “expressions” and “productions” are used instead of “works” to further distinguish this from copyright.[18] The Model Provisions emphasize that the personality of the artist is important for the development and maintenance of these expressions.[19] The Model Provisions recommend that States create two types of protections: 1) against “illicit exploitation” and 2) against “other prejudicial actions.”[20] These protections are driven by the fear that “the dissemination of folklore might lead to improper exploitation of cultural heritage of a nation [and] that any abuse of commercial or other nature or any distortion of expressions of folklore was prejudicial to the cultural and economic interests of the nations.”[21]
Unfortunately, while the Model Provisions provided guidance on navigating these matters back in 1985, there has yet to be a uniform international solution for tackling these issues.[22] The international community continues to seek solutions which includes the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) 49 scheduling to meet in December to further discuss TCEs.[23] Important to these meetings is the inclusion of Indigenous Peoples, as UNDRIP requires States to collaborate with Indigenous Peoples to protect their rights.[24]
James Johnson, an award-winning artist and master wood carver from the Dakl’aweidi clan of the Tlingit Peoples in Alaska has spoken about IP rights for Indigenous communities.[25] Johnson attended and spoke at the High-Level Dialogue on Indigenous Peoples, Traditional Cultural Expressions and Fashions, a WIPO event in Geneva.[26] At this event, there were Indigenous artists from around the world who met and presented about the challenges they face in their individual cultures and the currently available system to protect the IP of TCEs.[27] For example, Johnson has shared that he became “an artist to carry forward Tlingit culture and . . . traditions.”[28] The Tlingit art he specializes in is known as formline.[29] This “takes many years to learn” because “[t]here are a lot of rules and guidelines” for it to be proper.[30] The artist must also have “a solid understanding of the stories and meaning from behind what [they’re] creating.”[31] Johnson, in particular, creates his pieces and then utilizes copyright laws as a means of protection.[32] While the copyright laws do not impose barriers on what he can create, Johnson, as an artist and member of the Tlingit community, understands that he has “to draw an appropriate line between what goes outside [the] culture and what [the culture] keep[s] for [themselves].”[33] This is because “there are certain aspects of the Tlingit art that aren’t meant for commerce.”[34] Some examples of this include “the clan crests and other cultural elements [that] are sacred to [their culture] and protected among [the] clans.”[35] Thus, knowledge and understanding of the important meanings behind the art must be understood when drafting the laws and this can only be provided by the Indigenous artists.
The current IP systems provide limited solutions for protections of TCEs. These have been utilized by individual Indigenous artists, but a sui generis system is needed to ensure that not only the work of the Indigenous artist is protected, but also the rights of the Indigenous communities are protected as well. This can only be accomplished through the inclusion of all involved. Though this is harder to do on an international scope as there are many groups of Peoples who fall within the term Indigenous Peoples, a general system filled with acknowledgements of rights to be protected (similar to the UNDRIP) within IP will be able to ensure Indigenous artists, Indigenous communities, and consumers are protected.
[1] G.A. Res. 61/295, art. 31, United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007) [hereinafter UNDRIP].
[2] Id.
[3] Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions, World Intellectual Property Organization [WIPO] (last visited Oct. 16, 2024), https://www.wipo.int/tk/en/.
[4] Traditional Knowledge, World Intellectual Property Organization [WIPO] (last visited Oct. 16, 2024), https://www.wipo.int/tk/en/tk/.
[5] Traditional Cultural Expressions, World Intellectual Property Organization [WIPO] (last visited Oct. 16, 2024), https://www.wipo.int/tk/en/folklore/ [hereinafter TCEs].
[6] See id.
[7] See What is Intellectual Property?, World Intellectual Property Organization [WIPO] (last visited Oct. 16, 2024), https://www.wipo.int/about-ip/en/.
[8] TCEs, supra note 5.
[9] See Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Cultural Expressions/Expressions of Folklore: Collation of Written Comments on the List of Issues, at 48, WIPO/GRTKF/IC/11/4(a)(Apr. 30, 2007) (European Community Comment).
[10] See id. at 53 (Tunisia comment).
[11] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Cultural Expressions: Updated Draft Gap Analysis, at 36, WIPO/GRTKF/IC/37/7 (July 6, 2018) [hereinafter Updated Gap Analysis].
[12] Kilian Bizer et. al., Sui Generis Rights for the Protection of Traditional Cultural Expressions: Policy Implications, Journal of Intellectual Property, Information Technology and E-Commerce Law, 2011, 2(2): 1143119.
[13] United Nations Educational, Scientific and Cultural Organization [UNESCO] and World Intellectual Property Organization [WIPO], Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985), https://www.wipo.int/export/sites/www/tk/en/docs/1982-folklore-model-provisions.pdf.
[14] See UNESCO and WIPO, The Protection of Expressions of Folklore: The Attempts at International Level, 56/57 Intellectual Property in Asia and the Pacific, 218 (April 8-10, 1998).
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. at 218.
[20] Id.
[21] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Final Report on National Experiences with the Legal Protection of Expressions of Folklore, at 19, WIPO/GRTKF/IC/3/10 (Mar. 25, 2002).
[22] Updated Draft Analysis, supra note 11 at 88.
[23] IGC: What is Happening Now, World Intellectual Property Organization [WIPO] (last visited Oct. 17, 2024), https://www.wipo.int/tk/en/igc/snapshot.html.
[24] See UNDRIP, supra note 1.
[25] Anna Sinkevich, Shining a Light on Alaskan Tlingit Art and Culture through Commercial Collaborations, WIPO Magazine, May 2024, https://www.wipo.int/wipo_magazine_digital/en/2024/article_0011.html.
[26] WIPO, High-Level Dialogue on Indigenous Peoples, Traditional Cultural Expressions and Fashion: Program, https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_hl_iptk_ge_23/wipo_hl_iptk_ge_23_prog.pdf (last visited Nov. 10, 2024).
[27] Anna Sinkevich, supra note 25.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] See id.
[34] Id.
[35] Id.
