WIPO Conference on Enabling Creativity in the Digital Environment: Copyright Documentation and Infrastructure Geneva, October 2011
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1 Max Planck Institute for Intellectual Property and Competition Law WIPO Conference on Enabling Creativity in the Digital Environment: Copyright Documentation and Infrastructure Geneva, October 2011 Panel Contribution to Theme IV: Infrastructure Enabling Access to Knowledge Adj. Prof. Dr. Silke von Lewinski 1
2 Sui generis protection of TCEscurrently discussed at international level Some laws and regional instrument already provide for protection Question in devising provisions on protection: should registration/recording in databases be a condition for protection or be recommended? Certainly: use for interested users to get information However, are databases for TCEs appropriate? 2
3 Particularities of TCEs regarding need for protection Against the background of self-determination right: respect for TCEs for spiritual/non-economic reasons (integrity, authenticity, spiritual meaning of certain TCEs), and for economic reasons Already protected by customary laws Examples: Right to control the use of their TCEs, esp. by prior informed consent 3
4 Particularities of TCEs regarding need for protection (ctd.) Examples (ctd.): no use in non-customary or offending way; no use of sacred or secret TCEs; acknowledgement of the source/origin of used TCEs; authenticity need (no misleading indications to consumers about origin) no interference with continuing development with their traditions 4
5 Particularities of TCEsregarding background of protection: Certain characteristics of indigenous peoples as opposed to western civilisations Examples: Holistic world view (everything is interrelated, mankind is partof the entire system); integration, sustainable use as a consequence; no categorization Major importance of relationships with the surrounding world: the land, animals, plants, other humans, spirits, and ancestors, etc. TCEsrevive such relationships and strengthen self-identity (function is thus different from IP-protection and not focussed on entertainment) 5
6 Particularities of TCEsregarding background of protection: Certain characteristics of indigenous peoples as opposed to western civilisations Examples (ctd.): Importance of community/collective rights v. individualistic western concepts (e.g. property vs. custodianship/responsibility for community, free speech vs. often precluded TCEs) Oral cultures (living heritage; even customary law not written); databases thus questionable) Dynamic (living) culture (evolving by practice) (difference from IPprotection for static, given expression) 6
7 Discussion of use of registration in databases in the framework of Sui generis laws or models for protection of TCEs Some laws provide for registration as a condition for protection(panama) WIPO draft articles: earlier documents, e.g. WIPO/GRTKF/IC/9/4 of Jan. 2006) propose protection by prior informed consent only for particularly valuable, and registered TCEs(Art. 3(a)) (but principle of no formalities) Latest status of discussions (doc. WIPO/GRTKF/IC/19/4 and 19/9 of May/July 2011): no registration anymore mentioned; only freedom of formalities (reflecting reluctance of indigenous peoples to databases/fixation/registration). 7
8 Discussion of registration in databases: controversial Main discussion in framework of TK, but arguments similar for TCEs Advantagesfor TCE-protection: more legal certainty for users Disadvantages(for Indigenous peoples) Open databases invite anyone to use TCEsfor derived expressions with possibly negative consequences (offensiveness, original TCE indirectly affected, etc.), often against needs of indigenous peoples If TCE was secret: loss of trade secret protection Fixation vs. oral, dynamic nature of TCEs Registration may be too cumbersome and costly for indigenous peoples Extrapolation of one element/tce from TK-system is misleading 8
9 Registration in databases: different possible approaches No registration/documentation Registration/documentation in open databases Differentiation between kinds of TCEs(e.g., sacred/generic) Only restricted access (e.g., of public authorities) to databases, release of data on contractual basis only Should be done only according to consent of beneficiaries of protection, e.g. as in WIPO pilot training program for cultural documentation and IP management 9
10 Relation with title Enabling Creativity / Enabling Access For indigenous communities, creativity as such is no goal or activity to be encouraged (function of TCEs!) For them, also enhancing access is not necessarily wished (freedom of expression/free speech is not a concept (comparable to the Western one) from an indigenous viewpoint) Commodificationof their TCEsshould not be pushed by governments for development purposes without consent of owners of TCEs; rather: respect for their claims/needs. 10
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