A Development issue at WIPO

Dr. Chamu Kuppuswamy, School of Law, UoS

SIDNet Arts and Development Panel 18/03/10

� 1998-1999 – World Intellectual Property

Organisation (WIPO) considers Traditional

Knowledge

� 2001 - GRTKF committee launched

� 2007 - Launches ‘Development Agenda’ (DA)

�DA aims to orient IP towards development

needs

� GRTKF Comm. has specific objectives – i.e.

GRTKF protection.

� copyright, trademark, patent

�Most relevant – copyright

� Berne Convention (1971, first estd. 1886) and Agreement on Trade related Intellectual Property Rights (TRIPS)

� Berne Conv. covers artistic work; work to be fixed; joint authors or sole, exclusive economic rights – sell, license, assign, etc, and moral rights – not distort, use in a derogatory manner, prejudicial to author’s reputation.

� Term of protection – gen. life plus 50 years

�monetary incentive based mechanisms - best for creativity and innovation.

�makes sharing of creativity expensive. It hinders free movement of ideas.

� backed by enforcement

� IP rights - individual rights, commercially focused, contributing to trade oriented innovation

� they protect and at the same time, commodify creativity.

� An IP system shrinks the public domain.

� Current IP law recognises some elements of artistic innovation, not others.

�WIPO's current work programme

(WIPO/GRTKF/IC/9/4)

� Traditional cultural expressions (or,

"expressions of folklore") include music, art,

designs, names, signs and symbols,

performances, architectural forms,

handicrafts and narratives. (Article 1)

�Compare ‘Traditional Knowledge’ - the

content or substance of knowledge resulting

from intellectual activity in a traditional

context

� ‘their collective, communal and inter-

generational character; their relationship to

a community’s cultural and social identity

and integrity, beliefs, spirituality and values;

their often being vehicles for religious and

cultural expression; and their constantly

evolving character within a community’.

Principle e of the General Guiding principles

� TCE’s - tangible or intangible, or a

combination. Not necessary for it to be

fixed, oral traditions are protected.

� intellectual creations – individual or

collective, some linkage with the community

cultural and social identity and cultural

heritage should be still in use by the

community.

�Community and customary law play an

important role in TCEs

� Term of protection – indefinite

� Protection of TCE – both IP and non-IP

measures (UNESCO Conv. Intangible

Heritage)

� TCE protection markedly different from the

IP protection, despite its similarities.

�Once adopted numerous changes to our use

of traditional arts.

� If adopted in current form, many challenges

will arise in the course of its

implementation.

� Traditional knowledge and folklore now

occupy a position in international law,

bringing together the issue of development

and IP.