Delia Mucica - Intangible Heritage

8/13/2019 Delia Mucica - Intangible Heritage

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PROTECTION OF

INTANGIBLE HERITAGE

Prof. Dr. Delia Mucica

November 2008

REGIONAL MASTER STUDIES IN CULTURAL POLICY AND MANAGEMENT

(INTERCULTURAL ISM AND MEDIATION IN THE BALKANS)UNIVERSITY OF ARTS BELGRADE


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What domains?

It is manifested inter alia in the following domains:

oral traditions and expressions, including

language as a vehicle of the intangible culturalheritage;

performing arts;

social practices, rituals and festive events; knowledge and practices concerning nature and

the universe;

traditional craftsmanship.


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Intangible Heritages: A tentative list

Threatened

languages

Oral history

Traditional Religionand Ritual

Sacred Images and

ThemesNon-sacred

Designs, Art is t ic

Themes and

Handicraft

Tradit ional crafts

Ski l ls related to

immovable cul tural

heri tage (vernaculararchitecture)

Tradit ional Mus ic

Tradit ional DanceTradit ional Cuisine

Tradit ional medical

knowledge


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Some elements concerning

Intangible Cultural Heritage

intangible cultural heritage is seen as a mainspring ofcultural diversity and a guarantee of sustainable

development interdependence between the intangible cultural

heritage and the tangible cultural and natural heritage

threats of deterioration, disappearance and destruction

of the intangible cultural heritage communities, groups and, in some cases, individuals,

play an important role in the production, safeguarding,maintenance and re-creation of the intangible culturalheritage


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International approaches - UNESCO

1982UNESCO sets up the Committee of Experts on theSafeguarding of Folklore; Section for the Non-Physical Heritageestablished

1989The Recommendation on the Safeguarding of TraditionalCulture and Folklore is adopted by the General Conference

1994UNESCO launches the Living Human Treasures programme,following a proposal by the Republic of Korea

1997/1998UNESCO launches the Proclamation of Masterpieces ofthe Oral and Intangible Heritage of Humanity

2001The First Proclamation of 19 Masterpieces of the Oral andIntangible Heritage of Humanity takes place in May.

2003The 32nd session of the General Conference adopts theConvention for the Safeguarding of the Intangible CulturalHeritagein October.

2003 In November, the Second Proclamation inscribes 28 newMasterpieces

2005The Proclamation of 43 Masterpieces brings the total to 90

2006The Convention enters into force on April 20


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Council of Europe Instruments

Resolution of the Committee of Ministers

(1998) 4 on the cultural routes of the

Council of Europe Framework Convention on the Value of

Cultural Heritage for Society , Faro, 2005

(promotes the use of materials, techniques andskills based on tradition, and explore their

potential for contemporary applications)


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EU approach

2007 The European Commission launched

the second phase of the pilot project

"European Destinations of Excellence".

The new theme of excellence is "tourism

and local intangible heritage".


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Hot Issues

To whom does a nations cultural

heritage and TCE/TK belong?

Which policies best serve a dynamic

creative and multicultural life?

Where lies the line betweenborrowing from TK as legi t imate inspirat ion

and

borrowing as inapprop r iate copying?


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How to Protect Intangible Heritage?

No definitive answer

No uniform protection possible

A solutioncombination of Industrial Property Law (trademarks,

certification of origin, geographical indications,etc.)

Copyright Law (for creative expressions)

Sui generis systems

WIPO - Work in Progress


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Characteristics of TCE/TK to be

taken into consideration Anonymous & collective author

Collective author

Variations in expression

Diversity of subject matter

Diversity of uses and modes of exploitation

Diversity of protection objectives

collective, communal and inter-generationalcharacter

constantly evolving character

no firmly bounded identifiable communities


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Characteristics of TCE/TK to be taken

into consideration (contd)

Spiritual and practical elements of TCE/TK are

intertwined and inseparable

TCE/TK is a response to environment and thus

it is in constant evolution and incrementally

improving

TCE/TK covers different fields: areas of culturalexpressions and technical domains

TCE/TK has no apparent formal and systematic

nature


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IP Protection of TCE/TK

To safeguard against third party claims of IP rights overTCE/TK subject matter

To protect TCE/TK subject matter against unauthorizeddisclosure or use

To protect distinctive TCE/TK -related commercial

products To prevent culturally offensive or inappropriate use of

TCE/TK material To license and control the use of TCE/TK -related

cultural expressions To license aspects of TCE/TK for use in third party

commercial products

DEFENSIVE AND

POSITIVE PROTECTION


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IP Protection of TCE/TK (contd)

What positive rights are intended?

What acts by third parties are to be

constrained?

Is it linked with other policy objectives, such as:

Active protection of cultural heritage

Suppression of unfair commercial practices etc.

Diversity of objectives for

TCE/TK Protection


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Elements of a TCE/TK sui generisSystem of

Protection

What is the policy objective of the protection?(the right to excludeothers from reproducing, fixing, using)

What is the subject matter?( open-ended, illustrative list as in BerneConvention or a general concept to be interpreted as in ParisConvention)

What criteria should be met in order to grant protection?

(commercial novelty or technical novelty or public domain payant orlink to a given community etc)

Who owns the rights? ( collective originator and therefore TK rightsshould be vested in communities; how to define them?)

What are the rights?(combination of copyright, related rights andindustrial property rights, depending )

How are the rights acquired?(no formalities or formal examination-documentation, legal representation etc.- or substantive examination TK inventories or databases..)

How to administer and enforce the rights?(IP system applicable ina subsidiary and mutatis mutandismanner, or distinct mechanisms ofcollective and reciprocal systems of administration)

How are the rights lost or how do they expire?(indefinite period orpredetermined period, linked to first act of commercial exploitation)


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WIPO work - Draft Provisions on Traditional

Cultural Expressions/Folklore and Traditional

Knowledge

The work of the IntergovernmentalCommittee (IGC) has led to the

development of two sets of draftprovisions:

for the protection of traditional cultural

expressions/folklore(TCEs) and for the protection of traditional knowledge

(TK) against misappropriation and misuse


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Objectives of TCE protection

Recognize value

Promote respect

Meet the actual needs of communities

Prevent the misappropriation of TCE

Empower communities Support customary practices and community cooperation

Contribute to safeguarding traditional cultures

Encourage community innovation and creativity

Promote intellectual and artistic freedom, research and cultural

exchange on equitable terms Contribute to cultural diversity

Promote community development and legitimate trading activities

Preclude unauthorized IP rights

Enhance certainty, transparency and mutual confidence


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What is TCE?

Any forms, whether tangible and intangible, in which traditional culture andknowledge are expressed, appear or are manifested, and comprise the followingforms of expressions or combinations thereof:

(i) verbal expressions, such as: stories, epics, legends, poetry, riddles and othernarratives; words, signs, names, and symbols;

(ii) musical expressions, such as songs and instrumental music;

(iii) expressions by action, such as dances, plays, ceremonies, 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, metalware, jewellery, baskets, needlework,textiles, glassware, carpets, costumes; handicrafts; musical instruments; andarchitectural forms;

which are:

the products of creative intellectual activity, including individual and communalcreativity;

characteristic of a communitys cultural and social identity and culturalheritage; and

maintained, used or developed by such community, or by individuals having

the right or responsibility to do so in accordance with the customary law andpractices of that community.


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Proposed protection of TCE

Agency acting at the request, and on behalf, of thecommunity, which registers TCEs, grants authorisations,collects monetary or non-monetary benefits and is alsotasked with awareness-raising, education, advice andguidance functions

Term of protection -as long as the TCEs continue to meetthe criteria for protection and/or for so long as they remainregistered or notified

Beneficiaries: those communities in whom the custody,

care and safeguarding of the TCEs/EoF are entrusted inaccordance with their customary law and practices; andwho maintain, use or develop the respective TCEs asbeing characteristic of their cultural and social identity andcultural heritage


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Scope of protection

the reproduction, publication, adaptation, broadcasting,public performance, communication to the public,distribution, rental, making available to the public andfixation (including by still photography) of the traditionalcultural expressions/expressions of folklore or derivativesthereof;

any use of the TCEs or adaptation thereof which doesnot acknowledge in an appropriate way the communityas the source of the traditional culturalexpressions/expressions of folklore;

any distortion, mutilation or other modification of, or otherderogatory action in relation to, the TCEs; and

the acquisition or exercise of IP rights over the traditionalcultural expressions/expressions of folklore oradaptations thereof;

....


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Exercise of rights

Accessible, appropriate and adequateenforcement and dispute-resolution

mechanisms, border-measures, sanctionsand remedies, including criminal and civilremedies, should be available in cases ofbreach of the protection for traditional

cultural expressions/expressions offolklore.


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IP protection and sui-generis protection

mechanisms

Protection for TCEs in accordance with theseprovisions does not replace and iscomplementary to protection applicable to TCEsand derivatives thereof under other intellectual

property laws, laws and programs for thesafeguarding, preservation and promotion ofcultural heritage, and other legal and non-legal

measures available for the protection andpreservation of TCEs

Delia Mucica - Intangible Heritage

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