PROTECTION OF INTANGIBLE HERITAGE

Prof. Dr. Delia Mucica November 2008

REGIONAL MASTER STUDIES IN CULTURAL POLICY AND MANAGEMENT (INTERCULTURALISM AND MEDIATION IN THE BALKANS) UNIVERSITY OF ARTS BELGRADE

A Definition
Intangible cultural heritage means the practices, representations, expressions, knowledge, skills as well as the instruments, objects, artefacts and cultural spaces associated therewith that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

What domains?
It is manifested inter alia in the following domains:

oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; traditional craftsmanship.

Intangible Heritages: A tentative list

Threatened languages Oral history Traditional Religion and Ritual Sacred Images and Themes Non-sacred Designs, Artistic Themes and Handicraft Traditional crafts Skills related to immovable cultural heritage (vernacular architecture) Traditional Music Traditional Dance Traditional Cuisine Traditional medical knowledge

Some elements concerning Intangible Cultural Heritage

intangible cultural heritage is seen as a mainspring of cultural 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 cultural heritage

International approaches - UNESCO

1982 UNESCO sets up the Committee of Experts on the Safeguarding of Folklore; Section for the Non-Physical Heritage established 1989 The Recommendation on the Safeguarding of Traditional Culture and Folklore is adopted by the General Conference 1994 UNESCO launches the Living Human Treasures programme, following a proposal by the Republic of Korea 1997/1998 UNESCO launches the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity 2001 The First Proclamation of 19 Masterpieces of the Oral and Intangible Heritage of Humanity takes place in May. 2003 The 32nd session of the General Conference adopts the Convention for the Safeguarding of the Intangible Cultural Heritage in October. 2003 In November, the Second Proclamation inscribes 28 new Masterpieces 2005 The Proclamation of 43 Masterpieces brings the total to 90 2006 The Convention enters into force on April 20

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 and

skills based on tradition, and explore their potential for contemporary applications)

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".

WIPO approach on Traditional Knowledge and Traditional Cultural Expressions

The IPR issues related to TCE/TK break down into two key themes:

Defensive protection of TK, or measures which ensure that IPRs over TK are not given to parties other than the customary TK holders. These measures have included the amendment of WIPO-administered patent systems (the International Patent Classification system and the Patent Cooperation Treaty Minimum Documentation). Some countries and communities are also developing TK databases that may be used as evidence of prior art to defeat a claim to a patent on such TK; and Positive protection of TK, or the creation of positive rights in TK that empower TK holders to protect and promote their TK. In some countries, sui generis legislation has been developed specifically to address the positive protection of TK. Providers and users may also enter into contractual agreements and/or use existing IP systems of protection.

Why Protect Intangible Heritage TCE/TK

Represents a communitys cultural heritage and identity Embodies a community distinctiveness Represents a source for contemporary creativity Contributes to sustainable economic development Important factor of social cohesion Central to cultural diversity

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 between

borrowing from TK as legitimate inspiration and borrowing as inappropriate copying?

How to Protect Intangible Heritage?

No definitive answer No uniform protection possible A solution combination of

Industrial

Property Law (trademarks, certification of origin, geographical indications, etc.) Copyright Law (for creative expressions) Sui generis systems

WIPO - Work in Progress

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-generational character constantly evolving character no firmly bounded identifiable communities

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 cultural expressions and technical domains TCE/TK has no apparent formal and systematic nature

IP Protection of TCE/TK

To safeguard against third party claims of IP rights over TCE/TK subject matter To protect TCE/TK subject matter against unauthorized disclosure 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

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

of unfair commercial practices etc.

Suppression

Diversity of objectives for TCE/TK Protection

Elements of a TCE/TK sui generis System of Protection

What is the policy objective of the protection? (the right to exclude others from reproducing, fixing, using) What is the subject matter? ( open-ended, illustrative list as in Berne Convention or a general concept to be interpreted as in Paris Convention) What criteria should be met in order to grant protection? (commercial novelty or technical novelty or public domain payant or link to a given community etc) Who owns the rights? ( collective originator and therefore TK rights should be vested in communities; how to define them?) What are the rights? (combination of copyright, related rights and industrial property rights, depending ) How are the rights acquired? (no formalities or formal examinationdocumentation, legal representation etc.- or substantive examination TK inventories or databases..) How to administer and enforce the rights? (IP system applicable in a subsidiary and mutatis mutandis manner, or distinct mechanisms of collective and reciprocal systems of administration) How are the rights lost or how do they expire? (indefinite period or predetermined period, linked to first act of commercial exploitation)

WIPO work - Draft Provisions on Traditional Cultural Expressions/Folklore and Traditional Knowledge

The work of the Intergovernmental Committee (IGC) has led to the development of two sets of draft provisions: for the protection of traditional cultural expressions/folklore (TCEs) and for the protection of traditional knowledge (TK) against misappropriation and misuse

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

What is TCE?
Any forms, whether tangible and 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: stories, epics, legends, poetry, riddles and other narratives; 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; and architectural forms; which are: the products of creative intellectual activity, including individual and communal creativity; characteristic of a communitys cultural and social identity and cultural heritage; 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 and practices of that community.

Proposed protection of TCE

Agency acting at the request, and on behalf, of the community, which registers TCEs, grants authorisations, collects monetary or non-monetary benefits and is also tasked with awareness-raising, education, advice and guidance functions Term of protection -as long as the TCEs continue to meet the criteria for protection and/or for so long as they remain registered or notified Beneficiaries: those communities in whom the custody, care and safeguarding of the TCEs/EoF are entrusted in accordance with their customary law and practices; and who maintain, use or develop the respective TCEs as being characteristic of their cultural and social identity and cultural heritage

Scope of protection

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 traditional cultural expressions/expressions of folklore or derivatives thereof; any use of the TCEs or adaptation thereof which does not acknowledge in an appropriate way the community as the source of the traditional cultural expressions/expressions of folklore; any distortion, mutilation or other modification of, or other derogatory action in relation to, the TCEs; and the acquisition or exercise of IP rights over the traditional cultural expressions/expressions of folklore or adaptations thereof; ....

Exercise of rights

Accessible, appropriate and adequate enforcement and dispute-resolution mechanisms, border-measures, sanctions and remedies, including criminal and civil remedies, should be available in cases of breach of the protection for traditional cultural expressions/expressions of folklore.

IP protection and sui-generis protection mechanisms

Protection for TCEs in accordance with these provisions does not replace and is complementary to protection applicable to TCEs and derivatives thereof under other intellectual property laws, laws and programs for the safeguarding, preservation and promotion of cultural heritage, and other legal and non-legal measures available for the protection and preservation of TCEs