The World Intellectual Property Organization (WIPO) is developing various capacity-building tools to guide indigenous communities as well as museums, archives and other cultural repositories in managing intellectual property (IP) issues when recording, digitising and disseminating intangible cultural heritage, especially 'traditional cultural expressions'. WIPO already offers a range of useful information resources, such as surveys of current practices and experiences, case studies and a searchable database of current protocols, policies and codes in relation to these issues. This article, by Wend Wendland and Jessyca van Weelde of WIPO, reports further on this ongoing work.
Digital technologies offer unprecedented opportunities for the preservation, promotion and protection of indigenous cultural materials; at the same time, the dissemination of these materials in digital form, especially culturally sensitive materials, can expose them to unwanted appropriation and misuse by third parties. Indigenous peoples' cultural expressions and knowledge systems are particularly vulnerable to the extent that they are treated as 'public domain' by conventional IP systems.
As indigenous communities increasingly wish to record and represent their own cultures, they have indicated a need to receive guidance on the IP options and issues that arise during the recording and dissemination of their cultural expressions. Copyright and related rights are potentially useful here – for example, performances of traditional cultural expressions (TCEs) are protected as IP, and through the rights vesting in their recordings of their cultural expressions, communities can exercise control over how the recordings are used. They have also requested technical assistance with recording, digitising, and archiving. In keeping with a human rights and development-centered approach, indigenous communities should lead and direct these recording projects, with WIPO playing a supportive and facilitatory role only. Empowering communities themselves to establish their own IP protocols and strategies can assist them in fostering more equitable and balanced relationships with researchers, repositories and creators.
For their part, museums, archives, libraries and other cultural repositories play an invaluable part in preserving the rich cultural heritage of our planet. By recording and making available the music, arts, knowledge and traditions of indigenous communities, these institutions help to spread a broader understanding and respect for different cultures. However, some traditional communities voice concerns that sometimes activities by museums and cultural specialists do not take adequate account of their rights and interests; and that documenting and displaying, say, a traditional song or a tribal symbol, make them vulnerable to misappropriation.
Many cultural institutions now see themselves not as the 'owners' of their collections of indigenous materials but rather as their 'stewards' and 'custodians'. They wish to work more directly and instrumentally with indigenous communities, actively engaging with indigenous expertise to foster new cross-cultural partnerships that could enrich museum work and benefit indigenous communities. Management of IP issues can play a part, albeit perhaps a small part, in changing the way cultural repositories and communities see each other.
Practical tools under development
With this background, WIPO is developing a suite of complementary tools, within the context of the WIPO Creative Heritage Project, namely:
A practical training program on cultural documentation, archiving and IP, for representatives of indigenous communities and museums. A pilot of this program, to be offered in collaboration with WIPO by two institutions in the United States of America (the American Folklife Centre at the Library of Congress and the Centre for Documentary Studies, Duke University), will take place later this year. WIPO will thereafter provide the community with basic equipment enabling it to undertake its own documentation. The first community to take part in this pilot will be a Maasai community and the national museum from Kenya. Other institutions in other parts of the world may wish to join in/offer similar programs with WIPO. If the pilot is a success, we hope to offer the program to indigenous communities and local museums, each year, from a different country;
A resource book on IP issues for museums, archives and other cultural institutions. Although WIPO has already published a more general guide for museums (WIPO Guide on Managing Intellectual Property for Museums), this complementary resource book will deal more specifically with the management of IP in relation to TCEs and indigenous collections. It will be based on surveys conducted for WIPO on experiences of museums and archives in this area (see below); and
- Practical guidelines for indigenous and local communities on developing IP protocols.
These guidelines will focus on enabling indigenous and local communities to establish their own IP-related codes of conduct or protocols for the use of their TCEs within the community and by third parties, drawing on their customary laws and community practices as far as possible. The practical guidelines will include samples of draft contracts and agreements that communities may wish to adapt for their own use.
This capacity-building line of work is distinct from, but complements, efforts to develop special ('sui generis') systems for the protection of traditional cultural expressions and knowledge, such as is being discussed in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, in which the Arts Law Centre is an active participant. For more about Arts Law's involvement in the Intergovernmental Committee see the Arts Law goes to Geneva! article in the September 2007 edition of ART+law.
Information resources already available
Many institutions and communities have already developed IP-related protocols, policies and practices relating to these issues. WIPO has commissioned surveys of these existing resources and practices, including one covering Australia and certain other Pacific countries written for WIPO by Malia Talakai of Tonga. A selection of short case studies drawn from the surveys has been prepared.
WIPO has also compiled a searchable database of existing IP-related protocols, policies and codes. The database comprises ten categories and is searchable by keyword, category, and country/region. There is a category for resources developed by indigenous and local communities, and the database includes, for example, valuable resources from the Arts Law Centre of Australia. The database is a work in progress and we welcome all contributions, comments and corrections. You can contact us at [email protected].
For the surveys, the case studies, the database and other resources, please see www.wipo.int/tk/en/.