Ana səhifə

E wipo/grtkf/IC/15/7 Original: English date: May 14, 2010 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Fifteenth Session Geneva, December 7 to 11, 2009 report

Yüklə 0.9 Mb.
ölçüsü0.9 Mb.
1   2   3   4   5   6   7   8   9   10


79. At the request of the Chair, the Secretariat introduced the working document prepared under agenda item 7, namely WIPO/GRTKF/IC/9/4.

[Note from the Secretariat: In the discussion that took place under Agenda Item 7, several amendments were proposed to certain provisions contained in the Annex to document WIPO/GRTKF/IC/9/4. Delegations and observers also made several comments and posed certain questions. The proposed drafting amendments, comments and questions are reflected below in an extract from the relevant Annex in which the proposed amendments, comments and questions are reflected. The remainder of the report of the discussions that took place under this Agenda Item covers other interventions made that did not directly propose an amendment or raise a specific question or comment related to the content of the Annex.]



    1. [NEPAL: (a)A] “Traditional cultural expressions” or [VENEZUELA: or and/or]“expressions of folklore” are any forms, whether tangible and intangible, [NIGERIA: are and any forms whether tangible and and/or intangible] [NEPAL: whether] [INDIA, AUSTRALIA: whether tangible and or intangible][ISLAMIC REPUBLIC OF IRAN: tangible, intangible or a combination thereof] in which traditional culture and knowledge are expressed, appear or are manifested, [PHILIPPINES, similar comment by VENEZUELA, EGYPT, ISLAMIC REPUBLIC OF IRAN, COLOMBIA: such as, but not limited to, and comprise] 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, [EGYPT: etc.];

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

(iii) expressions by action, such as dances, plays, ceremonies, rituals [TRINIDAD AND TOBAGO, PLURINATIONAL STATE OF BOLIVIA: sports and traditional games] and other performances, [INDONESIA: theater, including, among others, puppet performance and folk drama,]

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, [INDIA: mouldings] pottery, terracotta, mosaic, woodwork, metalware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes, [TRINIDAD AND TOBAGO: works of mas]; handicrafts; musical instruments; and architectural forms;

which are:

      • (aa) [NEPAL: (aa) (a)] the products of creative intellectual activity, including individual and communal creativity;

- (bb) [NEPAL: (bb) (b)] characteristic [BRAZIL: characteristic indicative of authenticity/being genuine] of a community’s cultural and social identity and cultural heritage [BRAZIL: replace “heritage” with a word meaning “patrimonio” in Spanish]; and

      • (cc) [NEPAL: (cc) (c)] maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law [NEPAL: customary law customary land tenure system or law] [MEXICO, EL SALVADOR: law normative systems] and [AUSTRALIA: and or][ANGOLA: traditional/ancestral] practices of that community [NIGERIA: or has an affiliation with an indigenous/traditional community].

    1. [NEPAL: (b) B] The specific choice of terms to denote the protected subject matter should be determined at the national [MEXICO: sub-regional] and regional levels.

Comments made and questions posed at the fifteenth session (December 7 to 11, 2009)


The Delegation of Brazil suggested that, in sub-paragraph (a)(bb), the word “heritage” in English be replaced by a word closer in meaning to the Spanish “patrimonio”. The English version did not reflect the idea, present in the Spanish version, that TCEs had a dynamic and interactive nature.

The Delegations of Cameroon, China, Colombia, the Russian Federation, Spain, Sudan, and Switzerland suggested adding an article or glossary setting out definitions of key terms. It was believed to be necessary to use unified terminology for the concepts as the establishment of a working definition of TCEs was one of the prerequisites of a substantive discussion.

The Delegation of the United States of America noted that the Committee had not determined whether TCEs or expressions of folklore were in fact one and the same, and that the definitions remained open.

Meaning of “community”

The Delegations of Australia and of the United States of America posed questions related to the concept of members of a “community” and wished to know what the definition of “traditional community” was.

The issue of community in Diaspora was also raised. The Delegation of the United States of America stated that TCEs were only alive when carried in people, when expressed through people within a political or geographic region that claimed it, or when owned by people across the world in the Diaspora. It gave the example of a Cambodian dancer located in Seattle, who might be accused of pirating Cambodian TCEs, or, similarly, of an Ethiopian group of musicians in Washington, D.C. The Delegation found [in the commentary to this article] that the statement “expressions which may characterize more recently established communities or identities would not be covered” was confusing.

The representative of the Tulalip Tribes concurred with the Delegation of the United States of America on the issue of communities in Diaspora.

Meaning of “characteristic”

The Delegation of Brazil suggested that instead of using the word “characteristic”, which was deemed too general, some other wording could be used to make it clearer that the TCE should be “authentic and genuine.”

The Delegation of France, in relation to sub-paragraph (a)(bb), posed the question as to who determined what was “characteristic” and at which stage that would be done.

Comments by observers

In relation to (a)(bb) and in response to the question posed by one delegation, the representative of the Saami Council said that it should be the indigenous people or community themselves who decide what would be characteristic. For example, he said that the traditional Saami dress would be a TCE under Article 1 as a traditional costume of the Saami people; it could only be the Saami who could really determine whether it was a costume that was signifying the cultural identity or not. It would not be possible for anyone else than the Saami to do so. In most instances and as a general rule, it would have to be up to the community or people from which the TCE originates to determine whether it was culturally significant or not; in relation to (cc), it suggested to replace the paragraph with: “affiliated with an indigenous people or community due to its cultural significance to that indigenous people or community.”

Definition of TCEs: Open-ended / exhaustive nature

The Delegations of Egypt and of the Philippines said that the definition should be left open for further additions. The Delegation of Egypt suggested adding at the end of the preamble paragraph “etc.”, so as to suggest that there were also other forms of TCEs.

The Delegation of the Islamic Republic of Iran was of the view that the definition was generally acceptable, however, given cultural diversity, the examples in the definition should not be considered exclusive.

Relationship with conventional copyright law

The Delegation of the Republic of Korea noted that there was a possible overlap with copyright protection for adaptations and variations of TCEs, and asked how that conflict would be resolved. The Delegation pointed to the text which read “differing versions, variations or adaptations of the same expression could qualify as distinct TCE/EoF.” It said that not only original TCEs but also variations and adaptations therefrom would also be protected as TCEs. The Delegation said that it was its understanding that such adaptations based on original TCEs could also be protected by the conventional copyright regime. There would thus be two rights on the same subject matter and this would lead to a conflict of rights.

The Delegation of Italy pointed to a conflict with the Berne Convention (Article 2) as far as the definitions were concerned and the relationship between the Berne Convention and the protection intended in the document. It suggested that this issue be looked into by the expert group.

Comments by Observers

The representative of Ibero-Latin-American Federation of Performers (FILAIE) suggested reviewing the reference to “architectural forms”. The potential concern was that neither in the Berne Convention nor in modern IP law were architectural works protected. However, projects, drawings, models, architectural or engineering designs could be protected. The representative stated that architectural works were permanently located in parks, streets, squares or other public places and could be reproduced, distributed and communicated freely through paintings, drawings, photography and audiovisual processes. This could possibly conflict with the Berne Convention.

Relationship with the public domain

The Delegations of Australia and Japan suggested that the impact on the public domain be examined. The Delegation of Japan asked what criteria were used to distinguish the TCEs that were protected from those that were not. Among TCEs, some were handed down only to certain individuals within a small community, while others were handed down in a broader nation-wide cultural context, maintained and used by a wider range of public or sometimes even used commercially. This issue was important since it would have a direct impact on the boundaries of the public domain. Pending the level of protection to be applied to the subject matter, broader definition of TCEs could imply limiting the scope of public domain materials which were currently available.

Drafting suggestions by observers

The representative of the Ibero-Latin-American Federation of Performers (FILAIE), in relation to (a), suggested to add, after “or are manifested”, the phrase “in original form” in order to have a criterion to identify and reference a particular community. The representative also suggested to delete “and knowledge” to avoid any confusion with TK, which was dealt with separately. In relation to (a)(aa), the representative suggested to add, after the semicolon, “which was created by former generations” to focus on the true essence of what was being discussed: cultural heritage and legacy.

The representative of the Saami Council, commenting on the sentence “maintained, used or developed by such community or by individuals having the right . . .” stated that the language suggested that the instrument would only apply to TCEs that were still in the custody of indigenous peoples. The language “maintained, used or developed” suggested that the TCE was still to be managed by the community or the indigenous peoples and he believed that it should also apply to artifacts that might have been non-consensually taken out of the community. He proposed the alternative language “has an affiliation with an indigenous people or a community due to its cultural significance to that community”.

The representative of Tupaj Amaru proposed the following text for Article 1:

“Article 1

Protected material

  1. Verbal expressions, such as folk tales and legends, folk poetry, stories, epic poems, riddles, other narrations; words, signs, sacred names and symbols;

  2. Musical expressions, such as songs and indigenous instrumental music, music on percussion instruments and woodwinds;

  3. Expressions by action, such as dances, plays, ceremonies, ritual expressions and other folkloric performances;

  4. Tangible expressions, such as art, drawings, paintings, sculptures, pottery, terracotta, mosaic, woodwork and jewelry; basketwork, needlework, textiles, glasswork, pencils, clothing, handicrafts; and

  5. Musical instruments and architectural works.

The said TK has universal value from a historical, aesthetic and anthropological standpoint and is passed from generation to generation.”


Measures for the protection of [MOROCCO: national] traditional cultural expressions/expressions of folklore should be for the benefit of the indigenous peoples [ISLAMIC REPUBLIC OF IRAN: individual groups, families, tribes, nations] and traditional and other cultural communities [MOROCCO: or the nation]:1

in whom the custody, care and safeguarding of the TCEs/EoF are entrusted [INDIA: entrusted existing] in accordance with their customary law and [AUSTRALIA: and or]practices; and

who maintain, [TRINIDAD AND TOBAGO: control] use or develop the traditional cultural expressions/expressions of folklore as being characteristic [BRAZIL: authentic and genuine] of their cultural and social identity and cultural heritage[BRAZIL: replace “heritage” with a word meaning “patrimonio” in Spanish].

Comments made and questions posed at the fifteenth session (December 7 to 11, 2009)


The Delegation of Brazil reiterated its comments made under Article 1 regarding the English equivalent to the Spanish “patrimonio.

The Delegation of India, concerning paragraph (i), said that the term “entrusted” could have certain legal ramifications in terms of requiring evidence of the custody, care and safeguarding being entrusted to a particular community. It suggested substituting the word “entrusted” with the word “existing.”

Scope of beneficiaries

The Delegation of El Salvador suggested that other groups should also be referred to in addition to “indigenous peoples and traditional and other cultural communities.”

The Delegation of Morocco said that, concerning paragraph (i), the term “traditional communities” was much too broad and should be defined in a clearer and more precise way. The Delegation said that the nation had its own folklore, “national” folklore; however there was no mention of “national” TCEs. It suggested amending paragraph (i) stating that the “national” folklore of the States also needed to be protected.

The Delegation of Indonesia proposed that the definition also include the following elements: (i) other than traditional/indigenous communities as parties who maintained and developed TCE/EoF, governments also needed to play a role in facilitating TCE/EoF protection in case there were other communities who had potential benefits for the utilization of TCE/EoF; (ii) in cases where the owner of TCE/EoF could not be identified, the beneficiary of TCE/EoF protection should be the government, such as the local government, and the TCE/EoF would be used for the sake of community’s interests; (iii) the owner of TCE/EoF eligible to benefit from the protection should be the TCE/EoF owner who had been identified by the local government; (iv) regarding the individual’s contribution to the development of TCE/EoF, it could be rewarded by the existing IP system; (v) a state could play a certain role in facilitating the protection of the community and it could be extended further as a right holder only if it benefited the communities.

The Delegation of the Islamic Republic of Iran believed that the right holders should be individual groups, families, local communities, tribes and nations. However, the rights of holders were considered in the framework of the rights of society. In this regard, national legislation was important and could not be ignored. The rights of local communities who were real owners and their consent should particularly be observed.

Customary law

The Delegation of Australia said that there would be difficulties to prove the relevant customary law for Australia’s indigenous communities, and suggested that “or” should replace “and” in paragraph (i).

Comments by Observers

The representative of the Arts Law Centre of Australia suggested that, in relation to paragraph (i), the requirement that communities prove that they had been entrusted with the custody, care and safeguarding of the TCEs/EoF in accordance with their customary law and practices be deleted and that a presumption should apply in favor of the indigenous community claiming to have been entrusted with the custody, care and safeguarding of the TCEs/EoF. It suggested rephrasing the paragraph for it to read: “in whom the custody, care and safeguarding of the TCEs/EoF are entrusted.” It also said that the end of the sentence should be deleted, and that a new clause should be added at the end of the provision, reading: “The Indigenous peoples and traditional and other cultural communities claiming the benefit of the measures for the protection of TCEs/EoF are presumed to have been entrusted with the custody, care and safeguarding of those TCEs/EoF.” Alternatively, and as a minimum, it suggested that the following change should be made: “in whom the custody, care and safeguarding of the TCEs/EoF are entrusted in accordance with their customary law or practices.” It also said that in Australia, indigenous peoples considered it disrespectful to use the term indigenous otherwise than with a capital “I” and that therefore, the word “indigenous” should be with a capital I throughout the text. It said that this spelling was consistent with the one used in the Declaration on the Rights of Indigenous peoples.

The representative of Tupaj Amaru suggested that the article should end with the following sentence: “The States will adopt effective means to ensure the prior informed consent of the interested peoples to guarantee the respect and legal protection of traditional cultural expressions.”

80. The Delegation of Senegal, on behalf of the African Group, asked the Committee to keep to what was agreed upon the previous day, which consisted in fully entering into text-based negotiations when Item 7 was under discussion. It also underscored that the African Group had already submitted its comments in the document.

81. The Chairman stated that it was necessary to focus on matters of substance if there was to be any progress. There was agreement on this. It was also agreed that making progress meant building consensus by identifying areas of convergence and obstacles to agreement and then trying to overcome those obstacles. It could be possible to embark on text-based negotiations with the use of a screen, but only three lines of text might be completed in a week. It was better to identify obstacles to agreement and common objectives, and then there would be raw material to give the IWG so that in the near future there could be text-based negotiations. “Negotiations” meant a constructive exercise to create added value for all participants. If, however, the African Group insisted on text-based negotiations, the Committee could see how far it would get.

82. The Delegation of Angola proposed that the text of document WIPO/GRTKF/IC/9/4 be used as the text for negotiations, that discussions take place on an item-by item basis, and that that be put in writing so that the Committee’s mandate were respected.

83. The Chairman stated that the Committee was working on document WIPO/GRTKF/IC/9/4 and that the question was what form should discussions on the document take. It was a question of the negotiating method at this stage.
84. The Delegation of Sweden, on behalf of the European Union and its Member States, took note that the Committee would focus its attention on text-based negotiations with the objective of reaching an agreement on TCEs. While it had agreed to use all working documents of the Committee as a basis, it was ready to revisit document WIPO/GRTKF/IC/9/4 for the discussions. The Delegation underlined that the issues set out in the Annex related to “Policy Objectives and Core Principles”, could provide a basis for discussions and for subsequent consideration of a text. On the “Policy Objectives” (part I of the Annex), the main consideration was that all communities deserved respect and their TCEs should be encouraged. It was the primary responsibility of the States within and across whose borders communities live to respond to their specific needs at first instance. As regarded the “General Guiding Principles” (part II of the Annex), in parallel to discussions in the framework of the Committee, indigenous communities could also be helped to use the current IP system as well as other areas of law. Concerning the “Substantive Provisions” (part III of the Annex), the Committee could try to achieve a better understanding on Members’ views on the definition of “TCEs” and attempt to find a common approach in this respect. Any common understanding on the definition of TCEs would represent a move towards achieving the common objective agreed at the General Assembly. The Delegation stated that it was willing to contribute constructively to the ensuing discussions on TCEs and supported the process by focusing on the substance of the issues at stake.

85. The Delegation of South Africa pointed out that, as stated by the Delegation of Senegal on behalf of the African Group, further clarifications were needed in terms of process. The Committee would not be fulfilling its new mandate to engage in text-based negotiations if it continued in general discussion mode. The work carried out in the Committee was going to set the stage for the next two years, and it was the understanding of the Delegation that the text would be discussed word by word and line by line which would be a lengthy process. It was looking forward to concrete and technical textual drafting proposals.

86. The Chairman proposed that the Committee listen to specific proposals on the various articles, even specific drafting proposals. Comments should be focused, technical and precise. Then, the Committee would ask the Secretariat to reflect the various specific drafting proposals and also any general comments that were made in a document which would evolve and become a working document for the next session.

87. The Director General stated that it had been a long time since WIPO had engaged in text-based negotiations, and it had been forgotten what was involved unfortunately. So, this would be a learning exercise. It would be helpful to hear if delegations could not accept certain text. If there was general silence in the room, how was that to be interpreted? Did this mean that everyone was in agreement with the text in question? This was the purpose of having some proposals made by the various delegates. Second, would there be drafting recommendations made directly by NGOs? Or would it only be Member States who could propose amendments to the text? As the Chair had stated, there would be a revision done by the Secretariat on the basis of the various proposals that have been made. It would be necessary to put them into some form to reflect on them. This would be for the next session.

88. The Delegation of the Islamic Republic of Iran agreed with the Delegations of Senegal and South Africa that the Committee should work with the text on a screen and proceed with discussions article by article. In previous sessions of the Committee, the divergences and convergences had been recognized and reflected in the text as explained by the Secretariat and the Delegation did not wish to repeat the same exercise.

89. The Chairman stated that time had already been spent on general discussions and repeating past experiences. The idea here was to make progress. The Chairman proposed that, in the spirit of “text-based negotiations”, statements by delegations be concrete textual suggestions. The Secretariat would then reflect the suggestions in a document reflecting the concrete textual proposals.

90. The Delegation of Zimbabwe wished to obtain clarifications as to the intervention of the Chair, in which he had mentioned that the comments would be consolidated into different documents to be presented in another meeting. The Delegation wished to know what would be the basis of the new document. The new mandate clearly established that any negotiations were supposed to be premised on existing documentation. The Delegation was not comfortable with the idea of a new document and preferred to go ahead with negotiations on the existing documentation that would be put on a screen and discussed. Clarifications were needed on how the new document mentioned by the Chair would fit into the new mandate which clearly specified text-based negotiations and not discussions. The Delegation pointed out that it was ready to engage in substance as long as the procedural methods were clearly defined.

91. The Delegation of Indonesia strongly supported the proposal made by the Delegations of Senegal, South Africa and Zimbabwe to start text-based negotiation, on a screen, article by article, on document WIPO/GRTKF/IC/9/4.

92. The Delegation of the United States of America felt that the Committee needed to spend time discussing objectives and principles underlying the text suggested for text-based negotiations. It said that the suggestion of the Saami Council was very helpful and the Delegation hoped that it could be reflected as bracketed text or in some sort of note. Normally text presented by observers could not be added unless it was suggested by a Member State. The Committee could not move directly to text-based negotiations if it failed to continue to ensure that there was a common understanding as to the objectives and principles and of what the Committee was doing and why.

93. The Delegation of India stated that its understanding of the mandate was that the Committee was to start text-based negotiations which would lead to a legally binding instrument. The content of the instrument was of great importance and, in that light, the Committee was to start immediately on article by article text-based negotiations. The text was to be put on the screen to start negotiations and drafting suggestions would be sought from the delegates instead of general discussions.

94. The Delegation of Djibouti endorsed the statements made by the Delegation of Senegal, on behalf of the African Group, and requested that the existing text be put up for negotiations.

95. The Chairman explained the proposed method of work as follows: (1) the mandate of this session was text-based negotiations; (2) the text would be placed on the screen; (3) he would invite concrete drafting proposals, not political statements, nor general comments; (4) this was not a Drafting Committee as such. The proposed amendments would be duly recorded by the Secretariat and would be included in a revised version of the document which the Secretariat would prepare; (5) in accordance with the Rules of Procedure, observers could not make concrete proposals. However, if a Member State agreed with a proposal, such as the one made by the Saami Council, for example, they could say so. Then it would become a proposal from a Member State and then be duly recorded.

96. The Delegation of the Russian Federation pointed out that document WIPO/GRTKF/IC/9/4 had been discussed repeatedly at previous sessions of the Committee. Many delegations, including the Delegation of the Russian Federation, had made numerous comments and proposals on the text. As a result of an analysis of all of the comments and proposals, the Committee at its 10th session, came to the conclusion that this document required clarification on a number of basic legal issues. An analysis of those comments showed that members of the Committee did not have an understanding on fundamental questions such as the subject matter of protection, or the question of the object of protection and the volume and scope of legal protection. That being so, the Committee should give some thought to its working methods. Further, the Committee needed to define the possibilities of protection and the scope of protection and to agree on the form and the status of the international document that it wished to obtain.

97. The Delegation of Sweden, on behalf of the European Union and it Member States, stated that progress would be made if the Committee moved to text-based negotiations, on a screen to facilitate drafting on specific text. The Delegation was to submit its proposals at a later point. It was important not to lose sight of other issues ahead, such as the intersessional expert discussion and clarification was required on how those issues would be identified in the process of the work of the Committee. The Delegation requested clarifications from the Chair regarding the procedure to discuss not only TCEs but also TK and GRs, as well as the allocation of sufficient time to discuss Agenda Item 10.

98. The Chairman stated that some of the comments made did not respect the decision that had just been taken. The Committee would work on this article by article on the basis of specific proposals. Time had been allotted to each substantive item.

99. The Delegation of France aligned itself with the statement made by the Swedish Presidency of the European Union, and emphasized its surprise that the Committee was rushing into the drafting stage. Although that was not a drafting committee and the Committee was not yet within its new mandate, the Delegation assumed that the session was more intended for laying the foundations, and preparing the ground, for the efficient implementation of its new mandate and that it would focus on the preparation of the work program. [Note from the Secretariat: the Delegation then made some specific drafting proposals or comments, reflected above.]

100. The Delegation of Venezuela (Bolivarian Republic of) stated that the work underway appeared to be more legislative than executive. The second phase ought not to be moved forward as that would become the enforcement of the rules, once the international agreement had been drafted.

101. The Delegation of Egypt felt that the Committee had been going around in circles and that a great deal of what was being said had already been discussed in the first session of the Committee. The Delegation thanked the Secretariat for the draft submitted on the subject matter of protection, which to a great extent met the needs from a technical point of view. Legal experts would have to consider how they may provide for the protection of those points raised in Article 1. Technical comments, comments related to definitions or to the subject matter of protection should be examined within the framework of the Intersessional Working Groups. Any additions, deletions or explanations on the documents being discussed should be put forward and examined by the specialists and experts in order to draft a form of consensus on the matter. [Note from the Secretariat: the Delegation then made some specific drafting proposals or comments, reflected above.]

  1. The Delegation of India concurred with the statement of the Delegation of Egypt about the queries raised on substantive issues. It believed that they had already been discussed and under the new mandate the Committee needed to focus on text-based negotiations. [Note from Secretariat: The Delegation the made some specific drafting proposals or comments, reflected above.]

  1. The Delegation of the Republic of Korea suggested that a list be prepared of questions and concerns on the text to be negotiated, which would be helpful for the operation of the 15th session as well as for the Intersessional Working Group. [Note from the Secretariat: The Delegation then made some specific proposals or comments, reflected above.]

  1. The Delegation of Italy underlined that the Assembly had not designated the texts of document WIPO/GRTKF/IC/9/4 as being the official texts for negotiation, and had only stated that text-based negotiations were to take place. The Delegation had the possibility of submitting other texts on the matter. Any ensuing observations would therefore be provisional. Secondly, it was yet to be established which tasks the Working Group would carry out. [Note from the Secretariat: The Delegation then made some specific proposals or comments, reflected above.]

  1. The Delegation of El Salvador stated, as regards the working methodology, that that had just begun and that at the end of the week there could be an assessment of the outcomes of that working methodology. It added that the fact that all members had the possibility of sending comments would allow for the use of experts’ knowledge which, as in its case, were not particpating in the Committee, due to which it insisted on the possibility of contributing in writing to that exercise as regards document WIPO/GRTKF/IC/9/4. It was pleased to see that use was being made of the information which had been obtained by WIPO, particularly because that meant that rather than starting from scratch, a series of studies on that issue had been produced. It brought to the attention of Member States the book entitled “Intellectual Property Needs and Expectations of Traditional Knowledge Holders”, which was a WIPO publication. That book could be of great use to those who were not experts in the area, particularly its explanation of the terms traditions, traditional expressions, traditional cultural expressions or expressions of folklore and the reason for the use of the word “or”.

  1. The Delegation of Australia said that the language was broadly acceptable of what might encompass TCEs. It said that paragraph (b) gave some important flexibility at the domestic level. It associated itself with the important questions raised by the Delegation of the USA and the Delegation of Japan in particular. [Note from the Secretariat: The Delegation then made some specific proposals or comments, reflected above.]

  1. The Delegation of Switzerland welcomed the fact that the Committee was able to hold discussions on substantive issues from the outset. It said that the renewed mandate referred to document WIPO/GRTKF/IC/9/4 in its entirety. The Delegation considered agreement on basic issues such as policy objectives a prerequisite for successful and meaningful work on substantive provisions. It said that it expected that the Committee would, in addition to Part 3, also discuss Parts 1 and 2 of the Annex to document WIPO/GRTKF/IC/9/4 in the further course of its negotiations on an international legal instrument or instruments. The Delegation also said that the discussions aimed at gathering ideas and allowing all participants to express their views. At that point in time, however, no decisions had been yet taken. Therefore, the text resulting from the discussions remained open for amendments and comments. The Delegation considered the establishment of a working definition of TCEs to be one of the prerequisites of a substantial discussion. It said that the definition of TCEs as contained in Article 1 constituted a good working definition. As such, the definition would be helpful to guide further discussions on the protection of TCEs. It said that it was clear that the Committee could revisit the definition during the course of its negotiations should it deem it necessary to amend or modify the definition. The Delegation sought clarification from the Secretariat on the structure of the text of Article 1: it asked if its understanding was correct that all requirements enumerated in paragraphs (aa) to (cc) applied to all forms of TCEs as described in paragraphs (i) to (iv) and that the paragraphs (aa) to (cc) therefore did not only apply to paragraph (iv) alone. The Delegation said that it would be useful to structure the text in order to avoid ambiguities. The Delegation said that it was clear that the definition of TCEs should encompass TCEs from developing countries and developed countries. Furthermore, it supported the broad and inclusive use of the term “communities,” meaning “indigenous peoples and traditional and other cultural communities” as contained in footnote 23 of the Annex of WIPO/GRTKF/IC/9/4.

  1. The Delegation of Spain expressed its interest in achieving results and making progress, and in producing a text that was valid and acceptable to all Member States. It believed that it was necessary to agree first on the meaning of what was under discussion, as concepts rather than words were being used. A more detailed analysis of the text’s contents was required because, for instance, under I. Objectives (page 3), it stated in ii) “promote respect for traditional cultures and folklore”, while in Article I. it said, “traditional cultural expressions, or expressions of folklore”. There was no consistency in the text and that made it very difficult to arrive at a text which might one day be legally binding. It stated that, in the Spanish version, Article I did not seem to mean very much, as the definition lay in what was defined. It said that it was difficult to arrive at a comprehensible and legally-binding text if discussions remained at the conceptual level without really defining what those were. [Note from the Secretariat: the Delegation made some specific proposals or comments, reflected above.]

  1. The Delegation of Bolivia (Plurinational State of) said that many of the questions and ensuing discussions had originated some years previously. It believed that it was important for the Secretariat to provide assistance by indicating the state of discussions as regards certain definitions, for after nine years of work, much had been said on those issues and something must have been retained from those discussions, which would accelerate progress on the matter. [Note from the Secretariat: the Delegation made some specific proposals or comments, reflected above.]

  1. The Delegation of Cameroon proposed that at the following session an item entitled “Promoting or adopting definitions” be added to the Agenda. The Delegation proposed renouncing attempts at formulation in order to concentrate on the observations or gaps in the texts so that the experts might assess and reproduce them in the new version to be submitted to the Committee. [Note from the Secretariat: the Delegation made some specific proposals or comments, reflected above.]

  1. The Delegation of China endorsed the considerations raised on document WIPO/GRTKF/IC/9/4 and the use of that document as a basis for negotiation. The Delegation said that it would provide additional comments and proposals on the document later on. [Note from the Secretariat: The Delegation then made some specific proposals or comments, reflected above.]

  1. The Delegation of Venezuela (Bolivarian Republic of) said that, as regards the issue of the diaspora, the problem was not when someone from a particular part of the world reflected what their culture was. The problem arose when foreigners took such TCEs and turned them into merchandise. It disagreed with what the Delegation of Spain had stated whereby that was part of a legislative technique. It said that before Article I, there was a preamble containing explanations on why, to what end, how it would be interpreted, what were the objectives and guiding principles of that agreement. It said that by accepting the proposals on definitions and glossaries, progress would take a tortuous route which might take more time to reach that point and that could be a very dangerous trap. It agreed with what the Delegation of Bolivia had said. There had been texts prepared over the course of the past nine years from which it could clearly be deduced what those terms meant and which route should be taken.

  1. The Chairman stated that he understood the concerns of the Delegation of Venezuela, but there was no trap in drawing up a glossary. It would help everyone to have a common understanding and to reach a clearer agreement.

  1. The Delegation of Canada echoed the statement made by the Delegation of Switzerland, on behalf of Group B, on the importance of objectives. The Delegation had made numerous comments on the guiding principles and draft policy objectives, the latest draft of which was in document WIPO/GRTKF/IC/10/INF 2/Add 2. Also, supporting the statement of the Delegation of the Russian Federation, it said that it would be a good exercise to have document WIPO/GRTKF/IC/9/4 revised in light of the comments provided. The Delegation sought clarification from the Chair on the status of the text, as to whether the document would only be an additional working document of the Committee, or a negotiating text; in the latter case, the Delegation said that the rules of engagement had not been defined yet. It asked whether there would be any attribution for the amendments and suggestions made by delegations in the revised version; in other words, whether, if a country suggested a word, the name of the country would appear in a footnote or in a comment in the revised version.

  1. The Director General stated that, on the basis of past experience, the next revised version would indicate all the suggested amendments and on the page opposite would be notes which would guide the reader to indicate which delegation had suggested what amendment. Delegations would also be free to submit written proposals for textual amendments.

  1. The Chairman stated that it was not possible to re-open a procedural debate. Progress was being made.

  1. The Delegation of Mexico said that a relevant international instrument which would provide appropriate protection of TCEs and folklore should serve as the basis, at the local level, for each country to try and compensate for identified shortcomings, while there currently existed various protection instruments which were not fully adjusted to the needs of the indigenous communities. It suggested that, as regards guaranteeing regional and international protection, already existing UNESCO and ILO instruments should be considered reference frameworks such as: The Convention Concerning the Protection of the World Cultural and Natural Heritage (UNESCO, Paris, 1972); the Convention for the Safeguarding of the Intangible Cultural Heritage (UNESCO, Paris: 2003); the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (UNESCO, Paris, 2005); ILO Convention 169 on Indigenous and Tribal peoples (1989); and the United Nations Declaration on the Rights of Indigenous Peoples (2007). As regards the possible conflict between the definition of the Berne Convention and the definition of TCEs/expressions of folklore, it stated that in the first instance there might be an overlap, however it could be indicated in Article 1, particularly in paragraphs aa), bb) and cc), that such TCEs or expressions of folklore were identified with, and part of, an indigenous community, and that there was a possibilty that they were identifiable and therefore were subject to protection in the language of the present document. [Note from the Secretariat: the Delegation then made some specific proposals or comments, reflected above.]

  1. The Representative of Tupaj Amaru stated that an instrument should be consistent, and in keeping with international instruments, such as those which were cited and other instruments such as the CBD. It stated that there were four important issues: protected materials, holders’ rights, what was protected and who was to apply such an instrument. It maintained that the Declaration on the Rights of Indigenous Peoples, to which it had devoted 20 years of work should not be ignored and referred to Article 11 of the Declaration.

  1. The Delegation of Egypt said that there was a long history of discussions on the topic of definitions either within the Committee or in other international fora. It mentioned that “cultural identity” was in the Mexico Declaration, and in many projects established and adopted by UNESCO. It said that there were over 180 definitions of culture and hundreds of definitions of folklore. It added that there was a scientific procedure used when there were more than one definition: specialists would meet in order to reach an “operational definition”, that is, a procedural one that is acceptable by all. The Delegation did not agree that there should be a glossary that would lay out definitions, as it was not possible to find one unified comprehensive definition. The Delegation suggested adopting a scientific approach that would look into an operational definition and leave it to the legal experts to formulate the text in a legal manner.

  1. The Chairman stated that the Secretariat would simply draw up a glossary which could be useful for delegations new to the process.

  1. The Delegation of the United States of America said that it had asked some questions which the Committee as a whole had not yet answered. It said that it was not the role of the Secretariat to answer the questions posed by individual delegations, unless it concerned procedure or an area where the Secretariat had unique experience. For example, the answer as to how to define “community” was for the Committee to provide. It said that some of the difficult tasks could be appropriate for the Intersessional Working Groups. The Delegation stated that it wanted to start thinking about an appropriate process for collecting all the questions that still needed to be answered and providing answers to these questions.

  1. The Delegation of Brazil supported the statement made by the Delegation of Mexico and reiterated that discussions about the concepts were not taking place out of context. It said that, WIPO being part of the United Nations system, it was important to consider the concepts upon which consensus had already been reached in other instruments. [Note from the Secretariat: The Delegation then made some specific drafting proposals or comments, reflected above] It said that it was very important to keep the concept “indigenous peoples and traditional and other cultural communities.”

  1. The Delegation of Trinidad and Tobago drew the attention of the Committee to the fact that sub-paragraph (ii), which read “who maintain, use or develop the traditional cultural expressions...”, was discordant with the text used in the United Nations Declaration on the Rights of Indigenous Peoples, Article 31 of which stated “who have the right to maintain, control, protect and develop.” [Note from the Secretariat: The Delegation then made some specific proposals or comments, reflected above]



124. The Committee requested the Secretariat to prepare and distribute, before the end of January 2010, a revised version of working document WIPO/GRTKF/IC/9/4, reflecting the proposed amendments and comments made on and questions posed in relation to this document at this session of the Committee. Amendments, comments and questions of observers should be recorded for consideration by Member States. The Secretariat would invite Committee participants to provide written comments on that revised version before the end of February 2010. The Committee invited the Secretariat then to prepare and distribute a further revised version of the document, reflecting the written comments made, as a working document for the next session of the Committee.

1   2   3   4   5   6   7   8   9   10

Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur © 2016
rəhbərliyinə müraciət