International Round Table "Intangible Cultural Heritage" - Working Definitions PDF

, " United Nations Educational, Scientific and Cultural Organization International Round Table "Intangible Cultural Heritage" - Working definitions (piedmont, Italy, 14 to 1i March 2001) PRELI~IINARY STUDY INTO THE ADVISABILITf OF DEVELOPING A NE\V' STAL"'\JDARD-SETTING INSTRUl\-IENT FOR THE S.AFEGUARDING OF INT~Al",\;GIBLE CULTUILA..L HERITAGE ('TRADITIONAL CULTURE AL"ID FOLKLORE') bv Janet BLAKE DRAFT VERSION ONLY Preliminary Study into the Advisability of Developing a New Standard- setting Instrument for the Safeguarding of Intangible Cultural Heritage („Traditional Culture and Folklore‟) by Janet Blake Honorary Visiting Research Fellow School of Law University of Glasgow (UK) i CONTENTS Executive Summary iv Abbreviations viii Introduction 1 The cultural rights dimension 5 1. A Question of Terminology and Definition 7 1.1 ‘Folklore’ – terminological difficulties 9 1.2 Defining the subject matter 1.3 Intangible heritage as a ‘universal heritage of humanity’ 12 2. Applying Intellectual Property Rights to Intangible Heritage 13 2.1 IPRs and protection of ‘expressions of folklore’ 13 2.2 Historical background 17 2.3 1982 Model Provisions 19 2.4 Existing international protection of folklore through IPRs 21 2.5 National and regional protection based on IPRs? 26 2.6 A new international instrument? UNESCO-WIPO co-operation and activities 27 3. The 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore 31 3.1 Background to the 1989 Recommendation 31 3.2 Analysis of the 1989 Recommendation 32 3.3 General comments on the 1989 Recommendation 36 3.4 Application of the 1989 Recommendation 37 3.5 The ‘Living Human Treasures’ programme (1993) and the Proclamation of ‘Masterpieces of the Oral and Intangible Heritage of Humanity’ (1998) 43 4. Traditional Knowledge as a Subject of Protection 47 4.1 Traditional knowledge – content and character 47 4.2 Traditional knowledge and IGOs 50 4.3 Public and private domains 51 4.4 Patents and traditional knowledge 52 4.5 The TRIPS Agreement (WTO) 53 4.6 WIPO and genetic resources, traditional knowledge and folklore 55 ii 5. Indigenous Cultural Heritage 59 5.1 Introduction and definitions 59 5.2 Activities of international and other organisations 60 5.3 UN Convention on Biological Diversity (1992) 65 5.4 Specific issues relevant to indigenous heritage 68 6. UNESCO’s 1972 Convention and Recommendation 70 6.1 Revising the 1972 Convention on the World Cultural and Natural Heritage 70 6.2 The Operational Guidelines to the Convention 71 6.3 The 1972 Convention as a model for a new instrument 73 6.4 The 1972 Recommendation 77 7. Conclusions and Recommendations 78 7.1 Objectives of a new instrument 78 7.2 Developing a new standard-setting instrument 80 7.3 Obligations that might be placed on Member States 83 7.4 The choice of type of instrument 85 7.5 Timetable of future action 89 iii Executive Summary The adoption of UNESCO‟s 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore was a major step forward in providing formal recognition of intangible heritage and the need to safeguard it, representing the culmination of many years‟ work. It was also a significant conceptual development in that it was the first time that non-material aspects of cultural heritage were explicitly the subject matter of an international instrument. Identification of the content and scope of intangible heritage is a major challenge facing UNESCO and other bodies concerned with its safeguarding. It is important in this endeavour that the significance of the skill and know-how of tradition-holders, the transmission of information and the social, cultural and intellectual context of its creation and maintenance is recognised. It follows from this that the human context within which intangible heritage is created must be safeguarded as much as its tangible manifestations. Changing geopolitical circumstances, the economic and cultural impacts of globalisation and experience gained during the ten years since the adoption of the 1989 Recommendation called for a reassessment of the 1989 Recommendation and its implementation by Member States. This provided the background to a conference held jointly by UNESCO and the Smithsonian Institution (Washington DC) in 1999 entitled A Global Assessment of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore: Local Empowerment and International Cooperation. At this conference, the significance of the 1989 Recommendation was recognised but weaknesses in its definition, scope and general approaches to safeguarding were also identified. Amongst the recommendations from this conference, was one to governments that they request UNESCO to undertake a study on the feasibility of adopting a new normative instrument for safeguarding traditional culture and folklore. As a result, a Draft Resolution was submitted to the 30th UNESCO General Conference in November 1999 requesting a preliminary study into the question. This study has been undertaken within the context of a growing interest in many quarters in safeguarding intangible heritage. Several intergovernmental organisations – amongst them WIPO, UNEP, WTO, UNCTAD, WHO and FAO - have recently addressed questions relevant to safeguarding aspects of intangible heritage, in particular traditional (often local and indigenous) knowledge. Other parties interested in this question include organisations representing indigenous groups and other tradition-holders, NGO‟s working in such areas as sustainable development and environmental protection and industries that rely on traditional culture and knowledge. This increased interest has been encouraged by various factors and motives, such as a greater importance placed by the international community on demands by indigenous and tribal groups to have their heritage (in a broad sense) valued and protected. The central role that traditional knowledge has to play in preserving biological diversity and promoting sustainable development has also been recognised as has the contribution that traditional, local cultures and folklore have to make to the preservation of global cultural diversity and to cultural pluralism. There is a growing awareness of the need to employ a broader anthropological notion of cultural heritage that encompasses intangibles (such as language, oral traditions and local know-how) associated with monuments and sites and as the social iv and cultural context within which they have been created. This links up with the question of the relationship between culture and development that has become the subject of debate in various international forums. The World Commission on Culture and Development noted in its 1995 report that the notion of culture must be broadened considerably to promote pluralism and social cohesion if it is to be a basis for development. Thus, since the intangible values inherent in cultural heritage have a role to play in development, safeguarding intangible heritage is one way in which UNESCO can fulfil the mandate set out by the Commission. Intangible heritage is important to many States in both social and cultural terms and can contribute significantly to the economies of developing countries. For some States, oral and traditional culture represents the major form of cultural heritage. The contribution that intangible heritage can make to social and economic development in such societies must be understood as an important factor in considering strengthening the safeguarding of this heritage internationally. When considering the potential development of such an instrument, it has been important to review the activities to date in various intergovernmental and other bodies – in particular UNESCO and WIPO – in relation to different aspects of intangible heritage. This has involved a reassessment of the 1989 Recommendation and its level of implementation by Member States that has shown up certain weaknesses in the text and patchy implementation. It has also included an examination of the value of intellectual property approaches for the protection of intangible heritage and an assessment of the contribution of existing international intellectual property treaties to this. The potential of sui generis approaches derived from intellectual property rules to plug gaps in the protection of this heritage has also been looked at and the relevance of other international treaties in areas such as biological diversity and farmers‟ rights has also been examined. Two aspects of intangible heritage that have hitherto been comparatively neglected in UNESCO‟s activities for safeguarding it are traditional and indigenous heritage. Consideration should be given to how UNESCO can address these in future activities, including the development of any future standard-setting instrument. A division of labour gradually developed between UNESCO and WIPO in relation to traditional culture and folklore, whereby UNESCO addressed the overall question of safeguarding this heritage while WIPO dealt with intellectual property aspects of protection. This separation of roles has continued to this day. UNESCO encourages application of the 1989 Recommendation by encouraging the implementation of its measures by Member States in relation to the identification, preservation, conservation and promotion of intangible heritage. The two leading UNESCO activities designed to promote the safeguarding of intangible heritage are the „Living Human Treasures‟ programme established in 1993 and the „Proclamation of Masterpieces of Oral and Intangible Heritage‟ programme set up in 1998 that will soon announce the first elements to be proclaimed „Masterpieces.‟ WIPO is currently considering the intellectual property related aspects of protecting traditional knowledge (of which „expressions of folklore‟ are seen as sub-group) that may lead to the development of an international treaty on the subject. It is therefore important that any future UNESCO work towards developing a new standard-setting instrument for safeguarding intangible heritage should take account of this and other international deliberations (in bodies such as UNEP and UNCTAD) on the intellectual property aspects of the question. UNESCO should concentrate its efforts on providing general protective measures that promote access to existing moral and economic rights for tradition-holders. In general, UNESCO should leave the development of sui generis v protection of intangible heritage based on intellectual property rights to specialist agencies such as WIPO that has a specific mandate in this area. Existing cultural heritage and intellectual property instruments are inadequate to the task of safeguarding a broad enough conception of intangible heritage and a new standard-setting instrument elaborated by UNESCO would represent a major step in plugging this gap in protection. It is also the means by which internationally agreed standards for protection can be developed along with the necessary dynamic for international co-operation in this important area. Amongst the aims and objectives of such an instrument might be revitalisation of the living creative process of traditional culture, protection of the means of transmission (including the tradition-holders themselves), adoption of customary rules and approaches for safeguarding where appropriate, prevention of the unauthorised use and distortion of expressions of intangible heritage and the recording of oral cultural traditions that are in danger of dying out. One of the most challenging aspects of this work would be the drafting of a definition of intangible heritage that is both broad enough in scope and workable. To achieve this, it will be necessary to identify the priority areas for safeguarding and to eliminate potential conflicts of interest. Furthermore, certain safeguards need to be built into a new instrument in order to avoid opposition over issues such as land rights and self-determination of minorities. It should also ensure that safeguarding the practice of traditional culture does not contravene established international human rights standards. Various options regarding the type of instrument that could be developed by UNESCO for the safeguarding of intangible heritage have been put forward. The idea of drafting an Additional Protocol to the 1972 Convention or of revising that text has been considered and discounted by this study since it would prove as difficult to achieve as drafting a new Convention. The elaboration of a new Recommendation (in isolation) to “plug the gaps” of the 1989 Recommendation is an option that is likely to be considered only if it is felt that a new Convention should not be developed. Experience of the 1989 Recommendation, amongst others, suggests that it is an ineffective means of creating State practice compared with a Convention. It is, however, worth considering the drafting of a new Recommendation alongside a Convention in order to stimulate the development of national legislation through positive interaction between the two texts. If the decision to be taken concerns the nature of the Convention to be developed and the type of obligations that it should impose on State Parties, there are three possible options. First, a Convention based on sui generis approaches to protection inspired by intellectual property rules and addressing the specific needs of intangible heritage. Second, a Convention based broadly on the principles and mechanisms of the 1972 Convention and adapted to the needs of intangible heritage and the holder communities. Third, a Convention that employs a mixture of general cultural heritage approaches to protection with the addition of some sui generis measures where particular gaps in protection are perceived. The second model (based on the 1972 Convention) could very usefully be accompanied by a Recommendation that sets out legal and administrative measures to be adopted nationally for safeguarding intangible heritage. Given the current lack of national legislation and other policies for its safeguarding, such an approach is potentially very fruitful. The first type of Convention is unlikely to prove very useful since intellectual property approaches (and hence a sui generis system developed from IP rules) are too limited in their scope. Furthermore, such a Convention would also face fierce resistance from those vi Member States that oppose any adaptation of the traditional intellectual property system that would make its negotiation an extremely lengthy and difficult process. Of the other two models of Convention, the second is one that has many advantages that are identified in this study, although its main weakness is that it would safeguard only a small number of examples of intangible heritage which may not be an appropriate approach. The more general cultural heritage Convention with some additional sui generis measures answers this criticism by aiming to safeguard intangible heritage in a general sense. It would, however, present a much more complex problem in terms of identifying the scope of definition of the subject of protection and the nature of the obligations to be placed on Parties. Any sui generis approaches to be included must be chosen carefully to avoid creating too strong an opposition to the text as a whole. vii ABBREVIATIONS CBD UN Convention on Biological Diversity (1992) COP Conference of the Parties (to the CBD) ECOSOC United Nations Economic and Social Council FAO UN Food and Agricultural Organization GATT General Agreement on Tariffs and Trade (WTO) ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICLQ International and Comparative Law Quarterly ICOM International Council of Museums ICOMOS International Council for Monuments and Sites ILO International Labour Organization Int.J.Cult.Property International Journal of Cultural Property J. Cult Economics Journal of Cultural Economics IUCN International Union for Conservation of Nature and Natural Resources OAS Organization of American States OAU Organization of African Unity TRIPS Trade-Related Aspects of Intellectual Property Rights UN United Nations UNCTAD United Nations Commission for Trade and Development UNEP United Nations Environment Programme UNESCO United Nations Educational, Scientific and Cultural Organization UNGA United Nations General Assembly UNHCHR United Nations High Commission for Human Rights WHO World Health Organization WIPO World Intellectual Property Organization WTO World Trade Organization viii Introduction At a conference held in Washington jointly by UNESCO and the Smithsonian Institution in June 1999,1 Point 12 of the Action Plan was the recommendation to the governments of States that they should consider “the possible submission of a draft resolution to the UNESCO General Conference requesting UNESCO to undertake a study on the feasibility of adopting a new normative instrument on the safeguarding of traditional culture and folklore.” The Czech Republic, Lithuania, and Bolivia (supported by Bulgaria, Ivory Coast, Slovakia and Ukraine) submitted a Draft Resolution to the 30th General Conference of UNESCO2 in November 1999 requesting that a preliminary study be made into the question of developing a new standard-setting instrument for the safeguarding of intangible cultural heritage. This preliminary study is based upon that Resolution and addresses the following questions. - The need for a very clear understanding of the concept that is to be regulated by a standard-setting instrument and the type of protection to be considered. - The scope of definition to be crafted and the legal mechanisms to be employed (the two are interrelated issues). - The field of heritage to be protected and the delimitation/definition of the domain (expressions of folklore, traditional knowledge, artistic expressions, etc.). - The difficulty inherent in revising or adding a Protocol to the 1972 Convention for the Protection of the World Cultural and Natural Heritage. - The type of protection to be adopted e.g. intellectual property rights, customary laws, a sui generis system, general cultural heritage protection or a combination of these. - The relevance of existing international instruments – of UNESCO and other bodies – to the protection of intangible cultural heritage. - The wider legal implications of any measures to be included in such an instrument. - The relevance of work of other intergovernmental bodies such as WIPO, WTO, UNEP, UNCTAD, ECOSOC, FAO, etc., to safeguarding intangible cultural heritage. - The likely interaction between national legislation and such an international instrument. - The way in which other programme activities of UNESCO (across all Sectors) can inform the process of developing a new instrument. - What kind of obligations is it desirable to place on States in relation to the protection of intangible cultural heritage? - The different levels of obligation of a Recommendation and a Convention. - The value of the process of negotiating a new legal instrument in itself. The following proposals have been put forward in relation to the question of developing a new standard-setting instrument for safeguarding intangible cultural heritage and will be taken into account in this study. - Development of a new international Convention that employs a particular approach to answer the specific needs of intangible cultural heritage for protection. 1 A Global Assessment of the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore: Local Empowerment and International Cooperation, 27-30 June 1999, Washington DC. 2 UNESCO Doc.30 C/DR.84. 1 - Revision of the 1972 World Heritage Convention (to be governed by the terms of Article 37 of the existing Convention text) and/or development of an Additional Protocol to the 1972 World Heritage Convention. - Development of a new international Convention for the safeguarding/protection of intangible cultural heritage that takes as its model UNESCO‟s 1972 Convention for the Protection of the World‟s Cultural and Natural Heritage. - Development of a new Recommendation that takes into account recent developments in understanding the nature of intangible cultural heritage and the legal and/or administrative measures that can be taken to safeguard it. One of the principles underlying UNESCO‟s activities since 1949 has been the preservation of cultural diversity while setting international standards3 and this philosophy will be key to any moves towards developing a new standard-setting instrument related to intangible cultural heritage. Recognition of „intangible cultural heritage‟ as an element to be preserved is one the most recent (and significant) developments in international cultural heritage law alongside the related notion of cultural rights as human rights.4 Identifying its character has been a major challenge with the need to understand the significance of the skill of the producer, the transmission of information and the social, cultural and intellectual context of its creation and maintenance. From this it follows from this that the human (social and economic) context of the production of intangible heritage requires safeguarding as much as the tangible product and should be considered in evaluating existing or future protective measures. Recognition of intangible heritage - traditional cultural heritage and folklore - as a subject for international protection has coincided with the enormous impact of economic and cultural globalisation on society throughout the world. These effects have mostly been perceived as a threat to the continued existence and practice of this heritage in its traditional forms,5 although the potential of the new technologies that have driven cultural globalisation to aid in its preservation and dissemination have also been recognised.6 Much has been written on the effects of globalisation,7 and it is useful to note here the aspects of globalisation that are of relevance to traditional culture and folklore. 3 Prott, L.V. “International standards for cultural heritage,” in UNESCO World Culture Report (Unesco Publishing, Paris, 1998) 222 at 222. 4 See: Niec, H (ed.) Cultural Rights and Wrongs (UNESCO Publishing, Paris, 1998). 5 The Guidelines for the UNESCO programme „Living Human Treasures‟ cited n.426 : “Unfortunately a number of its manifestations. have already disappeared or are in danger of doing so. The main reason is that local intangible cultural heritage is rapidly being replaced by a standardized international culture, fostered not only by socio-economic “modernization” but also by the tremendous progress of information and transport techniques.” 6 Vinson, I. “Heritage and cyberculture,” in UNESCO op.cit. n.3 at 243 notes that “[t]he broad and integrating anthropological conception of the heritage which has emerged in recent decades should be accentuated by the properties of networks.. which favour the integration of related fields such as performing arts, crafts, oral traditions, into the cultural heritage.” 7See, for example: Featherstone, M. (ed.) Global Culture: Nationalism, Globalization and Modernity (Sage, London, 1990); and Friedman, J. Cultural Identity and Global Process (Sage, London, 1995). 2 - Globalisation affects almost all areas of cultural manifestation, including traditional cultural expressions. - It threatens the continued practice of traditional culture by turning youth away from it towards a unified „global‟ culture.8 - It can also be exploited to disseminate traditional cultures to a wider (even global audience) and even aid in developing new styles. - It forces us to redefine the role of States in the cultural arena as well as the relationship of private individuals and independent organisations to government. - It highlights the „universalist‟ role of an international standard-setting instrument as a means of countering the effects of economic and cultural globalisation.9 - While globalisation may reduce the role of States by bypassing borders in many areas of economic and cultural activity, it also increases the importance of local expressions of identity in response to global pressures.10 The final point may prove significant when „selling‟ a policy of valuing and safeguarding folklore to States by providing a new means for States to legitimise their role in cultural terms.11 In the face of the challenge of globalism, States could be seen to foster a sense of local cultural identity within the State framework. Of course, some indigenous peoples and cultural minorities seek to challenge the State by asserting their self- determination, but generally accepting and increasing the profile of local cultural traditions is more positive for the State than not. Given that international instruments are negotiated by States, this assessment of their role is significant in the context of this study. In 1982, the World Conference on Cultural Policies put forward a definition of “culture”12 that made clear the centrality of intangible heritage. It is generally accepted that there is a need to expand our perception of cultural heritage to take account of a broader anthropological conception of culture that would involve, for example, taking account of the socio-cultural and economic contexts of monuments and sites. The religious significance of sites to local inhabitants and the importance of the language used to describe them and the 8 Perez de Cuellar, J (ed.) Our Creative Diversity (UNESCO Publishing, Paris, 1995) at 164: “It is therefore essential to stress that children are the carriers of cultural traditions which link them to past generations and which they must incessantly reinterpret and adapt to their own needs, forging the basis for future cultural innovations.” For this reason, education systems must retain traditions such as traditional games, cooking and oral literature. 9 Commentators have identified an apparent contradiction between the universalist nature of the standard- setting instruments of UNESCO and the importance of respecting cultural diversity. See: Lowenthal, D. The Heritage Crusade and the Spoils of History (Viking, UK, 1997) and Prott op.cit. n.3. However, the Action Plan on Cultural Policies for Development from the Intergovernmental Conference on Cultural Policies for Development, Stockholm (30 March-2 April 1998) notes “the need to take account of universal values while recognizing cultural diversity” (Preamble point 4) and that “[c]ultural diversity, being a treasure of humankind, is an essential factor of development.” (Point 6 under “Principles”). 10 Perez de Cuellar op.cit. n.8 at 28: “People turn to culture as a means of self-definition and mobilization and assert their local cultural values [in the face of globalisation]. For the poorest among them, their own values are often the only thing they can assert. Traditional values, it is claimed, bring identity, continuity and meaning to their lives.” 11 Much as the monumental cultural and archaeological heritage have traditionally been employed by States to foster a sense of national cultural identity that legitimises the State itself. 12 Mexico City, 6 Aug. 1982. “In its widest sense, culture may now be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only arts and letters, but also modes of life … value systems, traditions and beliefs.” 3 oral traditions that relate to them are also included in this. Language in general is one of the most important cultural attributes of any society and an important subject for preservation policies, linguistic diversity representing a precious asset to humanity as the storehouse of much traditional knowledge. This also links with a growing sense of the importance of the cultural dimension in development and the concomitant assertion and enhancement of cultural identities, preservation of cultural diversity and pluralism and encouragement of creativity that are essential to it. Moves to develop international protection of intangible cultural heritage are in keeping with these developmental aspirations. In economic terms, it is useful to understand the notions of „cultural value‟ and „cultural capital‟ with the latter seen as the stock of cultural value embodied in an asset that may be tangible or intangible.13 Intangible cultural capital comprises the set of ideas, practices, beliefs, traditions and values that create a group‟s cultural identity and that give rise to a flow of services that may contribute to producing future cultural goods create both its cultural and economic value. As the World Commission on Culture and Development noted in its 1995 report,14 when culture is viewed as a basis for development it requires a considerable broadening of the notion of culture in a way that promotes cultural pluralism and social cohesion. In its International Agenda (Point 2.5), the Commission further calls on UNESCO, along with UNDP and other agencies, to assist countries formulate human development strategies that preserve and enrich their cultural values and ethnic heritage. The intangible values inherent in cultural heritage thus have a role to play in development and one way that UNESCO can fulfil the Commission‟s mandate is to safeguard intangible cultural heritage. The work of the Creativity Sector of UNESCO with handicrafts – a material expression of traditional cultural heritage – and the economic and social development of the communities that create and maintain them is also relevant here.15 Handicrafts are viewed as both traditional and contemporary in keeping with the view that traditional culture and folklore form a living culture and evolve even though based on traditional forms and know-how. In dealing with handicrafts, it is important to employ a dynamic approach of adaptation rather than conservation. This reflects the ability of many tradition-holder communities to combine tradition with modernity and their realisation that this is necessary to maintaining their identity and improving their social and economic circumstances.16 In this study, both traditional knowledge17 and indigenous heritage are treated in some detail as elements within the broader category of intangible heritage. This reflects the level of interest at international level over the last two decades in seeking means of protection for traditional knowledge, often local and indigenous knowledge. It is important in a survey of this kind to take account of the work of other IGO‟s, NGO‟s and other parties in area relevant to the subject of the study. However, this does not necessarily mean that a new standard-setting instrument of UNESCO must address all aspects of protecting traditional and indigenous knowledge but rather needs to identify those that are appropriate for it to treat. In reaching such a decision, both the mandate of UNESCO and a consideration 13 Throsby, D “Cultural capital,” 23 J.of Cult.Economics (1999) 3 at p.7. 14 Cited n.8. 15 Ibid at 191: “It has been estimated that handicrafts represent almost a quarter of the micro-enterprises in the developing world, getting money directly into the hands of producers, and providing the means of empowerment to millions of people, many of them women, particularly in rural areas.” 16 Ibid at 82 – the example of the Michoacan people of Mexico is given who have achieved relative prosperity through reorganisation of their craft traditions, enabling them to spend more time on revitalising ancient rituals. 17 This includes traditional medicinal, agricultural, ecological and botanical knowledge amongst its forms. 4 of the activities of other IGO‟s – particularly those related to legal instruments – will be significant factors. As this study makes clear, much of the work that UNESCO can usefully carry out in relation to indigenous heritage and traditional knowledge fall within its operational rather than its norm-creating activities. The cultural rights dimension The issue of cultural rights is of relevance to the issue of the protection of intangible heritage and related cultural and intellectual property. The United Nations Charter makes clear its mandate to solve international problems related to economic, social and cultural and to promote human rights through international cooperation.18 This has a bearing on the promotion of the cultural rights of communities whose intangible heritage is under threat through various forms of international cooperation. In discussing cultural rights, Stavenhagen19 suggests three ways of viewing culture and the cultural rights that accompany them. The first view of culture as „capital‟ – the accumulated material heritage of humankind or of particular human groups in its entirety – would lead to the rights of equal access to this cultural wealth and to development. The second, that it is a process of artistic and scientific creation leads to the rights of individuals freely to create cultural works and to enjoy freedom of access to them. The third view of culture as a total way of life20 – a more „anthropological‟ perspective – is the one most appropriate to this study since it emphasises the intangible aspects of a group‟s culture such as values, symbols and practices. He argues that this view of culture leads to seeing cultural rights as culture-specific with every cultural group having the right to maintain and develop their own specific culture, a right to cultural identity.21 This raises difficult policy issues for governments since, by talking about cultural rights, one is also talking about the rights of groups to maintain their own distinct cultural identities and develop their cultures even when they are different from those of the cultural majority. A further assertion of cultural rights is as the „right to a culture‟ that comprises the right to maintain, develop, preserve or have access to a culture and could be expressed through the assertion of the right to restitution of a cultural or spiritual property.22 Both this articulation of a right to a culture and the assertion of the right to cultural identity are highly relevant to the safeguarding of intangible heritage essential to the continuing social and cultural identity of the group that creates and maintains it. Since cultural traditions are often what provide humans with a sense of identity that can be central to their self-respect, cultural rights should lead to priority to access to and in education in these cultural traditions. The right to take part in a cultural life that is asserted in the Universal Declaration of Human Rights(1948)23 and the International Covenant on Economic, Social and Cultural Rights 18 Article 1(3): “To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion;” 19 Stavenhagen, R. “Cultural rights: a social science perspective,” in Niec op.cit. n.4 at pp. 4-5. 20 Ibid at p.5: “It takes culture to mean the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups. Thus understood, culture can be seen as a coherent self-contained system of values and symbols as well as a set of practices that a specific cultural group reproduces over time…” 21 Prott, L.V. “Cultural rights as peoples‟ rights,” in Crawford, J. The Rights of Peoples (Clarendon Press, Oxford, 1988) 93 at p.97 notes the problematic character of the concept of cultural identity - it is difficult to define a „people‟ without making reference to some form of cultural criteria while it is hard to reach a concept of culture that does not rely on the idea of a „people‟ or „group‟ save for some kind of „universal‟ culture. 22 Prott, L.V. “Understanding one another on cultural rights,” in Niec op.cit. n.4 at p.165. 23 Art 27: “1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” 5 (1966)24 can be understood as articulating the need for cultural communities to be supported in creating and maintaining their cultural traditions. Interestingly, both of these texts continue with an assertion of the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which s/he is the author. This, of course, has a bearing on the question of applying intellectual property rules to the protection of intangible heritage. The character of cultural rights is collective since they are predominantly the rights of peoples, groups or communities. The cultural rights of indigenous peoples, for example, can only be expressed in terms of collective or group rights since much indigenous knowledge and culture is collectively held by whole communities or groups within them. This can prove problematic since it runs counter to human rights in international law that are traditionally articulated as the rights of individuals. It also involves identifying the groups that are the holders of these rights and leads to discussion of „minorities‟, „peoples‟ and other cultural groups that are not sufficiently well defined in international law. The Preliminary Draft Declaration of Cultural Rights (1995)25 is interesting to consider in this context in its assertion of rights such as the right for respect of one‟s cultural identity as an individual or as part of a group, the right for recognition of one‟s culture as a contribution to the common heritage of mankind, knowledge of the cultural heritages on which one bases one‟s identity and access to knowledge of different cultures that, in their diversity, constitute the common heritage of mankind.26 Similar rights are set out in the Algiers Declaration (1976)27 including the right of minority peoples to respect for their identity, traditions, languages and cultural heritage. The relevance of Article 27 of the ICCPR (1966) has already been discussed above in relation to the cultural integrity of indigenous peoples. The right to cultural identity and other cultural rights are closely associated with questions of development and to the controversial notion of the right to development. Cultural development has included, in some cases, the revival of older cultural traditions that may actually have died out and local economic development is often associated with the growth of crafts industries in response to tourism. The exploitation of local traditional knowledge in agriculture and forestry, for example, can be crucial to husbanding the natural resources on which a community relies for its survival. In this way, intangible aspects of cultural heritage can play an important role in economic and social as well as cultural terms for a given society. The Action Plan from the Stockholm Conference (1998)28 makes this point clear when recommending to Member States to promote cultural and linguistic diversity as well as local cultures and languages and encourage cultural diversity and traditions as part of their development strategy. 24 Art.15: “States Parties to the present Convention recognize the right of eveeryone: (a) To take part in cultural life…” 25 Document of a meeting of experts held in Fribourg, 23-25 March 1995 organised by UNESCO, Council of Europe, Fribourg University Institute for Interdisciplinary Ethical and Human Rights Studies and the Swiss National Commission for UNESCO. “Culture” applies to “the values, beliefs, languages, arts and sciences, traditions, institutions and ways of life by means of which individuals or groups express themselves and develop,” (Art.1(a)) and “cultural identity” applies “to all those elements of culture through which individuals or groups define and express themselves and by which they wish to be recognised” (Art.1(b)). A “cultural community is [defined as] a group of persons who, sharing the same cultural references, recognise themselves as having a common identity which they wish to preserve and develop. 26 Arts.4,5 & 9. 27 Universal Declaration of the Rights of Peoples (Algiers, 1976) – not a formal text of any intergovernmental organisation but the declaration of a group of lawyers and academics. 28 Action Plan from the International Conference on Cultural Policies for Development, Stockholm, 1998. 6 1. A Question of Terminology and Definition 1.1 ‘Folklore’ – terminological difficulties In the context of this study on needs to ask whether the terminology “traditional culture and folklore” employed in the 1989 Recommendation is the one that should be used in developing a new normative instrument. At the Washington conference in 1999,29 a commonly voiced criticism of the Recommendation was the inappropriateness of the use of the term „folklore‟ to describe the range of cultural heritage for safeguarding. Indigenous peoples regard it as a term that demeans their traditional cultural heritage and does not accurately describe it.30 The whole area of terminology in relation to this aspect of cultural heritage is a potential minefield and requires serious study in order to avoid falling into pitfalls that lead to unwelcome outcomes. There is, however, a degree of experience in this area as a result of the negotiation of the 1989 Recommendation and the development of related programmes that now places UNESCO in a position to grapple with this difficult question. The terminological difficulties stem even from the term “culture” itself although this has not prevented the development of a body of international law that deals with cultural heritage and cultural rights, for example. The candidates for terms to be used to identify this area of heritage include: „traditional‟, „popular,‟ „living,‟ „oral‟ and „intangible‟ (culture) that can be used in various combinations. A further terminology found in the literature is „cultural and intellectual property‟. The terms have the following positive and negative connotations to be taken account of: „Popular‟ – Favoured in some Latin American countries, this term has the advantage of underlining that the culture in question is not an elite, „high culture.‟31 It tends to suggest a contemporary, urban culture and thus would exclude both ancient and rural forms of culture. „Traditional‟ – This is a central notion in relation to the culture in question, although it can tend to suggest a static culture that does not evolve and has no dynamism, presupposing an attachment to an unchanging past. It must, therefore, be qualified in such a way as to include the idea of a living and evolving cultural tradition. „Living‟ – This cannot, of course, be a sufficient characteristic to identify this heritage. It is, however, an element that is important to stress since much is still living and practised within the cultural communities that create and maintain it and it is a central aim of safeguarding to ensure its continued existence. It also serves to counter assumptions that traditional heritage is, by definition, a „dead‟ heritage. „Oral‟ – Much of the culture in question is subject to an oral form of expression and transmission and so this is also a central concept to be applied. It is not, however, inclusive of all traditional cultural forms and so should be used together with other terms that, in conjunction, create an inclusive notion. 29 Cited n.1. 30 Tora, S “A Pacific perspective,” paper presented to the Washington conference cited n.1: “The terminology „folklore‟ which is true for many of our indigenous cultures is not an acceptable term. Our culture is not „folklore‟ but our sacred norms intertwined with our traditional way of life and where these norms set the legal, moral and cultural values of our traditional societies. They are our cultural identity.” 31 For example, the court dances of Vietnam. 7 „Intangible‟- This has become the term of art for UNESCO in relation to this area of cultural heritage,32 however it is problematic and must be seriously examined before it is used as the preferred terminology in any new instrument. This question is looked at in detail below. „Cultural and intellectual property‟ – it is clear that this term is designed to make a connection between the subject of protection and the economic issues surrounding its control and exploitation (and, by extension, the adaptation of intellectual property rights for its protection). As a result, it is not to be recommended in a text that does not attempt to create a sui generis form of protection inspired by IPRs. The term „property‟ has its own substantial problems when applied to any aspect of cultural heritage.33 „Intangible cultural heritage‟: The phrase “oral and intangible heritage” is employed in the 1998 UNESCO programme „Masterpieces of the Oral and Intangible Heritage.‟ This represents the most recent UNESCO activity in the area of safeguarding folklore and is explicitly related to the 1989 Recommendation in the document presenting the programme.34 This terminological shift reflects changes in attitude towards the nature of cultural heritage that have occurred since the late 1980's.35 Previously, all existing UNESCO instruments and programmes related clearly to the protection and preservation of the material (or „tangible‟) heritage, even if the „intangible‟ elements may also have been implicitly recognised.36 In this way, a new dichotomy between the „tangible‟ (material) and „intangible‟ elements of cultural heritage has developed that superficially appears attractive. For example, the legal and administrative measures traditionally taken to protect material elements of cultural heritage are not necessarily those needed for safeguarding a heritage whose most significant elements relate to particular systems of knowledge, values and the social/cultural context in which it is created. It is, however, a false category in the sense that all material elements of cultural heritage have important intangible values associated with them that are the reason for their protection. Furthermore, it is a distinction that is unacceptable to many indigenous and local cultures that are the holders of the cultural traditions that fall into this category of „intangible heritage‟ since it does not reflect their holistic view of culture and heritage.37 It also reflects a Eurocentric view of cultural heritage that has traditionally valued monuments and sites over 32 The section that deals with its programmes being the “Intangible Heritage Unit.” 33 See: Prott, L.V. & O‟Keefe, P. J. “‟Cultural heritage‟ or „cultural property‟?” 1(2) Int.J.Cult.Property (1992) 307. 34 UNESCO Doc.155 EX/15, Paris 25 Aug.1998. This programme is aimed at selecting „cultural spaces‟ (in the anthropological sense) and traditional or folkloric forms of cultural expression to be proclaimed „Masterpieces.‟ 35 See: Prott op.cit. n.3. 36 As early as 1956, the Recommendation on International Principles Applicable to Archaeological Excavations (New Delhi, 5 Dec. 1956) noted in the Preamble “the feelings aroused by the contemplation and study of works of the past,” a recognition of the intangible element of the cultural heritage enshrined in its meaning to people(s) beyond the object, monument or site itself. 37 Tora op.cit. n.18: “To the Pacific, the distinction between tangible and intangible cultural heritage is not highlighted. They are considered as one, their cultural heritage.” 8 the intangible values associated with them.38 Furthermore, the alliance of „oral‟ with „intangible‟ itself appears odd since oral heritage is, by definition, intangible. Given that „intangible‟ is an extremely difficult concept to grasp and suggests a subject matter for protection that defies identifying legal measures for this, it is probably better avoided. A further drawback as a terminology is that it fails to encompass the significance of the social role of this heritage. Reference to its oral and traditional character, on the other hand, is sufficient to make clear that it includes these intangible elements. There was a proposal to include intangible heritage within the categories of protected heritage of the 1972 Convention that, although not eventually adopted, illustrates that this is a neglected aspect of cultural heritage.39 In view of the objections voiced to the use of the term „folklore,‟ there are strong arguments against the retention of the terminology „traditional culture and folklore‟ used in the Recommendation. It is possible to formulate some other phraseology that employs the terms „traditional‟, „oral,‟ „popular‟ and/or „living‟ in some formulation to describe this cultural heritage. Those elements not incorporated into the actual terminology used can, of course, be brought out in the definition(s) given in the text. It is a central issue in the development of a new standard-setting instrument and one that deserves debate, especially since experts from different disciplines and backgrounds will have strong arguments in support of their favoured terminology. Although the terminology used can be greatly affected by the way in which it is defined for the purposes of the text, it remains a crucial question. A poor choice of terminology can confuse those interpreting the text and may give a false impression of its subject matter and even its aims. A phrase worth considering is „oral and traditional cultural heritage‟ since it encapsulates two fundamental aspects of this heritage while placing it within the wider body of cultural heritage law. For the purposes of this study, however, I have generally used „intangible heritage‟ since that is the current term of art. 1.2 Defining the subject matter The definition given for „folklore‟ in the 1989 Recommendation is the only attempt so far to define this area of heritage for a formal legal text in the cultural heritage field.40 It is thus an important starting-point for considering the question of how to define the subject matter of any future instrument. The definition is as follows. “Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its social and cultural identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.” This definition contains useful elements but suffers from a narrowness of focus does not provide a sufficiently broad definition to encompass all the aspects of „traditional culture and folklore‟ that need safeguarding. The positive aspects of this definition that deserve noting include its reference to the “totality of tradition-based creations of a cultural 38 It is Asian States, for example, that historically have protected intangible as well as tangible aspects of their cultural heritage such as Republic of Korea, Philippines and Japan. 39 Convention for the Protection of the World Cultural and Natural Heritage (16 Nov.1972). The 1972 Convention is discussed in Section 6. 40 UNESCO‟s Tunis Model Law on Copyright for Developing Countries (1976) provides an extensive definition of „folklore‟ in Art.18 and gives a definition in Art.2 (dealing with types of national legislation) that includes both tangible and intangible elements. 9 community”. This expresses two fundamental characteristics of folklore, namely that it comes out of traditional culture and that it is related to a specific cultural community. It is useful to note at this point that the notion of „traditional‟ used in this sense does not exclude the possibility that a culture and its expressions may change and evolve over time. Concentration on the importance of folklore to the social and cultural identity of the individual or group that creates it is useful although this is clumsily expressed in its current form.41 Third, inclusion of a reference to the method of transmission (“orally, by imitation or by other means”) underlines the importance of the human element in intangible heritage. However, it fails to express the centrality of the individual, group or community to the creation and maintenance of traditional culture. It does not refer to the social, cultural and intellectual context of its creation - including the values and know-how of the community involved – but only to the folklore product itself. It also fails to include the spontaneous act of creation that is as important as the product itself. Furthermore, it makes no specific reference to indigenous heritage, its reference to traditional knowledge is too limited and it does not relate to sufficient interest groups.42 It should be considered whether the model of listing possible forms that it can take at the end of the definition43 is the most appropriate strategy. This inevitably concentrates on those aspects that can be easily reduced to a category while leaving out other very important elements of intangible heritage. Such listing of elements within a definition that is also of a more general nature has precedents in international cultural heritage instruments.44 In the case of intangible heritage, however, it should be considered whether a definition that limits itself to the general character of its subject matter and avoids such listing is preferable. This approach would serve to guide the text towards measures that will address the needs of each aspect of heritage mentioned in terms of general principles of protection.45 When crafting the definitions for central terms in any international instrument, one needs to bear in mind both the legal implications of the definition and the need for an operational definition that will be easily applicable. Some commentators have regarded intangible heritage as an area too vast to define effectively for the purposes of an international instrument46 and one that risks involving a range of legal approaches and mechanisms that are too broad to be acceptable in a single text. It is an area that encompasses both the cultural domain (in its „artistic‟ sense) and the scientific domain (traditional scientific knowledge).47 41 It reads: “. expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity;” [Section A]. 42Who can include local cultural communities, NGOs, private sector craft industries, farmers etc. 43 “Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.” [Section A] 44 For example, UNESCO‟s Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970) gives a general definition of „cultural property‟ followed by a very detailed list of categories of such property. (Art.1). 45 The 1985 meeting of Committee of Experts suggested three possible types of definition for „folklore‟: by criteria (e.g. “based on tradition”); by listing (a non-exhaustive list of representative genres); and a “drafted” definition that “endeavours to put forward the most elegant possible formulation, but does not attempt to be exhaustive,” combining factors such as content, function and significance. See: Gruzinski op.cit. n.85 at 10. 46 Denhez op.cit. n.199 at 8: “Defining non-physical heritage is as complex as any search for universal definition of human character and culture.” 47 Folklore itself can be broadened beyond the concept of „traditional culture‟ through distinguishing two types of folklore, artistic and scientific. See:Doc.UNESCO/PRS/CLT/TPC/11/3 of 30 Nov.1994 at p.12 para.41. 10 As the range of relevant topics, legal mechanisms and international instruments considered in this study bears out, it is certainly a vast area of great complexity that requires very careful definition. It is also clear that one has to find a balance when defining the subject of protection in such a way that it is sufficiently narrow in scope to avoid too broad a set of legal mechanisms without ignoring important aspects of this heritage. This is a challenging but not impossible task and one that the global significance of this heritage and its importance to the cultural communities merits attempting. The long and difficult process of negotiating the 1989 Recommendation48 has resulted in a definition that is by no means perfect but that provides a basis from which to work. Subsequent activities related to the 1989 Recommendation as well as experience in other intergovernmental bodies have all led to a much more precise understanding of the nature of intangible heritage and will greatly inform such an endeavour. In terms of UNESCO work, the „Masterpieces‟ programme will be particularly important in identifying the elements of this heritage that Member States regard as worthy of protection. It is possible from this study to begin to list the general characteristics of „intangible heritage‟ that a definition should refer to as follows. - The spontaneous act of its creation. - The social, cultural and intellectual contexts in which it is created.49 - That access and use is often governed by customary rules. - The methods of transmission, particularly oral. - That it is transmitted from generation to generation. - That it is an evolving, living culture. - That it is frequently collectively held.50 - That it reflects the values and beliefs of a group or society. - Its importance to creation of identity. - Its contribution to cultural diversity. - Its spiritual and cultural significance. The forms that this heritage can take are innumerable and include: traditional scientific, medicinal and ecological knowledge; techniques and know-how; symbols and designs; rituals and ceremonies; music, dance and songs; names, stories and poetry; values and belief-systems; language; and culinary traditions. Although the main subject matter of a future instrument will, of course, be intangible heritage, the material expressions of that heritage and the physical spaces associated with it are also to be included in the scope of definition. 1.3 Intangible heritage as a ‘universal heritage of humanity’ 48 It took 16 years in total to reach a final draft. 49 McCann, A.et al The 1989 Recommendation Today: a Brief Analysis [Doc.UNESCO-SI Conf.99/INF 13] at 6 refers to a shift of emphasis amongst academic folklorists from individual items of folklore to “a more inclusive one based on the event of creation or recreation as a social act. The current academic definition of folklore is based on that act, on the knowledge and values that enable it, and on the modes of social exchange in which it is embedded.” 50 This encompasses not only the idea of a heritage belonging to a given group but, for example, also to a system whereby one or more member(s) of a tribe may retain an item of that heritage without the authority to alienate or otherwise dispose of it. 11 The 1989 Recommendation characterises traditional culture and folklore in the Preamble as part of the „universal heritage of humanity‟ in a manner similar to that of the 1972 Convention.51 The „Masterpieces‟ programme that is a central plank of UNESCO‟s activities in this area also relies on such a characterisation of „oral and intangible heritage‟ as the justification for its inclusion in the list. There appears to be a conceptual difficulty in valuing intangible heritage as a „universal heritage‟ in view of its role in the construction of identity of a specific people or group in opposition to other identities.52 Indeed, there is an unresolved contradiction in international law between the „universal‟ approach to protection and one that recognises the special interest of a State, people or group to a particular element of the cultural heritage.53 Writing in 1998,54 Lyndel Prott noted the difficulties associated with the notion of a „world cultural heritage‟ and the need for further study to develop and elucidate the concept.55 The problem becomes more acute when applied to intangible heritage since it deals with the very aspects of heritage around which this tension between the particular and universal heritage revolves. Prott also pointed out, however, that globalist concepts of the cultural heritage have now been adopted into legal discourse and UNESCO‟s universalist task in developing standards is in parallel with such developments as well as the globalisation of the economy. It is therefore in keeping with such precedent that any instrument for safeguarding intangible heritage should employ this notion of universality. However, it is advisable that the notion of a „universal interest‟ in protecting this heritage be stressed in order to avoid the potentially damaging implications of the term „common heritage of mankind‟ as used in its wider sense in international law.56 What is vital is that the potential contradictions of that position are taken into account and it is advisable to make reference to intangible heritage as a „universal heritage of humanity‟ in the Preamble as a justification for protection but to avoid its use within the definition itself. In this way the specific value that this heritage has for the community is safeguarded while the need for its international protection on the grounds of preserving cultural diversity is underlined. There are also practical arguments taking great care when characterising intangible heritage as a universal heritage. There is the danger that this may be used to justify actions in relation to that heritage – such as the exploitation of 51 “ Considering that folklore forms part of the universal heritage of humanity and that it is a powerful means of bringing together different peoples and social groups and of asserting their cultural identity.” [Preamble] 52See: Crawford, J. The Rights of Peoples (Clarendon Press, Oxford, 1988); and Graves-Brown, P. et al Cultural Identity and Archaeology (Routledge, London, 1996). 53See Lowenthal, D. The Heritage Crusade and the Spoils of History (Viking, London, 1997) at 227: “Too much is asked of heritage. In the same breath, we commend national patrimony, regional and ethnic legacies and a global heritage shared and sheltered in common. We forget that these aims are usually incompatible.” The debate over the „Elgin Marbles‟ typifies this problem of an element of „universal heritage‟ that also has strong resonance for a specific cultural identity. 54 Prott op.cit. n.3 pp.227-228. 55 Ibid at p.228: “The precise legal implications of terms such as „the common cultural heritage,‟ „world cultural heritage‟ and similar phrases are not yet clear, although their use in legal instruments makes it imperative to explore the subject.” 56In this sense, it relates to the economic exploitation of common space areas such as the deep seabed and the moon. For further on the implications of this for cultural heritage, see: Blake, J “On defining the cultural heritage,” 49 ICLQ (2000) 61 at pp.69-71. 12 traditional knowledge without the authorisation of its holders57 – which are deleterious to it. Indigenous and local communities are suspicious of such claims as a further appropriation or „colonisation‟ of their heritage58 and it is extremely important that UNESCO does not risk appearing to espouse such an approach to their heritage. Such arguments do not rule out the use of the universal heritage notion altogether but rather caution great care in so doing. Indeed, it is potentially valuable to highlight the incentive for Member States to protect this heritage by emphasising their universal interest in doing so. The local and global can be seen as two sides to a coin whereby pressures from globalisation of culture and the economy push people to seek refuge in a local cultural identity. Taking a universalist approach may therefore be necessary to protect this heritage in the face of global cultural and economic forces that threaten it or where the State itself fails to value and safeguard it.59 The fact that folklore and traditional culture may often be universal in its appeal and accessibility (in a way that much „high culture‟ or „outstanding‟ sites and monuments are not) and in its ability to speak across cultural borders is a further argument in favour of calling it a „universal heritage.‟ 2. Applying Intellectual Property Rights to Intangible Heritage 2.1 IPRs and the protection of ‘expressions of folklore’ Intellectual property rules are essentially individualistic and express a set of values that place a high premium on the concepts of authorship and innovation, viewed as Eurocentric and alien to the value-systems of many indigenous and local societies.60 They are also based on the economic imperative to encourage creativity and innovation through the protection of economic rights. This can clearly be a highly beneficial aspect of such laws when applied to the appropriate subject and in the appropriate social and cultural context. Alikhan,61 for example, points out the potential importance of such laws in encouraging economic development. However, as shall be seen below, the premises on which IPRs have been developed are contradictory to the needs of much intangible heritage and the communities that have created and maintain it. Some of the main issues of concern in the protection of such heritage include: the reproduction of traditional crafts in overseas factories, thus damaging the cultural 57 A point made clear in both the Suva Declaration cited n.77 and the Mataatua Declaration cited n.335. 58 Roht-Arriaza, N. “Of seeds and shamans: the appropriation of scientific and technical knowledge of indigenous and local communities,” in Ziff, B. & Rao, P. (eds.) Borrowed Power: Essays on Cultural Appropriation (1997) at 929-930: “[F]ruits of indigenous and local knowledge are tagged „common heritage of humanity‟ rather than the evolving product of defined living communities” with the accompanying danger that it is then placed in the public domain and at risk of being freely exploited without consent, compensation or attribution. 59 This effect has always been one of the stronger arguments for taking a universalist approach to protection. 60 For example, the Statement of the Bellagio Conference on Cultural Agency/Cultural Authority, Bellagio (1993) („Bellagio Declaration‟) which sees contemporary intellectual property law as constructed around “a notion of the author as an individual, solitary and original creator” for whom protection is reserved. 61 Alikhan, S “Role of copyright in the cultural and economic development of developing countries: the Asian experience,” XXX (4) Copyright Bulletin (1996) 3 at p. 5: “The principal objective in the protection of intellectual property is to encourage creative activity, and to provide to the largest number of people the benefits of such an activity. An important priority in the development process is to encourage national and indigenous creation of works … Such encouragement requires not only the recognition of creators, but also providing them with a means of obtaining a reward for their creative endeavours.” 13 and economic interests of the tradition-holders and their communities; the question of collective as opposed to individual ownership of the heritage (and associated collective rights); the protection of the economic interests of the producer communities; and respect for the sacred and secret nature of certain aspects of this heritage, particularly that of indigenous peoples. Copyright law is the form of intellectual property protection most widely applied to folklore. However, it has certain characteristics that render it an inappropriate form of protection.62 These include the following: “Artistic and literary works” – these are the subject of copyright rules and it is an inappropriate category for much intangible heritage with copyright protection extending only to forms and not to ideas. What this points to is that the nature of this heritage renders it very difficult to protect through copyright mechanisms since much of it relates to aspects of knowledge, ways of doing etc Originality – it is essential under copyright law to show that the work in question was original. This is an inappropriate requirement to apply to the majority of folklore and traditional culture which, by its very nature, has been developed over generations on the basis of traditional knowledge and practices. Furthermore, there exists the problem of derivative works or transformations of works. Individual author – it must also be shown that the work is that of an identifiable individual author. This is problematic for intangible heritage where an individual author is often difficult to identify and which is often of a collective character. Although it may be possible to identify an individual author in the case of some expressions of intangible heritage, this remains in contradiction with the basic character of such heritage. It also raises the issue of authorisation processes that will be more complicated to deal with when the rights are collectively held. Furthermore, it fails to address the protection of the underlying values, know-how and traditions of which these are expressions. Fixation – it is a fundamental principle of copyright that ideas and themes are not protected but only the form itself. Thus it is a fundamental requirement that the heritage in question be reduced to material form or „fixed.‟ Clearly, this renders copyright protection an inappropriate mechanism for oral traditions that exist only in the collective and individual memories of the cultural community such as music, dance, songs, poetry, stories, technical know-how, rituals etc. Duration of protection – copyright protection usually extends for a period between twenty- five and fifty years after the death of the author, after which period the protected form is then part of the public domain. Given the great religious, social and cultural significance for the cultural community of much folklore and traditional culture,63 it is essential that whatever protection is extended to such heritage is granted in perpetuity in order to prevent it from 62 Ficsor, M. “1967, 1982 and 1984: attempts to provide international protection for folklore by intellectual property rights,” in report of the UNESCO-WIPO World Forum on the Protection of Folklore (‘Phuket Report’), Phuket, Thailand, 8-10 April, 1997 (UNESCO-WIPO, 1998) 213 at 216: “It seems that copyright law is not the right means for protecting expressions of folklore.” 63 This is particularly true of indigenous heritage. 14 lapsing into the public domain after a period of time.64 Since this heritage may be of ancient origins and passed down through generations, no fixed period of protection will be sufficient. Exclusivity of rights granted – the rights granted under copyright law are exclusive to the identified author. The concept of exclusivity of rights over traditional cultural heritage is one that is frequently incompatible with the customs of the community within which it originates. This is particularly true of indigenous and tribal peoples whose custom involves group or community ownership of traditional art forms and cultural practices. This, as Daes points out,65 is theirs to share with other peoples if and when they wish. Ownership – Customary law often does not include any distinct right of ownership that is equivalent to the „Western‟ legal concept of property upon which copyright rules are predicated. The „ownership‟ of Aboriginal heritage, for example, is governed by a complex system of obligations and artists operate within this system and according to strict traditional rules. The form of control over this heritage by the cultural community is frequently viewed as akin to custodianship, and the cultural expression in question is not a commodity or property but rather representative of the values and interrelations affecting the community.66 Fair use exception – this allows for parody or pastiche where such re-interpretation is viewed as fair dealing under copyright rules. Thus, a sacred symbol could be used as the “inspiration” for a new work of art without the need for authorisation. This is obviously desirable in encouraging and fostering creativity in a general sense, but is inimical to the needs of many communities whose traditional cultural heritage is employed in this way and, indeed, to the heritage itself. It has been suggested that industrial design laws (see below) could be extended to deal with this failing in the copyright legislation. Denhez67 suggests that it might be easier to refer to the use of traditional materials (such as a particular clay or reed only found in a certain geographical location) allied with style as a form of protection against such pastiche. This is not to deny that there are aspects of copyright law as well as other intellectual property rules that offer some limited protection to various elements of intangible heritage. These can certainly be of value, but the protection they offer is patchy and does not add up to the comprehensive system that would be needed as the basis of any new international instrument. An important protection afforded by the copyright system is enshrined in: Moral rights – these are the non-economic rights enshrined in copyright law and comprise the rights to attribution of source and integrity as covered by the Berne Convention and the 1982 Model Provisions (both discussed below). These comprise the right to preserve integrity of the work, the right to withdraw or divulge it and the right to be acknowledged as the author of the work These seem to answer concerns relating to the desire for the source (community 64 Ficsor op.cit. n.62 points out that the legislation of Congo, Ghana and Sri Lanka for the protection of folklore explicitly state that protection is in perpetuity. 65 Daes, E-I Protection of the Heritage of Indigenous People (UN New York & Geneva, 1997) at paras.24 & 25. 66 Daes ibid at para.26: “Indeed, indigenous peoples do not view their heritage in terms of property at all – that is, something which has an owner and is used for the purpose of extracting economic benefits – but in terms of community and individual responsibility … For indigenous peoples, heritage is a bundle of relationships, rather than a bundle of economic rights.” 67 Denhez, M. “Follow-up to the 1989 Recommendation on the Safeguarding of Traditional Culture and Folklore,” in Phuket Report cited n.62 at 195. 15 and/or geographical place) of a traditional form to be correctly attributed when it is exploited and for the integrity of that form (in keeping with its origins) to be respected and protected. The rights known as industrial property rights can also offer some limited protection to aspects of intangible heritage and their advantageous elements should be taken account of in addressing the protection of intangible heritage. Trademarks68 – these can be of use in terms of ensuring correct attribution, prevention of distortion and compensation and have the advantage of not being of limited duration. However, they are only applicable in relation to the commercial exploitation of intangible heritage and thus do not address the important area of the problem of commodification of such heritage against the wishes of the cultural community of origin. Trademark law is mainly useful in cases where there is a potential confusion in the consumer over the source of goods and services or there is false attribution of the goods in question. It would not, for example, address the problem of significant distortion of the cultural expression that is a major problem with the commercial exploitation of intangible heritage. Industrial design protection – traditional symbols and artistic motifs as well as clan and tribal names would be eligible for such protection. However, its duration is limited (often only 15 years) and may be inadequate for the protection of designs of particular spiritual or cultural significance where it is more important to protect the integrity of the design rather than its commercial value. Appellations of origin69 – indications of geographical origin can be employed to verify the authenticity of a product (as with fine wines) and could be employed to protect the typical products of a particular indigenous, local or other cultural communities. Patent protection – much consideration has been given to the use of patents for the protection of traditional (often indigenous) knowledge in areas such as medicinal plants, agricultural methods and genetic resources.70 There are, however, certain requirements for the issuing of patents that limit their usefulness for the protection of traditional knowledge: patents apply only where „novelty‟ and an „inventive step‟ can be shown which is difficult with knowledge transferred from one generation to another71 - the concept of the „inventor‟ is alien in terms of such knowledge; rights are granted to individuals or corporations and not to cultures or peoples; and patents are of limited duration with the patented knowledge entering the public domain on their expiry. An important proposal in relation to the patenting of traditional and indigenous knowledge is the requirement for proof that prior informed consent has been obtained where a patent application that uses such knowledge is concerned.72 68 The main international treaty governing trademarks and industrial designs is the Paris Convention for the protection of Industrial Property (1883) with several revisions including at Stockholm (1967) and amended in 1979 (Paris Union). 69 The main international treaty governing appellations of origin is the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958) revised at Stockholm (1967) and amended in 1979 (Lisbon Union). 70 This discussed further in Section 4 on Traditional Knowledge. 71 The patent granted in the US for laboratory-acquired derivatives of the Neem seed that has been used for centuries in India as a natural pesticide (but not eligible for patenting as such) is an example of this. 72 See, for example, discussion on traditional knowledge and the Convention on Biological Diversity in Section 5. 16 Trade secrets – in industry as well as among indigenous and local communities there is the difficulty of protecting „know-how‟ and trade secrets and this is achieved through secrecy and the protection of such information. It is open to indigenous and local peoples to keep part of their traditional knowledge secret unless divulged on the basis of licensing arrangements that provide for confidentiality, appropriate use and economic compensation for the community of origin. Trade secrets can only be protected in this way if they have the potential for commercialisation and so, again, this would not protect the knowledge and information that a community does not wish to be known for spiritual or cultural reasons. For these reasons, thinking has tended towards consideration of the type of proposals – based largely on concepts employed in IP protection – that can be developed as the basis of a sui generis form of protection for traditional culture and folklore. Elements that have been suggested for such sui generis national legislation and/or international protection include. - The recognition of traditional forms of ownership through a contractual or legislative arrangement that delegates an officially recognised body the right to determine who should be the „author‟ (in copyright terms) and granted the right to exercise control over and derive economic benefit from a traditional cultural form. - A prohibition placed on non-traditional uses of secret sacred material and on debasing, destructive or mutilating uses. - Economic compensation paid to traditional owners of folklore for any commercial exploitation, including punitive damages for unauthorised exploitation. - The obligation for respect of attribution of source and other moral rights relating to traditional cultural heritage such as the prevention of distortion. - A requirement for informed prior consent in patent applications relating to the exploitation of traditional knowledge. 2.2 Historical background The earliest form of protection afforded to intangible heritage both internationally and nationally levels was through the use of copyright mechanisms. Much of the impetus for seeking to protect it through copyright laws, other intellectual property rights (IPRs) or modified versions of these (in some form of sui generis regime) has been in response to the negative impacts of commercialisation. Commercialisation per se need not be a negative influence where it is in keeping with the wishes of and to the benefit of the cultural group concerned. However, it is often perceived as ignoring the interests of the relevant cultural community and as distorting the cultural expression in question.73 The spectacular development of new technologies and the related new means of exploiting and disseminating folklore along with other artistic works have made such abuses more widespread in recent years. Folklore is a living and functioning tradition in many developing countries that plays an important role in their economy and may be their major form of cultural heritage. In industrialised countries, on the other hand, folklore is generally viewed as belonging in the public domain and so there is resistance in such States to the idea of extending the protection beyond that already afforded by classical IPRs. 73 As Ficsor op.cit n.62 states at 215: “Folklore is commercialized without due respect for the cultural and economic interests of the communities in which it originates. And, in order to adapt it better to the needs of the market, it is often distorted or mutilated. At the same time, no share returns from its exploitation to the communities who have developed and maintained it.” 17 At the Diplomatic Conference of Stockholm in 1967 for the revision of the Berne Convention for the Protection of Literary and Artistic Works, the first specific attempt was made to provide for the international protection of expressions of folklore through the use of copyright law. It was decided that the conceptual and definitional difficulties relating to folklore as a subject for protection made it impossible to elaborate a new Convention at that time. As a result, a new article was added to the Berne Convention (Article 15 4(a) of the Stockholm and Paris Acts of 1967 and 1971) providing some guidelines for the protection of folklore.74 This article does not make specific reference to folklore, despite the remit to the Working Group to find a suitable place for a provision dealing with folklore in the Convention.75 At this time, various States adopted national legislation based on copyright mechanisms to protect expressions of folklore.76 In 1976, UNESCO adopted the Tunis Model Law on Copyright for Developing Countries, with a specific article dedicated to the protection of national folklore (Article 6).77 In 1977, the Convention concerning African Intellectual Property (Bangui text) was adopted by the African Intellectual Property Organization. This text, revised in 1991, dedicates part of its Annex VII to the protection of folklore: (i) through copyright, and (ii) through the protection and promotion of cultural heritage. It treats “creations of folklore” as a separate category from the artistic and literary works traditionally protected by copyright and, interestingly, makes reference to its creation by communities rather than a single author. In 1973, the Government of Bolivia requested that UNESCO examine the question of drafting a Protocol be added to the Universal Copyright Convention (adopted in 1952; amended in 1971) for the protection of the popular arts and cultural patrimony of all nations. This request was passed on to the Cultural Sector of UNESCO in 1975 for further study of all aspects related to the protection of folklore on the grounds that it was a question of much broader scope than simply a copyright issue.78 In 1979, UNESCO and the World Intellectual Property Organisation (WIPO) formally agreed to conduct a joint study on both the cultural aspects of safeguarding folklore and the application of copyright and intellectual property law to its protection. A joint Working Group was convened in 1980 to consider draft model (national) legislation for protecting „expressions of folklore‟ as well as international measures. It was felt that the legal protection of folklore could be promoted at national level by a model law that should allow also for protection through existing copyright mechanisms and neighbouring rights and should pave the way for sub-regional, regional and international protection of expressions of folklore. 74 This will be discussed later in relation to the Berne Convention in general. 75 Commentary to the Model Provisions at p.5: “It is only the legislative history of the provision that indicates that folklore was (also) intended to be covered.” 76 These included: Papua New Guinea and Tunisia in 1967; Bolivia in 1968; Chile and Morocco in 1970, Algeria and Senegal in 1973, Kenya in 1975. 77 Section 1(2)(ix) also protects “works of applied art, whether handicrafts or produced on an industrial scale” under copyright rules; the inclusion of this provision reflects the importance of handicrafts to many developing States. 78 A Committee of Experts on the Legal protection of Folklore was set up by the Director-General in 1977 to conduct a complete examination of all the issues related to the protection of folklore. The Executive Committee of the Berne Union and the Intergovernmental Committee of the Universal Copyright Convention took the view in 1977 that: “ … the problem [of protection of folklore] has many aspects … All these aspects are interdependent and call for a global study on the protection of folklore which is being dealt with on an interdisciplinary basis within the framework of an overall and integrated approach by Unesco. Nevertheless, special efforts should be made to find solutions to the problem of the intellectual property aspects of the legal protection of folklore…” cited in Commentary at pp.6-7. 18 In 1978, UNESCO and WIPO formally agreed an approach to the international protection of folklore whereby UNESCO would examine the question of its safeguarding on an interdisciplinary basis 79 while WIPO would concentrate on the intellectual property (IP) aspects of protection.80 This distinction between the intellectual property aspects of folklore protection and the wider issues of protection led to the eventual development of the 1982 Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit and Other Prejudicial Actions, adopted by both UNESCO and WIPO, and UNESCO‟s 1989 Recommendation. The former provided for IP-type protection of expressions of folklore while the latter addressed the safeguarding of “traditional Culture and folklore” from an interdisciplinary stand-point.81 A joint UNESCO/WIPO Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions was drafted in 1984 but was never adopted as a formal text by either organisation. This draft Convention would have created an obligation on States to protect folklore and this was rejected by the industrialised States on the basis of: philosophical objections to protecting a communal heritage; the low importance for them of folklore; and the problem of protecting internationally a heritage that may be common to several States. The strategy of UNESCO since 1984 in this area has been to encourage states to develop national legislation to protect folklore. Few countries, however, have so far adopted national legislation on the basis of the 1982 Model Provisions. 2.3 1982 Model Provisions The title given to the Model Provisions82 reflects the fact that they are designed to provide intellectual property-type protection to expressions of folklore and were never intended to provide more general protection of this heritage. Thus they face the objection that they address only a part of the problem of safeguarding folklore by concentrating on the use of IPRs as a tool for protection. They provide for a sui generis system of protection that is based on the following three principles:83 that its subject matter is the commonly held heritage of a community; reciprocity between national legislation and international law; and that the economic uses of such heritage can be protected by law while its social uses cannot. Folklore is seen as part of social identity and thus the aim of its protection is to safeguard it against loss, prejudicial distortion, illicit appropriation and illegitimate exploitation. Traditional artistic expressions are viewed as a common heritage of humanity and thus free for appropriate social use and protection is thus instituted against harmful distortions, misrepresentation or the falsification of origin. Such a protection regime is thus designed to monitor exploitation carried out for economic purposes and to generate income that can be 79 Possibility of Establishing an International Instrument for Protection of Folklore [Doc.B/EC/IX/11- IGC/XR.1.15][(1975) prepared by UNESCO stated at 7: “the problem [of protecting folklore] was of a cultural nature and, as such, went beyond the bounds of copyright” and thus concerned issues such as identification, conservation and preservation. An Expert Committee on the Legal protection of Folklore that met in Tunis in 1977 concluded also that the question required interdisciplinary examination under the sole auspices of UNESCO. 80 Two Committees of Governmental Experts were established by General Conference at its 21 st Session (1980): one to define measures for safeguarding the existence, development and authenticity of folklore (under the sole auspices of UNESCO); and the other to draw up proposals for regulating the IP aspects of protection (under joint UNESCO/WIPO control). 81 Addressing issues of definition, identification, preservation, conservation, promotion and protection. 82 Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit and Other Prejudicial Actions (1982). 83 Interview with Mr Salah Abada, Chief, Copyright Division of UNESCO. 19 used in the safeguarding of folklore.84 The Preamble notes that the dissemination of expressions of folklore can lead to the improper exploitation of a nation‟s cultural heritage and that any abuse (commercial or otherwise) or distortion of folklore harms the cultural and economic interests of the nation. One difficulty in adapting IPRs to the protection of folklore lies in the definitions used for the subject of protection. In this text „expressions of folklore‟ are defined as „productions‟ comprising characteristic elements of the traditional artistic heritage, implying their authenticity as well as the community‟s recognition of them as such. No attempt is made in the Model Provisions to define „folklore‟ itself. This also signals their difference from „works‟ (that are the subject of copyright protection) but limits them to the artistic heritage, only one aspect of intangible heritage. They do not, for example, cover traditional knowledge, practical know-how, spiritual or ritual elements of culture etc. The “expressions” are divided into verbal expressions, expressions through musical sounds, expressions through actions and those that are incorporated into a tangible object. Only the final category needs to be reduced to a physical form. The community-based aspect of expressions of folklore is emphasised, as that which is created by a community or adopted by one and developed and maintained by it through generations. It is irrelevant whether it has been developed collectively or by an individual author – a clear departure from copyright rules – as long as it reflects the traditional artistic expectations of the community. Expressions of folklore are to be protected against “illicit exploitation and other prejudicial actions.” Illicit exploitation is characterised as any utilisation in violation of those that are subject to authorisation when made with gainful intent and outside the traditional or customary context (such as the publication and reproduction of copies; and the public recitation of a performance).85 The Model Provisions would not therefore prevent indigenous and local groups from using their traditional cultural heritage in traditional and customary ways and developing it through continuous evolution. The Commentary86 to the Model Provisions makes clear that a system of prior authorisation was considered preferable to one relying on checks on the utilisation of expressions of folklore. Certain exceptions, such as their use for educational purposes, are allowed in Section 4. Section 5 sets out the requirement to acknowledge the source in publications and other communications to the public of identifiable expressions of folklore by citing the community and/or geographic place from which it originated. Section 6 deals with the offences of: non-compliance with the requirement to acknowledge source; unauthorised utilisation; deception (or “passing off”); and distortion. Violation of the first and commission of the last two actions constitute the “other prejudicial actions” referred to in the title. The available sanctions are set out in Sections 7 (“Seizure and Other Actions”) and 8 (“Civil Remedies”); Section 9 provides for the designation of the “competent authority” for authorisation of utilisation and Section 10 sets out the procedure to be followed. It is possible under Section 9 that the competent authority designated should be the community itself, acting in the capacity of the owner of the expressions of folklore87 to be authorised and 84 Views of Mr Abada reported in, “UNESCO/WIPO Regional Consulations on the Protection of traditional and Popular Culture (Folklore),?

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