Coralie Zaza – WIPO Monitor

What will be discussed at the upcoming GRTKF meeting?

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore will meet from February 27 to March 3, 2017 for their 33rd session. On the agenda, the discussions will mostly focus on Traditional Cultural Expressions. Under the WIPO IGC, a primary focus of the work of the IGC is to reach a common understanding on core issues, including whether certain Traditional Cultural Expressions (TCEs) are protected.

Photo: WIPO – Emmanuel Berrod.

“Treasures of South Africa” Exhibit Held on Sidelines of 2016 WIPO Assemblies

In anticipation of the meeting, the Permanent Delegation of the European Union in Geneva, on behalf of the European Union and its Member States, submitted a proposal for a compilation study of national experiences and domestic legislation and initiatives in relation to the safeguarding of Traditional Cultural Expressions (TCEs). The study asks to clarify and define the scope and limitations of the current IPR (Intellectual Property Rights) regime, as well as alternative regimes, posing questions such as “how have the policy objectives been defined?”, “how have key definitions such as TCEs/subject matter, “traditional”, misappropriation, scope, duration, exceptions and beneficiaries been defined?”, or “when a tiered approach is included, how have the different levels been defined, and how can they be distinguished from each other?”

Overall, the EU proposal for a study is aiming to:

Set out, in an objective manner, domestic legislation and specific regimes for the safeguarding of TCEs, and provide concrete examples of subject matter covered.
Take into account the variety of measures that can be taken.

In addition to the EU proposal, another document entitled “Traditional Cultural Expressions: A Discussion Paper” was submitted to the agenda by the Delegation of the United States of America. This paper is intended to advance the work of the IGC by identifying examples found in the United States and in different cultures that may be regarded as TCEs. The paper identifies for instance Bikram Yoga as a Ritual TCE, or Tango as a Dance TCE. It also sets out examples for sports, musical instruments, architecture, arts and handicrafts, food, hair styles and body adornments, music and sound TCEs, verbal and written TCEs. This document will be useful as a reference to put the TCEs and their preservation into the current cultural context.

The committee will also review “The Protection of Traditional Cultural Expressions: Draft Articles Rev. 2” (WIPO/GRTKF/IC/33/4), initially drafted during the 27th session of the GRTKF in 2014, and discussed and revised multiple times since inception. This document was also discussed during the last GRTKF meeting in November 2016, when it was reminded by the Chair that the multiples revisions were “to aid in the development of a cleaner, simpler, more streamlined text that captured and reflected common positions on core issues.”

The meeting will be preceded by a half day panel on February 27, chaired by a representative from a local or indigenous community, titled “IGC Draft Articles on the Protection of Traditional Cultural Expressions: Indigenous Peoples’ and Local Communities’ Perspectives”.

Last publication of the Peer-Reviewed WIPO Journal

WIPO had been publishing since 2009 a peer-reviewed journal produced by Sweet and Maxwell (in association with Thomson Reuters), The WIPO Journal: Analysis and Debate of Intellectual Property Issues. The December 2016 issue was the last one as WIPO announced it would cease its publication.

Its editor-in-chief was Peter K. Yu, Professor of Law at Texas A&M University School of Law and Co-Director of the Center for Law and Intellectual Property. Over the year, many law experts and researchers contributed to the journal, discussing topics ranging from history and issues related to IP, to climate change, digital freedom, human rights or patents and technological Innovation. The last publication was a special issue on Intellectual Property and Development. Peter K.Yu introduced the issue by reviewing “Five Decades of Intellectual Property and Global Development”, reminding his readers that “as this special issue enters into production, WIPO is poised to commemorate the tenth anniversary of this Development Agenda” (p.2).

On the same topic, Dr Sara Bannerman, project supervisor of this blog and author of International Copyright and Access to Knowledge (Cambridge UP), wrote the article “Development and International Copyright: A History” (p.11). Drawing on a content analysis of the records of international conferences negotiating international copyright agreements, Dr Bannerman examines the historical relationship between WIPO, international copyright and “development”. She argues that Harry Truman’s agenda for international development introduced in 1949 had a strong influence on the concept of “development” as it has been used and instigated since then, and reviews the history and struggles behind WIPO’s development agenda. Other contributions include an article about IP law in relation to Africa’s development (“Decolonising Intellectual Property Law in Pursuit of Africa’s Development”, Caroline B. Ncube) or the application of the Marrakesh Treaty in Brazil (“Fundamental Rights, Development and Cultural Inclusion: The Marrakesh Treaty in Brazil”, Allan Rocha de Souza). 14 contributors in total have participated to this last issue, unfortunately coming to an end.

The 8 volumes of the WIPO Journal, from 2009 to 2016, are available on WIPO’s website.

Reports and studies from the latest SCCR meeting

Photo: WIPO – Emmanuel Berrod.

As discussed in our previous post, the SCCR meeting held in November in Geneva discussed, among other topics, the limitations and exceptions for libraries and archives. Most notably, WIPO released a Study on Copyright Limitations and Exceptions for Educational Activities prepared by Professor Daniel Seng from National University of Singapore. The extended study reviews 2,048 pieces of copyright legislation from 189 WIPO member states. It was a necessary addition to the other studies commissioned by WIPO mapping different limitations and exceptions in many different countries. As EIFL relates, the study focuses on eight categories of limitations and exceptions that relate to educational activities, forming the basis of an informal chart prepared by the Chair for further discussion on the topics by the committee. The revised chart will provide the basis for future discussion at the next SCCR meeting in May 2017.

Additionally, a preliminary presentation of the scoping study on limitations and exceptions for persons with disabilities, other than print disabilities, and a description of topics was discussed and will further be studied. (Item 22 of the Summary) The complete study is expected to be presented at the next SCCR meeting as well.

Of note, the Committee discussed the Proposal for Analysis of Copyright Related to the Digital Environment submitted in 2015 by the Group of Latin American and Caribbean Countries (GRULAC). Delegates of Chile delivered a powerful statement on behalf of GRULAC, acknowledging the digital work and help of archivists and museologists in Brazil and the U.K. in ensuring gender equity in the UN Charter of 1945.

In this statement, Chile explains that Brazilian scientist and diplomat “Bertha Lutz – with the help of delegates from Uruguay, Mexico, Dominican Republic and Australia – demanded the inclusion of women’s rights in the Charter and the creation of an intergovernmental body for the promotion of gender equality, while the plenipotentiary delegate of the United States and the British delegate opposed.”

The Committee supported the proposals that were made by some delegations to commission a scoping study on the impact of digital developments on the evolution of national legal frameworks over the last ten years. A proposal was made to add the topic to the SCCR agenda as a standing agenda item.

EIFL concludes, on behalf of librarians and archivists everywhere, that “with a busy agenda ahead, we will have to work hard to ensure that limitations and exceptions for libraries, archives and museums get their rightful attention and that we keep moving forward in 2017 for the benefit of libraries everywhere.”

Canada’s Interventions at the IGC 32

WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) 32nd session took place from November 28 to December 2, 2016. A Seminar on Intellectual Property and Traditional Knowledge was held on November 24 and 25, 2016, just prior to the IGC session.

On the agenda for this meeting, Item 6: Traditional knowledge was predominantly discussed. The committee reviewed “The Protection of Traditional Knowledge: Draft Articles” (WIPO/GRTKF/IC/31/4) last revised on March 28, 2014. The Chair introduced the discussion by reminding the committee that “in reviewing the objectives, Member States could reflect on which of the concepts detailed in the Policy Objectives set out in document WIPO/GRTKF/IC/31/4 were most directly related to IP, noting the mandate of the IGC was to “reach an agreement on an international legal instrument(s) relating to IP” for the balanced and effective protection of TK.”

Photo: WIPO – Emmanuel Berrod.

The Delegation of Canada, in response to a speech from the Delegation of Greece expressing the hope that “IGC would develop a common understanding on core issues and advance in a meaningful way”, conveyed their support and agreement, but questioned the concept of national authorities as beneficiaries. Currently, the draft article reviewed designates the Indigenous Peoples, local communities, and nations as beneficiaries of traditional knowledge, potentially offering national authorities power of control over ways in which traditional knowledge is used beyond the traditional and customary context. No formal agreement on the term used in the draft resulted from the meeting, with other delegations such Algeria suggesting to replace “nation” or “national authority” by national bodies or competent bodies. The Delegations of Ghana, Nigeria and Thailand indicated that on the contrary, they were in favor of a definition that would be as inclusive as possible to identify and recognize IPLCs (Indigenous Peoples and Local Communities) and States as beneficiaries.

In another response, the Delegation of Canada expressed their concern over the wording of the draft article, mixing the definition of Traditional Knowledge, the subject matter of the instrument and the scope of protection. They suggested that the IGC “had to come up with one clear, well-drafted statement about what was the subject matter of the instrument.” Their intervention sparked discussion over the definition of key words such as traditional and protection. Further in the meeting, Canada expressed again their request for clarification, asking for instance what the terms “dynamic and evolving” added to the definition in Article 1 of the draft: “The subject matter of [protection]/[this instrument] is traditional knowledge: (e) which may be dynamic and evolving.”

They suggested two options:

(1) a well-drafted definition of TK could be referred to in the article on “Subject Matter”, or

(2) a stand-alone article with the definition of TK that would be covered by the instrument

In response to this debate, the Chair reminded the committee that “the material presented was simply work-in-progress, and it had no status and was not a revision. It was just some ideas and thoughts that the facilitators thought were worthy of presenting and getting initial comments on before working on the first revision.”

The Chair later discussed the introduction of a tiered approach to the scope of protection, “whereby different kinds or levels of rights or measures would be available to rights holders depending on the nature and characteristics of the subject matter, the level of control by the beneficiaries and its degree of diffusion. The tiered approach proposed differentiated protection along a spectrum from TK that was available to the general public to TK that was secret/not known outside of the community and controlled by the beneficiaries. That approach suggested that exclusive economic rights could be appropriate for some forms of TK (for instance, secret TK, and TK uniquely attributable to the specific IPLC), whereas a moral rights-based model could, for example, be appropriate for TK which was disclosed, already publicly available but still attributable to a specific IPLC.”

Canada conveyed their interest in such approach, with some reservation in regards to the practical measures as applied and interpreted by administrative or judiciary bodies of the Member States. They suggested once again the need for clarification, concrete information and agreement from all parties before moving the discussion forward.

As reminded by the facilitators, the discussion and debates recorded during this meeting were not meant to be an official revision of the text. “It was meant to elicit further comments from Member States on the core issues prior to production of a Rev 1. […] The objective was to aid in the development of a cleaner, simpler, more streamlined text that captured and reflected common positions on core issues.”

Core Library Exceptions Checklist to Benefit Global Copyright Law?

EIFL (Electronic Information for Libraries) is a not-for-profit organization that works with libraries to enable access to knowledge in developing and transition economy countries in Africa, Asia Pacific, Europe and Latin America. Their mission is to enable access to knowledge through libraries in developing and transition countries to support sustainable development.

They recently developed a Core Library Exceptions Checklist, freely available on their website through a Creative Commons licence. The EIFL Core Library Exceptions Checklist sets out provisions that every copyright law should have to support modern library activities and services, such as lending, making an electronic copy of a journal article or book chapter for a user, providing library material for use in virtual learning environments, and undertaking digital preservation.

The checklist, in two parts, first featuring library activities and services, the second part dealing with issues affecting the scope and efficacy of the exceptions, is also companied by a scorecard to grade how the law performs for libraries.

In parallel to WIPO’s study on copyright limitations and exceptions for libraries, archives, educational and research institutions, this checklist is a practical tool that will benefit libraries and their users, and will hopefully result in globally improved copyright laws.

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Photo: Emmanuel Berrod – WIPO