Geneva, 30 November – 8 December 2006
Agenda Item 8: Traditional Cultural Expressions/Expressions of Folklore
Re document: WIPO/GRTKF/IC/10/4 (Revised Draft Objectives and Principles on the Protection of Traditional Cultural Expressions/Expressions of Folklore)
of the Indigenous Peoples Council on Biocolonialism (IPCB),
Call of the Earth/Llamado de la Tierra (COE), &
International Indian Treaty Council (IITC)
(4 December 2006)
Our organizations are committed to the protection of the cultural heritage of Indigenous peoples. To that end, we are particularly interested in the IGC’s work to [explore the development of] develop legal measures to prevent the misappropriation and misuse of Indigenous peoples’ cultural heritage and cultural property.
We find it necessary to state that we find the separation of TCEs and TK rather artificial and contrary to the holistic nature of Indigenous peoples’ cultural heritage. Although we note Principle (f) regarding Complementarity with Protection of TK, we remain concerned about the deliberate, separate treatment of TCEs and TK. An expression of culture does not come about without the TK to inspire such creativity. As it has been explained before by Indigenous peoples on many occasions, one cannot simply divide different aspects of cultural heritage into categories or parts and try to individually protect each aspect. In this case, the sum of the parts does not equal the whole. Rather than protect the whole, such a process could jeopardize the whole. Such a process is reductionist and actually threatens rather than safeguards our cultural heritage.
Having said that, we do recognize that the IGC’s work is ongoing and will likely continue with or without our participation. Therefore, we believe it is necessary to make some general observations on specific principles and substantive provisions. At the outset, however, we want to qualify our comments by stating that our provision of comments on the draft does not imply any ascension to the process or document as a whole. To be clear, it is entirely premature for our organizations to indicate a preference for a legally binding instrument based on this draft document.
Until the substantive provisions are entirely illuminated, it would be irresponsible of us to make such a commitment. Furthermore, although we commend the Committee’s efforts to increase participation of Indigenous peoples in this process, we note the Committee’s work to-date has been developed without the broad-based participation of Indigenous peoples. Until this process has much broader participation by Indigenous peoples, it would be inappropriate to endorse any standard-setting or legally binding instrument that would impact on all Indigenous peoples.
Our specific comments on this document are limited to Indigenous peoples’ TCEs, as a specific subset of general TCEs. Indigenous peoples’ TCEs are first and foremost the subject of Indigenous peoples’ customary law and protected by international human rights. As Indigenous peoples, we have both traditional rights under our own legal systems and inherent human rights as collectivities. As a general comment to this process, we do not see specific provisions that recognize our unique legal status nor does the document reflect this reality.
Our concern with the ability of this process to deliver positive, tangible, legal outcomes to Indigenous peoples is particularly highlighted by Guiding Principle (b), the Principle of balance, and the related commentary on page 7 of the Annex, which states, in part, that “protection should reflect the need for an equitable balance between the rights and interests of those that develop, preserve and sustain TCEs/EoF, and of those who use and benefit from them.” Indigenous peoples, as guardians, stewards, originators and owners of their cultural heritage are rights holders of our TCEs. Our rights are inherent and inalienable. Non-indigenous users are not rights holders in our TCEs. They may have an interest in using our TCEs, but they can never become rights holders in the same respect, even with a license given with the free prior informed consent of the Indigenous owners. We are aware that some state interventions in the past have stressed a need to balance our rights with the broader public interest to access and use TCEs. In our opinion, the scales of justice must always tip in favor of the Indigenous peoples as rights holders of our own TCEs.
In a similar respect, we note concern with the practical application of the Principle of Respect for and Consistency with International and Regional Agreements and Instruments. This again seems to imply a balancing act where the playing field is already uneven in favor of users of TCEs, rather than the traditional originators and owners of TCEs. Because some existing international agreements and instruments, particularly in the IP and trade arena, have facilitated and continue to facilitate the misappropriation and misuse of Indigenous TCEs, we must seriously question how this process will be able to achieve consistency with those same agreements and instruments while still delivering truly protective legal measures for the benefit of Indigenous peoples.
Article 1: Subject Matter of Protection
We are concerned that the term “characteristic” in subsection (bb) infers that a judgment must be made to determine whether a certain TCE is “characteristic” of a certain Indigenous peoples. In a national context, this may leave the Indigenous peoples’ right to identify and claim their own TCE vulnerable to a determination of national authority or agency to make such a determination. We believe that if the other two criteria are met, namely (aa) and (cc), the TCE will necessarily be characteristic of the Indigenous peoples concerned because it would have been created by them (i.e, a product other their creative intellectual activity), as well as maintained, used and developed by them. Accordingly (bb) becomes unnecessary and duplicative.
Article 3: Acts of Misappropriation (Scope of Protection)
Article 3 envisions three different categories of TCEs, with varying levels of protection. It is a dangerous exercise to start to categorize different TCEs and assign each a different legal status. Following the proposed categories in this document, only the first category of registered or notified TCEs would require free prior informed consent. We maintain that all use of Indigenous peoples’ TCEs should be subject to the free prior informed consent of the relevant Indigenous peoples.
It is hard for us to imagine a culturally appropriate way to determine when a TCE is or is not of “particular cultural or spiritual value or significance,” except by determination of the Indigenous peoples themselves consistent with their customary law and practices. To initiate such a process of decision-making is like asking a grandparent to designate some grandchildren as special and another as less special. We, therefore, see this process as putting an undue pressure on traditional governance and decision-making systems.
It is further unacceptable to make registration or notification a prerequisite for protection, as referred to in this Article and the corresponding Article 7. Although this provision appears to apply to so-called “public domain” TCEs and not to secret TCEs, it is problematic for those Indigenous peoples who do not recognize the imposition of the “public domain” on the Indigenous domain. In many cases of TCEs of a spiritual nature, such disclosure would be culturally unacceptable. Thus, the proposed process of registration becomes a double-edged sword; On one edge it is necessary for the heightened protection that it needs and deserves; But, on the other side, it requires public disclosure that places the TCE in jeopardy.
Furthermore, with regards to the second class of TCEs labelled here as “other TCEs,” we question why benefit-sharing would only be required “where the use or exploitation is for gainful intent.” Certainly, non-commercial uses generate benefits for the users, so why should such users be exempt from delivering appropriate benefit sharing. Although such benefits may not realistically be monetary, there should be other innovative measures that would adequately share benefits.
Article 4: Management Rights
We share the concerns of others about a government agency acting on behalf of Indigenous peoples. We maintain that such agency action should only occur with the free prior informed consent of the relevant Indigenous peoples. Preferably, measures should be developed to empower the Indigenous peoples to act on their own behalf.
Article 5: Exceptions and Limitations
We are concerned by two of the exceptions listed in section (a)(iii), namely that of “non-commercial research or private study” and “the making of recordings and other reproductions of TCEs/EoF for purposes of their inclusion in an archive or inventory for non-commercial cultural heritage safeguarding purposes.”
Unfortunately, non-commercial research remains one of the typical avenues of misuse of Indigenous peoples TCEs. In the United States, research on Indigenous peoples TCEs often starts in a non-commercial manner, but eventually ends up being misappropriated for commercial purposes. Therefore, the Committee needs to develop provisions that will put a stop to unauthorized non-commercial use.
With regards to the archival exception, we appreciate the information in the commentary by the Secretariat that WIPO is developing contracts and codes of conduct for museums, archives and inventories. Nevertheless, we believe national and international laws are required to regulate many of these entities activities that have proven offensive and inappropriate to many Indigenous peoples. In particular, we would like to see the development of measures to facilitate repatriation of Indigenous peoples’ TCEs that have inappropriately fallen into the custodianship of museums, archives, and inventories.
Article 6: Term of Protection
Based on the inalienable nature of Indigenous peoples’ TCEs, we maintain that the term of protection of TCEs, whether registered or not, must last in perpetuity.
Regarding the term of protection of so-called “secret TCEs/EoF,” proposed here to last “for so long as they remain secret,” the burden is put on Indigenous peoples to keep our TCEs confidential. We need protective measures that will prevent others from publicly disclosing such TCEs, such as the avenues of non-commercial research, photography, sound and video recordings, and other documentation, which are currently unregulated and rampant.
Article 7: Formalities
We reiterate our concerns stated in relation to Article 3 regarding registration.
Article 9: Transitional Measures
We note that this Article attempts to address the issue of “public domain.” Like many of our other Indigenous colleagues have said before, the concept of the public domain has facilitated the misappropriation and misuse of our TCEs. This Article has failed to adequately address this issue in any constructive way. We see this issue as a glaring gap in this document.