Indigenous Peoples and Local Communities (modified) MIT License
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2017, March 3). The Protection of Traditional Cultural Expressions: Draft Articles. Retrieved from http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_34/wipo_grtkf_ic_34_6.pdf
Copyright (c) 2017 Jean-Luc Pierite
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
USE OF TERMS
For the purposes of this instrument
- "Indigenous Peoples and Local Communities" means Tunica-Biloxi Tribe of Louisiana and any other beneficiaries defined in the scope of this instrument.
- "Traditional cultural expression" means any form of [artistic and literary], [other creative, and spiritual,] [creative and literary or artistic] expression, tangible or intangible, or a combination thereof, such as actions, materials, music and sound, verbal and written [and their adaptations], regardless of the form in which it is embodied, expressed or illustrated [which may subsist in written/codified, oral or other forms],that are [created]/[generated], expressed and maintained, in a collective context, by indigenous [peoples] and local communities; that are the unique product of and/or directly linked with and the cultural [and]/[or] social identity and cultural heritage of indigenous [peoples] and local communities; and that are transmitted from generation to generation, whether consecutively or not. Traditional cultural expressions may be dynamic and evolving
- "Use" means:
- where the traditional cultural expression is included in a product:
- the manufacturing, importing, offering for sale, selling, stocking or using the product beyond the traditional context; or
- being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context.
- where the traditional cultural expression is included in a process:
- making use of the process beyond the traditional context; or
- carrying out the acts referred to under sub-clause (a) with respect to a product that is a direct result of the use of the process; or
- the use of traditional cultural expression in research and development leading to profit- making or commercial purposes.
- where the traditional cultural expression is included in a product:
ELIGIBILITY CRITERIA FOR [PROTECTION]/[SAFEGUARDING]/SUBJECT MATTER OF THE INSTRUMENT
- The subject matter of [protection]/[this instrument] is traditional cultural expressions:
- that are [created]/[generated], expressed and maintained, in a collective context, by indigenous [peoples] and local communities;
- that are the unique product of, and directly linked with, the cultural [and]/[or] social identity and cultural heritage of indigenous [peoples] and local communities;
- that are transmitted from generation to generation, whether consecutively or not;
- that have been used for a term as has been determined by each [Member State]/ [Contracting Party] but not less than 50 years/or a period of five generation; and
- that are the result of creative and literary or artistic intellectual activity.
BENEFICIARIES OF [PROTECTION]/[SAFEGUARDING]
- The beneficiaries of this instrument are indigenous peoples, local communities, [and]/[and where there is no notion of indigenous peoples], other beneficiaries as may be determined under national law.
SCOPE OF [PROTECTION]/[SAFEGUARDING]
- Member States should/shall protect the economic and moral rights and interests of beneficiaries in secret and/or sacred traditional cultural expressions as defined in this instrument, as appropriate and in accordance with national law, and where applicable, customary laws and in consultation with the beneficiaries.
- Beneficiaries shall enjoy the exclusive rights of authorizing the use of their traditional cultural expressions to third parties on such terms as may be determined under national laws, and where applicable, customary laws.
- Independently of the economic rights and even after the transfer of those rights, beneficiaries shall, as regards their traditional cultural expressions, have the right to be identified as the owners of those traditional cultural expressions and object to any distortion, mutilation or other modification of their traditional cultural expressions that would be prejudicial to the integrity of their traditional cultural expressions.
ADMINISTRATION OF [RIGHTS]/[INTERESTS]
- [Member States]/[Contracting Parties] may establish or designate a competent authority, in accordance with national law, with the explicit consent of the beneficiaries, to administer the rights/interests provided for by this [instrument].
- [The [identity] of any authority established under Paragraph 1 [should]/[shall] be communicated to the International Bureau of the World Intellectual Property Organization.
EXCEPTIONS AND LIMITATIONS
In complying with this instrument, Member States may adopt exceptions and limitations as may be determined under national legislation including incorporated customary law.
- To the extent that any act would be permitted under national law for works protected by copyright, signs and symbols protected by trademark law, or subject matter otherwise protected by intellectual property law, such acts [shall/should] not be prohibited by the protection of TCEs.
- Regardless of whether such acts are already permitted under paragraph (1), Member States [shall/should] have exceptions for:
- learning teaching and research;
- preservation, display, research, and presentation in archives, libraries, museums or other cultural institutions;
- the creation of literary, artistic, or creative works inspired by, based on, or borrowed from traditional cultural expressions.
TERM OF [PROTECTION]/[SAFEGUARDING]
- [Member States]/[Contracting Parties] may determine the appropriate term of protection/rights of traditional cultural expressions in accordance with [this [instrument]/[[which may] [should]/[shall] last as long as the traditional cultural expressions fulfill/satisfy the [criteria of eligibility for protection] according to this [instrument], and in consultation with beneficiaries.]]
- [Member States]/[Contracting Parties] may determine that the protection granted to traditional cultural expressions against any distortion, mutilation or other modification or infringement thereof, done with the aim of causing harm thereto or to the reputation or image of the beneficiaries or region to which they belong, [should]/[shall] last indefinitely.
- [As a general principle,] [Member States]/[Contracting Parties] [should]/[shall] not subject the protection of traditional cultural expressions to any formality.
SANCTIONS, REMEDIES AND EXERCISE OF [RIGHTS]/[INTERESTS
- [Member States]/[Contracting Parties] [should]/[shall], in accordance with their national law, provide the necessary legal, policy or administrative measures to prevent willful or negligent harm to the economic and moral rights of the beneficiaries, as well as provide accessible, appropriate and adequate enforcement and dispute resolution mechanisms, [border measures], sanctions and remedies, including criminal and civil remedies, to ensure the application of this instrument.
- [Where a dispute arises between beneficiaries, or between beneficiaries and users of traditional cultural expressions, [each party [may]/[shall be entitled to]] the parties may mutually agree to refer the issue to an [independent] alternative dispute resolution mechanism recognized by international, regional or [, if both parties are from the same country, by] national law [, and that is most suited to the holders of traditional cultural expressions].]
- [The means of redress for safeguarding the protection granted by this instrument [should]/[shall] be governed by the national law of the country where the protection is claimed.]
- [[Member States]/[Contracting Parties] [should]/[shall], where a third party has misleadingly or unfairly acquired intellectual property rights over traditional cultural expressions without the prior informed consent of the beneficiaries, provide for the revocation of such intellectual property rights.]
- [[Member States]/[Contracting Parties] [should]/[shall] [not apply sanctions [or provide for remedies]] in cases of incidental use/utilization/inclusion of a [protected] traditional cultural expression in another work or another subject matter, or in cases where the user had no knowledge or reasonable grounds to know that the traditional cultural expression is protected.
- This [instrument] [should]/[shall] apply to all traditional cultural expressions which, at the time of the [instrument] coming into effect/force, fulfill the criteria set out in this [instrument].
- [[Member States]/[Contracting Parties] [should]/[shall] secure the rights acquired by third parties under national law prior to the entry into effect/force of this [instrument]].
- With respect to traditional cultural expressions that have special significance for the beneficiaries and which have been taken outside of the control of such beneficiaries, these beneficiaries [should]/[shall] have the right to recover such traditional cultural expressions.
RELATIONSHIP WITH [OTHER] INTERNATIONAL AGREEMENTS
- [Member States]/[Contracting Parties] [should]/[shall] implement this [instrument] in a manner [mutually supportive] of [other] [existing] international agreements.
- Each [Member State]/[Contracting Party] [should]/[shall] accord to beneficiaries that are nationals of other [Member States]/[Contracting Parties] treatment no less favourable than that it accords to beneficiaries that are its own nationals with regard to the protection provided for under this [instrument].
- In instances where [protected] traditional cultural expressions are located in territories of different [Member States]/[Contracting Parties], those [Member States]/[Contracting Parties] [should]/[shall] co-operate in addressing instances of transboundary [protected] traditional cultural expressions.], with the involvement of indigenous [peoples] and local communities concerned, where applicable, with a view to implementing this [instrument].
CAPACITY BUILDING AND AWARENESS RAISING
- [Member States]/[Contracting Parties] [should]/[shall] cooperate in the capacity building and strengthening of human resources, in particular, those of the beneficiaries, and the development of institutional capacities, to effectively implement the [instrument].
- [Member States]/[Contracting Parties] [should]/[shall] provide the necessary resources for indigenous [peoples] and local communities and join forces with them to develop capacity- building projects within indigenous [peoples] and local communities, focused on the development of appropriate mechanisms and methodologies, such as new electronic and didactical material which are culturally adequate, and have been developed with the full participation and effective participation of indigenous peoples and local communities and their organizations.
- [In this context, [Member States]/[Contracting Parties] [should]/[shall] provide for the full participation of the beneficiaries and other relevant stakeholders, including non-government organizations and the private sector.]
- [Member States]/[Contracting Parties] [should]/[shall] take measures to raise awareness of the [instrument,] and in particular educate users and holders of traditional cultural expressions of their obligations under this instrument.
- Nothing in this instrument may be construed as diminishing or extinguishing the rights that indigenous peoples or local communities have now or may acquire in the future.
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