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PROTECTION OF
INTANGIBLE HERITAGE
Prof. Dr. Delia Mucica
November 2008
REGIONAL MASTER STUDIES IN CULTURAL POLICY AND MANAGEMENT
(INTERCULTURAL ISM AND MEDIATION IN THE BALKANS)UNIVERSITY OF ARTS BELGRADE
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What domains?
It is manifested inter alia in the following domains:
oral traditions and expressions, including
language as a vehicle of the intangible culturalheritage;
performing arts;
social practices, rituals and festive events; knowledge and practices concerning nature and
the universe;
traditional craftsmanship.
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Intangible Heritages: A tentative list
Threatened
languages
Oral history
Traditional Religionand Ritual
Sacred Images and
ThemesNon-sacred
Designs, Art is t ic
Themes and
Handicraft
Tradit ional crafts
Ski l ls related to
immovable cul tural
heri tage (vernaculararchitecture)
Tradit ional Mus ic
Tradit ional DanceTradit ional Cuisine
Tradit ional medical
knowledge
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Some elements concerning
Intangible Cultural Heritage
intangible cultural heritage is seen as a mainspring ofcultural diversity and a guarantee of sustainable
development interdependence between the intangible cultural
heritage and the tangible cultural and natural heritage
threats of deterioration, disappearance and destruction
of the intangible cultural heritage communities, groups and, in some cases, individuals,
play an important role in the production, safeguarding,maintenance and re-creation of the intangible culturalheritage
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International approaches - UNESCO
1982UNESCO sets up the Committee of Experts on theSafeguarding of Folklore; Section for the Non-Physical Heritageestablished
1989The Recommendation on the Safeguarding of TraditionalCulture and Folklore is adopted by the General Conference
1994UNESCO launches the Living Human Treasures programme,following a proposal by the Republic of Korea
1997/1998UNESCO launches the Proclamation of Masterpieces ofthe Oral and Intangible Heritage of Humanity
2001The First Proclamation of 19 Masterpieces of the Oral andIntangible Heritage of Humanity takes place in May.
2003The 32nd session of the General Conference adopts theConvention for the Safeguarding of the Intangible CulturalHeritagein October.
2003 In November, the Second Proclamation inscribes 28 newMasterpieces
2005The Proclamation of 43 Masterpieces brings the total to 90
2006The Convention enters into force on April 20
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Council of Europe Instruments
Resolution of the Committee of Ministers
(1998) 4 on the cultural routes of the
Council of Europe Framework Convention on the Value of
Cultural Heritage for Society , Faro, 2005
(promotes the use of materials, techniques andskills based on tradition, and explore their
potential for contemporary applications)
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EU approach
2007 The European Commission launched
the second phase of the pilot project
"European Destinations of Excellence".
The new theme of excellence is "tourism
and local intangible heritage".
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Hot Issues
To whom does a nations cultural
heritage and TCE/TK belong?
Which policies best serve a dynamic
creative and multicultural life?
Where lies the line betweenborrowing from TK as legi t imate inspirat ion
and
borrowing as inapprop r iate copying?
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How to Protect Intangible Heritage?
No definitive answer
No uniform protection possible
A solutioncombination of Industrial Property Law (trademarks,
certification of origin, geographical indications,etc.)
Copyright Law (for creative expressions)
Sui generis systems
WIPO - Work in Progress
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Characteristics of TCE/TK to be
taken into consideration Anonymous & collective author
Collective author
Variations in expression
Diversity of subject matter
Diversity of uses and modes of exploitation
Diversity of protection objectives
collective, communal and inter-generationalcharacter
constantly evolving character
no firmly bounded identifiable communities
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Characteristics of TCE/TK to be taken
into consideration (contd)
Spiritual and practical elements of TCE/TK are
intertwined and inseparable
TCE/TK is a response to environment and thus
it is in constant evolution and incrementally
improving
TCE/TK covers different fields: areas of culturalexpressions and technical domains
TCE/TK has no apparent formal and systematic
nature
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IP Protection of TCE/TK
To safeguard against third party claims of IP rights overTCE/TK subject matter
To protect TCE/TK subject matter against unauthorizeddisclosure or use
To protect distinctive TCE/TK -related commercial
products To prevent culturally offensive or inappropriate use of
TCE/TK material To license and control the use of TCE/TK -related
cultural expressions To license aspects of TCE/TK for use in third party
commercial products
DEFENSIVE AND
POSITIVE PROTECTION
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IP Protection of TCE/TK (contd)
What positive rights are intended?
What acts by third parties are to be
constrained?
Is it linked with other policy objectives, such as:
Active protection of cultural heritage
Suppression of unfair commercial practices etc.
Diversity of objectives for
TCE/TK Protection
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Elements of a TCE/TK sui generisSystem of
Protection
What is the policy objective of the protection?(the right to excludeothers from reproducing, fixing, using)
What is the subject matter?( open-ended, illustrative list as in BerneConvention or a general concept to be interpreted as in ParisConvention)
What criteria should be met in order to grant protection?
(commercial novelty or technical novelty or public domain payant orlink to a given community etc)
Who owns the rights? ( collective originator and therefore TK rightsshould be vested in communities; how to define them?)
What are the rights?(combination of copyright, related rights andindustrial property rights, depending )
How are the rights acquired?(no formalities or formal examination-documentation, legal representation etc.- or substantive examination TK inventories or databases..)
How to administer and enforce the rights?(IP system applicable ina subsidiary and mutatis mutandismanner, or distinct mechanisms ofcollective and reciprocal systems of administration)
How are the rights lost or how do they expire?(indefinite period orpredetermined period, linked to first act of commercial exploitation)
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WIPO work - Draft Provisions on Traditional
Cultural Expressions/Folklore and Traditional
Knowledge
The work of the IntergovernmentalCommittee (IGC) has led to the
development of two sets of draftprovisions:
for the protection of traditional cultural
expressions/folklore(TCEs) and for the protection of traditional knowledge
(TK) against misappropriation and misuse
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Objectives of TCE protection
Recognize value
Promote respect
Meet the actual needs of communities
Prevent the misappropriation of TCE
Empower communities Support customary practices and community cooperation
Contribute to safeguarding traditional cultures
Encourage community innovation and creativity
Promote intellectual and artistic freedom, research and cultural
exchange on equitable terms Contribute to cultural diversity
Promote community development and legitimate trading activities
Preclude unauthorized IP rights
Enhance certainty, transparency and mutual confidence
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What is TCE?
Any forms, whether tangible and intangible, in which traditional culture andknowledge are expressed, appear or are manifested, and comprise the followingforms of expressions or combinations thereof:
(i) verbal expressions, such as: stories, epics, legends, poetry, riddles and othernarratives; words, signs, names, and symbols;
(ii) musical expressions, such as songs and instrumental music;
(iii) expressions by action, such as dances, plays, ceremonies, rituals and other
performances,whether or not reduced to a material form; and,
(iv) tangible expressions, such as productions of art, in particular, drawings,designs, paintings (including body-painting), carvings, sculptures, pottery,terracotta, mosaic, woodwork, metalware, jewellery, baskets, needlework,textiles, glassware, carpets, costumes; handicrafts; musical instruments; andarchitectural forms;
which are:
the products of creative intellectual activity, including individual and communalcreativity;
characteristic of a communitys cultural and social identity and culturalheritage; and
maintained, used or developed by such community, or by individuals having
the right or responsibility to do so in accordance with the customary law andpractices of that community.
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Proposed protection of TCE
Agency acting at the request, and on behalf, of thecommunity, which registers TCEs, grants authorisations,collects monetary or non-monetary benefits and is alsotasked with awareness-raising, education, advice andguidance functions
Term of protection -as long as the TCEs continue to meetthe criteria for protection and/or for so long as they remainregistered or notified
Beneficiaries: those communities in whom the custody,
care and safeguarding of the TCEs/EoF are entrusted inaccordance with their customary law and practices; andwho maintain, use or develop the respective TCEs asbeing characteristic of their cultural and social identity andcultural heritage
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Scope of protection
the reproduction, publication, adaptation, broadcasting,public performance, communication to the public,distribution, rental, making available to the public andfixation (including by still photography) of the traditionalcultural expressions/expressions of folklore or derivativesthereof;
any use of the TCEs or adaptation thereof which doesnot acknowledge in an appropriate way the communityas the source of the traditional culturalexpressions/expressions of folklore;
any distortion, mutilation or other modification of, or otherderogatory action in relation to, the TCEs; and
the acquisition or exercise of IP rights over the traditionalcultural expressions/expressions of folklore oradaptations thereof;
....
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Exercise of rights
Accessible, appropriate and adequateenforcement and dispute-resolution
mechanisms, border-measures, sanctionsand remedies, including criminal and civilremedies, should be available in cases ofbreach of the protection for traditional
cultural expressions/expressions offolklore.
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IP protection and sui-generis protection
mechanisms
Protection for TCEs in accordance with theseprovisions does not replace and iscomplementary to protection applicable to TCEsand derivatives thereof under other intellectual
property laws, laws and programs for thesafeguarding, preservation and promotion ofcultural heritage, and other legal and non-legal
measures available for the protection andpreservation of TCEs