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INTELLECTUAL PROPERTY and the SAFEGUARDING of TRADITIONAL CULTURES Legal Issues and Practical Options for Museums, Libraries and Archives

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INTELLECTUAL PROPERTY and the SAFEGUARDING of TRADITIONAL CULTURES Legal Issues and Practical Options for Museums, Libraries and Archives INTELLECTUAL PROPERTY AND THE SAFEGUARDING OF TRADITIONAL CULTURES Legal Issues and Practical Options for Museums, Libraries and Archives Written for the World Intellectual Property Organization (WIPO) by Molly Torsen and Jane Anderson Disclaimer: This publication does not necessarily represent the views of WIPO or any of its Member States. The publication identifies IP issues that museums, libraries, archives and other cultural institutions come across in their daily activities, on the basis of international IP principles as expressed in the major international IP instruments. Where possible, case-studies and examples from individual countries are used to illustrate certain points. However, national IP laws can differ in certain key respects, and some of the information provided in this publication may not accord with the national laws in your country. This publication is not a substitute for legal advice. You should consult your national legislation and seek legal advice in cases of uncertainty. © Copyright World Intellectual Property Organization, 2010 Certain rights reserved. WIPO authorizes the partial reproduction, translation and dissemination of this survey for non- commercial and non-profit scientific, educational or research purposes, provided that WIPO, the publication and the authors are properly identified and acknowledged. Permission to substantially reproduce, disseminate and/or translate this survey, or compile or create derivative works therefrom, in any form, whether for commercial/for profit or non- profit purposes, must be requested in writing. For this purpose, WIPO may be contacted at www.wipo.int, under “Contact us”. For any comments/requests on or corrections/additions to this work, please contact WIPO’s Traditional Knowledge Division at [email protected]. Photo credit: © iStockphoto.com/Sawayasu Tsuji (Chinese New Years lion dance with firecrackers hanging) (Cover, p.9) - © iStockphoto.com/ollo (Cover, p.22) - © iStockphoto.com/Ortal Berelman (p.67) - Cover border artwork extracted from work entitled “Munupi Mural” by Susan Wanji Wanji, Munupi Arts and Crafts Association, Pirlangimpi Community, Melville Island, Australia. Ms. Wanji Wanji is the copyright holder in the work. The work was used with the full express and informed consent of the artist. All rights reserved. INTELLECTUAL PROPERTY AND THE SAFEGUARDING OF TRADITIONAL CULTURES Legal Issues and Practical Options for Museums, Libraries and Archives Written for the World Intellectual Property Organization (WIPO) by Molly Torsen and Jane Anderson December 2010 [ 2 ] FOREWORD Traditional cultures embody exquisite and distinctive creativity and are of immense cultural, historical, spiritual and economic value to indigenous peoples and traditional communities the world over. Defining the appropriate role of intellectual property (IP) in the protection, preservation and promotion of traditional cultural expressions (TCEs) is a priority for the World Intellectual Property Organization (WIPO), and is the subject of various normative and capacity-strengthening programs. WIPO’s work is, partly, based upon the growing interests of indigenous peoples and traditional communities in owning, controlling and accessing documentation of their cultures held by museums, libraries and archives. These institutions play an invaluable role in the preservation, safeguarding and promotion of collections of TCEs, such as photographs, sound recordings, films and manuscripts, which document communities’ lives, cultural expressions and knowledge systems. Yet, collections of TCEs raise unique IP challenges and, in response, institutions and researchers in many countries are developing new frameworks for understanding the legal, cultural and ethical implications of caring for TCEs. Through this shift, cultural institutions seek more direct and instrumental relationships with communities, actively engaging with the expertise of tradition-bearers, to foster new cross-cultural partnerships to enrich cultural work. Many museums, libraries and archives, and their professional associations, have established exemplary practices and protocols to deal with IP issues. It is within this complex and sensitive context that this publication was prepared, in the framework of the WIPO Creative Heritage Project. The publication presents an analysis of the legal questions and offers examples of institutional and community experiences in the development of good practices. It uncovers the problems that may arise and their possible solution, and helps guide initiatives to build new relationships for the successful management of TCEs. In addressing IP issues associated with managing access to, control over and use of TCEs in the world of cultural institutions, I hope that this publication also contributes to a greater understanding of the challenges and options for WIPO’s normative work on these issues. Francis Gurry Director General, WIPO [ 3 ] TABLE OF CONTENTS EXECUTIVE SUMMARY 5 ACRONYMS 7 PART I. SETTING THE SCENE: AN OVERVIEW OF ISSUES 9 1. An Illustration: The Djalambu [Hollow Log] Ceremony 9 2. What is the Issue? 10 3. Building and Strengthening Relationships between Cultural Institutions and Indigenous Peoples and Traditional Communities 13 4. Exploring the Intellectual Property Dimension 13 Can intellectual property systems protect traditional cultural expressions? 15 5. IP and TCEs – the Work of the World Intellectual Property Organization 16 The Intergovernmental Committee 16 The meaning of “protection” 18 IP and TCEs – Context of misappropriations 19 6. The objectives and nature of this publication 20 PART II. INTELLECTUAL PROPERTY AND TRADITIONAL CULTURAL EXPRESSIONS: ISSUES SPECIFIC TO MUSEUMS, LIBRARIES AND ARCHIVES 22 COPYRIGHT 22 1. Objects of Protection: What Does Copyright Protect and What Does it Not? 23 Originality 24 Database protection 27 Idea/expression dichotomy 29 Fixation 30 Adaptations 31 The public domain 32 2. Authorship 34 Orphan works 35 Orphan works in the TCE context 35 3. Duration of Protection 37 4. Economic and Moral Rights 38 Economic rights 38 Moral rights 38 Resale rights 41 5. Exceptions and Limitations 42 Exceptions and limitations in the TCE context 43 Preservation, restoration and administrative uses of TCEs 45 6. Ownership, Transfers and Licensing of Copyright 47 Ownership 47 First ownership, joint ownership 48 Crown or government copyright 48 Assignment 48 Licensing 49 7. Related Rights 51 8. The Internet and Digitization 52 9. Collective Management 55 [ 4 ] TRADEMARKS, GEOGRAPHICAL INDICATIONS AND DOMAIN NAMES 57 1. Trademarks 57 2. Geographical indications 59 3. Domain Names 59 RISK MANAGEMENT STRATEGIES AND DISPUTE RESOLUTION 62 1. Risk Management Strategies 62 2. Dispute Resolution 62 Litigation 63 Alternative dispute resolution 63 PART III. CONCLUSIONS: GOOD PRACTICES 67 1. Good practices from Cultural Institutions – Research Ethics and Collection Policy 69 The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) 69 Agence de Développement de la Culture Kanak - Centre Culturel Tjibaou 70 PIMA Code of Ethics for Pacific Museums and Cultural Centers 70 ATSILIRN Protocols 70 A Framework of Guidance for Building Good Digital Collections by NISO 72 Museum policy of New Zealand’s bicultural Te Papa Tongarewa 72 2. Good practices for Digital Archives – Protocols 72 Pacific and Regional Archive for Digital Sources in Endangered Cultures (PARADISEC) 73 British Library Archival Sound Recordings 74 Musée du Quai Branly: Conditions for Placing Material on the Internet 75 Archives and Research Centre for Ethnomusicology, American Institute of Indian Studies 75 3. Good Practices from Indigenous Peoples and Traditional Communities – Codes of Conduct and Protocols for Behavior 76 HOPI Community – HCPO Policy and Research 76 Navajo Nation – Guidelines for Visitors 77 4. Examples of Current Practices by Cultural Institutions – Frameworks, Protocols, Guidelines and Agreements 77 Fiji’s Indigenous Affairs Ministry 78 The Vanuatu Cultural Centre 79 Reproduction Rights Organizations 80 5. Standard Agreements, Consent Forms, Licenses and Undertakings 81 License Form, Consent to Access to and Use of Historical Materials by DISA and Aluka 81 The Laura Aboriginal Dance and Cultural Festival 81 Notes 83 GLOSSARY 100 FAQ 108 BIBLIOGRAPHY 116 INDEX 119 ABOUT THE AUTHORS 121 ACKNOWLEDGEMENTS 122 [ 5 ] EXECUTIVE SUMMARY Museums, libraries and archives carry collections of photographs, sound-recordings, films and manuscripts that document indigenous peoples’ and traditional communities’ lives, cultural expressions and knowledge systems. A new awareness has emerged of indigenous peoples’ and traditional communities’ interests in owning, controlling and accessing this documentation. Importantly, this has led to recognition that the management of access and use of collections raises a number of challenges for museums, libraries and archives. Often these challenges arise from the complex social, historical, cultural, legal and political conditions informing the collections of such institutions. Managing access and use of collections inevitably implicates intellectual property (IP) law, policy and practice. Indeed, collections of traditional cultural expressions (TCEs) from indigenous peoples and traditional communities raise unique IP issues because of certain qualities that make them fundamentally different from other collections. The very nature of TCEs means that they occupy an ambiguous IP status. This can produce a myriad of tensions for institutions
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