Traditional Cultural Expressions of Indigenous People in the Scope of the US Copyright Law and the Berne Convention

This article is supposed to answer the question: What reforms of the legal doctrines that currently govern traditional cultural expressions could be strongly advocated on behalf of the indigenous population?

Over the years, representatives of many nations, indigenous communities and all interested stakeholders have been discussing the level and form of legal protections that should be extended to traditional cultural expressions. This article is supposed to answer the question: What reforms of the legal doctrines that currently govern traditional cultural expressions could be strongly advocated on behalf of the indigenous population?

Indigenous people are the most vulnerable groups of the world population. Among them are Crimean Tatars, the most prominent Ukrainian indigenous people group, the Saami of northern Europe, the Aborigines from Australia and the Maori from New Zealand[1]. They all possess secret and sacred ancestral knowledge concerning traditional cultural expressions (here and after – TCEs): clothing traditions, folklore, dances, songs etc.

Besides suffering from the absence of domestic legislation on indigenous people rights, they are also affected by the permanent infringement of their rights to traditional cultural expressions.

Therefore, the question of the protection of TCEs is highly relevant. But at the same time, it is controversial due to many cultural, economic, social and trade-related questions. It refers to applying cultural and personality copyright theories of US law.

The central legal gap is the absence of an international agreement on the protection of TCEs.

Of course, we have various international conventions and treaties that address TCEs issues, such as the Indigenous and Trible People Convention, Convention for the Safeguarding of Intangible Cultural Heritage and Convention for the Protection and Promotion of the Diversity of Cultural Expressions. In addition, TCEs protection is related to the provisions of the United Nations Declaration on the Rights of Indigenous Peoples and the Berne Convention. But the problem is that all of them complement and support each other insufficiently.

That is why these legal mechanisms fail to protect secret and sacred knowledge, which indigenous people preserve originally across generations. Furthermore, they do not protect the indigenous community’s attribution interests necessary for interpretations of traditional cultural expressions in today’s realities. Also, provisions of these international treaties and conventions have a limited scope of protection of TCEs. Namely, they are applicable to performance, reproduction, display of relatively close imitations, derivative works, but not to all newly created works inspired by TCEs. Alongside, for example, in conformity with Section 107 of the 17 US Code: “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, educational purposes, scholarship, or research, is not an infringement of copyright[2]. It means that artists, museums, art exhibitions, universities, and schools can use indigenous people TCEs. Furthermore, with time, contemporary TCEs would enter the public domain.

Therefore, it is possible to state that the involvement of all interested stakeholders in the protection and promotion of TCEs and establishing a forum for consultation with indigenous communities, NGOs, and government representatives are the first and the most reasonable steps on the way to solving these problems.

In this view, acceleration of legislative actions at the international, regional, and national levels in the form of protection of traditional knowledge and folklore, including establishing new legal standards and improving existing ones, will be at stake. More efficiently, developing new provisions concerning “licensing, benefit-sharing contracts, research protocols and model compensation”[3] may become a fundamental step towards implementing and improving TCEs protection.

All these actions are possible under the auspices of WIPO. Under these, it means the creation of a forum for consultations. Then, based on the consultation processes, a particular Protocol to the Berne Convention can be enacted, like in the case of two Optional Protocols to the ICCPR[4] and ICESCR[5].

Basing on the Cultural and Personality theories, provisions of this Protocol can:

  • Contribute to cultural diversity by recognizing the TCEs values; satisfy the actual needs of indigenous communities and their empowering; increase communities’ autonomy to support self-expression of traditional practices.
  • Encourage innovations and creativity in the community through educational processes.
  • Increase participatory democracy regarding TCEs meanings by involving indigenous people representatives in the international, regional, and local legislation developing processes.
  • Promote legitimate trading activities and equitable distribution of benefits arising from TCEs use with indigenous people’s free prior informed consent.
  • Prevent the TCEs misappropriation and the abusive, degrading and unauthorized use of TCEs.
  • Promote intellectual and artistic freedom of the TCEs possessors and the use of TCEs for research and cultural exchange on fair terms.

Finally, all these processes and ideas on improving the current situation on the TCEs protection already exist. The only thing left is a widespread promotion and sustentation from the part of the international community. Therefore, advocacy support and engagement of 179 country members to the Berne Convention would lead to the mandatory application of the provisions concerning the protection of traditional cultural expressions.

REFERENCES


[1] Who are indigenous peoples?/ United Nations Permanent Forum on Indigenous Issues. — p. 1. — [Electronic access mode]: https://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf

[2] Title 17 of the United States Code. — Section 107. — 2021. — [Electronic access mode]: https://www.copyright.gov/title17/title17.pdf

[3] The Protection of Traditional Cultural Expressions: Updated Draft Gap Analysis / Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore // WIPO. — Para. 78. — 2018

[4] Optional Protocol to the International Covenant on Civil and Political Rights / UN General Assembly. — 1966. — [Electronic access mode]: https://www.ohchr.org/en/professionalinterest/pages/opccpr1.aspx

[5] Optional Protocol to the International Covenant on Economic, Social and Cultural Rights / UN General Assembly. — 2008. — [Electronic access mode]: https://www.ohchr.org/en/professionalinterest/pages/opcescr.aspx

Mykyta Pobiehun is a young but experienced lawyer. As a master's student at Vilnius University, a participant in the Jessup International Moot Court Competition, different national moot courts, models of the United Nations and legal competitions, he possesses in-depth knowledge of International and European law and has excellent oral pleading and research skills. Due to his internship at the Ministry of Justice of Ukraine, he has already worked on legislation drafting and admires making it concise and transparent. Into the bargain, during his internship at the Independent Defence Anti-Corruption Committee, he was assisting in the creation of the primary draft of the Ukrainian National Security Strategy. Accordingly, Mykyta is acquainted with the legislation reviewing procedures, policy-making and legal drafting. In his scope of professional interests are indigenous people rights, International Humanitarian Law and Copyright issues.

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