Using human rights to tackle fragmentation in the field of traditional cultural expressions: An institutional approach

Intellectual Property and Traditional Cultural Expressions in a Digital Environment

Volumn , Issue , 2008, Pages 96-120

  Graber, Christoph Beat ^a  

^a University of Lucerne Faculty of Law   (United States)

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EID: 78449307439     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Chapter

References (50)

1. WIPO, Intellectual Property Needs and Expectations of Traditional Knowledge Holders, WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), Geneva: WIPO, 2001, pp. 49-55.
2. For an overview, see Michael Blakeney, "Hans Christian Andersen and the Protection of Traditional Cultural Expressions" in Helle Porsdam (ed.), Copyright and Other Fairy Tales: Hans Christian Andersen and the Commodification of Creativity, Cheltenham, UK: Edward Elgar, 2006, pp. 108-128, at pp. 111-114.
3. Christoph Beat Graber and Martin Girsberger, "Traditional Knowledge at the International Level: Current Approaches and Proposals for a Bigger Picture that Include Cultural Diversity" in Hansjörg Seiler and Jörg Schmid (eds), Recht des ländlichen Raums. Festgabe der Rechtswissenschaftlichen Fakultät der Universität Luzern für Paul Richli zum 60. Geburtstag, Zurich: Schulthess, 2006, pp. 243-282; Christoph Beat Graber, "Traditional Cultural Expressions in a Matrix of Copyright, Cultural Diversity and Human Rights" in Fiona Macmillan (ed.), New Directions in Copyright Law: Vol. 5, Cheltenham, UK: Edward Elgar, 2007, pp. 45-71, at pp. 51-57.
4. UNESCO and WIPO, Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions (Model Provisions) of 1982, Geneva: WIPO, 1985
5. See WIPO, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3, 2 May 2003, at para. 86.
6. See also Wend B. Wendland's contribution to this volume.
7. See also the contribution of Gunther Teubner and Andreas Fischer-Lescano to this volume
8. For a legal sociology analysis of collisions between modern copyright law and Australian Aboriginal knowledge forms and patterns of social organisation, see Christoph Beat Graber, "Can Modern Law Safeguard Archaic Cultural Expressions Observations from a Legal Sociology Perspective" in Christoph Antons (ed.), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region, The Hague: Kluwer Law International, 2008.
9. Fixation requirements exist in certain common law countries although, according to Article 2.2 Berne Convention, national laws need not provide that fixation is a general condition for protection. See WIPO, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions/Expressions of Folklore, Background Paper No. 1, Geneva: WIPO, 2003, at pp. 41-42.
10. UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage (CIH), adopted 17 October 2003, entered into force 21 April 2006
11. Silke von Lewinski (ed.), Indigenous Heritage and Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore, The Hague: Kluwer Law International, 2004, at p. 393; Michael F. Brown, "Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property" (2005) International Journal of Cultural Property 12:1, pp. 40-61, at pp. 48-49.
12. Yumbulul v. Reserve Bank of Australia, I.P.R. 21 (1991) 481.
13. See Michael Blakeney, "Milpurrurru & Ors. v. Indofurn Pty Ltd & Ors. - Protecting Expressions of Aboriginal Folklore under Copyright Law" (1995) Murdoch University Electronic Journal of Law 2:1 (unpaginated).
14. The Morning Star Pole created by Terry Yumbulul is currently exhibited at the Australian Museum in Sydney
15. As a result of the clan's criticism, Yumbulul sued the Aboriginal Artists Agency claiming that his licence was invalid since only the Galpu clan would have had the power to assign copyrights to the bank. The judge dismissed the case and decided that, "Australia's copyright law does not provide adequate recognition of aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin". From the judge's statement, it seems that he was aware of a collision between Australia's modern copyright law and Aboriginal custom. Modern law's classic response to this type of collision is to impose its rule and it is no surprise that indigenous communities often see such imposition as a colonisation of their traditional patterns of social organisation.
16. See WIPO, The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles, WIPO/GRTKF/IC/8/4, 8 April 2005, at Annex, Article 1 (unaltered in WIPO/GRTKF/IC/9/4, 9 January 2006, WIPO/GRTKF/IC/10/4, 2 October 2006, WIPO/GRTKF/IC/11/4(c), 26 April 2007, WIPO/GRTKF/IC/12/4(c), 6 December 2007, and reproduced in the Annex of this volume)
17. With regard to WIPO activities, see Hans Morten Haugen, "General Comment No. 17 on 'Authors' Rights'" (2007) The Journal of World Intellectual Property 10, pp. 53-69, at p. 64.
18. The Universal Declaration of Human Rights was adopted and proclaimed by the United Nations in General Assembly Resolution 217A(III), U.N. Doc. A/810, 10 December 1948.
19. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, concluded 16 December 1966, entered into force 23 March 1976.
20. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, concluded 16 December 1966, entered into force 3 January 1976.
21. As of 20 September 2007, 160 states were parties to the CCPR and 156 were parties to the CESCR
22. Asbjørn Eide and Allan Rosas, "Economic, Social and Cultural Rights: A Universal Challenge" in Asbjørn Eide, Catarina Krause and Allan Rosas (eds.), Economic, Social and Cultural Rights, 2nd revised edn, The Hague: Kluwer Law International, 2001, pp. 3-7, at p. 3, referring to General Assembly Resolution 543(VI) of 5 February 1952. The latter resolution reverses General Assembly Resolution 421(V) of 4 December 1950, which stressed the interrelatedness of all human rights and opted for a single treaty.
23. UN General Assembly, World Conference on Human Rights: Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993, Part I, at para. 5.
24. Committee on Economic, Social and Cultural Rights, General Comment No
25. Committee on Economic, Social and Cultural Rights, General Comment No
26. Walter Kälin and Jörg Künzli, Universeller Menschenrechtsschutz, Basel: Helbing and Lichtenhahn, 2005, at p. 101.
27. Article 1 CCPR reads as follows: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development" (emphasis added). Self-determination of peoples also appears in the Charter of the United Nations.
28. See Human Rights Committee, General Comment 23 (1994), CCPR/C/21/Rev.1/Add.5, 8 April 1994, at para. 2.
29. Article 27 CCPR reads as follows: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language" (emphasis added)
30. For an overview of the HRC's case law, see S. James Anaya, Indigenous Peoples in International Law, 2nd edn, Oxford: Oxford University Press, 2004, at pp. 134-137.
31. Draft Declaration on the Rights of Indigenous Peoples, prepared by the Sub-Commission on the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994). See also Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, Final Report of the Special Rapporteur Erica-Irene Daes, E/CN.4/Sub.2/1995/26, 21 June 1995, at Annex.
32. UN members voted in favour, 11 abstained and four - Australia, Canada, New Zealand and the United States - voted against the text. See UN General Assembly Press Release, available at http://www.un.org/ga/61/news/news.aspNewsID=23794.
33. In this context, one should also take note of ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989 by the General Conference of the International Labour Organization at its seventy-sixth session, entered into force 5 September 1991, ILM 28 (1989), 1384. Article 8(2) ILO Convention 169 provides that indigenous peoples "shall have the right to retain their own customs and institutions, where these are not incompatible with internationally recognised human rights". However, the legal impact of ILO Convention 169 is slight, since it has been ratified by only 17 States.
34. See Laurence Helfer, "Towards a Human Rights Framework for Intellectual Property" (2007) University of California Davis Law Review 40, pp. 971-1020, at p. 983.
35. In a communication regarding an individual complaint against South Korea, the HRC held in 2004 that paintings fall "within the scope of the right of freedom of expression protected by article 19, para. 2" CCPR. See Communication No. 926/2000: Republic of Korea. CCPR/C/80/D/926/2000, 19 March 2004.
36. See Christoph Beat Graber, Handel und Kultur im Audiovisionsrecht der WTO, Berne: Staempfli, 2003, at pp. 102-107 and 114-119; Christoph Beat Graber, "The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO" (2006) Journal of International Economic Law 9:3, pp. 553-574, at pp. 562-563.
37. UNESCO, Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted at the 33rd Session of the General Conference of UNESCO, 20 October 2005, entered into force 18 March 2007
38. An example of such a conflict is the discrimination against women, including arranged marriages or female circumcision
39. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse, New York: Free Press, 1991, at p. 137.
40. Mihály Ficsor, The Law of Copyright and the Internet, Oxford: Oxford University Press, 2002, at para. 10.68, and Michael F. Brown, Who Owns Native Culture, Cambridge, MA: Harvard University Press, 2003, at p. 64.
41. For an influential theoretical foundation of an institutional approach to human rights, see Niklas Luhmann, Grundrechte als Institution. Ein Beitrag zur politischen Soziologie, 3rd edn, Berlin: Duncker and Humblot, 1986 (1st edn, 1965); Helmut Willke, Stand und Kritik der neueren Grundrechtstheorie. Schritte zu einer normativen Systemtheorie, Berlin: Duncker and Humblot, 1975, in particular at pp. 111-156.
42. See also the contribution of Gunther Teubner and Andreas Fischer-Lescano to this volume
43. On TCE in Aboriginal Australia, see Ronald M. Berndt and Catherine H. Berndt, Aboriginal Australian Art, Sydney: Methuen, 1982, Ronald M. Berndt and Catherine H. Berndt, The World of the First Australians - Aboriginal Traditional Life: Past and Present, Canberra: Aboriginal Studies Press, 1996, at pp. 367-446, Howard Morphy, Aboriginal Art, London: Phaidon, 1998.
44. See Robert D. Anderson and Hannu Wager, "Human Rights, Development, and the WTO: The Cases of Intellectual Property and Competition Policy" (2006) Journal of International Economic Law 9:3, pp. 707-747, at p. 724.
45. Rosemary J. Coombe, "Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property" (2003) DePaul Law Review 52, pp. 1171-1191, at p. 1185; Thomas Heyd, "Rock Art Aesthetics and Cultural Appropriation" (2003) The Journal of Aesthetics and Art Criticism 61:1, pp. 37-46, at p. 42.
46. See also the contributions of Miriam Sahlfeld and Christoph Antons to this volume
47. On spearing, see Heather McRae, Garth Nettheim, Laura Beacroft and Luke McNamara, Indigenous Legal Issues, Commentary and Materials, 3rd edn., Sydney: Thomson, 2003, at pp. 549-551.
48. Gunther Teubner, Self-subversive Justice: Contingency or Transcendance Formula of Law, manuscript
49. Thomas Cottier and Marion Panizzon, "A New Generation of IPR for the Protection of Traditional Knowledge in PGR for Food, Agricultural and Pharmaceutical Uses" in Susette Biber-Klemm and Thomas Cottier (eds.), Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives, Wallingford, UK: CABI Publishing, 2006, pp. 203-238, at pp. 229-230.
50. See WIPO, Traditional Cultural Expressions/Expressions of Folklore: Legal and Policy Options, WIPO/GRTKF/IC/6/3, 1 December 2003, at paras 52-53; WIPO, The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles, WIPO/GRTKF/IC/10/4, 2 October 2006, at para. 15.