Origin Related Intellectual Property Rights as Best Policy Option for the Protection of Traditional Cultural Expressions

Abstract

Over the past few decades, the protection of Traditional Cultural Expressions (TCEs) has generated lively debates within the international community and the questions of whether TCEs should be protected by Intellectual Property Rights (IPRs) and if so how, have been of increasing practical concern for TCEs holders and national policyrnakers in various countries. To date, however, work on the protection of TCEs has progressed slowly, and little has emerged in the way of concrete, binding law. Moreover, those instruments proposed as solutions appear unable to meet the range of concerns raised by TCEs holders and culturally-rich developing countries. Concerns raised by TCEs holders can be classified into four main categories. Firstly, they stress the difficulties they encounter in preventing and/or controlling the commercial use of their TCEs by third parties and in benefiting from this commercial isation themselves. Secondly, they express concerns about the inappropriate and offensive use of their TCEs. Thirdly, they wish to be attributed for their TCEs as well as have the possibility to object to any false attribution. Finally, they emphasise the need to ensure the identification and preservation of existing TCEs as well as their promotion, dissemination and continued evolution. The protection of TCEs was initially envisaged on a copyright model, because of the similarity of subject matter between copyright law and TCEs. However, although copyright law seems well suited to meet some of the needs and objectives of TCEs holders, it is limited in its potential for protecting TCEs. This thesis argues that "origin related intellectual property rights", such as trade marks, certification and collective marks and geographical indications, as well as passing off and laws against misrepresentation appear to be conceptually best suited for the protection of TCEs, because of their specific nature and characteristics. Such characteristics include the fact that they are usually produced within a community, which is often linked to a specific place, and according to traditional methods and know how transmitted from generation to generation, often using raw material from sustainable resources. In addition, this method of protection also seems to accommodate the fact that TCEs are usually already in the public 2 Abstract domain and to take into consideration some of the aims of TCEs holders such as the fact that they would like a protection that is unlimited in time. A system of protection based on origin related IPRs could offer practical advantages for TCEs holders since such category of rights used as such or with minor adaptations would enable them to obtain quick, practical and effective protection. In addition, there would be no need for the creation of a new sui generis IP or IP related system, which would take a long time to establish and may not be politically feasible anyway. The proposed approach will admittedly not address all the concerns of TCEs holders, but it will provide a balanced and workable compromise solution that could satisfy most of their concerns and policy objectives.