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Australian Indigenous Law Reporter |
International Developments – Pacific Region
Hanoi, Vietnam,
April 1999
Between 21 and 23 April 1999, a Regional Consultation for countries of Asia and the Pacific on the protection of traditional and popular culture was held in Hanoi, Vietnam. The Consultation was one of four regional meetings on the issue being held this year, organised by the World Intellectual Property Organisation (WIPO) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO). During the first two days of the Consultation, working sessions were held on various topics, based around papers presented by people from various countries in the region. A draft set of recommendations was prepared by a committee of representatives. This draft was discussed and adopted in the following form by all the representatives on the third day:
1. The countries of Asia and the Pacific region are very rich in their cultural heritage, including, but not limited to, folk-literature, folk arts and crafts, music, visual arts, ceremonies, folk-beliefs, folk-architecture associated with particular sites, as well as forms of traditional knowledge related to folk-medicines and folk-medical practices, agriculture, and conservation and sustainable use of biological diversity.
2. There is widespread unfair exploitation of the cultural heritage of these nations for commercial and business interests.
3. Important elements of traditional knowledge and folklore are being lost and will continue to be lost in the absence of a proper legal protection mechanism at national and international levels.
4. The existing IPR regimes are inadequate to address all of the issues involved in protection of traditional knowledge and folklore.
5. The initiative taken by the Republic of the Philippines in enacting the Indigenous Peoples Rights Act of 1997 RAA 8371 is commendable and provides useful guidance for further work in addressing the protection of traditional knowledge and folklore.
6. The leading role played by WIPO and UNESCO in offering a set of the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982) for the purpose of protecting expressions of folklore, has been commendable
7. Effective protection of traditional knowledge and folklore at national and international levels requires sui generis legislation. The 1982 UNESCO-WIPO Model Provisions provide an appropriate starting point, but further work is required to take into account the technological, legal, social, cultural and commercial developments which have taken place since the Model Provisions were concluded, and to examine the scope of subject matter coverage of folklore. Such work should take into account the common elements and distinct characteristics of traditional knowledge and folklore, in order to evaluate whether protection for both forms of cultural heritage can effectively be provided under a single legislative framework, or whether work on each should proceed separately but with equal urgency and commitment.
8. It is imperative for governments to devote greater attention and resources to the aspects of preservation, conservation, documentation, development and legal protection of traditional knowledge and folklore, and also for ensuring the safety and security of the materials and documents so collected to prevent unfair exploitation.
9. It is imperative for governments to devote greater attention and resources to support communities who are responsible for the creation, maintenance, custodianship and development of traditional knowledge and folklore.
10. There is a need to raise the level of awareness about the desirability of having a legal mechanism at the national level through dissemination of information to the public through mass media, debates, discussions, studies with experts and all interested groups. This is necessary for the benefit of policy makers, government functionaries and judiciary, social activists, academics and experts, and the general public, to ensure their active and meaningful participation in the process of national consensus building,
11. Institutional consultation and cooperation are essential for the nations in the region to develop a regional approach to the protection of traditional knowledge and folklore.
12. There is a need for vigorous consultation through formal consultative processes at international level to bridge the gaps in the perceptions of traditional knowledge and folklore and their protection. as viewed by the developing and developed countries.
In view of the above, the consultation meeting made the following recommendations:
1. The nations of the Asia-Pacific region need to devote greater attention and resources to the issues of legal protection of traditional knowledge and folklore.
2. There is a need to initiate wide-ranging discussions with various experts on traditional knowledge and folklore, societies responsible for creating resources of traditional knowledge and folklore, academics, social activists and other interested groups to identify essential aspects of an action plan, aiming, ultimately, at the formulation of a legal mechanism for protection of traditional knowledge and folklore at national and international levels.
3. Nations of the region should cooperate to find solutions to problems of common concern and also to develop strategies, at regional level, for exercise and management of rights in traditional knowledge and folklore, and to support communities which are responsible for the creation, maintenance, custodianship and development of such traditional knowledge and folklore.
1. Extend cooperation and support for national initiatives for awareness-building including through discussion, debates, seminars.
2. Institute studies and projects for in-depth study of these issues relating to protection of folklore and traditional knowledge.
3. Initiate steps for development of a sui generis form of binding legal protection at national and international levels for the protection of traditional knowledge and folklore, taking into account the technological, legal, social, cultural and commercial developments which have taken place since the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1982) were concluded.
4. Establish a Standing Committee on Traditional Knowledge and Folklore within both WIPO and UNESCO to facilitate the process of establishing legal protection of folklore and traditional knowledge. The Standing Committee will, inter alia, implement Recommendation 3 above, and facilitate and fund intra-and inter-regional consultation on the protection of traditional knowledge and folklore.
5. Increase WIPO-UNESCO co-operation providing assistance to developing countries in the form of: