Kuruk, Paul --- "Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention For the Safeguarding of Intangible Cultural Heritage" [2004] MqJlICEnvLaw 5; (2004) 1(1) Macquarie Journal of International and Comparative Environmental Law 111
[*] LLB (Hons), University of Ghana; LLM, Temple University School of Law; JSD, Stanford Law School; Professor of Law, Cumberland School of Law of Samford University; Visiting Professor, Emory Law School; Vice-Chair, Commission on Environmental Law of the World Conservation Union. The author is grateful to Professors Michael Jeffery, QC, and Donna Craig of the Centre for Environmental Law of Macquarie University, for their encouragement and support during the writing of this article.
[1] A copy of the Convention for the Safeguarding of Intangible Cultural Heritage is available at http://unesdoc.unesco.org/images/0013/001325/132540e.pdf (visited 1 December 2003)
[2] P Kuruk, ‘Protecting Folklore Under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States’ (1999) 48 Am Univ L Rev 769, 812-822 (describing the efforts of UNESCO and the World Intellectual Property Organization to develop schemes for the protection of folklore and cultural heritage).
[3] Report on the Working Group on the Intellectual Property Aspects of Folklore Protection (1981) XV(2) Copyright Bulletin 19. In 1982, the Committee of Experts came out with the final text of its Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (Model Provisions). See: Report of the Committee of Governmental Experts on the Intellectual Property Aspects of the Protection of Expressions of Folklore, 28 June to 2 July 1982 (1982) 16(4) Copyright Bulletin (1982) 62.
[4] Tunis Model Law on Copyright (1976) reprinted in 12 (1976) Copyright: Monthly Rev World Intell Prop Org 165.
[5] The Illicit Trade Convention was adopted in recognition of the importance of cultural property as ‘one of the basic elements of civilization and national culture’ which makes it ‘incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation and illicit export’: Illicit Trade Convention preamble. Cultural property is defined under the Illicit Trade Convention as ‘property which on religious or secular ground, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science...’ ibid. To ensure the protection of such property against illicit import, export and transfer of ownership, contracting states are obligated to set up appropriate national services, require export certificates, and prevent the acquisition by museums of illegally imported property. They are also to prohibit the importation of stolen property, and at the request of the country from which the property was removed, take appropriate steps to recover and return the property. Ibid Articles 6 and 7. The Convention envisages international cooperation in tackling the problems posed by illicit trade in cultural property. Ibid Article 9.
[6] Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) ILM 1358 (hereinafter World Heritage Convention). The relevant provisions of the World Heritage Convention are described below n 8-28 and accompanying text.
[7] The 1989 Recommendation called upon member states to take the necessary legislative steps to give effect to various identification, conservation, preservation, dissemination, protection and international cooperation measures outlined therein. The 1989 Recommendation suggested as identification methods the creation of national inventories of institutions concerned with folklore, and the development of recording systems and comprehensive registries. Conservation measures could center on the establishment of national archives and museums, harmonization of collection and archiving methods, duplication of folklore materials and training of specialists in conservation work. Relevant preservation measures include the teaching and study of folklore, guarantees of access of cultural communities to their folklore, establishment of national coordination bodies and promotion of scientific research on folklore. Dissemination of folklore was expected to be ensured through such events as fairs, festivals, films, exhibitions and workshops, coverage of folklore in the media, creation of job opportunities for folklorists, and exchanges of persons and groups concerned with folklore. The 1989 Recommendation also urged enhanced privacy and confidentiality rights for informants as the transmitters of tradition, and also for collectors through proper archiving and safeguarding of materials against misuse. Finally, the 1989 Recommendation called for international cooperation with other states, international and regional institutions in the field of knowledge, dissemination and protection of folklore.
[8] UNESCO, ‘Operational Guidelines for the Implementation of the World Heritage Convention’; See: UNESCO Doc WHC/2/Revised, February 1996, para 24.
[9] Ibid.
[10] Ibid.
[11] Ibid Article 1.
[12] Ibid.
[13] Ibid.
[14] Ibid, Article 2.
[15] Ibid.
[16] Ibid.
[17] Categories of cultural property protected under the Illicit Trade Convention include: (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; (b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; (c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; (d) elements of artistic or historical monuments or archaeological sites which have been dismembered; (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; (f) objects of ethnological interest; and (g) property of artistic interest, such as: (i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); (ii) original works of statuary Article and sculpture in any material; (iii) original engravings, prints and lithographs; (iv) original artistic assemblages and montages in any material; (h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections; (i) postage, revenue and similar stamps, singly or in collections; (j) archives, including sound, photographic and cinematographic archives; (k) articles of furniture more than one hundred years old and old musical instruments. Ibid Article 1.
[18] ICH Convention, above n 1, Article 1(a) and accompanying text.
[19] Ibid Article 6(2).
[20] Ibid Article 6(3).
[21] Ibid Article 8(1).
[22] The list is compiled from information on local natural and cultural heritage that each state is required to submit to the Heritage Committee. Ibid Article 11(1).
[23] Ibid Article 11(2).
[24] J Blake, Developing a New Standard Setting Instrument for the Safeguarding of Intangible Cultural Heritage: Elements for Consideration CLT-2001/WS/8 (2001) 73-75.
[25] UNESCO, above n 8 and accompany text.
[26] Ibid.
[27] UNESCO, ‘First Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity’ (2001) 2 (hereinafter First Proclamation).
[28] Ibid.
[29] This was originally proposed by the Executive Board of UNESCO in 1993 to facilitate the implementation of the 1989 Recommendation. See: Blake, above n 24, 45.
[30] UNESCO, ‘Operational Guildelines: Human Living Treasures’ para 9. Undated publication (hereinafter Operational Guidelines). A copy of the document is on file with the author.
[31] Ibid para 1.
[32] Blake, above n 24, 45.
[33] Ibid.
[34] Operational Guidelines, above n 30, para 30.
[35] First Proclamation, above n 27, 1-2.
[36] UNESCO, Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity: Guide for the Presentation of Candidature Files (2001) 4 (hereinafter Proclamation of Masterpieces).
[37] A cultural space is defined as ‘a place which brings together a concentration of popular and traditional cultural activities and also as a time for a normally regularly occurring event’. Ibid 6.
[38] Examples of cultural expressions include musical or theatrical performances, rituals or diverse festivities. Ibid.
[39] These included the Garifuna Language, Dance and Music, proposed by Belize and supported by Honduras and Nicaragua; the Oral Heritage of the Gelede, proposed by Benin and supported by Nigeria and Togo; the Oruro Carnival, proposed by Bolivia; the Gbofe of Afounkaha: the Music of the Transverse Trumpets of the Tagbana Community, proposed by Cote d’Ivoire; the Cultural Space of the Brotherhood of the Holy Spirit of the Congos of Villa Mella, proposed by the Dominican Republic; and the Oral Heritage and Cultural Manifestations of the Zapara People, proposed by Ecuador-Peru.
Others were Georgian Polyphonic Singing, proposed by Georgia; the Cultural Space of ‘Sosso-Bala’ in Niagassola, proposed by Guinea; the Kuttiyattam, Sanskrit Theatre, proposed by India; the Opera dei Pupi, Sicilian Puppet Theatre, proposed by Italy; Nogaku Theatre, proposed by Japan; Cross Crafting and its Symbolism in Lithuania, proposed by Lithuania; and the Cultural Space of Djamaa el-Fna Square, proposed by Morocco.
The rest were Hudhud Chants of the Ifugao, proposed by the Philippines; the Royal Ancestral Rite and Ritual Music in Jongmyo Shrine, proposed by Korea; the Cultural Space and Oral Culture of the Semeiskie, proposed by the Russian Federation; the Mystery Play of Elche; and the Cultural Space of the Boysun District, proposed by Uzbekistan. Ibid 8-27.
[40] In addition to its programs on Living Human Treasures as well Masterpieces of the Oral and Intangible Cultural Heritage of Humanity, UNESCO also established a Programme for the Preservation and Revitalization of Intangible Cultural Heritage designed to assist tradition bearers and support documentation efforts through a publication series. The first volume produced under the auspices of the program is a Handbook for the Study of Traditional Music and Musical Instruments. Plans are underway for the publication of another volume on the study of vernacular architectural styles.
[41] UNESCO, 31 C/Resolution 30 (2001).
[42] Ibid.
[43] The members of the ICH Experts Committee were Justice M Mohammed Bedjaoui, Mr Joseph-Marie Bipoun-Woum, Miss Janet Blake, Ms Maria del Rosario Camprubi, Professor Pierre-Marie Dupuy, Professor Francesco Francioni, Professor Toshiyuki Kono, Professor Paul Kuruk, Mr. Ralph Regenvanu and Professor Sompong Sucharitkul.
[44] http://unesdoc.unesco.org/images/0013/001321/132141e.pdf#page=16 (visited 1 December 2003).
[45] ICH Convention, above n 1, Article 1(a).
[46] Ibid Article 1(b).
[47] Ibid Article 2(3).
[48] Ibid Article 3(b).
[49] Ibid Article 2(1).
[50] Ibid.
[51] Ibid.
[52] Ibid Article 2(2).
[53] Ibid Article 11.
[54] Ibid Article 13(a).
[55] Ibid Article 13(b).
[56] Ibid Article 13(b).
[57] Ibid Article 13(c).
[58] Ibid Article 13(d).
[59] Ibid Article 14(a).
[60] Ibid Article 14(b).
[61] Ibid Article 14(c).
[62] Ibid Article 15.
[63] Ibid Article 29.
[64] Ibid Article 7.
[65] Ibid Article 5(2).
[66] Ibid Article 4.
[67] Ibid Article 8(1).
[68] Ibid Article 9(1).
[69] Ibid Article 16.
[70] Ibid Article 17.
[71] Ibid Article 18(1).
[72] Ibid Article 18(2).
[73] Ibid Article 19(1).
[74] Ibid Article 20.
[75] Ibid Article 21.
[76] Ibid Article 23
[77] Ibid Article 25(1).
[78] Ibid Article 25(3).
[79] Ibid Article 26
[80] Ibid Article 27.
[81] Ibid Article 28.
[82] Preamble to the ICH Convention above n 1.
[83] Ibid Article 11(b).
[84] Ibid Article 15.
[85] Ibid Article 13(d)(ii).
[86] Ibid Article 9(1).
[87] For example, as one commentator has noted: Indigenous societies find themselves poked, probed and examined as never before. The very cultural heritage that gives indigenous peoples their identity, now far more than in the past, is under real or potential assault from those who would gather it up, strip away its honored meanings, convert it to a product, and sell it. Each time that happens the heritage itself dies a little, and with it its people ... Indigenous communities, indigenous leaders, and advocates for indigenous rights have sought ways to gain some control in a rapidly worsening situation. ... The most urgent reason to establish that control is to preserve meaning and due honor for elements of cultural knowledge and to insure that these traditional universes, and their peoples, maintain their vitality. Subsidiary ... goals are to manage the degree and process by which parts of that cultural knowledge are shared with outsiders, and in some instances, to be justly compensated for it. Tom Greaves, ‘IPR: A Current Survey’ in Tom Greaves (ed), Intellectual Property Rights for Indigenous Peoples: A Sourcebook (1994).
[88] For example, Sarah Eagen contends, ‘Perhaps the largest weakness in the World Heritage Convention is the power it gives source nations to determine the fate of cultural objects within their national territories. Under the Convention, non-source nations have no authority to ensure that cultural objects are being protected. ... Although the concept of territorial sovereignty is firmly established throughout the world as a method of establishing power, political independence, and maintaining order, its use does not make sense in the context of cultural property preservation. M Catherine Vernon states that ‘current national boundaries often have no connection or alignment with the peoples that inhabited the land in past centuries and left cultural clutter as evidence of their existence. Culture is defined by linguistic, religious, or other criteria, not by an artificially placed boundary line.’ Sarah Eagen, ‘Preserving Cultural Property: Our Public Duty: A Look at How and Why We Must Create International Laws that Support International Action’ (2001) 13 Pace Int’l L Rev 407, 430-443.
[89] See: ICH Convention, above n 1, Article 2(1).
[90] See, eg: Agreement Revising the Bangui Agreement of 2 March 1977, on the Creation of an Intellectual Property Organization, adopted at (Bangui (Central African Republic) on 24 February 1999). The Agreement defines ‘cultural heritage’ to consist of ‘all those material or immaterial human productions that are characteristic of a nation over time and space’ including folklore; sites and monuments; and ensembles, Article 67. The following are listed as part of cultural heritage: (a) literary works of all kinds, whether in oral or written form, stories. legends, proverbs, epics, chronicles, myths, riddles; (b) artistic styles and productions such as dances, musical productions of all kinds, dramatic, dramatico-musical, choreographic and pantomime productions, styles and productions of fine art and decorative art by any process, architectural styles; (c) religious traditions and celebrations such as rites and rituals, objects, vestments and places of worship, initiations; (d) educational traditions such as sports, games, codes of manners and social conventions; (e) scientific knowledge and works such as practices and products of medicine and of the pharmacopoeia, theoretical and practical attainments in the fields of natural science, physics, mathematics and astronomy; (f) technical knowledge and productions such as metallurgical and textile industries, agricultural techniques, hunting and fishing techniques. Article 68.
[91] Although the Convention refers to domains, these are equally problematic as being rather general.
[92] UNESCO, First Preliminary Draft of an International Convention for the Safeguarding of the Intangible Cultural Heritage, UNESCO Doc. CLT-2002/CONF.203/3 (2002).
[93] Ibid.
[94] The annex contained the following examples of social practices, rituals and festive events: sports; kinship and ritual kinship ceremonies; settlement patterns; culinary arts; designation of status and prestige ceremonies; seasonal ceremonies; gender-specific social practices; practices relating to hunting, fishing and gathering; geonymic and patronymic nomenclature; silk culture and crafts (production [fabrication], sewing, dyeing, cloth designs); wood carving; textiles; body-art (tattooing, piercing, painting). Ibid.
[95] The author of this article was the primary proponent of this view.
[96] P Kuruk, Uruk, Proposals for Consideration in the Preliminary Draft of the Convention for the Safeguarding of Intangible Cultural Heritage UNESCO Doc GRR2/CH/2002/WD/7 (2001) (hereinafter Proposals for Consideration). A copy of this document is on file with the author.
[97] Ibid.
[98] ICH Convention, above n 1, Article 13(b).
[99] Due to the fact that in many countries the rights to folklore vest in the state, the Model Provisions avoided the concept of ownership, preferring instead to identify a ‘competent authority’ as the main repository of rights to folklore. Model Provisions, above n 3, Article 11. See also: D Posey, ‘Effecting International Change Cultural’ (1991) Survival Quarterly 29, 31.
[100] Under this instrument, each contracting state was expected to designate a competent authority to administer the protection of expressions of folklore within the state. ‘Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions’ (Draft Treaty) reprinted (1985) 19(2) Copyright Bulletin Article 3.
[101] Under the Model Provisions, where protected expressions of folklore were to be used both with gainful intent and outside their traditional or customary context, prior approval had to be obtained from such authority. However, permission would not be required where the use of folklore is for educational purposes, incorporated in the original work of an author or is incidental. Model Provisions, above n 3, Articles 3 and 4.
[102] Proposals for Consideration, above n 96.
[103] Ibid.
[104] Ibid.
[105] One commentator cautions against the danger posed by granting States the sole right to determine which items of cultural property are worthy of protection. She is concerned that the provisions of the World Heritage Convention would allow states to refuse to protect otherwise eligible cultural heritage purely for improper reasons. The generality in the category descriptions allows each state to subjectively specify the content and scope of which cultural objects are to be subject to the Convention's protective terms. ... As a result, there is great diversity among the various national legal systems in establishing their respective criteria for determining which objects, if any, are to be protected ... While this theory might recognize the unique contribution of each state to the cultural heritage of mankind ... granting each state the right to subjectively specify the scope and content of cultural property includes the right to exclude property from protection that others outside the state might find more culturally valuable. It also permits an exclusion from protection on grounds of domestic budget concerns ie, if not designated, no funds need be allocated to that artifact for protective efforts. A nationally controlled, self-designated cultural property framework cannot truly promote common outside cultural property interests. Since UNESCO 1970, ‘protection’ of cultural property has in reality become a euphemism for ‘retention’ or ‘protection against removal’ with little regard for the Convention's other language promoting a common cultural property concept. ... Once again, the foundational support for common protective efforts, including rights of intervention, are found in the treaty's noble ambitions laid down in its introduction. Yet the treaty's text defaults to traditional territorial concepts for its protective legal framework, a framework susceptible to the situs government's self-serving motivations, domestic political persuasion, and internal economic conditions. Catherine Vernon, ‘Common Cultural Property: The Search for Rights of Protective Intervention’ (1994) 26 Case W Res J Int’l L 435, 467.
[106] With reference to the World Heritage Convention, Darrell Posey, a world renowned expert in the area of cultural heritage notes the importance of genuine consultation with indigenous groups for an effective implementation of its provisions. The World Heritage Convention can be useful in protecting the cultural heritage of some indigenous peoples, traditional societies and local communities, depending on: (a) whether governments are willing to consult indigenous peoples by involving them in World Heritage conservation processes – such as identification, assessment, monitoring, evaluation by advisory bodies, management, etc ... and (c) whether the world Heritage Committee is prepared to recognise that cultural and natural properties important to an indigenous people constitute part of the heritage of humankind of sufficient importance to justify their protection. Darrell A Posey, Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities (1996) 81.
[107] Ibid Article 11(b).
[108] Ibid Article 15.
[109] Bemoaning the absence in the World Heritage Convention of rights of states other than the host states to intervene in the protection of cultural property, Catherine Vernon observes, ‘[The] common culture under the World Heritage Convention remains dependent upon the willingness and ability of the host state to provide protection; placing the territorial control of the nation-state above any worldwide or regional interest in the cultural heritage of mankind. This has, and will continue to create situations where domestic concerns take priority over common cultural property preservation, sometimes to the detriment of the world community's interests. A right of intervention could correct this international legal void by allowing protective cultural intercession in the event improved preservation is warranted.’ Vernon, above n 105, 471.
[110] Vernon argues as follows, ‘The treaty does provide for the creation and maintenance of a World Heritage List and a List of World Heritage in Danger ... Yet the Convention relies on each State that is a party to submit to the World Heritage Committee an inventory of property forming part of what it subjectively considers to be cultural and natural heritage, situated in its territory, with an outstanding universal value to the formation of the cultural heritage and natural heritage ... The Convention has an express stipulation that "inclusion of a property in the World Heritage List requires the consent of the State concerned". ... The World Heritage Convention established The World Heritage Committee to consider requests from any State Party for international assistance for property of universal value located within its territory, ... and indicates what forms of assistance will be granted. ... While these ... are applaudable programs, again they are restricted to impetus from the territorial state. Despite the treaty's regard for the world's heritage, the world receives no rights of protection; only States have such rights. The assistance provisions need to be expanded to include a right for any State, not just the one where the cultural heritage is situated, to invoke the help and funding of this UNESCO Committee. The assistance granted by the Committee under the Convention cannot be truly protective of common property rights without such recognized intervention provisions. Ibid 469-470.
[111] Proposals for Consideration, above n 96.
[112] See: ICH Convention, above n 1, Articles 13, 14 and 15.
[113] Ben Boer, ‘World Heritage Disputes in Australia’ (1992) 7 J Envtl & Litig 247, 252.
[114] See: above n 88.
[115] Eagen further writes, ‘Although national boundaries are likely to remain a force in international cultural property laws, efforts must be made to decrease the amount of power that source nations have under these laws, by giving non-source nations a voice in preservation decisions. Additionally, a right of action at some level must be acknowledged, because the current international treaties illustrate that positive intent is of little use until it can be implemented. Until such steps are taken, the fate of our cultural heritage remains in the hands of, and at the discretion of host nations. Ibid.
[116] Kuruk, above n 2, 812-819.
[117] ICH Convention, above n 1, Articles 16 and 17.
[118] Kuruk, above n 2, 770-775.
[119] Ibid.
[120] See: 1989 Recommendation, above n 7.
[121] Under the Model Provisions, applications to use an expression of folklore were to be made in writing to the competent authority which could impose fees for such use with the understanding that the revenues so collected would be used to promote or safeguard national folklore. Model Provisions, above note 3, Article 10.
[122] Ibid.
[123] Ibid.
[124] See: for example, Article 68 of the Bangui Agreement defining cultural heritage to include ‘practices and products of medicine and of the pharmacopoeia’. Bangui Agreement, above n 90, Article 70.
[125] Greaves, above n 87, ix.
[126] Convention on Biological Diversity, Article 15.
[127] Preamble to the Convention on Biological Diversity, ibid.
[128] One of the domains recognized under the ICH Convention for the manifestation of intangible cultural heritage includes ‘knowledge and practices concerning nature and the universe’. Article. 2(2)(d). Genetic resources, including the use of plants for medicinal purposes would appear to fit in this category. As noted, such matter was referred to in annex to the preliminary draft convention developed by ICH Experts Committee. See: above n 92 and accompanying text.
[129] ICH Convention, above n 1, Article 13(d).
[130] See: above n 112 and accompanying text.
[131] For example, the best drafted resource access contract is meaningless if the user party moves out of the State where the contract was entered into. An effective solution would require the cooperation of the second country in enforcing any judgment rendered against the party.
[132] Under the Draft Treaty, the competent authority could request that other states protect expressions originating in the contracting state’s own territory. Draft Treaty, above n 100, Article 3. Written permission of that authority would be required prior to permitting commercial uses of folklore in other contracting states. Such uses include the publication, reproduction, distribution or importation, for the purpose of distribution to the public, of reproductions or recordings of recitations or performances of expressions of folklore; or for the public recitation or performance of expressions of folklore, as well as any broadcast of expressions of folklore, Article 4(1). To facilitate the implementation of this provision, the state-appointed authority was required to provide information pertaining to the main characteristics and the source of expressions of folklore originating in its territory, Article 4(2). The request to use an expression of folklore would be made to the competent authority in the state in which the expression of folklore originates, Article 5(1). With few exceptions, authorization was expected to be automatic and expeditious, but could be conditioned on the payment of adequate compensation which would be fixed by the competent authority in the absence of agreement. Permission was not required from the competent body where the use of folklore is for educational purposes, for creating original literary or artistic works or for incidental use, Article 6(1).
[133] Proposals for Considerations, above n 96.
[134] Scholars have called for the recognition of moral rights as a solution to problems of distortion, misrepresentation and authenticity that frequently accompany the unauthorized use of cultural heritage. Kamal Puri, ‘Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action’ (1995) 9 Intell Prop J 293, 332. They argue for example, that such rights would be especially useful in protecting folklore from being ‘published without ... authorization, published without attribution, reproduced in poor quality, reproduced only partially causing the image to be distorted... or put to a use which would be inappropriate to the nature of the original work’. Christine Haight Farley, ‘Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?’ (1997) 30 Conn L Rev 1, 48.
[135] The moral right of divulgation allows the author to determine if and when his or her work will be made public. See: Melville B Nimmer and David Ninner, Copyright (1978) Section 8 [D] [05] 58.
[136] One commentator notes for example, that an effective instrument on cultural heritage must include ‘the assurance of safeguards and respect for intangible cultural property, by implementing for example, a minimum of paternity and integrity rights’. Catherine Berryman, ‘Toward a More Universal Protection of Intangible Cultural Property’ 1 (1994) J Intell Cultural Property 293, 333.
[137] See: Tunis Model Law on Copyright, above n 4.
[138] The Model Provisions required the origin of folklore be acknowledged in printed publications and other communications to the public by mentioning the community or geographic place from where the expression was derived. The requirement, however, did not apply to creations of original works inspired by expressions of folklore or to incidental uses of expressions of folklore. Model Provisions above n 3, Article. 5.
[139] Under the Draft Treaty, request to use folklore could be denied where the intended use would be prejudicial to the honor or dignity of the originating country or community. However, the competent authority is required to justify in writing, any decision it has taken to denying a request. Ibid Article 5(2).
[140] See, eg: Copyright Decree (Nigeria) Section 28(1) (19 December 1988) reprinted in 25 Copyright Monthly Rev World Intell Prop Org text 1-01, 8.
[141] ICH Convention, above n 1, Article 6(2).
[142] Ibid Article 6(1).
[143] Ibid Article 6(3).
[144] Ibid Article 6(4).
[145] Ibid Article 7.
[146] Ibid Article 8.
[147] Ibid Article 13(d).