0.8 Traditional knowledge  (Page 11/24)

A fee payment scheme similar to the 1977 Agreement still exists in which “the exploitations of expressions of folklore and that of works or productions that have fallen into the public domain . . . shall be subject to the user entering into an undertaking to pay the national collective rights administration body a relevant royalty” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 1). The fees will be donated, in part, to “welfare and cultural purposes” (1999 Agreement, Annex VII, Chapter 5, Article 59, para. 3).

Some observers contend that the 1999 Agreement completely removed folklore from copyright law and instead provided it with  sui generis  protection whereby folklore is regulated and owned by the government. However, others see that folklore can still be protected as a form of copyright as stated in Article 5 of Annex VII. This ambiguity creates confusion as to who owns folklore under the terms of the Agreement. This confusion is even greater than in the 1977 Agreement because there are no longer specific references to the States having an indefeasible right with respect to folklore and cultural heritage.

Common market of the south (mercosur)

MERCOSUR is a regional trade agreement created in 1991 by the Treaty of Asuncion between  Argentina, Brazil, Paraguay,  and  Uruguay . In 1995, the regional organization adopted an important protocol to protect indigenous heritage: the Protocol for the Harmonization of Intellectual Property Norms in MERCOSUR with respect to Trademarks and Indications of Source or Denominations of Origin. In particular, Article 19 of the Protocol requires Party States to “reciprocally protect their indications of source and dominations of origin.” “Denomination of origin” is defined broadly as “the geographical name of a country, city, region or locality within a Party State's territory, which designates products or services whose qualities or characteristics are exclusively or essentially caused by the geographical environment, including natural and human factors.” Such a broad definition of geographic origin -- which notably includes “human factors” -- encompasses traditional cultural expressions. Similarly, the Protocol attempts to protect traditional knowledge through its definition of “indications of source” by basing the defined term on the location that is “known as a center place for extraction, production or manufacture of a certain product or for the performance of a certain service.” In 1996, MERCOSUR affirmed the importance of cultural rights by creating the Protocol on the Cultural Integration of MERCOSUR. Although traditional knowledge is not specifically mentioned, this protocol focuses on the creation of cultural policies that display historical traditions, common values, and cultural diversity of member countries.

Andean community

The Andean Community (originally known as the Andean Pact) was created in 1969 with the signing of the Cartagena Agreement. The overall objective of the Community is to enable the member countries to work jointly to “improve their people’s standard of living through integration and economic and social cooperation.” The current member states are  Bolivia, Columbia, Ecuador,  and  Peru; Mexico  and  Panama  are observer countries. In 2000, the Community enacted  Decision 486 , the purpose of which was to improve intellectual property protection and provide “more expeditious and transparent procedures for trademark registration and patent issues.” Although this Decision focuses on biological resources, it also provides for protection of traditional knowledge in the General Provisions. Article 3 states that member countries must “ensure that the protection granted to intellectual property elements shall be accorded while safeguarding and respecting their biological and genetic heritage, together with the traditional knowledge of their indigenous, African American, or local communities. As a result, the granting of patents on inventions that have been developed on the basis of material obtained from that heritage or that knowledge shall be subordinated to the acquisition of that material in accordance with international, Andean Community, and national law. The Member Countries recognize the right and the authority of indigenous, African American, and local communities in respect of their collective knowledge.”