0.8 Traditional knowledge  (Page 16/24)

Unesco convention for the safeguarding of intangible cultural heritage (2003)

In 2001,  UNESCO  began drafting a definition of intangible cultural heritage and formulating provisions for its protection. In 2003, the resulting Convention was adopted and in 2006 it entered into force.  121  countries have ratified the Convention.  Australia, Canada, New Zealand  and the United States  have not ratified the Convention.  Argentina, Columbia, Denmark, Indonesia, Saudi Arabia, Seychelles  and  the Syrian Arab Republic  all entered declarations or reservations.

Article 1  lists the purposes of the Convention as "to safeguard the intangible cultural heritage; to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; to provide for international cooperation and assistance." Although the Convention does not directly discuss intellectual property rights,  Article 3  notes that nothing in the Convention affects "the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights ... to which they are parties."

Article 11 Role of States Parties

Each State Party shall:

take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory;

among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

Trade-related aspects of intellectual property rights (1994)

As we saw in Module 2, the 1994  TRIPS Agreement  created a set of minimum intellectual property standards for all members of the World Trade Organization. Although the Agreement requires developing countries to increase many forms of intellectual property protection, it does not mention folklore or TCEs.

After the passage of TRIPS, the UN Human Rights Commission studied its implications for human rights. In 2000, the Commission, relying on that study, adopted Resolution 2000/7 on Intellectual Property and Human Rights. The Resolution notes that “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.” It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination. There are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.” The Sub-Commission urged national governments, intergovernmental organizations, and civil society groups to give human rights primacy over the economic policies and agreements. Since the passage of the 2000/7 Resolution, Human Rights bodies at the UN have investigated the relationship between intellectual property law and human rights, as discussed by Lawrence Helfer in  this article .