WIPO Intellectual Property and the Safeguarding of Traditional Cultures: legal issues and practical options for museums, libraries and archives

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Intended Audience

Cultural institutions, including museums, libraries and archives

Torsen, M. and J. Anderson, World Intellectual Property Organization (WIPO)

2010

“Through examples and analysis, this publication explores areas of cultural heritage and IP law and policy in order to elucidate questions and issues relating to the management of collections, documents, and recordings related to TCEs [Traditional Cultural Expressions] by museums, libraries, archives, and other cultural institutions. It explores the role, responsibilities, and range of activities of museums, libraries and archives which raise IP and TCEs considerations.

The publication lays out the IP issues that may arise when acquiring, preserving, displaying, communicating and re-using TCEs and cultural heritage materials. The focus and structure is the interface between the preservation, protection, and promotion of TCEs, both tangible and intangible. Cultural institutions usually hold (i) tangible expressions (products of arts and handicrafts) and (ii) materializations (photographs, films, audio and audiovisual recordings, transcripts, descriptions) of tangible and intangible expressions and practices. Cultural institutions do not hold – as such – intangible TCEs; what they may do is invite communities to stage/enact intangible practices, expressions or representations on their premises… In acknowledging the current gaps in the legal management of such collections, the function of this publication is to address a range of questions that cultural institutions are currently grappling with, in the management of their collections, namely:

What are TCEs?
What are the specific IP laws relating to cultural institutions and repositories of TCEs?
What are the specific IP issues that arise when dealing with TCEs?
What alternative practices in managing TCEs exist?
What options are there if conflicts emerge?
What are examples of good practices that could be useful to emulate?

This publication addresses copyright and related rights law, touches on trademark law as currently written and construed in a range of jurisdictions and references other relevant IP laws in the context of TCEs.”

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English

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SDGs LINKAGES

The resource can help inform a range of activities relating to collections-based institutions, and that support the SDGs, notably in terms of:

1.4 (access to property, including heritage), 2.5 (ensuring fair sharing of benefits from use of crops and traditional knowledge), 8.9 (sustainable tourism), 9.1 (inclusive infrastructure that supports economic development, with a focus on equitable access), 10.2 (universal social, political and economic inclusion), 10.3 (removing discriminatory practices), 10.4 (adopting inclusive practices), 11.4 (strengthen efforts to protect and safeguard cultural and natural heritage), 16.3 (promote the rule of law and access to justice), 16.6 (effective, accountable and transparent institutions, 16.7 (inclusive and representative decision making), 16.10 (a key consideration, on ensuring the right to information and protecting other fundamental freedoms), 16.B (upholding laws and adopting policies for sustainable development), 17.14 (policy coherence for sustainable development) and 17.16 (international partnerships).

The resource can also help to understand the context regarding target 15.6 (fair sharing of benefits from use of genetic resources). The resource can also help support the development of knowledge and attitudes regarding Indigenous rights, appreciation of cultural diversity and of culture’s contribution to sustainable development (4.7).

Click on the SDG Target to discover Our Collections Matter indicators

SDG 1.4: Equal Rights to Ownership, Basic Services, Technology and Economic Resources
Our Collections Matter indicators:
Numbers and proportions of people from particular groups using collections in comparison with demographics in broader society.
Numbers of people accessing collections.
Number of targeted programmes that aim to enhance access to collections by disadvantaged groups.
Sustainable tourism that enhances local communities’ access to basic services, ownership and control over land and other forms of property (including cultural and natural heritage), as well as to technology and markets.
Involvement of people from disadvantaged groups in decision-making activities and processes relating to collections and collections-based institutions.
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SDG 2.5: Maintain the Genetic Diversity in Food Production
Our Collections Matter indicators:
Collections development related to genetic diversity of seeds, cultivated plants, farmed and domesticated animals (notably of local or at-risk varieties) and related wild species, for example in herbaria, museums, seed and gene banks, and seed libraries.
Number of educational programmes related to genetic diversity of domesticated plants, animals and wild relatives.
Number of educational programmes related to fair and equitable benefits of use of genetic resources and associated traditional knowledge, following international agreements (e.g. Nagoya Protocol).
Number of educational and awareness programmes for people to ensure that they are aware of their rights and protections in terms of traditional knowledge, and exploitation of genetic resources.
Number of research activities that help understand traditional knowledge, and genetic diversity of crop plants and animals.
Ensure that producers of crop plants and animals are fairly compensated.
Policies and procedures in place to ensure seed banks are soundly managed, in terms of risk management and emergency planning.
Policies and procedures in place to ensure legal compliance with fair and equitable benefits of use of genetic resources and associated traditional knowledge, following international agreements (e.g. Nagoya Protocol).
Number of partnerships at national, regional and international levels, as appropriate, to soundly manage seed and plant banks.
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SDG 4.7: Education for Sustainable Development and Global Citizenship
Our Collections Matter indicators:
Numbers of people in each type of programme drawing on collections from different demographic groups.
Increases in numbers of people in each type of programme from different demographic groups.
Proportion of people involved in such programmes in relation to overall audience size.
Evidence that learners have acquired knowledge and skills to promote sustainable development.
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SDG 8.9: Promote Beneficial and Sustainable Tourism
Our Collections Matter indicators:
Numbers of jobs created or supported that relate to sustainable tourism drawing on local products (e.g. craft producers).
Develop and implement plans to reduce and remove negative impacts of tourism.
Numbers of activities and/or products drawing on local culture.
Value to artisans and source communities of activities and products drawing on local culture.
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SDG 9.1: Develop Sustainable, Resilient and Inclusive Infrastructures
Our Collections Matter indicators:
Development of research-useful collections to support reliable, sustainable and resilient use by researchers and others.
Number and proportion of collections facilities and stores that support economic development and human well-being.
Number and proportion of collections facilities and stores that provide affordable and equitable access for all.
Investment in collections facilities.
Inclusion of collections information in regional and transborder initiatives, notably via digital access for discoverability.
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SDG 10.2: Promote Universal Social Economic and Political Inclusion
Our Collections Matter indicators:
Collections development to ensure that collections effectively meet the needs of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status.
Number and proportion of educational and participatory programmes that promote participation irrespective of social or other status.
Numbers and proportions of people making use of collections in relation to the demographic of the local population.
Numbers and proportions of people involved in focused programmes aimed at promoting social, economic and political inclusion.
Numbers and proportions of people from different demographic groups involved in decision-making processes relating to collections and collections-based institutions.
Number and types of partnerships that build relationships with marginalized groups, individuals and communities.
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SDG 10.3: Ensure Equal Opportunities and End Discrimination
Our Collections Matter indicators:
Identification of discriminatory policies and practices, with clear plans to address these, to ensure equal opportunity for all and reduce inequalities of outcome.
Collections development to uphold and promote legislation and anti-discriminatory perspectives, with the aim of reducing inequality within and between countries.
Education and participatory programmes that promote anti-discriminatory legislation, policies and action, with the aim of reducing inequality within and between countries.
Research that supports anti-discriminatory legislation, policies and action, with the aim of reducing inequality within and between countries.
Participation in partnerships that promote anti-discriminatory legislation, policies and action, with the aim of reducing inequality within and between countries.
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SDG 10.4: Adopt Fiscal and Social Policies that Promotes Equality
Our Collections Matter indicators:
Number and proportion of policies that proactively address equality issues relating to fiscal, wage and social protection considerations.
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SDG 11.4: Protect the Worlds Cultural and Natural Heritage
Our Collections Matter indicators:
Total expenditure (public and private) per capita spent on the preservation, protection and conservation of all cultural and natural heritage, by type of heritage.
Plans, policies and procedures in place for the safe use of collections for a variety of purposes, protecting and safeguarding both collections and those who use them.
Plans, policies and procedures in place for the identification, safeguarding and protection of cultural and natural heritage at risk.
Collecting programmes in place to protect, safeguard and make use of cultural and natural heritage, addressing the needs of communities and stakeholders, and ensuring that collections can be an effective resource for sustainable development.
Number and diversity of educational, awareness-raising, research programmes, and partnerships that aim to strengthen protection of cultural and natural heritage.
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SDG 15.6: Promote Access to Genetic Resources and Fair Sharing of the Benefits
Our Collections Matter indicators:
Policies, plans and agreements in place for access and benefit sharing relating to use of collections, in line with the Nagoya Protocol (notably relating to natural history collections, gene banks, tissue banks, seed banks).
Effective communication and dissemination methods in place to promote access to resources, and access to relevant policies, plans and agreements, in place.
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SDG 16.3: Promote the Rule of Law and Ensure Equal Access to Justice
Our Collections Matter indicators:
Collections development that relates to the rule of law, equality before the law, and justice for all.
Number of activities drawing on collections, for example educational, research and partnership activities, that promote the rule of law at national and international levels, and that promote a culture of lawfulness, and the right of all to justice.
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SDG 16.6: Develop Effective Accountable and Transparent Institutions
Our Collections Matter indicators:
Proportion of the population [audience/users/non-users] satisfied with their last experience of public services.
Access to information, and accountability policies and mechanisms, in place.
Effective institutional arrangements, both for own working and for working in partnership with other sectors, in place.
Plans and arrangements in place for extraordinary circumstances such as natural and human-caused disasters.
Effective arrangements in place to fulfil legal and social obligations and responsibilities.
Effective arrangements in place for transparent communication and reporting of institutional performance.
Effective arrangements in place for transparent decision-making and accountability.
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SDG 16.7: Ensure Responsive, Inclusive and Representative Decision-Making
Our Collections Matter indicators:
Proportions of positions (by sex, age, persons with disabilities and population groups) in public institutions (national and local legislatures, public service, and judiciary) compared to national distributions.
Proportion of population [audience/users/non-users] who believe decision-making is inclusive and responsive, by sex, age, disability and population group.
Decision-making addresses societal, environmental and economic challenges related to the community, considering short-term and long-term risks and opportunities.
Decision-making draws on diverse backgrounds, viewpoints and interests, reflecting a broad base of stakeholders, and working to promote inclusion and provide effective services for all of society.
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SDG 16.10: Ensure Public Access to Information and Protect Fundamental Freedoms
Our Collections Matter indicators:
Adopt and implement constitutional, statutory and/or policy guarantees for public access to information.
Plans in place, and plans implemented to enhance public access to information relating to collections.
Plans in place, and plans implemented to support fundamental freedoms, in line with human rights, national and international agreements and legislation.
Plans and procedures in place for public access to information relating to the operation and management of collections-based institutions.
Complaint mechanism in place for public to use where public access to information and fundamental freedoms not supported or fulfilled.
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SDG 16.B: Promote and Enforce Non-Discriminatory Laws and Policies
Our Collections Matter indicators:
Proportion of population [audience/users/non-users] reporting having personally felt discriminated against or harassed in the previous 12 months on the basis of a ground of discrimination prohibited under international human rights law.
Number and proportion of policies that incorporate sustainable development considerations, in the full sense of recognizing all three of social, economic and environmental considerations.
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SDG 17.14: Enhance Policy Coherence for Sustainable Development
Our Collections Matter indicators:
Proportion of policies that incorporate sustainable development considerations, linking to SDGs and targets.
Incorporation of policy considerations from outside the collections sector into policies of collections-based institutions, to facilitate partnerships and effectiveness.
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SDG 17.16: Enhance the Global Partnership for Sustainable Development
Our Collections Matter indicators:
Number and/or increase in number, and diversity of global and international multi-stakeholder partnerships that share collection-related knowledge, expertise, technology and financial resources to address the SDGs, or that otherwise involve collections-based organisations and institutions.
Number and/or increase in number, and diversity of global and international multi-stakeholder partnerships involving developing countries that share collection-related knowledge, expertise, technology and financial resources to address the SDGs.
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