As we saw in Module 2, the 1994 TRIPS Agreement (http://www.wto.org/english/docs_e/legal_e
/27-trips_01_e.htm) 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 (http://papers.ssrn.com /sol3/papers.cfm?abstract_id=891303) .
ILO Convention 169 on Indigenous and Tribal People (http://www.ilo.org/ilolex /cgi-lex/convde.pl?C169) (1989)
The International Labor Organization, a special agency under the auspices of the UN, was the first international organization to attempt to define indigenous populations and to declare the rights of such populations. ILO Convention No. 169 replaced ILO Indigenous and Tribal Populations Convention No.
107 (http://www.ilo.org/ilolex/cgi-lex/convde.pl?C107) (1957) that had been ratified by six African States.
Although no African states have yet ratified (http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169) ILO Convention 169, the ILO and the African Commission on Human and Peoples’ Rights (http://www.ilo.org /indigenous/Resources/Publications/lang--en/docName--WCMS_115929/index.htm) view this instrument as an inspiration and a reflection of a trend towards the protection of indigenous rights globally and in Africa.
The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems. It applies to "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations" and to "peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions." Article 1 (http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169) . The Convention does not mention intellectual property rights, but seeks to protect indignous culture and recognizes the collective ownership that characterizes many indigenous populations.
Article 4(1)
Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.
Article 5
the social, cultural, religious and spiritual values and practices of these peoples shall be recognised 1.
and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
the integrity of the values, practices and institutions of these peoples shall be respected;
2.
policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.
3.
Article 13
In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.
1.
Berne Convention for the Protection of Literary and Artistic Works (http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html) (1979)
Although the Berne Convention (discussed at length in Module 2) does not mention traditional knowledge, Article 15(4) can be interpreted to leave to the discretion of each member country how (if at all) to protect TCEs.
Article 15(4)
In the case of unpublished works where the identity of the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.
1.
International Covenant on Economic, Social and Cultural Rights (http://www2.ohchr.org/english/law/cescr.htm) (1966)
The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production.
ICESCR has 160 parties (http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 3&chapter=4&lang=en) , 69 of which are signatories. Read. (https://litigation-essentials.lexisnexis.com /webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=48+Am.+U.L.+Rev.+769&
srctype=smi&srcid=3B15&key=353d9e7da6d89fd06493aaddf1e8606b) In conjunction with the 1948 Universal Declaration of Human Rights, and recognizing the binding nature of the treaty upon its
signatories, the ICESCR can be interpreted (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=891303) as guaranteeing intellectual property rights as a human right. In 2005, the Committee on Economic, Social and Cultural Rights (CESCR) commented (http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29
/E.C.12.GC.17.En?OpenDocument) on Article 15 of the ICESCR (reproduced below), expanding it to protect indigenous groups' expressions of cultural heritage. CESCR calls upon signatories to adopt protective measures that "recognize, register and protect the individual or collective authorship of
indigenous peoples under national intellectual property rights regimes and should prevent the unauthorized use of scientific, literary and artistic productions of indigenous peoples by third parties."
Article 15
The States Parties to the present Covenant recognize the right of everyone:
To take part in cultural life;
1.
To enjoy the benefits of scientific progress and its applications;
2.
To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
3.
1.
The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
2.
The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
3.
International Covenant on Civil and Political Rights (http://www2.ohchr.org/english /law/ccpr.htm) (1966)
The International Covenant on Civil and Political Rights (ICCPR) recognizes the self determination of minority groups and their right to control their culture. The ICCPR has 165 parties (http://treaties.un.org /Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en) , 72 of which are signatories. Although the ICCPR is silent on most cultural and intellectual property rights issues,
considered (https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&
doctype=cite&docid=48+Am.+U.L.+Rev.+769&srctype=smi&srcid=3B15&
key=353d9e7da6d89fd06493aaddf1e8606b) in conjunction with the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 Universal Declaration of Human Rights, the ICCPR can be viewed as establishing intellectual property rights as human rights.
Article 1
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
1.
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Universal Declaration of Human Rights (http://www.un.org/en/documents /udhr/index.shtml) (1948)
The Universal Declaration of Human Rights (UDHR) establishes the right to the protection of moral interests and materials deriving from any scientific, literary or artistic production. The UDHR is not a binding document, but it is a foundational document for the United Nations and for the two 1966 Covenants, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
Although the UDHR does not address intellectual property rights, Article 27 (http://www.un.org
/en/documents/udhr/index.shtml) of the UDHR recognizes the "moral and material interests" of authors and inventors and the right of the public “to enjoy the arts and to share in scientific advancement and its
benefits.” This article expresses the challenge of balancing private intellectual property rights and a vibrant
public domain.
Article 17
Everyone has the right to own property alone as well as in association with others.
1.
No one shall be arbitrarily deprived of his property.
2.
Article 27
Everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
1.
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
2.