Promoting Tradition Cultural Expressions: Institutions Selection and Choice of Strategy

Wen-Cheng Huang

1. Institutions Selection: WIPO or WTO

Currently, WIPO has discussed with protection for tradition culture expression since 2000. In addition, WIPO has established an Intergovernmental Committee on Intellectual Property and Generic Resource, Traditional Knowledge and Folklore (IGC)[1], which is mainly in charge of the protection of expressions of folklore. Furthermore, positive protection has increasingly been discussed in WIPO. Now even we already have the Provisions of the Protection of Traditional Cultural Expressions drafted by the IGC, and this draft would be further deliberated on at the following session[2].

On the other hand, in WTO, most of the tasks focused on the protection of traditional knowledge relating to international patent regimes. Furthermore, considering that the result of the past practice of improving access to medicines was not so positive, WTO might not be an appropriate place to introduce a new norm for protecting traditional cultural expressions[3].

More specifically, though WTO is indeed the appropriate forum to register specific concerns regarding intellectual property rules of the multilateral trading system, the price we pay might be too heavy since we might have to concede in return[4].

Therefore, it is better to choose WIPO to present our proposal, in order to obtain our goals.

2. The Necessarily Procedural Steps to Ensure the Full Realization of the Goal

2.1 Agenda
First, according to Rule 5: (4) of General Rules of Procedure of the WIPO (hereafter referred to as ‘GRP’), any State member of a body may request the inclusion of supplementary items on the draft agenda. Such requests shall reach the Director General not later than one month before the date fixed for the opening of the session. In order to make sure our proposal for protecting traditional cultural expressions can be listed onto the agenda for ordinary sessions, it is necessary to request the inclusion of supplementary items on the draft agenda, pursuant to Rule 5: (4) of the GRP.

Second, in accordance with Rule 3: (2) of the GRP, a State Member can request the Director General to convene an extraordinary session, and according to Rule 5: (2) of the GRP, the draft agenda for extraordinary sessions shall be established by the person or persons requesting convocation of such sessions. By doing so, we can make sure that our proposal can definitely be listed onto the agenda for discussion.

Third, during the session, we can lobby the other State Members to support our proposal. Pursuant to Rule 5: (7), during the session, the assembly may, by a majority of two-thirds of the votes cast, decide to add new items to the agenda, provided they are of an urgent character. And we need to prepare a position paper to illustrate why this issue is urgent.

2.2 Speaking in the IGC
In order to express our demands to protect our traditional cultural expressions as soon as possible, we shall signify our desire to speak in the IGC, in accordance with Rule 15: (2) of the GRP.

2.3 Points of Order

For avoiding any kind of unfavorable point of order, once the Chairman determined any point of order, which is unfavorable to our proposal, we shall appeal against the ruling of the Chairman and put to the vote, pursuant to Rule 14: (3) of the GRP. According to Rule 14: (3) of the GRP, the ruling of the Chairman would be overruled by a majority of the delegations.

2.4 Overruling Chairman’s Conclusion
According to Rule 15: (3) of the GRP, the Chairman of a subsidiary body may be accorded precedence for the purpose of explaining the conclusions arrived at by that subsidiary body. In order to prevent Chairman’s conclusion is not relevant to our discussion or intend to omit our proposal for protecting traditional cultural expressions, we shall strictly interpret the rules of procedure. We would not only put into doubt the legitimacy of the chairman, but we would also try to make the chair’s attempt at a majority vote to adopt the conclusions invalid. This may force WIPO to announce these conclusions as those of the chair, not the Committee, and as such they could not be considered actionable[5].

2.5 A Short Conclusion
Nevertheless, the IGC and the WIPO General Assembly themselves do not have the capacity to create binding international law. Past WIPO treaties have become binding under international law are due to the choice of the parties concerned to adhere to the treaties; other states are not bound by the treaty as such Thus, a distinct treaty-making process would be required (typically, a diplomatic conference) to negotiate such an instrument. The treaty would become binding only on those countries which elect to adhere to them through a distinct act of ratification or accession[6].

However, if we want to attain our goal as soon as possible, promoting a soft norm might be a good alternative. Since, first, treaty making is considered slow and time-consuming, making it ill-suited to address fast changing environment. Second, treaty law would only bind those states that accept it, while soft law norms could be made more generally applicable without requiring ratification via the national Parliaments. Furthermore, soft law norms are not made through any defined process and can take various forms including recommendations, resolutions, declarations and guidelines, among other possibilities[7].

3. Strategic Considerations, Stakeholders, and Existing Legal Constraints

If we attempt to attain our goal by attaining a treaty, it might be too late and time-consuming. For developed countries, economically, little they can gain from an international legal regime on traditional cultural expressions (hereafter referred to as ‘TCEs’). Also, the existence of the ICG has been used as a justification for developed countries to keep the subjects of Traditional Knowledge and TCEs out of negotiations on intellectual property at the WTO. Thus, the first priority is to convince those developed countries who want to maintain good relations with developing countries like some European countries to support the proposal of protecting TCEs[8].

The potential opponents are not only developed countries. The representatives of copyrights groups, the lawyers of international music companies, and some NGOs promoting IPR, might oppose our proposal, since they are not only influential in the domestic politic system of developed countries, but they can also be invited to attend WIPO meetings. In particular, they may support the defensive protection, but oppose positive protection, because they are the free-riders and beneficiaries under the current regimes.

Apart from promoting a comprehensive international treaty or soft norm to protect TCEs, perhaps, a group of interested countries might be willing to form a group. Members of the group can form harmonized standards and apply the reciprocity principle to protect TCEs. This group can be an open club to welcome the new Members. Since the protection of TCEs, as a new category of IPRs not provided by the TRIPS, Members of the group are not bound by the MFN treatment obligation. Thus, the preferential treatment of protecting TCEs given by the group also gives a strong incentive to attract the other non-Members to join the group. By doing so, the drawback of a national sui generis system without the extra-territory effect can be partially prevented. Also, starting from a group composed of interested countries may pragmatically overcome the high-costs of forming a new international regime for protecting TCEs. With time goes by, the cumulating experiences we gain from forming a small international group may contribute to a mature design of a new multilateral legal regime for protecting TCEs in the future[9].

[1] It is an ad hoc committee in WIPO, and see A Citizen’s Guideline to WIPO, at pp. 23-24.
[2] Graham Dutfield, Protecting Traditional Knowledge: Pathways to the Future, Issue Paper No. 16, ICTSD, at p. 16.
[3] Graham Dutfield, Protecting Traditional Knowledge: Pathways to the Future, Issue Paper No. 16, ICTSD, at p. 21.
[4] Graham Dutfield, Protecting Traditional Knowledge: Pathways to the Future, Issue Paper No. 16, ICTSD, at p. 35. .
[5] See WIPO Press Release, “SCCR Accelerates Work on the Protection of Broadcasting Organizations,” (WIPO/PR/2004/400) 22 November 2004.
[6] OPTIONS FOR GIVING EFFECT TO THE INTERNATIONAL DIMENSION OF THE COMMITTEE’S WORK, INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE, Tenth Session Geneva, November 30 to December 8, 2006.
[7] Sisule F Musungu and Graham Dutfield, Multilateral agreements and a TRIPS-plus world: The World Intellectual Property Organisation (WIPO), TRIPS Issue Paper 3, at pp. 6-7.
[8] Graham Dutfield, Protecting Traditional Knowledge: Pathways to the Future, Issue Paper No. 16, ICTSD, at pp. 18-19.
[9] Ibid, at p. 33.