How intellectual property can be used to protect and preserve culture
The preceding examples show how trademarks have been used to protect certain aspects of a people’s culture. Other examples include the use of trademarks and geographic indicators of source to protect the food and spices of cultures around the world, such as Jamaican jerk seasoning and Grenadian spices.
Copyright also plays an important role in protecting culture because it protects literary and artistic work, such as music, poetry, and art. The nature of these aspects lends itself to protection using copyright because in most cases once the source country is party to the Berne Convention, and protection is automatic and intrinsic from the time the work is created. Copyright plays a very important and vital role in the preservation and promotion of Jamaican culture by protecting music artists, playwrights, poets, and writers.
Industrial designs play an important role in protecting cultural designs such as crafts and textiles that are commercially produced but have a strong cultural component. This type of intellectually property protection has been used in Australia by the Aborigines to protect some aspects of their culture that were being reproduced commercially without permission and unlawfully (Janke 2003).
Intellectual property rights protect the rights of creators, and allow them to profit financially from their creation if they so desire. However, there are limitations and these have to do with time, ownership and enforcement.
Current intellectual property conventions and treaties recommend protecting intellectual property for a specified period of time. The recommended time period of the protection varies according to the type of intellectually property being protected, and according to the implementation of the treaty by individual states.
The Paris Convention for the protection of Industrial Property (1883) says that registrations made “cannot be cancelled until after a reasonable period, and only if the owner cannot justify his inaction” and the Trademark Law Treaty (1994) “standardized the duration of the initial period of the registration and the duration of each renewal to 10 years each” (WIPO n.d.).
The Berne convention recommends protecting authors for their lifetime plus an additional 50 years, for most types of work (WIPO n.d.). However, in the United States protection is granted for the lifetime of the author plus 70 years, for most types of work (U.S. Copyright Office 2010).
The time limitation on intellectual property protection can be a hindrance to cultural preservation because in some cases it forces the owner to renew the rights to their creation, and if the owner cannot or does not renew those rights that cultural work can end up in the public domain. In some cases, such as copyright, if the owner of an important piece of cultural work dies, after a certain time that work will fall into the public domain and can be ultimately lost or lose its cultural value after being copied and diluted.
When a trademark, or any other mark, is registered the individual, group, or organization registering the mark owns it. Only the registrant has the right to use the mark or authorize the use of that mark. The same is true for industrial designs.
With copyright, the author of the work is the owner of the work from the time the work is created once the country that the work was created in is party to the Berne Convention. Only the author has the right to authorize anyone to reproduce his/her work.
Ownership of intellectual property poses the biggest threat to cultural preservation through intellectual property protection. This is because in many cultures it is difficult to ascertain and maintain the ownership of cultural icons, such as folk songs, traditional techniques for doing things, and traditional and sacred marks.
As with every law, enforcement is the most difficult aspect of the law. Even though many states may have assented to international treaties on intellectual property, they may not have enacted legislation to implement the treaty, and put measures in place to enforce that legislation. Nations are sovereign, governed by their own laws, and regardless of what treaties they sign, violators of intellectual property rights can only be prosecuted according to the laws of the land in which they are being violated, and if no such laws exist or if enforcement of the laws is poor, there is no remedy for the intellectual property holder.
The future – Traditional Knowledge and Traditional Cultural Expressions
While current intellectual property laws and treaties provide a mechanism for protecting some aspects of culture, they cannot provide complete coverage for all, or even most, aspects of culture. Most important of these are what have been recently classified by the WIPO as traditional knowledge (TK) and traditional cultural expressions (TCEs).
Traditional knowledge is described as “traditional technical know how, or traditional ecological, scientific or medical knowledge… and can encompass innovations, information, practices, skills, and traditional agriculture” (WIPO n.d.). This is closely related to traditional cultural expressions or ‘expressions of folklore’, which are described as “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community, in particular folk tales, folk songs, folk dances, folk art, crafts, and architectural forms” (WIPO n.d.).
The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established in 2000 with a view to addressing the linkages between the IP system and concerns of practitioners and custodians of traditional cultures (WIPO n.d.). At the Assemblies of Member States of WIPO held between September 26 and October 5, 2011, a decision was made to renew the mandate of the IGC for the 2012-2013 biennium. This mandate requires that the committee “expedite its work on text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of GRs, TK and TCEs” (WIPO n.d.).
The IGC has done a lot of work over the last twelve years conducting surveys, publishing papers and booklets, and educating indigenous peoples of their intellectual property rights. It is hoped that in the next five years the IGC establishes a treaty or convention that specifically protects ‘culture’ – genetic resources, traditional knowledge and folklore.