A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Paul Torremans
Chapter 9: Adequate Protection of Folklore – A Work in Progress
Silke von Lewinski1 1. Introduction Adequate protection of expressions of folklore has been claimed, discussed and tested for a much longer time than protection of other aspects of indigenous heritage, such as traditional knowledge or traditional names, signs and insignia. Yet, it seems that the ideal solution has not yet been found. In the past few years, however, considerable progress has been made in respect of the concrete drafting of tailor-made provisions, not least as a result of enhanced knowledge of the particularities of indigenous heritage. This chapter will focus on two documents which may be considered to represent the most advanced state of the art in the field to date, namely the Draft Substantive Provisions elaborated by the WIPO Secretariat on the basis of its earlier documents and comments by governmental, intergovernmental and non-governmental experts,2 and the Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture adopted by the Secretariat of the Pacific Community as a model law for the Pacific Island countries that wish to enact legislation in this field.3 Before analysing the different model provisions, a résumé of the previous attempts to achieve protection of folklore and the possibilities of protecting folklore by existing intellectual property or similar rights will be presented. 2. Previous attempts to achieve protection of folklore at the international and national levels 2.1. The Berne Convention It is not astonishing that the earliest attempts to achieve protection for folklore were made in the context of international copyright law,...
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