Table of Contents

Intellectual Property and Traditional Cultural Expressions in a Digital Environment

Intellectual Property and Traditional Cultural Expressions in a Digital Environment

Edited by Christoph Beat Graber and Mira Burri-Nenova

In the face of increasing globalisation, and a collision between global communication systems and local traditions, this book offers innovative trans-disciplinary analyses of the value of traditional cultural expressions (TCE) and suggests appropriate protection mechanisms for them. It combines approaches from history, philosophy, anthropology, sociology and law, and charts previously untravelled paths for developing new policy tools and legal designs that go beyond conventional copyright models. Its authors extend their reflections to a consideration of the specific features of the digital environment, which, despite enhancing the risks of misappropriation of traditional knowledge and creativity, may equally offer new opportunities for revitalising indigenous peoples’ values and provide for the sustainability of TCE.

Chapter 6: Legal Protection of Traditional Cultural Expressions: A Policy Perspective

Martin A. Girsberger

Subjects: law - academic, human rights, intellectual property law, politics and public policy, human rights


Martin A. Girsberger* 1. INTRODUCTION Every nation claiming to be a part of the civilized world is proud of its cultural heritage. Folklore is probably the most important and well-acclaimed component of the cultural heritage of a nation. It can reflect the essentials of a nation’s cultural attributes as in a mirror and is recognized as a basis for its cultural and social identity. Nations all over the world are quite possessive about this valuable heritage and express very strong sentiments about the management of the rich resource.1 For several decades now, traditional cultural expressions (TCE) and their legal protection have been discussed at the international level.2 A number of international fora are involved in these discussions and several international instruments have been adopted to date, including legally binding agreements, conference resolutions and model provisions. Despite this progress, many issues – even very fundamental ones – remain unresolved. TCE entered the international debate for various reasons. These include the call for an increased recognition of indigenous peoples and their rights, such as the right to self-determination; the loss of TCE and the apparent need for their preservation;3 cases of perceived or actual misappropriation of TCE; and * The views expressed herein are the views of the author and do not necessarily coincide with the views of the Swiss Federal Institute of Intellectual Property or any other Swiss government agency. 1 WIPO, A Study on the Protection of Expressions of Folklore, WIPO/GRTKF/STUDY/1, 25 November 2002, at p. 1. 2 See e.g. UNESCO and...

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