Creative Economy: A Feasible Development Option

6The role of intellectual property in the creative economyThe relationship between intellectual property andtraditional cultural expressions is nuanced and complex. Forinstance, contemporary expressions of traditional culturesare protected by conventional copyright 15 and performancesof traditional cultural expressions are protected. 16Certification trademarks and labels of authenticity have beenused successfully by indigenous communities in Canada, Fiji,New Zealand, Panama and Tonga to curb the sale of faketraditional creative arts. Further, some argue that the creativeuse by third parties of “public domain” traditional culturalexpressions sustains creativity and revitalizes, preserves andpromotes traditional cultures.While there are diverse views on these questions, thereis wide consensus that traditional cultural expressionsembody innovation and creativity and should not be misappropriatedand misused. The challenge, then, is to identifygaps in the protection offered by current systems and constructbalanced and workable measures to fill these gaps inaccordance with the aspirations of indigenous and localcommunities and the broader public interest. However, whatprecisely is a “traditional” cultural expression? When is useof a traditional cultural expression legitimate cross-culturalborrowing and when is it “misappropriation”? What are theappropriate role, contours and shape of the “publicdomain”? Who should benefit from the protection of traditionalcultural expressions? Since much creativity is derivative,are many traditional cultural expressions not the resultof centuries of cultural intermingling, making it difficult ifnot impossible to identify single community “owners”? Forhow long should any protection be granted? What publicpolicygoals are to be achieved through granting intellectualproperty-like protection to traditional cultural expressions?6.7.1 Indigenous communitiesand new technologiesDigital technologies and computer networks — especiallythe Internet — offer unprecedented opportunities forthe promotion, preservation, revitalization and protection ofintangible cultural heritage. Expressions of traditionalcreativity and innovation can serve as springboards for newcultural expression, especially in the digital world. Digitizedtraditional music, designs and art can reach new audiences inniche markets for distinctive, diverse and “local” culturalgoods and services and, in so doing, promote communityand rural economic and cultural development. However, thedigitization and dissemination of traditional cultural expressionscan lead to their misappropriation and misuse. In somecases, safeguarding efforts have unwittingly led to the unauthorizeddisclosure or commercial exploitation of culturallysensitive materials.As a result, indigenous organizations, museums andarchives, and researchers (such as ethnomusicologists) havecalled for guidance on which intellectual property issues andoptions arise during recording and digitization initiatives. Inresponse, the WIPO Creative Heritage Project 17 is developingbest practices and guidelines for managing intellectualproperty issues when recording, digitizing and disseminatingintangible cultural heritage. These best practices and guidelineswill assist communities and cultural institutions tomanage intellectual property options so as to both preservetheir cultural heritage and protect it against misappropriationand misuse. For example, copyright and related rightscan provide protection for performances, recordings, compilationsand contemporary interpretations of traditional culturalexpressions. Trademarks and other forms of protectionfor distinctive signs and indications can also be useful.Making traditional cultural expressions publicly availabledoes not necessarily place them in the “public domain”;by creating and exercising IPRs in new digital recordings,protection of the cultural expressions can be enhanced. Thedecision as to whether or not to use new technologies andintellectual property tools to participate in the informationeconomy is tied to the overall cultural and economic goalsof the tradition-bearers themselves, on which only theycan decide.15 WIPO (2003), Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions.16 By the WIPO Performances and Phonograms Treaty, 1996.17 See http://www.wipo.int/tk/en/folklore/culturalheritage/index.html.182 CREATIVE ECONOMY REPORT 2010