Creative Economy: A Feasible Development Option

6The role of intellectual property in the creative economy6.8 Copyrights and new technologiesThe purpose of the two 1996 WIPO treaties (theWIPO Copyright Treaty and the WIPO Performances andPhonograms Treaty 23 ) was to update and supplement themajor existing WIPO treaties on copyright and related rightsprimarily in order to respond to developments in technologyand in the marketplace. Since the Bern and RomeConventions were adopted or last revised more than a quartercentury ago, new types of works, new markets and newmethods of use and dissemination have evolved. Amongother things, these two WIPO treaties each address the challengesposed by today’s digital technologies, in particular thedissemination of protected material over digital networkssuch as the Internet. For this reason, they have sometimesbeen referred to as the “Internet treaties”.both preserve and protect cultural heritage. Examples ofsuch resources include surveys on practical experiences withIP in the archival practices of institutions and of indigenousand local communities; 18 a searchable database of codes,policies and practices; 19 and a draft publication on IP managementfor museums, archives and libraries, tentatively entitled“Intellectual Property and the Safeguarding ofTraditional Cultures: Legal Issues and Practical Options forMuseums, Libraries and Archives”. 20In parallel to this capacity-building work, negotiationson the protection of traditional cultural expressions (TCE)are taking place internationally at WIPO within theIntergovernmental Committee on Intellectual Property andGenetic Resources, Traditional Knowledge and Folklore (theIGC). 21 Draft provisions for the sui generis protection ofTCEs are currently in negotiation. The provisions seek,among other things, to respond to the needs of safeguardingand the specific IP aspects of registering and documentingTCEs. For example, the draft states that measures to protectTCEs would not apply to the making of recordings andother reproductions of TCEs for the purpose of their inclusionin an archive or inventory for non-commercial culturalheritage safeguarding purposes.In September 2009, WIPO member states renewedthe mandate of the IGC, adopting a clearly defined workplan and terms of reference to guide the Committee’s workover the next two years. They agreed the IGC would undertakenegotiations with the objective of reaching agreementon a text of an international legal instrument (or instruments)that would ensure the effective protection of geneticresources, traditional knowledge and cultural expressions. InJuly 2010, experts from WIPO member states reached anagreement on an international legal instrument to ensure theeffective protection of traditional knowledge, traditional culturalexpressions and genetic resources. Their work focusedon what is considered to be the most mature of the threesubjects, namely TCEs. This broke new ground in talksabout traditional cultural expressions; although the expertshave no mandate to take decisions or adopt any text, theirwork contributes to the evolution of the negotiations. 22 Thistopic is also addressed in chapter 9.Both treaties provide the legal rationale for copyrightowners to be adequately and effectively protected in the digitalenvironment when their works and sound recordings aredisseminated through new digital technologies and communicationsystems. They also create new online rights. Forinstance, Article 8 of the WIPO Copyright Treaty provides aright of communication to the public, “including the makingavailable to the public of their works in such a way thatmembers of the public may access these works from a placeand at a time individually chosen by them”. In addition,Article 6(1) of the Treaty provides an exclusive right toauthorize the making available to the public of originals andcopies of works through sale or other transfer of ownership,that is, an exclusive right of distribution. Such a right, surviv-18 Surveys are available at www.wipo.int/tk/en/folklore/culturalheritage/surveys.html.19 The database may be accessed at www.wipo.int/tk/en/folklore/creative_heritage/index.html.20 Forthcoming, 2010.21 For more information about the IGC see http://www.wipo.int/tk/en/igc.22 See: WIPO News & Events, “Experts Break New Ground in Traditional Cultural Expression Talks”, PR/2010/652, July 2010.23 A number of countries have enacted the provisions of the two treaties in their national legislation. Copyright laws of a wide range of countries are accessible through WIPO’s CLEAdatabase, available at: http://www.wipo.int/clea/en/index.jsp.184 CREATIVE ECONOMY REPORT 2010