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DIVERSITY NEWS


BY ADRIENNE DOMINGUEZ


NAVIGATING THE IP RIGHTS OF CULTURAL TRADITIONS


“GLOBALIZATION” IS ALL THE RAGE THESE DAYS. BUT WHAT ROLE SHOULD CULTURAL TRADITIONS PLAY IN AN INCREASINGLY INTERCONNECTED WORLD? And who owns the rights to these ancient practices? While many legal profession- als are familiar with the general concepts of copyright, trade- mark rights, and unfair competition, the interplay between intellectual property and cultural traditions is less obvious. Any study of the eff ect of intellectual property (IP) law on


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cultural traditions must begin with two basic questions: “To whom, if anyone, does a nation’s cultural heritage ‘belong’? What is the relationship between IP protection and the pro- motion of cultural diversity?”1


First, we must defi ne the sub-


ject matter of our inquiry. T e World Intellectual Property Association (WIPO) has explained that “[i]n general, it may be said that TCEs [“traditional cultural expressions”]/folklore [are] (i) handed down from one generation to another orally or by imitation, (ii) refl ect a community’s cultural and social identity, (iii) consist of characteristic elements of a commu- nity’s heritage, (iv) are made by ‘authors unknown’ and/or by individuals communally recognized as having the right, responsibility, or permission to do so, (v) are often not created for commercial purposes, but as vehicles for religious and cul- tural expression, and (vi) are constantly evolving, developing, and being recreated within the community.”2


TCEs could be


songs, dances, folktales, art, designs, and any other expression of culture or tradition. WIPO3


and UNESCO4 are among several international


organizations that have drafted model regulations to establish IP or trade protection specifi cally for TCEs. T is article, however, will provide a brief overview of protection for TCEs under established United States IP law and exist- ing international treaties.


PROTECTION IN THE UNITED STATES Generally, United States copyright law provides protec- tion for original works of authorship fi xed in any tangible medium of expression including: 1. literary works; 2. musical works, including any accompanying words;


DIVERSITY & THE BAR® MARCH/APRIL 2014


3. dramatic works, including any accompanying music; 4. pantomimes and choreographic works; 5. pictorial, graphic, and sculptural works; 6. motion pictures and other audiovisual works; 7. sound recordings; and 8. architectural works.5 Unless the work at issue was created as a work-made-for-


hire, ownership of the copyright vests in the initial author or authors of the work.6 When seeking to protect TCEs, however, problems arise in


the frequent circumstance where there is no known or single author. For translations, revisions, and adaptations of TCEs, however, the author may be readily identifi able and can be credited with ownership of the copyrights in those derivative works. Further, under Article 15.4 of the Berne Convention, to which the U.S. is a signatory, anonymous and unpublished works can be protected: “In the case of unpublished works where the identity of


the author is unknown, but where there is every ground to presume that he is a national of a country of the Union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union.”7 Under both the Berne Convention and U.S. copyright


law, groups of persons, such as a tribe or indigenous community, could form a trust, for example, to hold the copyright in a TCE.8


Of course, there may also be hurdles


with respect to attempting to copyright a TCE, such as a folktale, for example, when the TCE has been in the public domain for generations. In addition to copyright protection, if indigenous marks


or designs are used in commerce as an identifi er of source, they may be entitled to protection as trademarks under the Lanham Act.9


or entities from representing their goods as being those of a particular culture when they are not. In fact, T e Indian Arts and Crafts Act of 1990 specifi cally prohibits misrep- resentation in marketing of American Indian or Alaska Native arts and crafts products within the United States.10


MCCA.COM Trademark protection would prevent persons


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