Prospect of the International Consensus on Traditional Cultural Expressions Protection: Based on the Analysis of GRATK Treaty

Abstract

The topics concerning intellectual property and the protection of traditional resources have been under international discussion coordinated by the World Intellectual Property Organization (WIPO) for more than 20 years. The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was achieved based on the consensus of the origin-disclosure principle and defensive protection preventing the erroneous grant of patents, which leaves a gap with the “prior informed consent + sharing of benefit” mechanism championed by the Convention on Biological Diversity. For the traditional cultural expressions or folklore available in public, the copyright-like protection is controversial due to the obvious divergence between the view of exclusive rights protection and that of free public domain. From the trend of negotiations on reaching an international instrument, a shift from the expectation of “license & royalty” to “attribution & moral rights” as a bottom line might be more realistic for the protection of such folklore already in the public domain, and it is desirable to fully utilize the existing intellectual property system to safeguard the transmission and utilization of folklore by local communities. Adjustments to domestic law should follow the same rationale.

Keywords

traditional cultural expressions (TCEs) / the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty) / international consensus / copyright / moral rights

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