Lewinski, Silke von --- "Adequate Protection of Folklore – A Work in Progress" [2007] ELECD 301; in Torremans, Paul (ed), "Copyright Law" (Edward Elgar Publishing, 2007)

Book Title: Copyright Law

Editor(s): Torremans, Paul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424879

Section: Chapter 9

Section Title: Adequate Protection of Folklore – A Work in Progress

Author(s): Lewinski, Silke von

Number of pages: 25

Extract:

9 Adequate protection of folklore ­ a work
in progress
Silke von Lewinski1



1. Introduction
Adequate protection of expressions of folklore has been claimed, discussed and
tested for a much longer time than protection of other aspects of indigenous
heritage, such as traditional knowledge or traditional names, signs and insignia.
Yet, it seems that the ideal solution has not yet been found. In the past few
years, however, considerable progress has been made in respect of the concrete
drafting of tailor-made provisions, not least as a result of enhanced knowledge
of the particularities of indigenous heritage. This chapter will focus on two
documents which may be considered to represent the most advanced state of
the art in the field to date, namely the Draft Substantive Provisions elaborated
by the WIPO Secretariat on the basis of its earlier documents and comments by
governmental, intergovernmental and non-governmental experts,2 and the
Regional Framework for the Protection of Traditional Knowledge and
Expressions of Culture adopted by the Secretariat of the Pacific Community as
a model law for the Pacific Island countries that wish to enact legislation in this
field.3 Before analysing the different model provisions, a résumé of the previ-
ous attempts to achieve protection of folklore and the possibilities of protecting
folklore by existing intellectual property or similar rights will be presented.

2. Previous attempts to achieve protection of folklore at the
international and national levels

2.1. The Berne Convention
It is not astonishing that the earliest attempts ...